Shin (Migration)

Shin (Migration) [2020] AATA 3841 (8 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Jihyo Shin
CASE NUMBER:  1831827
DIBP REFERENCE(S):  BCC2014/87983
MEMBER:Damian Creedon
DATE:8 September 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 8 September 2020 at 4:11pm
CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – disease or condition likely to result in significant cost to Australian community – secondary applicant child with cerebral palsy and intellectual impairment – notice of delegate’s decision not sent to authorised recipient –tribunal’s jurisdiction not conditional on valid notification received – family’s care for child at own expense – criterion applies whether or not public care or services actually used – no response to tribunal’s invitation to request further opinion from medical officer of commonwealth – period of six and a half years since delegate’s decision – referred to department for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 359, 359A, 359C, 360, 363A, 494D
Migration Regulations 1994 (Cth), Schedule 2, cl 572.224; Schedule 4, PIC 4005
CASES
SZIZO v MIAC (2009) 238 CLR 627
SZOFE v MIAC (2010) 185 FCR 129
SZOFE v MIAC [2010] FCAFC 79

STATEMENT OF DECISION AND REASONS
INTRODUCTION: APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 December 2014 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant applied for the visa on 10 January 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.572.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4005 of Schedule 4 to the Regulations was not met.
The applicant applied to the Tribunal for a review of the delegate’s decision by a written application lodged on 11 January 2017.
On 23 February 2017 the Tribunal affirmed the delegate’s decision (First Tribunal Decision).
The applicant appealed the First Tribunal Decision to the Federal Circuit Court of Australia (FCCA) by an application filed on 15 March 2017.
On 29 October 2018 the FCCA made orders, inter alia, that the applicant’s application be remitted the Tribunal for reconsideration.
Reconsideration
On 23 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting her to provide information to the Tribunal in writing confirming that she has satisfactory results of the required medical and x-ray examinations. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing within the prescribed period, ending 7 May 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 28 April 2020 the applicant requested and was granted a four-week extension of time in which to provide the information, to 4 June 2020.
On 4 June 2020 the applicant requested and was granted a further two-week extension of time in which to provide the information, to 18 Jun 2020.
The applicant did not provide the information within the prescribed period as extended and no further extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
On 23 July 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments in writing on information that it considered would, subject to her comments or response, be the reason or a part of the reason for affirming the decision under review. The particulars of the information are:
a.the Decision Record of the Delegate of the Minister, made in respect of the applicant’s visa application on 2 December 2014 (together with its covering letter); and
b.a ‘Form 884: Opinion of a Medical Officer of the Commonwealth’ made in respect of the applicant, dated 1 December 2014.
Copies of the information were attached to the Tribunal’s s.359A invitation. The invitation went on to explain that the information is relevant to the review because the applicant has applied for a Student visa and the documents indicate:
a.that the applicant has been assessed against PIC 4005 of Schedule 4 to the Regulations; and
b.that the applicant does not satisfy PIC 4005(1)(c)(ii)(A) of schedule 4 to the Regulations; and,
if the Tribunal relies on this information in making its decision, it may find that the applicant has failed to satisfy the criterion in clause 572.224 of the Regulations.
Finally, the invitation explained that if the Tribunal made such a finding it may conclude that the applicant is not entitled to the grant of a Student visa.
The invitation was sent to the applicant’s registered migration agent and sought a response by 6 August 2020. The applicant provided a response within the prescribed period, and that response will be referred to by the Tribunal in its analysis below.
On 21 August 2020 the Tribunal wrote to the applicant, inviting her to consider whether she wished to request the Tribunal to arrange for a further opinion from a Medical Officer of the Commonwealth. The invitation attached a written request form and sought the applicant’s response by 4 September 2020. The applicant did not respond to the Tribunal’s invitation by 4 September 2020 (or at all) and no extension of time within which to respond was requested.
