Singh v Minister for Immigration - [2006] FMCA 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 16

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.363(1)(d)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), regs. 1.41, 1.42, Subclause 572.227

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 407
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Luu v Renevier (1989) 91 ALR 39

Applicant:

GURMAIL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File No:

SYG3348 of 2004

Delivered on:

27 January 2006

Delivered at:

Sydney

Hearing date:

24 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitor for the Applicant:

Simon Diab & Associates

Advocate for the Respondent:

Mr J Bird

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Migration Review Tribunal is joined as second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3348 of 2004

GURMAIL SINGH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 November 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 15 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 June 2003 to refuse to grant the applicant a Student (Temporary) (Class TU) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs.

Background

Mr Gurmail Singh (the applicant), a national of India, born on

5 February 1977 applied for a Student (Temporary) (Class TU) visa on 24 February 2003 with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) (Court Book pp.1-23) (“CB”). On 27 June 2003 the delegate refused to grant a visa (CB pp.62-66) and on 28 July 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.67-71).
The applicant holds an Indian passport. On 20 October 2002 the applicant was granted a Graduate - Skilled (Temporary) (Class UQ) (Subclass 497) visa which was valid until 21 February 2003. On

24 February 2003 the applicant lodged an application for a Student (Temporary) (Class TU) (Subclass 572) visa and was subsequently granted a Bridging Visa A (CB p.108).
The Subclass 572 visa applied for by the applicant was to undertake a Diploma of Information Technology (Analyst/Programmer) commencing on 24 February 2003 and ending on 28 February 2005. On 27 June 2003 the delegate refused the grant of a Student (Temporary) (Class TU) visa because she found the applicant did not meet the requirements of Clause 572.227 of Schedule 3 to the Migration Regulations 1994 (Cth) (“the Regulations”). He was subject to assessment level 4 and had not established exceptional reasons for the grant of the Subclass 572 visa. As the applicant was from an assessment level 4 country he was requested, on 16 May 2003, to give evidence of exceptional reasons for the change of visa status onshore (CB p.109).
The applicant replied to the Departmental request, by providing a statement that claimed inter alia that his education in information technology, combined with his aim to gain Associate membership of NIA, and experience as an accountant in India would be of significant benefit to Australia and would improve bilateral relationships between Australia and India. Furthermore, the visa applicant stated that EKMU International Pty Ltd, a company involved in trade between Australia and India, would like to employ him on a part-time basis to assist the business’ trade relations (CB p.109).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the respondents’ written submissions prepared by Mr J Bird and

I adopt paragraphs 3-10 of those submissions for the purpose of this judgment:
[3]The MRT affirmed the decision refusing to grant the applicant a subclass 572 visa. The MRT found that the applicant did not satisfy clause 572.227, because it found that the applicant had not shown that there were exceptional reasons for the grant of the visa.
[4]Clause 572.227 requires that if the visa application was made in Australia, and the visa applicant was subject to assessment level 2, 3, 4 or 5, and at the time of the visa application the applicant was the holder of a subclass 497 visa, or else the last substantive visa held by the applicant was a subclass 497 visa, then the applicant must establish exceptional reasons for the grant of the visa.
[5]The MRT found that the visa applicant held an Indian passport. It found that in Gazette Notices GN 43 of 17 October 2003, the Minister specified that an Indian passport was one to which assessment level 4 applies for applications lodged between
1 November 2002 and 17 October 2003. This was the period during which the applicant’s visa application was lodged, so the MRT found that the applicant was subject to assessment level 4.
[6]The MRT considered the PAM3 – student visa application procedures, which provided guidance as to the meaning of “exceptional reasons”. The policy requires an applicant to establish that the visa grant would improve bilateral relations or provide significant economic benefits to Australia. The MRT considered that this policy should not be applied inflexibly, and that other reasons put forward by the applicant might be exceptional.
[7]At the hearing, the applicant stated that the job he had described in his initial claims was no longer available. He also stated that the original studies he had enrolled in would not be acceptable in getting him registered as an Associate member of NIA. The MRT found that there was no evidence before it that the applicant would improve bilateral relations or provide significant economic benefits to Australia. The MRT therefore found that the applicant did not satisfy the requirements of the policy.
[8]The applicant also claimed at the hearing that he suffered significant back problems which meant that he was unable to sit in an aeroplane for the time it would take to fly back to India. He claimed that this was a reason why he had not been able to apply for the visa offshore and was also a reason why he could not fly back to India. He provided a letter from his doctor.
[9]The MRT then wrote to the applicant requesting a specialist report. The MRT accepted that the doctor’s report acknowledged that the visa application had some back pain, but did not see this as exceptional and prohibitive in allowing the applicant to travel.
[10]The MRT found that the applicant had not established exceptional reasons and affirmed the decision under review.
A convenient summary of the Tribunal’s reasons in respect of the exceptional circumstances claimed by the applicant was contained in the applicant’s written submissions prepared by Mr J A Young and

