Shaikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3487
•23 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shaikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3487
File number(s): SYG 1609 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 23 December 2020 Catchwords: MIGRATION – application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision not to grant applicants Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa because, based on the opinion of a medical officer of the Commonwealth (MOC), one of the applicants failed to satisfy PIC4005 – whether the MOC erred in assessing the application of PIC4005 for the period of a permanent stay in Australia – no error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 30, 476
Migration Regulations 1994 (Cth) Sch 2, cl 188.229A, Sch 4, Public Interest Criterion 4005
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Alinta Assest Management Pty Ltd v Essential Services Commission (No 2) [2007] VSC 210
Wong & Ors v Minister for Immigration & Anor [2018] FCCA 3490
Number of paragraphs: 23 Date of hearing: 9 December 2020 Place: Sydney Counsel for the Applicants: Mr L Karp, by video Solicitor for the Applicants: Parish Patience Legal & Migration Services Counsel for the Respondent: Mr T Reilly, by video Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 1609 of 2017 BETWEEN: MUHAMMAD IQBAL SHAIKH
First Applicant
SHAISTA PARVEEN SHAIKH
Second Applicant
GHAZANFAR SHAIKH (and others named in the Schedule)
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
23 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants pay the respondent’s costs set in the amount of $5,400.
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether, by accepting as correct the opinion of a “Medical Officer of the Commonwealth” (MOC) that the second applicant did not meet public interest criterion 4005 (PIC4005), a delegate of the respondent (Minister) made a jurisdictional error. More particularly, the question is whether, by assessing whether one of the applicants met the requirements of PIC4005 on the assumption that the applicants would be permanent residents of Australia, the MOC misconstrued PIC4005(2).
BACKGROUND
On 8 December 2014 the first applicant, together with seven members of the first applicant’s family unit, applied for a Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (subclass 188) visa (Business visa).
To have been entitled to the grant of a Business visa the applicants had to satisfy, among other things, cl.188.229A of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly provides:
(1)The applicant satisfies public interest criterion 4005.
(2)Each member of the family of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.
PIC4005(1) relevantly provides:
The applicant:
. . . .
(c)is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (2); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; . . .
PIC4005(2) provides:
For subparagraph (1)(c)(i), the period is:
(a) for an application for a permanent visa—the period commencing when the application is made; or
(b)for an application for a temporary visa:
(i)the period for which the Minister intends to grant the visa; or
(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph—the period commencing when the application is made.
By instrument IMMI 12/025 made on 12 June 2012, and commencing on 1 July 2012, the Minister specified a number of subclasses of visa, including “Subclass 188 – Business Innovation and Investment (Provisional)”, for the purposes of, among other conditions, PIC4005(2)(b)(ii).[1]
[1] This instrument was replaced by IMMI 16/046 made on 5 May 2016 which, in turn, was replaced by IMMI 16/067 made on 26 June 2016.
Subregulation 2.25A(1) of the Regulations provides that, in determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a MOC on whether a person meets the requirements of, among other things, PIC4005(1)(c). Subregulation 2.25A(3) provides:
The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
By letter dated 20 November 2015 the Department of Immigration and Border Protection (Department) required each of the applicants to undertake a health examination. By letter dated 18 December 2015 the Department informed the applicants that the second applicant had been evaluated by a MOC as not meeting the health requirements. The letter attached a report prepared by a MOC, in which he reported as follows:[2]
(a)the second applicant had been assessed under PIC4005 “for the period of a permanent stay in Australia”;
(b)the second applicant has asymptomatic chronic viral Hepatitis B and is currently on antiviral medications;
(c)a hypothetical person with the second applicant’s condition, at the same severity as the second applicant, would be likely to require specialist health monitoring and management with long term antiviral therapy, and would be likely to require health care or community services during “the period specified above”;
(d)the service a hypothetical person with the second applicant’s condition would require would include medical and pharmaceutical services; and
(e)the provision of the services referred to in (d) “would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services”.
[2] CB166
By email sent on 8 January 2016 the applicants’ representative observed that the Business visa, if granted, would be a temporary visa for four years.[3] The Department responded by email sent on 15 January 2016, stating:[4]
Please note that the EB188 Business Innovation stream visa is a provisional visa as it is the first stage of a two stage process to a permanent visa. For the purpose of health this visa is assessed as a permanent visa.
[3] CB173
[4] CB176
On 7 March 2016 a delegate of the Minister refused to grant the Business visa because he was not satisfied the requirements cl.188.229A of Schedule 2 to the Regulations had been met. For reasons that are not apparent, however, this Court, by consent, set aside the delegate’s decision on 20 June 2016.