In these circumstances, the Tribunal has decided to proceed to a decision. The Tribunal has had regard to all of the information before it, including the information provided to the Tribunal by the applicant, and the information previously provided by the applicant to the Department.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.
HISTORY
This matter presents an unusual history and it is appropriate to outline that history in some detail.
A review of the Department’s file shows the following sequence of events in connection with the applicant’s initial application for a Student visa:
a.The applicant applied for the Student visa on 10 January 2014.
b.The applicant was a ‘secondary’ applicant to her mother’s ‘primary’ Student visa application. There were two other ‘secondary’ applicants, being the applicant’s father and brother.
c.On 14 January 2014 the Department wrote to the applicant’s mother (as the ‘main’ Student visa applicant) requesting ‘more information’ in support of the visa application.[1] The request, under the hand of a Departmental officer, stated, inter alia:
I have begun considering your application for this visa and require additional information. A summary of the information required for each applicant and a more detailed description of each requirement is included in the attached Request Checklist and Detail attachment.
[1] Department file, folio 2.
The ‘Request Checklist and Details’ attachment was directed to each visa applicant, including the review applicant, and included the following request:
Required Health Examinations
If you have already booked your medical, please provide the HAP ID which you used to book your appointment with Medibank health solutions
IF YOU HAVE NOT YEAT BOOKED YOUR MEDICAL PLASE USE THE HAP ID BELOW.
…
(Emphasis in original.)
The ‘Required Health Examinations’ were identical in respect of each visa applicant and were in the following terms:
# Medical Examination (501)
# Chest x-ray (502)
On 6 February 2014 the applicant’s mother, father and brother[2] were granted Student (Temporary) (class TU) visas.[3]
[2] As ‘Main Applicant’ and ‘Secondary Applicants’ respectively.
[3] Department file, folios 21 – 24.
There then follows in the Department file the following three items of correspondence in respect of the applicant:
a.An undated letter bearing the title “To whom it may concern” from the Marsden Intensive English Centre;[4]
b.A letter dated 15 April 2014 to ‘Medibank Health Solutions’ from an Educational Psychologist bearing the subject title “Psycho educational report”;[5] and
c.A letter dated 8 September 2014 bearing the title “To Whom It May Concern” from ‘Chalmers Road School’.[6]
[4] Department file, folio 25.
[5] Department file, folio 31.
[6] Department file, folio 60.
It is unnecessary for the purposes of this decision to relate the contents of this correspondence in detail, suffice it to note that each piece comments upon various aspects of the applicant’s health and education circumstances from both clinical and practical perspectives.
On 25 September 2014 the Department wrote to the applicant’s mother (as the ‘main’ Student visa applicant, and the applicant’s guardian), inviting comment upon ‘adverse information received’ in respect of the applicant. That information is set out in the Department’s letter in the following terms:
Adverse information received
The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
Form and severity of the applicant’s condition: The applicant has been diagnosed with Cerebral Palsy, complicated by an intellectual impairment reflected in extremely low scores on standard tests. She requires a wheelchair for mobility, assistance with Instrumental Activities of Daily Living and attends a Special School.
Provision of services to a hypothetical person with the applicant’s condition: A person with this type and degree of functional impairment would be expected to continue to require educational support and disability services.
(Emphasis in original.)
It appears that the Department obtained that information from an opinion dated 24 September 2014 prepared by ‘[a] Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulation 1994 are met’ (September MOC Opinion). Omitting identifying information, it is appropriate to set out the findings in the September MOC Opinion in full:
FORM 884: OPINION OF A MEDICAL OFFICER OF THE COMMONWEALTH
THE APPLICANT DOES NOT MEET THE HEALTH REQUIREMENT
…
The applicant has been assessed against Public Interest Criterion (PIC) 4005 (see attached extract) for the period of 3 years.