I adopt paragraphs 3-12 of those submissions for the purpose of this judgment:
[3]The applicant claimed that exceptional circumstances relevant to his case existed in that he could not presently return to India. On 17 June 2004, the applicant furnished by fax a report from Dr Rajesh Dinakar which stated: “I have no doubt whatever that this man … has a very bad back will (sic) prevent him travelling long distances”.
[4]At the time of the visa application the applicant held a Sub-class 497 (Graduate Skilled) visa. He therefore satisfied sub-clause 572.227 (set out at CB 109-110) provided he established exceptional reasons for the grant of a Subclass 572 visa.
[5]The issue of the back pain and the resultant disabilities were considered by the MRT in the context of exceptional reasons (para 27 at page 112):
“The visa applicant claimed that exceptional reasons relevant to his case were that he was unable to travel to India due to his severe back problems and, as such, should be able to stay in Australia and study the course he is now enrolled in. He claimed that his back problems were so severe that he was unable to sit in a plane for any great length of time and as such should not be sent back to India.”
[6]Following receipt of the report from Dr Dinakar, an MRT officer wrote to the applicant on 30 June 2004, pursuant to s.359(2) of the Migration Act. The MRT invited the applicant to provide “an expert opinion from an orthopaedic surgeon regarding your current back condition. In particular, whether your condition prevents you from undertaking international travel and any adverse effects that would be sustained by you should you travel to India”. (CB 98)
[7]The report of Dr Harry Patapanian is at CB 102. The report does not (at least in terms) address the issue of the applicant’s capacity to undertake international air travel. The report records “very minor thoracic/lumbar scoliosis”, “some pain being reproduced by lumbar spinal flexion, which was slightly restricted” and recent x-rays showing a shallow thoracic-lumbar scoliosis.
[8]In its decision handed down on 15 October 2004, the MRT referred to the report of Dr Patapanian. At para 30 at CB 112, the MRT stated:
“The Tribunal accepts that the doctor’s report acknowledges [the applicant] has some back pain. The Tribunal does not however see this as exceptional and prohibitive in allowing [the applicant] to travel.”
[9]In the preceding paragraph (para 29 at CB 112), the MRT noted that the applicant “clarified” that the exceptional circumstances relevant to his case were that he suffered “mild diffuse posterior contained bulge of L4-6, L5-S1 disc without significant cauda equine compression/neural compromise”. This quotation is from a letter written by the applicant’s migration agent on 13 April 2004 (CB 80.2 at 81.3). That letter enclosed a CT scan of 23 July 2001, a handwritten note of Dr Santosh K Agarwal of 19 July 2001 and an x-ray report from Dr David Ho of Castlereagh Radiology on 8 January 2001.
[10]Subsequently on 21 May 2004, a certificate dated 19 May 2004 from Dr Dinakar was received by the MRT (CB 94). On 25 May 2004 the MRT sent a fax to Dr Dinakar concerning that medical certificate and stating that the Tribunal needed to ascertain from him whether he could “unequivocally corroborate” that the applicant’s condition prevented him undertaking international travel.
[11]The reply from Dr Dinakar (CB 96) is referred to above herein at [3]. The reply, while stating that Dr Dinakar had “no doubt whatsoever” that the applicant could not travel long distances, went on to state that the writer could not “for sure” mention any adverse effects of long distance travel “apart from may be discomfort”. The reply suggested that an expert opinion by an orthopaedic surgeon will be more appropriate in this man’s situation.
[12]In the Tribunal’s decision (CB 112, paras 28-30), the MRT paid no regard to any of the medical evidence other than the report of Dr Patapanian. The MRT had before it a report from a medical practitioner, albeit not an orthopaedic surgeon, which stated that the applicant could not travel long distances. That report could not, it is submitted, be ignored.

