SINGH v Minister for Immigration - [2019] FCCA 310

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 310

Catchwords:
MIGRATION – Skilled (Residence) (Class VB) Subclass 885 – application for extension of time – application for review of the decision by the Administrative Appeals Tribunal – applicant almost two years out of time – insufficient explanation for delay – not in the interests of the administration of justice to grant the application – extension of time refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05

Migration Act 1958 (Cth), ss.466, 467

Migration Legislation Amendment Regulations 2011 (No.1) (Cth), sch.4 para.4
Migration Regulations 1994 (Cth), schs.2, 4

Cases cited:

Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367
Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014
Douglas v Allen (1984) 1 FCR 287
Doyle v Chief of General Staff (1982) 42 ALR 283
Duff v Freijah (1982) 43 ALR 479
Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Lucic v Nolan (1982) 45 ALR 411
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115
MZABO v Minister for Immigration and Border Protection [2016] FCA 980

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535

Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735

Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182
SZQLD v Minister for Immigration and Anor [2011] FMCA 784
SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZTVW v Minister for Immigration and Anor (No.2) [2014] FCCA 368
Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALR 211

Applicant:

SUKHRAJ SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2154 of 2016

Judgment of:

Her Honour Judge C. E. Kirton QC

Hearing date:

22 May 2018

Date of Last Submission:

22 May 2018

Delivered at:

Melbourne

Delivered on:

13 February 2019

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent:

Solicitors for the Second Respondent:

Ms Groves of Australian Government Solicitor

The Second Respondent filed a submitting notice save as to costs

ORDERS

The application for an extension of time is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2154 of 2016

SUKHRAJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a citizen of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 310
Decision Date: 13 February 2019

CaseChat Overview and Summary

The applicant, Mr Singh, sought judicial review of a decision made by the Migration Review Tribunal. The dispute concerned the applicant's failure to meet the health requirements for a visa, specifically Public Interest Criterion 4005 (PIC 4005) of the Migration Regulations 1994 (Cth), due to a chronic renal disease. The applicant had applied for the visa in 2009, and multiple Medical Officers of the Commonwealth had consistently opined that he did not satisfy PIC 4005. The Tribunal's decision was made on 15 September 2014, and the application for judicial review was filed on 5 October 2016, significantly out of time.

The primary legal issue before the Court was whether to grant an extension of time for the applicant to seek judicial review of the Tribunal's decision. This required consideration of section 477(2) of the Migration Act 1958 (Cth), which permits the Court to extend the 35-day time limit if certain conditions are met. The Court also had to consider the applicant's ongoing failure to satisfy PIC 4005, as determined by Medical Officers of the Commonwealth, and the Tribunal's obligation under Regulation 2.25A of the Migration Regulations to accept such opinions as correct for the purposes of deciding whether a person met the health criteria.

Her Honour Judge Kirton QC determined that it was not in the interests of the administration of justice to grant the application for an extension of time. The applicant was almost two years out of time for his judicial review application. The Court noted that the applicant had been notified of the health concerns in 2012 and had undergone multiple health assessments, with consistent negative outcomes regarding PIC 4005. Despite opportunities to comment and provide further information, including evidence of private health insurance, the Medical Officers of the Commonwealth maintained their opinions. The Tribunal was bound by these opinions under Regulation 2.25A(3).