The applicant does not satisfy sub-subparagraph [sic] PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 13 year old person with:
-Moderate-To-Severe functional impairment
Form and severity of the applicant’s condition: The applicant has been diagnosed with Cerebral Palsy, complicated by an intellectual impairment reflected in extremely low scores on standard tests. She requires a wheelchair for mobility, assistance with Instrumental Activities of Daily Living and attends a Special School. Provision of services to a hypothetical person with the applicant’s condition: A person with this type and degree of functional impairment would be expected to continue to require educational support and disability services. This condition is likely to be Permanent [sic].
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
Special education services
State disability services
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in areas of health care and/or community services.
(Emphasis in original.)
The September MOC Opinion then sets out the information to which the author had regard in its preparation, and that information includes the documents referred to at para [23] hereof.
The applicant responded to the Department’s invitation of 25 September 2014 by a letter from her solicitors dated 27 November 2014.[7] Accompanying the letter was a ‘progress report’ from the principal of the applicant’s school and a ‘comprehensive clinical psychological report’ prepared in respect of the applicant. The response advanced the following argument for the Department’s consideration:
[The] psychological report and [the] principal’s progress report clearly indicate that [the applicant] has a [sic] fully adjusted to meet her personal and educational needs at school and we feel that she should continue with the current arrangements as long as she continues to improve her progress.
[7] Department file, folio 69.
On the Department’s file, dated 1 December 2014, is what appears to be an ‘updated’ MOC Opinion (December MOC Opinion).[8] The December MOC Opinion is in materially identical terms to the September MOC Opinion; however, omitting identifying information, it is helpful to set out its findings in full:
[8] Department file, folio 124.
FORM 884: OPINION OF A MEDICAL OFFICER OF THE COMMONWEALTH
THE APPLICANT DOES NOT MEET THE HEALTH REQUIREMENT
…
The applicant has been assessed against Public Interest Criterion (PIC) 4005 (see attached extract) for the period of 3 years.
The applicant does not satisfy sub-subparagraph [sic] PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 14 year old person with:
-Moderate-To-Severe functional impairment
Form and severity of the applicant’s condition: The applicant has cerebral palsy, which has resulted in an intellectual disability and she also requires a wheelchair for mobility and assistance with toileting, transfers and other activities of daily living. She currently attends a special school. Provision of services to a hypothetical person with the applicant’s condition is likely to include state disability services and a supported education environment. This condition is likely to be Permanent [sic].
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
Special education services
State disability services
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in areas of health care and/or community services.
(Emphasis in original.)
The December MOC Opinion then sets out the information to which the author had regard in its preparation, and that information includes the documents referred to at para [23] hereof and the documents accompanying the applicant’s solicitor’s response to the Department referred to at para [28] hereof.
On 2 December 2014 the delegate of the Minister for Immigration decided to refuse to grant the applicant a Student visa on the ground that:
Clause 572.224 requires the applicant to provide the Minister with evidence he/she satisfies a range of public health criteria (PIC'S) including criterion 4005. To satisfy PIC 4005, an applicant is required to provide satisfactory results of a medical and x-ray examination.
To date you have failed to provide such evidence and therefore you do not meet public interest criteria 4005 and consequently do not satisfy criteria 572.224.
On the Department’s file there is a cover letter for transmission of the delegate’s decision record by email, although there is no direct evidence of transmission of the decision, such as a copy of a ‘sent email’.
The next correspondence appearing on the Department’s file is an email dated 28 December 2016 that appears to have been sent by the applicant’s (former) migration agent requesting a copy of the delegate’s decision record. In the email the agent identifies the applicant and the Departmental case officer assigned to the applicant’s case and states, materially:
I would like to request [sic] visa refusal letter for [the applicant] …
[The applicant’s case officer] sent [sic] email to me in 2014, December but I couldn’t received [sic] it and [can’t] find that email due to my company closed [sic] in 2015.