The second applicant was again assessed by a MOC, who issued a report dated 20 October 2016 which reported as follows:[5]
(a)the second applicant had been assessed under PIC4005 “for the period of a permanent stay in Australia”;
(b)the second applicant has asymptomatic chronic viral Hepatitis B, and is currently on antiviral pharmaceuticals;
(c)a hypothetical person with the same condition as the second applicant, and at the same severity, would be likely to require specialist health monitoring and management with long term antiviral therapy, and would be likely to require long term specialist health care services, including, but not limited to antiviral pharmaceuticals;
(d)the second applicant’s condition is likely to be permanent;
(e)a hypothetical person with the second applicant’s condition, and at the same severity as the second applicant, would be likely to require health care or community services during the “period specified above”;
(f)the services the second applicant would require would be likely to include medical services and pharmaceuticals; and
(g)the provision of the services referred to in (f) “would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services”.
[5] CB262
On 1 December 2016 the Department informed the applicants of the MOC’s assessment.[6] By letter dated 23 December 2016 the applicants’ representative submitted this Court has set aside the delegate’s earlier decision because the MOC had been wrong to assess the second applicant against PIC4005 based on a permanent stay, and urged the Department to direct the MOC to assess the applicants against PIC4005 on the assumption they are applying for temporary visas.[7] The Department responded by email sent on 16 January 2017.[8]
[6] CB259
[7] CB264
[8] CB271
A delegate refused to grant the applicants a Business visa because a MOC had assessed the second applicant as failing to satisfy PIC4005 and, for that reason, the applicants did not satisfy cl.188.229A of Schedule 2 to the Regulations.
GROUND OF APPLICATION
The applicants rely on the following ground of application:
The delegate and the Medical Officer of the Commonwealth (MOC) (whose opinion the delegate was required to accept as correct as to whether a person met Cl. 4005 of Schedule 4 of the Migration Regulations, 1994 (PIC 4005)) misconstrued and misapplied PIC 4005.
Particulars
(a)Both the delegate and the MOC erred in failing to recognise, as was required by PIC 4005(2), that the visa the subject of the applicants’ application was a temporary rather than a permanent visa when considering whether the second applicant had a disease or condition that was likely to result in significant cost to the Australian community.
(b)The delegate and the MOC erred in calculating the cost to the Australian community of the second applicant’s disease or condition on the basis that the visa applied for;
“ . . . is a provisional visa as it is the first stage of a two stage process to a permanent visa. For the purposes of health this visa is assessed as a permanent visa.” (CB 176)
and that,
“The Migration Regulations specifies the period of assessment for medical examination for subclass 188 visas and separately specifies the period of assessment for permanent visas. … subclass 188 visa is a provisional visa, which is it has been assessed for the period of assessment of a permanent visa.” (CB 275)
Parties’ submissions
In their written submissions filed on 5 March 2020 the applicants submit that s.30 of the Act distinguishes between temporary and permanent visas; PIC4005(2) itself distinguishes between the calculation of expenses for permanent and temporary visas; a Business visa is unequivocally a temporary visa and the applicants’ application for such visa was unequivocally an application for a temporary visa; neither the Act nor the Regulations contained any provision authorising the assessment of costs to the Australian community on the assumption that a person would be granted a temporary visa with the possibility of that temporary visa leading to the application for a permanent visa; and, for these reasons, there is a clear implication that, in relation to the Business visa for which the applicants applied, PIC4005 ought to be assessed only for the period for which the Business visa would have been granted.
In his written submissions the Minister submitted that the Business visa was among the temporary visas specified by an instrument made by the Minister and, for that reason, PIC4005 was to be assessed for the period the second applicant required health care when the application was made, which is the same period as for an application for a permanent visa. The Minister relied on a judgment of this Court in Wong & Ors v Minister for Immigration & Anor.[9]
[9] Wong & Ors v Minister for Immigration & Anor [2018] FCCA 3490 (Judge Jarrett)
In their written submissions in reply, the applicants submit the judgment in Wong is clearly incorrect. The applicants submit:
(a)in construing PIC4005 the starting point is to look at the ordinary and natural meaning of the words of the text and the context in which they appear;[10]
(b)PIC4005(1)(c)(i) requires that a person be free from a disease or condition during a period, that period being “the period … described in subclause (2)”;
(c)PIC4005(2)(a) deals with permanent visas commencing on the day an application for a visa is made; and
(d)PIC4005(2)(b) deals with temporary visas that have two differently stated “start dates”, the first being the “start date” of the visa in question, and the second being “when the application is made”; but both have the same “end date”, being the day on which the visa expires.