Application for review of the Tribunal’s decision

On 16 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) which contained four grounds of review. On 17 February 2005 the applicant filed an amended application in which the original four grounds had been particularised. At the hearing on 24 November 2005 Counsel for the applicant sought to file a further amended application which contained an additional ground, being Ground 3A. The advocate for the respondents raised no objection to the filing of these amended pleadings so leave was granted to Counsel for the applicant. The grounds contained in the further amended application dated 24 November 2005 were as follows:
1.The Migration Review Tribunal (‘Tribunal’) made a jurisdictional error by failing to apply the correct interpretation of Clause 572.227 of Subclass 572 visa.
(a)The Tribunal in its decision has acknowledged that the definition of ‘exceptional reasons’, as mentioned in Clause 572.227, is not confined within the provisions of Migration Regulation and Policy. However, the Tribunal, while making its decision, narrowly interpreted the applicant’s situation and thereby made a jurisdictional error.
2.The Tribunal made a jurisdictional error by misdirecting itself as to the meaning of ‘exceptional reasons’.
(a)The Tribunal cited several cases and in the process acknowledged that there is no list of ‘exceptional reasons’ in the Regulation or the Policy. To decide an exceptional reason the totality of the circumstances must be looked at and not one factor can be regarded as decisive. However, the Tribunal decided the applicant’s review application without considering the overall circumstances and factors of the matter.
3.The Tribunal made a jurisdictional error in that it made an error of law by failing to take into consideration the facts that the applicant was prevented from making student visa application offshore due to his severe health condition.
(a)The applicant had a genuine medical ground for making his student visa application onshore. The applicant also submitted medical reports in support of his severe health condition as per the Tribunal’s requirements. However, the Tribunal failed to appreciate the genuine inability of the applicant to make an offshore visa application and thereby made an error of law while deciding the matter.
3A.The Tribunal made jurisdictional error in failing to have regard to relevant considerations and/or material namely medical reports, certificates or letters from medical practitioners contained in the Court Book at pages 84, 85, 86, 93 and 96.
4.The Tribunal made a jurisdictional error by failing to understand the applicant’s medical reports, as the Tribunal did not have the technical capacity to understand and define the severity of the applicant’s health condition and the impact that will have upon him if he is required to confine himself in one place for extended period.
(a)The Tribunal made its decision partially on the basis of a medical report. However, the Tribunal did not have the technical capacity to understand the severity of the applicant’s health condition. The Tribunal merely quoted some lines from the medical report and came to the conclusion that the applicant is physically capable of travelling on a long international flight. However, it was not conclusively mentioned in any part of the medical report that the applicant is indeed capable of travelling for a long time.
(b)The Tribunal in its decision accepted that the applicant does have some back pain. In case of a confusion, it was the responsibility of the Tribunal to seek further expert medical advice as to whether this back pain would prevent the applicant from travelling long hours. However, instead of seeking such an advice, the Tribunal chose to decide on its own without having proper knowledge on the matter. The Tribunal has therefore made a jurisdictional error.
(c)Lastly, the expert orthopaedic surgeon in his medical report expressed his intention to review the applicant’s condition after three months. It was the responsibility of the Tribunal to collect such a review report. This review would have confirmed the severity or otherwise of the applicant’s condition. However, the Tribunal while deciding the matter failed to consider the above fact and thereby failed to confirm the severity of the applicant’s condition. The Tribunal has therefore made jurisdictional error by failing to consider all available elements which were vital in determining the actual condition of the applicant’s health.

