Singh v Minister for Immigration - [2015] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2193

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Robinson v Minister for Immigration [2005] FCA 1626
Traill & Ors v Minister for Immigration & Anor [2013] FCCA 2

First Applicant:

NAVJOT SINGH

Second Applicant:

MANPREET KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2498 of 2014

Judgment of:

Judge Driver

Hearing date:

13 August 2015

Delivered at:

Sydney

Delivered on:

13 August 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Ms R Krishnan of Australian Government Solicitor

INTERLOCUTORY ORDERS

The name of the second respondent is to be amended to the Administrative Appeals Tribunal.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2498 of 2014

NAVJOT SINGH

First Applicant

MANPREET KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 August 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled residence visas. There are two applicants who are a husband and wife. The relevant visa claims were made by the first applicant, Mr Singh.
Background facts relating to the visa application and the decision on it are set out conveniently in the Minister’s outline of submissions filed on 6 August 2015.
The primary visa applicant, Mr Singh is a citizen of India. He is 27 years old, and is married to the second visa applicant, Ms Kaur (the dependent applicant)[1]. In July 2012 Mr Singh had a renal transplant. On 14 November 2012, the applicants applied for the visas[2].
[1] Court Book (CB) 2-3
[2] CB 1-66
On 17 February 2014, the Minister’s delegate refused to grant the visas to the applicants on the basis that Mr Singh did not satisfy clause 885.224 of Schedule 2 to the Migration Regulations 1994 (Regulations). Mr Singh was assessed as not meeting the health criteria in Public Interest Criterion 4005 (PIC 4005) of Schedule 4 to the Regulations[3].
[3] CB 113-120
On 8 April 2014, the Tribunal invited the applicants to comment on or respond to information, being the opinions from the Medical Officers of the Commonwealth that the applicant did not meet PIC 4005(1)(c). The Tribunal made plain that if this criterion was not met, the visa could not be granted and the Tribunal would have to affirm the decision under review[4]. A subsequent invitation to similar effect, relating to a Review Medical Officer of the Commonwealth’s (RMOC) report dated 16 July 2014 that also found that Mr Singh did not meet PIC 4005(1)(c), was issued on 1 August 2014[5].
[4] CB 153-164
[5] CB 202-203
On 15 August 2014, the visa applicants appeared before the Tribunal at a hearing. They were assisted by a registered migration agent[6].
[6] CB 219-220
The Tribunal affirmed the delegate’s decision on 20 August 2014[7].
[7] CB 230-236

