Succar v Minister for Immigration

[2014] FCCA 619

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUCCAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 619

Catchwords:
MIGRATION – Carer visa – refusal – decision of Migration Review Tribunal (“Tribunal”).

ADMINISTRATIVE LAW – Allegation that Tribunal’s decision affected by jurisdictional error by reason that it was illogical, failed to consider relevant evidence and was unreasonable.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, reg.1.15AA, cls.836.212 and 836.221 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618
Minister for Immigration & Citizenship v Maman (2012) 200 FCR 30

Applicant: AWATEF SUCCAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1438 of 2013

Judgment of: Judge Cameron

Hearing date: 11 February 2014

Date of Last Submission: 24 March 2014

Delivered at: Sydney

Delivered on: 4 April 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr J. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1438 of 2013

AWATEF SUCCAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Lebanon, applied for an Other Family (Residence) (Class BU) visa on 12 March 2010 on the basis that she sought to become her Australian brother’s carer. On 9 December 2010 her application was refused by a delegate of the first respondent (“Minister”) on the basis that she had not satisfied cl.836.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for a subclass 836 visa are set out in pt.836 of sch.2 to the Regulations. Relevantly, an applicant must claim at the time of the application to be the carer of an Australian relative (cl.836.212) and at the time of the decision the applicant must in fact be the carer of such a person (cl.836.221).

2. To be a carer for the purposes of pt.836, an applicant must meet the definition of that term. At all material times, reg.1.15AA of the Regulations relevantly defined “carer” as follows:

   1.15AACarer

   (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   (a)the applicant is a relative of the resident; and

   (b)according to a certificate that meets the requirements of subregulation (2):

   (i)     a person (being the resident or a member of the family unit of the resident) has a medical condition; and

   (ii)     the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   (iii)   the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and

   (iv)    because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   …

   (c)the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and

   …

   (2)     A certificate meets the requirements of this subregulation if:

   (a)     it is a certificate:

   (i)     in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii)     signed by the medical adviser who carried it out; or

   (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

   (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicantsatisfies a criterion that the applicant is a carer.

   …

Background facts

Primary application

1. As noted earlier, the applicant applied for an Other Family (Residence) (Class BU) visa on 12 March 2010.  She claimed that she was the carer of her brother, Mr Succar, who is an Australian citizen and the recipient of a disability support pension.  She claimed that he required assistance with “his daily health needs”, including supervision of his medication and his attendance at doctors’ appointments.  On 10 September 2010, the applicant’s migration agent provided the delegate with a Carer Visa Assessment Certificate, dated 16 March 2010, from an Examining Medical Adviser of Medibank Health Solutions (MHS) assessing Mr Succar as having schizophrenia and depression and an impairment rating of forty points.  However, the medical adviser determined that Mr Succar did not satisfy the requirements for certification that he required the sort of care which would justify a carer visa being granted to the applicant because he did not have:

   a)a medical condition that caused physical impairment of his ability to attend to the practical aspects of daily life;

   b)a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and

   c)a medical condition that would continue for at least two years such that he would have a need for direct assistance in attending to the practical aspects of daily life.

2. In the covering letter sending that certificate, the applicant’s migration agent asked that the applicant be granted additional time to provide a second certificate as the applicant believed that the findings of the MHS medical adviser were not correct.

3. On 15 September 2010 the delegate wrote to the applicant inviting her to provide a second certificate within twenty-eight days.  On 26 November 2010, the applicant’s migration agent posted to the delegate a second certificate, dated 12 November 2010.  The findings of the second assessment were the same as the first.

4. The delegate found that the second certificate did not meet the requirements set out in reg.1.15AA(1)(b)(ii) and (iv) and consequently that the applicant did not meet the reg.1.15AA definition of “carer”. The delegate therefore found that the applicant did not meet the requirements of cl.836.221.