Consequently, the Court refused the application for an extension of time and ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A delegate of the Minister refused to grant the Visa on 24 June 2013 on the basis that the Applicant did not satisfy PIC 4005 as required by cl.885.224 of sch.2 to the Regulations (Delegate’s Decision)[3]. [3] CB 150-162. On 27 June 2013 the Applicant lodged an application for review of the Delegate’s Decision in the Tribunal[4]. [4] CB 169-180. The Applicant’s representative wrote to the Tribunal on 15 August 2013 and requested that the medical examinations be conducted again, on the basis that:[…] the applicant would most likely pass the medicals with his condition having markedly improved from the time that the medicals were considered at the time of decision[5].[5] CB 184. The Tribunal provided the Applicant with the necessary documents to request a further opinion from a MOC and on 18 February 2014 the Applicant forwarded the relevant form and fee. On 26 June 2014 a MOC provided another opinion, which again concluded that the Applicant did not satisfy PIC 4005 (Third MOC Opinion)[6]. The Tribunal gave the Applicant’s representative an opportunity to comment on 16 July 2014. In response on 29 July 2014 the Applicant’s Representative expressed the view that the Third MOC Opinion was not reasonable or correct but that they:[…] note the limited negligible capacity of the applicant to challenge this view and that The Member is “bound” by a “valid” decision of the MOC[7].[6] CB 254-255; Tribunal Decision, dated 15.9.2014, Annexure A.[7] CB 259. At the time the Applicant applied for the Visa and at the time of the Delegate’s Decision, cl.885.224 of the Regulations required primary applicants for the grant of a Subclass 885 visa to satisfy the criteria in PIC 4005. PIC 4005 was amended by the Migration Legislation Amendment Regulations 2011 (No.1) (Amending Regulation). The amended wording applied to visa applications made but not finally determined before 1 July 2011[8]. [8] Migration Legislation Amendment Regulations 2011 (No.1) (Cth), sch.4 para.4. PIC 4005(1)(c) provided:(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 service 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; Division 2.5 A of the Regulations contained ‘Special provisions relating to certain health criteria’. Regulation 2.25A required the Tribunal to seek the opinion of a MOC in determining whether PIC 4005 was met. The Tribunal was bound to accept the opinion of the MOC as correct for the purposes of deciding whether a person met a requirement or satisfied a criterion of PIC 4005. Regulation 2.25A(3) provided:(3)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.

Ratio Decidendi

Legal Principle Established

The Applicant applied for judicial review of the Tribunal’s decision on 5 October 2016. As the Tribunal’s decision was made on 15 September 2014, the 35 day time limit for applying for judicial review expired on 20 October 2014: s.477(1) Migration Act 1958 (Cth) (Migration Act). The Applicant is therefore almost two years out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied. I have determined that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to grant the application. I refuse the extension of time application and order the Applicant to pay the Minister’s costs. The Applicant applied for the Visa on 21 December 2009. The Department of Immigration and Border Protection (Department) notified the Applicant on 13 November 2012 that he was required to undergo a health assessment to determine whether he met the health requirements for the grant of the Visa. The Applicant attended a health assessment on 4 December 2012. On 18 February 2013 a Medical Officer of the Commonwealth (MOC) provided an opinion that the Applicant suffered from: “Significant chronic renal disease” and that the “condition is likely to be progressive”[1]. The MOC concluded that the Applicant did not satisfy the health requirements of Public Interest Criterion 4005 (PIC 4005) of sch.4 to the Migration Regulations 1994 (Cth) (Regulations) and therefore did not meet the health requirements for the grant of the Visa (First MOC Opinion).[1] Court Book (CB) 90. The Applicant was sent the First MOC Opinion and invited to comment. In a letter to the Department on 10 April 2013 the Applicant said that he:a)Was only diagnosed with renal disease in mid-2012.b)Lived a healthy lifestyle and he did not understand why he had developed renal disease.c)Would to go back to India if he needed an organ transplant in the future.d)Had private health insurance which should cover any medical services that might otherwise result in significant cost to the Australian community. The Applicant provided further documentary evidence of his health insurance on 13 May 2013. This information was subsequently provided by the Department to a MOC. On 18 June 2013 a MOC again determined that the Applicant did not meet PIC 4005[2] (Second MOC Opinion).[2] CB 154-155. A delegate of the Minister refused to grant the Visa on 24 June 2013 on the basis that the Applicant did not satisfy PIC 4005 as required by cl.885.224 of sch.2 to the Regulations (Delegate’s Decision)[3]. [3] CB 150-162. On 27 June 2013 the Applicant lodged an application for review of the Delegate’s Decision in the Tribunal[4]. [4] CB 169-180. The Applicant’s representative wrote to the Tribunal on 15 August 2013 and requested that the medical examinations be conducted again, on the basis that:[…] the applicant would most likely pass the medicals with his condition having markedly improved from the time that the medicals were considered at the time of decision[5].[5] CB 184.