The present proceedings

When this matter came before me for first court date directions on 16 October 2014 I gave the applicants the opportunity to file and serve an amended application and additional evidence. The application as filed on 8 September 2014 only asserted jurisdictional error in the most general terms.
I indicated to the applicants that they would be assisted if they could deal with any issue of asserted error more specifically. On 13 November 2014 Mr Singh filed what is described as an affidavit, but which is in reality, a submission. The affidavit attaches, among other things, a statutory declaration in which Mr Singh set out arguments of invalidity. Mr Singh confirmed from the bar table this afternoon that the statutory declaration sets out the grounds of review that he wishes the Court to address.
I have before me as evidence the book of relevant documents filed on 28 October 2014.
The Minister’s submissions set out the relevant legal framework.
Clause 885.224(a) of Schedule 2 to the Regulations mandates that the visa applicant satisfy PIC 4005. PIC 4005(1)(c) requires that a visa applicant be 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 [PIC 4005(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 [visa] applicant.
For the purposes of PIC 4005(1)(c)(i), the relevant period for an application for a permanent visa is the period commencing on the date of application.
Regulation 2.25A(3) of the Regulations provides that the decision-maker is to take the opinion of the Medical Officer of the Commonwealth as correct for the purposes of deciding whether a person meets the health requirement in PIC 4005. The Procedures Advice Manual (PAM3) relevantly provides that in assessing the lawfulness of an opinion of the Medical Officer of the Commonwealth, that officer should:
a)list the reports which they have considered in forming the opinion;
b)state the health condition which the visa applicant has;
c)describe the severity of the condition;
d)describe the health care or community services likely to be required by a hypothetical person who has the same condition as the visa applicant (including the same severity), and
e)specify the period of stay that the visa applicant has been assessed against (PAM3 [74.2] in The Health Requirement & Visa Decision-making).
The Minister’s submissions also deal with what occurred before the Tribunal.
The Tribunal determined that the issue on review was whether the applicant met PIC 4005, which was a mandatory requirement for the grant of the visa. The Tribunal had regard to the following evidence:
a)the opinion of the Medical Officer of the Commonwealth dated 8 August 2013[8];
b)the opinion of the Medical Officer of the Commonwealth dated 31 January 2014[9];
c)the opinion of the RMOC dated 16 July 2014[10]; and
d)the medical evidence provided by the applicants[11].
[8] at CB 231 [7]
[9] at CB 231-232 [8]
[10] at CB 232 [10] and [13]
[11] at CB 231-232 [8], [11] and [12]
At the Tribunal hearing, the Tribunal noted the objections made by Mr Singh as to the validity of the opinion of the RMOC. The Tribunal gave Mr Singh the opportunity to comment on its view that the opinion was validly made[12]. The Tribunal also noted the evidence of Ms Kaur that her husband “always worked in Australia” and went home for treatment when he was ill[13].
[12] CB 233 [17] and [20]
[13] CB 233 [21]
The Tribunal set out the relevant legal principles pertaining to the assessment of the validity of an opinion of the Medical Officer of the Commonwealth, and the relevant requirements of PIC 4005(1)[14]. The Tribunal noted that the RMOC’s opinion and conclusion as to the applicant’s non-satisfaction of PIC 4005(1) for the relevant period[15]. The Tribunal rejected the objection made by Mr Singh as to the validity of the opinion, and concluded that the opinion was validly made[16].
[14] CB 234 [22]-[27]
[15] CB 234 [28]-[30]
[16] CB 235 [31]-[32]
The Tribunal concluded that Mr Singh did not satisfy PIC 4005(1)(c)(ii)(A) and 4005(1)(c)(ii)(B)[17]. The Tribunal concluded that he did not meet clause 885.224 for the grant of the visa, and therefore that the decision of the delegate must be affirmed[18].
[17] CB 235 [33]
[18] CB 235 [34]-[35]
I agree with the Minister’s submissions concerning the very general grounds in the application as originally filed.
The application contains two grounds. The first is a generalised assertion of jurisdictional error. The second asserts that the Tribunal ignored relevant material. In the absence of any particulars or evidence, neither establishes jurisdictional error.
It was noted that Mr Singh challenged the validity of the opinion of the RMOC in the Tribunal. Insofar as he seeks to reagitate that objection, it must fail.
In Robinson v Minister for Immigration[19], Siopsis J identified the “proper test” to be applied to assessing the legality of an opinion of a Medical Officer of the Commonwealth in application of PIC 4005(c). His Honour relevantly stated[20]:
A proper construction of [PIC 4005] requires the [Medical Officer of the Commonwealth] to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the [Medical Officer of the Commonwealth] is to proceed to make the assessment at a higher level of generality of by reference to a generic form of the condition.
[19] [2005] FCA 1626
[20] at [43]
More recently, in Traill & Ors v Minister for Immigration & Anor I identified that[21]:
The task of the [Medical Officer of the Commonwealth] was to prepare a report setting out his opinion, not to give reasons for it. The task of the Court is to consider whether the report contained what was necessary to support the decision…
[21] [2013] FCCA 2 at [19]
It is clear that the RMOC complied with these requirements. It follows that the opinion was validly made.
In his statutory declaration Mr Singh makes the following assertions:
a)“The Tribunal has not considered reports of Professor Elder and Dr Nankivell with reference to the decision made on 20 August 2014”;
b)“The Tribunal has considered RMOC’s Report which has been concluded with Reference to as a hypothetical person and not particular in my case.”;
c)“When I argued about the general opinion of RMOC in line with clause 5.6.3 of ‘Notes for guidance for medical officers of the Commonwealth of Australia’ I was told that clause 5.6.3 refers to general opinion which I believe are two different statements made by Tribunal towards conclusion of my case.”.
Mr Singh in oral submissions took me to two opinions by Dr Elder which are reproduced at CB 196, 197 and 201. The essence of Mr Singh’s submissions is that the opinion of Dr Elder does not support a conclusion that he will require a fresh kidney transplant after 20 years or indeed at any particular time in the future. The prognosis of Dr Elder is that it is possible that he may not require a further transplant at all.
While I accept that that is a reasonable interpretation of Dr Elder’s opinion, that opinion was available to the Tribunal and was considered by it. I agree with the Minister’s submissions that the opinion to the Tribunal was required to address a position of a hypothetical person rather than the specific circumstances of Mr Singh. The medical opinion available to the Tribunal from the RMOC satisfied the statutory requirements. The Tribunal was therefore required to rely upon it. It necessarily followed from that opinion that Mr Singh was unable to satisfy the public interest criterion that he needed to satisfy in order to qualify for the visa he sought.
Paragraph a) of the statutory declaration is misconceived. As noted at [10]-[12] of the Tribunal’s decision, Mr Singh requested, and the Tribunal granted, an adjournment to enable him to obtain further medical evidence from Dr Nankivell and Professor Elder and seek the opinion of a RMOC. Mr Singh subsequently provided that medical evidence. As noted in the opinion of the RMOC, the reports of Professor Elder and Dr Nankivell were “noted and considered”[22]. The Tribunal was not required to consider those reports independently of the RMOC opinion. To the contrary, regulation 2.25 required the Tribunal to take the opinion of the RMOC as correct for the purposes of deciding whether the applicant met the health requirement in PIC4005. The only question for the Tribunal was whether the RMOC opinion was validly made.
[22] CB 205
Paragraph b) is also misconceived. The RMOC was required to consider the position of a hypothetical person in determining whether the applicant satisfied PIC4005(1)(c).
PAM3 provides that in assessing the lawfulness of an opinion of a RMOC, the delegate should confirm that the officer has “described the health care or community services likely to be required by a hypothetical person who has the same condition as the applicant (including the same severity)” [emphasis in original][23].
[23] PAM3 [74.2] in The Health Requirement & Visa-Decision Making
Regarding paragraph c), as the Tribunal noted at [19] of its reasons, clause 5.6.3, upon which Mr Singh relied, was based on overall statistics that did not reflect the medical evidence specific to Mr Singh. The Tribunal’s approach does not reveal error.
This leaves Mr Singh and Ms Kaur in the position that the only way the Tribunal’s decision could be altered would be the intervention of the Minister. The medical opinion of Dr Elder might support an approach to the Minister for the exercise of his discretion. No doubt further favourable medical opinion would also assist. While the Tribunal is bound to deal with the issue in terms of a hypothetical person with the same condition as the applicant the position of individual applicants varies infinitely in relation to their medical prognosis. The particular circumstances of Mr Singh on the basis of whatever medical opinion is available is a matter for the Minister rather than the Tribunal or this Court.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court’s scale. The applicants did not want to be heard on the question of costs.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I will further order that the name of the second respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 August 2015