Regulations

Subclause 572.227 of the Regulations states:
If:
(a)the applicant was made in Australia; and
(b)the applicant is subject to assessment level 2, 3, 4 or 5; and
(c)at the time of application, the applicant met the requirements of clause 572.211:
(i)as the holder of a visa of one of the following classes:
…
(ii)as the holder of a special purpose visa; or
(iii)as the holder of a visa of one of the following subclasses:
(A)     …
(B)     …
(C)    Subclass 497 (Graduate -- Skilled); or
(iv)as a person:
(A)     who was not the holder of a substantive visa; and
(B)     who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.
Clause 572.227 requires the delegate to ascertain the assessment level of the applicant. The applicant must then be assessed against the requirements for his assessment level in Schedule 5A. Regulations 1.41 and 1.42 state:
1.41(1) The Minister must specify by Gazette Notice an assessment level for a passport issued by a foreign country, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject.
1.42(1) An applicant for a student visa who seeks to satisfy the primary criteria is subject to the assessment level of the eligible passport that the applicant holds at the time of decision and the education sector in which the applicant intends to undertake his or her principal course.
In Gazette Notice GN 43 of 17 October 2003 the Minister specified an Indian passport as one to which assessment level 4 applies in respect of applications for Subclass 572 visas lodged on or after 1 November 2002 but before 17 October 2003. Therefore the applicant is subject to assessment level 4. At the time of the visa application, the applicant held a Subclass 497 (Graduate - Skilled) visa thus meeting the requirements of subclause 572.227(c)(iii)(c). In these circumstances the applicant needed to establish exceptional reasons for the grant of a Subclass 572 visa. The term “exceptional reasons” is not defined in the Regulations.