Review application

1. On 10 January 2011 the applicant applied to the Tribunal for review of the delegate’s decision.  On 22 November 2012 the applicant appeared before the Tribunal to give evidence and present arguments. At the hearing she made the following claims:

   a)her brother had been shot in 1986 and two bullets had lodged in his head.  Head injuries suffered in a workplace accident in Australia had aggravated his condition;

   b)her brother suffered from mood swings and headaches and needed medication for his nerves.  He became uncontrollable if he did not take his medication. He would also not stop talking, would repeat himself and would become violent because he believed that people were trying to hurt him.  During the day he would watch television, go for walks and would sit in a chair staring into space for two to three hours.  He would sit for hours, waiting and not sleeping as he believed someone would kill him;

   c)her brother had lived with their mother until she died four and a half years earlier.  She (the applicant) had been living with her brother since arriving in Australia;

   d)before her arrival, her brother had lived in “extreme conditions”.  She cared for him by cleaning the house, cooking, washing his clothes, taking him out, monitoring his medication and prompting him to wash himself;

   e)her brother did not like visiting doctors as he believed them to be part of an intelligence organisation and would kill him.  She had managed to take him to the MHS doctor but the doctor had not allowed her to speak and her brother had been very distressed after the visit;

   f)her brother saw a doctor every two months and had also spent time in hospital; and

   g)her brother had not wanted to attend the Tribunal hearing.  He was uncontrollable because he was sick.

2. The applicant’s sister also gave evidence at the hearing. She stated that:

   a)Mr Succar had been shot in the war in Lebanon and had had metal plates inserted into his skull to replace the bone;

   b)Mr Succar had lived with her for five years.  After living with her for two years, he had a breakdown and spent three months in Rozelle (psychiatric) Hospital;

   c)she had had to ask Mr Succar to leave her house because he had a gambling addiction; and

   d)eighteen months earlier, after losing all of his money on poker machines, he became very angry and broke some machines.  He was then escorted to Liverpool Hospital.

3. An elderly friend of the applicant also gave evidence at the Tribunal hearing.  He stated that he regularly visited Mr Succar.  He said that Mr Succar had told him that the applicant understood him and made him feel comfortable.  He stated that it was difficult to speak to Mr Succar because he had lost his memory.

4. At the hearing, the Tribunal explained to the applicant the need to obtain a Carer Visa Assessment Certificate that met the requirements of migration law and it granted her thirty days to provide evidence of a further MHS appointment.

5. On 5 December 2012 the Tribunal wrote to MHS outlining its concerns about the two certificates it had so far issued.  The Tribunal also advised that it had received a letter sent on behalf of Mr Succar to MHS on 29 November 2012 stating that he was unwilling to attend a further medical assessment.  The Tribunal asked MHS to liaise with Mr Succar’s family in relation to a further medical assessment.

6. On 7 February 2013, MHS wrote to the applicant asking that further documentation and updated medical information be provided to it by 15 March 2013.  As no further information was provided, the Tribunal invited the applicant to a further hearing on 13 March 2013 and explained what MHS required and the importance of providing that information.

7. On 15 April 2013 a Carer Visa Assessment Certificate dated 26 March 2013 was sent to the applicant.  On 23 May 2013 the applicant’s authorised recipient sent to the Tribunal a copy of that certificate and a report which indicated that Mr Succar had instructed his treating doctor to not release any of his medical information.  It also stated that a reversal of the original assessment outcomes could not be supported as a current treating psychiatrist’s report had not been received, a repeat examination had been advised against and no new medical information had been made available.  The 26 March 2013 assessment indicated that the requirements for the grant of a carer visa had not been satisfied, relevantly noting that Mr Succar did not have a medical condition which caused physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life.

8. On 28 May 2013 the applicant’s authorised recipient informed the Tribunal that Mr Succar had attended his treating doctor who would be providing a medical report shortly.  The Tribunal decided to proceed to make its decision not long afterwards on the basis that the applicant had already been given the opportunity to provide further material to MHS in relation to the third Carer Visa Assessment Certificate.