[10] Relying on Alinta Assest Management Pty Ltd v Essential Services Commission (No 2) [2007] VSC 210, at [238]; and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, at [47]
Determination
I accept the applicants’ submission that whether the MOC was correct to assess the application of PIC4005 on the assumption that the second applicant would hold a permanent visa turns on ascertaining the ordinary meaning of the words in PIC4005(2) considered in their statutory context. It is therefore necessary to consider the words of the text; and the following observations may be made.
(a)PIC4005(2) is concerned with the specification of a period in relation to a person for the purposes of PIC4005(1)(c)(i). That is, PIC4005(2) specifies the period by reference to which a person would be likely to require health care or community services, or for which the person will be required to meet the criteria for the provision of a community service.
(b)PIC4005(2) specifies two periods. The first is that specified by PIC4005(2)(a) and PIC4005(2)(b)(ii); and the second is the period specified by PIC4005(2)(b)(i).
(c)The period specified by PIC4005(2)(a) and PIC4005(2)(b)(ii) is defined by reference to a known commencement date, namely “when the application is made”, but without an end date that can be known in advance. In other words, the period specified in PIC4005(2)(a) and PIC4005(2)(b)(ii) is aleatory. By not specifying an end date, the implication is that the period specified in PIC4005(2)(a) and PIC4005(2)(b)(ii) in relation to which PIC4005 will be assessed is the period commencing when the person applied for the visa, and ending when the person would be expected to die.
(d)On the other hand, the period specified by PIC4005(2)(b)(i) is not aleatory. It is the period for which the Minister intends to grant the visa. That incorporates both a known commencement date, and an end date that is known in advance, the beginning date being the date from which the visa will have effect, and the end date being the date on which the visa will cease to have effect.
(e)The aleatory period specified in PIC4005(2)(a) and PIC4005(2)(b)(ii) applies to persons who apply for a permanent visa (PIC4005(2)(a)), and to persons who apply for a temporary visa, if the visa is of a subclass specified by the Minister in an instrument made under PIC4005(2)(b)(ii).
(f)The period specified in PIC4005(2)(b)(i) applies to a person who applies for a temporary visa, provided it is not of a subclass specified by the Minister in an instrument made under PIC4005(2)(b)(i).
The applicants’ submissions rely on PIC4005(2)’s distinguishing between applications for a permanent visa and applications for a temporary visa; and they submit that it is this distinction which accounts for two different periods, one for permanent visas, and one for temporary visas. That, however, ignores the text of PIC4005. On a plain reading of the text, PIC4005 specifies two periods; and it does so by the use of two, and only two sets of words – “the period commencing when the application is made” for the period specified in PIC4005(2)(a) and PIC4005(2)(b)(ii), and “the period for which the Minister intends to grant the visa” for the period specified in PIC4005(2)(b)(i). The period specified in PIC4005(2)(a) and PIC4005(2)(b)(ii) is aleatory; and it is specified in relation to applications for permanent visas and for temporary visas of the class that fall within PIC4005(2)(b)(ii). The period specified in PIC4005(2)(b)(i) is not aleatory; and it is specified in relation to applications for temporary visas of a class that do not fall within PIC4005(2)(b)(ii).
The MOC did not in terms say the second applicant was assessed by reference to her expected life. By assessing the second applicant “for the period of a permanent stay in Australia”, however, it is reasonable to infer, and I find, that the MOC assessed the second applicant on the basis of an assumed life expectancy and, for that reason, on the basis of the period provided for in PIC4005(2)(b)(ii).
My analysis is consistent with the reasoning in Wong. I am, therefore, not satisfied that Wong is wrong or clearly wrong.
DISPOSITION AND COSTS
The MOC did not make any error in assessing the second applicant “for the period of a permanent stay in Australia”. I propose, therefore, to order that the application be dismissed. Counsel for the parties agreed that costs should follow the event. Counsel for the Minister submitted that if the Minister were to succeed he would also seek an order that the Minister’s costs be set in the amount of $5,400.
There is no reason why costs should not follow the event; and I am satisfied that $5,400 is a fair measure of the Minister’s costs which in justice the first and second applicants should be ordered to pay.[11] I also propose to order that the first and second applicants pay the second respondent’s costs set in the amount of $5,400.
[11] The other applicants are the children of the first and second applicants.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 23 December 2020
SCHEDULE OF PARTIES
SYG 1609 of 2017 Applicants
Fourth Applicant:
YASMEEN SHAIKH
Fifth Applicant:
MUHAMMAD ABDULLAH SHAIKH
Sixth Applicant:
BUSHRA SHAIKH
Seventh Applicant:
YUSRA SHAIKH
Eighth Applicant:
TASLEEM SHAIKH
0