Reasons

Grounds 1 and 2 of the applicant’s further amended application allege that the Tribunal committed a jurisdictional error by failing to correctly apply the definition of “exceptional reasons” in Clause 572.227 of the Regulations. In paragraph 17 of the Tribunal’s decision (CB p.111), the Tribunal notes that the term “exceptional reasons” is not defined in the Regulations but is contained in the Departmental Policy “Procedures Advice Manual 3” (“PAM3”) at paragraph 72.1 “Additional Onshore Criteria”. The Tribunal member noted that PAM3 is a policy guideline and should not be elevated to the level of legislation, quoting the decisions in the Federal Court and the Full Federal Court of Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168.
The Tribunal then undertakes the task to consider in this particular case whether there are any circumstances in respect of this application which are exceptional. The Tribunal firstly considers the work that the applicant is seeking to undertake and comes to the conclusion that it is for personal gain and the pursuit of that activity is unlikely to improve the bilateral relationship between Australia and India. The Tribunal then turns to the applicant’s claim that due to his severe back pain he would be unable to sit in a plane for any great length of time and would therefore be unable to return to India in order to pursue a new visa application.
The Tribunal then discusses the medical evidence before it concerning the thoracic/lumbar scoliosis. The Tribunal accepts the applicant had suffered some back pain but the severity was not considered to be categorised as exceptional nor prohibitive in allowing the applicant to travel by plane to India. The subject of medical evidence before the Tribunal is the subject of the remaining three grounds which will require consideration prior to dealing with the second limb of the issues raised in Grounds 1 and 2 as to whether the nature of the medical condition suffered by the applicant falls within the scope of exceptional reasons under Clause 572.227 of the Regulations. The outcome of the claims under Grounds 1 and 2 are subject to that determination.
The third ground complained that the Tribunal failed to consider “the facts that the applicant was prevented from making student visa application offshore due to his severe health conditions …” and committed an error of law by “failing to appreciate the genuine inability of the applicant to make an offshore visa application”.Counsel for the applicant submitted that the failure to consider that material which was plainly relevant was a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2); Dranichnikov v Minister for Immigration & Multicultural Affairs.
Counsel for the applicant also relied on the Full Federal Court in WAFP v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Carr and Tamberlin JJ at [19] where their Honours stated:
“In our view, the RRT has failed to have regard in its reasons to important relevant material going to a central consideration in this matter…”
Counsel for the applicant contended that the report of Dr Patapanian, which failed to address the critical issue, was suggestive of only moderate back pain and might have been regarded by the Tribunal as decisive if the Tribunal had taken into account all of the relevant evidence on the issue. It was not however inevitable that it would do so. In stating, as it did in the final sentence, that the Tribunal did not see the pain as exceptional and prohibitive in allowing the applicant to travel, the Tribunal was going beyond the report of Dr Patapanian which was silent on the issue. Critically, however, the Tribunal failed to take into account evidence which categorically stated that the applicant could not travel. Counsel submitted that the pleadings in Ground 3 sufficiently addressed the issue of the Tribunal failing to have regard to important relevant material going to the essential consideration in the matter without relying on the new pleadings contained in Ground 3A.
In Ground 3A, the applicant has further clarified the medical reports the Tribunal allegedly failed to consider in making its determination. The individual medical reports are:
a)Report from the MRI and CT Scan Centre dated 23 July 2001 from Dr Tejinder Kaur (CB p.84)
b)Report from Dr Santosh K Agarwal, Orthopaedic and Trauma Surgeon dated 19 July 2001 (CB p.85)
c)Report from Castlereagh Radiology dated 8 January 2001 prepared by Dr David Ho (CB p.86)
d)Report from Blaxland Family Medical Centre dated 19 May 2004 prepared by Dr Rajesh Dinakar (CB p.93)
e)Letter from Dr Rajesh Dinakar dated 30 May 2004 addressed to the Tribunal (CB p.96)
Mr Bird, Solicitor appearing for the respondents, submitted that the Tribunal did consider whether the applicant had a genuine medical condition that would prevent him from travelling. The Tribunal considered the medical evidence provided by the applicant in support of his claim.
a)This is evident from [29] of the Tribunal’s decision which quotes from a medical report of Dr S K Agrawal provided by the applicant. This is the ground raised in Ground 3A and is covered by the Report referred to in paragraph 19(a) and (b) above (CB pp.84-85).
b)The Tribunal also considered a handwritten medical certificate provided by Dr Rajesh Dinakar (CB p.93) attesting to “lower back pain”. The Tribunal then wrote to Dr Dinakar in an attempt to “unequivocally corroborate that Mr Singh’s current condition prevents him from undertaking international travel” and “could you also indicate to the Tribunal any adverse effects that would be sustained by your patient should he travel to India” (CB p.95). Dr Dinakar replied suggesting that an expert opinion by an orthopaedic surgeon would be more appropriate in the situation.