The issue of transmission was litigated before the FCCA and the Tribunal as presently constituted is bound by the following findings made in respect of the First Tribunal Decision:
…[The] Tribunal erred in finding that by letter dated 2 December 2014, the applicant was notified of the impugned decision (being a decision of the delegate of the first respondent dated 2 December 2014) in accordance with the statutory requirements. The said notification was not in accordance with the statutory requirements because it was not sent to the applicant’s authorised recipient, Cambridge Lawyers. The Tribunal’s error led it to erroneously determine that it had no jurisdiction to consider the applicant’s application for review. This concession is made on the basis that by a letter from Cambridge Lawyers, dated 27 November 2014 and sent by registered post to the then Department of Immigration and Border Protection (Annexure B of the affidavit of So Youn Park affirmed on 14 March 2017), the applicant varied, pursuant to s 494D(3) of the Migration Act 1958 (Cth) (Act), the previous notice given under s 494D(1) of the Act, and appointed Cambridge Lawyers as her authorised recipient. The notification of the delegate’s decision was not sent to Cambridge Lawyers as required by section 494D(1) of the Act.
The matter must proceed, then, on the finding that notification of the delegate’s decision was not sent to her representative as required by section 494D(1) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4005 as required by the criteria for the grant of the visa. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case was found by the delegate to not meet PIC 4005 and, consequently, to not satisfy criteria 572.224 of Schedule 2 to the Regulations.
Does the Tribunal have jurisdiction in this review?
The first consideration for the Tribunal is whether, in light of the FCCA’s findings in respect of s.494D(1), it has jurisdiction in this matter.
The Tribunal’s jurisdiction to review a delegate’s decision is not limited or excluded by the fact that the Department did not comply with s 494D(1) of the Act. The consequence of such non-compliance is that the authorised recipient (and therefore the applicant) has not been validly notified and the prescribed time period in which the applicant may lodge an application for review may not have started to run.[9] If the time for applying for review has not started, a valid review application can nevertheless still be lodged.[10]
[9] See SZIZO v MIAC (2009) 238 CLR 627
[10] See SZOFE v MIAC (2010) 185 FCR 129 at [33]-[35]
Applications for review of Part 5-reviewable decisions must be made in the manner specified under s 347, which does not prescribe valid decision notification from the Department as a jurisdictional requirement. Section 347(1)(b) provides, however, that the application must be given to the Tribunal within the prescribed period, being a period ending not later than a specified period. On a plain reading of the legislation it appears that, if the Department has not complied with s 494D(1) and the prescribed period has not started, the applicant cannot apply for review within the prescribed period.

However, in SZOFE v MIAC,[11] the Federal Court considered that the Parliament could not have intended that a valid application for review that was physically within the registry of the Tribunal before time commenced to run should be treated as ineffective simply because it was received by the registry before the commencement of the relevant period for review. At [35], Justice Emmett held that the jurisdiction of the Tribunal was not conditional upon a valid application being lodged only during the period commencing once a valid notification had been received.
[11] [2010] FCAFC 79
Accordingly, it appears that the applicant could still lodge a valid application for review where the Department has not complied with the requirements of s 494D(1).
The Tribunal therefore concludes that it has jurisdiction in this matter.
Does the applicant satisfy PIC 4005?
In response to the Tribunal’s s.359A invitation (transmitted on 23 July 2020) the applicant’s mother provided two documents through her lawyers:
a.a ‘Medical Certificate’ certifying that the applicant has:
i.spastic/dystonic quadriplegic cerebral palsy; and
ii.no evidence of pulmonary tuberculosis on a chest x-ray conducted on 18 June 2020 (and including the results of that x-ray); and
b.a statutory declaration declared by the applicant’s mother on 6 August 2020 (Statutory Declaration).
The Statutory Declaration is brief, and it is appropriate to reproduce its substantive assertions in full (the Tribunal has added paragraph numbers for ease of reference):
[1]I am the mother of [the applicant] and my daughter has been suffering from spastic/dystonic quadriplegic palsy [sic] as shown in the attached medical certificate.