c)The Tribunal then wrote to the applicant specifically requesting that he provide an expert opinion from an orthopaedic surgeon regarding his current back condition. The letter noted “in particular, whether your condition prevents you from undertaking international travel and any adverse effects that would be sustained by you should you travel to India” (CB p.98).
d)The applicant then obtained a specialist report from Dr Harry Patapanian and sent it by facsimile to the Tribunal from Ashfield Library (CB p.102). This report stated, inter alia that “this patient exhibited no clinical features to convincingly suggest the presence of spinal cord compression or injury” and “… I’m happy that at this stage we can hold off with additional investigation”. It is clear from the Tribunal’s reasons that it considered this specialist’s report (CB p.112 [28]).
Mr Bird for the respondents submitted that the Tribunal relied on up-to-date expert information provided by the applicant in connection with the review to reach a decision that was open on the evidence. Counsel for the applicant claimed that the Tribunal did not have regard to all the medical reports and consequently ignored evidences. Despite this claim, there is no doubt that the Tribunal was familiar with all the reports. The exchange of correspondence between the Tribunal, the doctors and the applicant led to the preparation of the reports. In the circumstances, it is difficult to accept that the Tribunal did not have regard to all of the medical reports because of their interdependence on each other and the process of their creation. The Tribunal is not required to record in its decision all the material that it has considered during its deliberations unless the decision maker is bound to do so by statute or by law: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs per Black CJ, Sunderg and Bennett JJ at [27]-[28].
In respect of Ground 4, Counsel for the applicant did not make any substantive oral or written submissions in support of the applicant’s pleadings. It was alleged the Tribunal committed a jurisdictional error by “failing to understand the applicant’s medical reports”. The pleadings assert that:
It was not conclusively mentioned in any part of the medical report that the applicant is indeed capable of travelling for a long time.
In the case of confusion, it was the responsibility of the Tribunal to seek further expert medical advice as to whether this back pain would prevent the applicant from travelling long hours.
The expert orthopaedic surgeon in his medical report expressed his intention to review the applicant’s condition after three months. It was the responsibility of the Tribunal to collect such a review report.
Mr Bird for the respondents submitted the applicant appeared to be alleging that the Tribunal had a duty to make further enquiries with the orthopaedic surgeon and its failure to make those further enquiries invalidated its decision. The submission is that it is well established that the Tribunal does not have a duty to investigate an applicant’s claim, nor was it under any duty to consider utilising such permissive statutory powers which might enable it to investigate such as s.363(1)(d): VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs at [21], [24]-[25], W389/01A v Minister for Immigration & Multicultural & Indigenous Affairs at [74]-[78]. In Prasad v Minister for Immigration & Ethnic Affairs per Wilcox J at 169-170 it was noted that the circumstances under which a decision will be invalid for failure to make independent enquiries are strictly limited. His Honour observed that it is no part of the duty of the decision-maker to make the applicant’s case for him. His Honour said that it is not enough that the Court may find that the sounder course would have been to make more enquiries. In Luu v Renevier per Davies, Wilcox and Pincus JJ at 40, the Full Federal Court followed the decision of Prasad:
“A decision is unreasonably made where, to the knowledge of the decision maker, there is readily available other factual material which is likely to be of critical importance in relation to a critical issue for determination and which has not been obtained.”
Mr Bird submitted that in applying the above authorities to the present matter it is important to recall the following background facts:
a)The Tribunal, when originally presented with a rather vague medical certificate from Dr Rajesh Dinakar attesting to “lower back pain”, specifically advised the applicant to obtain a specialist report which addressed “whether your condition prevents you from undertaking international travel and any adverse effects that would be sustained by you”.
b)The medical report furnished in response to that invitation observed “there were no clinical features to convincingly suggest the presence of spinal cord compression or injury” and that “his symptoms were almost certainly mechanical in nature”. Dr Patapanian considered the “duration and stability of his symptoms” and was satisfied that “at this stage we can hold off with additional investigation”. Contrary to the applicant’s assertions, Dr Patapanian did not express the conclusion that a further report was necessary.
Mr Bird submitted, and I accept the submission, that it is for the applicant to make out his own case. The applicant knew exactly what he was required to prove and was given the opportunity of obtaining that evidence. Dr Patapanian’s clear diagnosis was that there was no substantial medical or clinical basis for the alleged discomfort. Given that diagnosis it was open for the Tribunal to conclude that the applicant did not have a condition that would prevent him from travelling long distances. The Tribunal had no duty to make further enquiries.

Conclusion

For the reasons set out above, I am satisfied that none of the grounds pleaded by the applicant can be sustained. I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 27 January 2006