[2]I understand that under PIC 4005 in schedule 4 of the Migration Regulations 1994 the visa applicant needs to meet the condition that the visa applicant’s health condition should be free from a disease which would result in a significant cost to the Australian community.
[3]I also understand that my daughter’s visa was rejected because she was not able to satisfie [sic] the assessment with her condition.
[4]However, since my family came to Australia in 2013, we have not relied on any government or community assistance in taking care of our daughter, [the applicant], and we have been managing our lovely daughter effectively within our own limits and expenses.
[5]As [the applicant’s] medical condition is [a] permanent one and considering the nature of her medical condition, she does not need to see a doctor or to have medical treatment regularly. All she needs is care from our family members to supervise her in rotation which we have been doing since our arrival in this country.
[6]I can sincerely confirm that our family members will not rely on any assistance of the Australian government and the community in taking care of my daughter while undertaking our studies.
The Tribunal has had specific regard to the evidence provided by the applicant’s mother at paras [4] to [6] of the Statutory Declaration.
Notably, the applicant does not seek to challenge the conclusions reached in either the September MOC Opinion or the December MOC Opinion.
In essence, the argument advanced on the applicant’s behalf is that, as a matter of fact, the applicant has not availed herself of ‘any government or community assistance’ since she and her family arrived onshore in December 2013.
PIC 4005(1)(c)(ii) in Schedule 4 to the Migration Regulations provides as follows:
4005(1) The applicant:
…
(c)is free from a disease or condition in relation to which:
…
(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; …
(Underlining added.)
On a plain reading of PIC 4005 the argument advanced by the applicant, taken at its height, must fail; consideration by the decision-maker of ‘whether the health care or community services [likely to be necessitated by the applicant’s condition] will actually be used in connection with the applicant’ is specifically excluded by the criterion.
Having assessed the information before it, the Tribunal finds that:
a.neither the September MOC Opinion nor the December MOC Opinion meet PIC 4005; and
b.the applicant has not provided a further or other opinion from a Medical Officer of the Commonwealth that meets PIC 4005 despite the Tribunal’s invitation of 21 August 2020 for her to do so.
It follows that the requirements of PIC 4005 are not met by the applicant.
As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
Final comments
Before formally recording its decision, the Tribunal considers it appropriate to note the following brief comments.
Although the initial decision in respect of the applicant’s Student visa was made by the Department in December 2014, it appears likely on the evidence available to the Tribunal that the applicant and her family did not become aware of that decision until the applicant’s mother applied for a further Student visa in or around late-2016.[12]
[12] There is no evidence to suggest that that further Student visa was not granted.
At that stage the family had been onshore for some three years.
Upon receiving notice of the delegate’s decision in respect of the applicant, the applicant and her family appear to have acted quickly to seek a merits review by filing an application for review with the Tribunal on 11 January 2017.
The matter has now been the subject of Tribunal and Judicial consideration, and a further three-and-a-half years have passed during which the applicant and her family have been onshore.
The fact of the applicant and her family having now lived onshore for some six-and-a-half years is not a relevant consideration for the decision currently before the Tribunal.
That said, the overall time the applicant has been onshore through no fault of her own, and her present circumstances in Australia and those of her family as a whole, appear to the Tribunal to be matters which ought to be referred to the Minister to consider whether an intervention is justified in this case
The Tribunal will make that referral.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Damian Creedon
Member

ATTACHMENT
Migration Regulations 1994
Schedule 4
4005(1) The applicant:
(aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i)must undertake any medical assessment specified in the instrument; and
(ii)must be assessed by the person specified in the instrument;
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and
(a)is free from tuberculosis; and
(b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(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; and
(d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.
(2)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.
(3)If:
(a)the applicant applies for a temporary visa; and
(b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);
the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

[2020] AATA 3841

8 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Appeal

Judicial Review

Statutory Construction