The Tribunal’s decision and reasons

1. The Tribunal found that although at the time of the application the applicant had claimed to be the carer of an Australian relative, none of the three Carer Visa Assessment Certificates stated that Mr Succar had a medical condition which caused physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life and that he would, for at least two years, need direct assistance in attending to the practical aspects of daily life. It therefore went on to find that the third and final certificate did not meet the requirements of reg.1.15AA(1)(b) and that the applicant did not satisfy cl.836.221 of the Regulations.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Migration Review Tribunal (the Tribunal) decision accepts that the Australian brother of the applicant suffers schizophrenia and major depression and yet satisfied originally the requirements of 40 points on his carer visa dated certificate 16/10/2010 yet failed to accept the reluctancy in attending Medibank Health Solutions again as a result of his condition.

   2.The Tribunal failed to consider the contents of Carer Visa Certificate which clearly specifies that the medical condition is permanent (at least in the need of constant supervision or monitoring) because the person requiring care may be a danger to himself or another. (Points 2 and 3 of Carer Visa Medcial [sic] Report).

   3.The decision of the Tribunal is unreasonable.

Ground 1

1. The first ground of the application implied some illogicality in the Tribunal’s decision and alleged that it had not accepted that Mr Succar’s reluctance to attend a further medical interview had been caused by his mental condition. 

2. On 5 December 2012 the Tribunal wrote to MHS noting Mr Succar’s reluctance to attend MHS again and saying that this was not inconsistent with evidence provided to it that he believed doctors worked for “intelligence services”.  Then on 4 March 2013 the Tribunal advised the applicant’s authorised recipient that, considering the difficulty experienced in securing a specialist’s report on Mr Succar, it would accept a general practitioner’s report.  On 25 March 2013 the Tribunal spoke to MHS and advised that Mr Succar’s recent refusal to permit his general practitioner to release any information about him was consistent with certain evidence in the Tribunal’s possession. 

3. The material available to the Court does not support the contention that the Tribunal did not accept that Mr Succar’s mental condition caused his reluctance to attend a further medical interview.  As a result, the related implication of illogicality is not made out.

Ground 2

1. The second ground of the application alleged that the Carer Visa Assessment Certificates stated that Mr Succar’s condition was permanent and needed supervision or monitoring because he was a danger to himself and to others and that the Tribunal had failed to take that into account. 

2. The first of the certificates, dated 16 March 2010, did state a conclusion that Mr Succar needed supervision or monitoring because he might be a danger to himself and to others but it did not certify the need for a carer because, amongst other things, MHS concluded that he did not have a condition which caused “physical impairment” of his ability to attend to the practical aspects of daily life.  The second report, dated 12 November 2010, expressed the same conclusions.  However, those certificates were flawed because they did not adequately recognise the role which mental illness might play in a person’s ability to attend to the practical aspects of life.  Although the third certificate, dated 26 March 2013, ostensibly addressed that deficiency it too stated that Mr Succar did not have a condition which caused relevant impairment of his ability to attend to the practical aspects of daily life. 

3. Contrary to the implication of the second ground of the application, the Tribunal has to act on the ultimate conclusion, or opinion, in a Carer Visa Assessment Certificate, not the intermediate findings on which that opinion is based.  Consequently, because the Tribunal did act on the broadly uniform opinion expressed by all of the certificates, and relevantly the third certificate, the second ground of the application does not disclose a basis on which the Tribunal’s decision should be set aside.

Ground 3

1. The allegation of unreasonableness made in the third ground of the application was unparticularised but in her written submissions the applicant argued that the Tribunal had denied her additional time to provide evidence of her brother’s condition in circumstances where the Tribunal knew how serious his condition was.  Presumably this was a reference to the Tribunal’s decision to make a decision on the review notwithstanding that on 28 May 2013 the applicant’s authorised recipient had written to it advising that Mr Succar had attended his general practitioner and that that doctor would shortly be providing a report.

2. The Tribunal proceeded to a decision because the foreshadowed report should have been given to MHS, not to it, and should have been provided to MHS before the third certificate was issued.  The substance of the Tribunal’s reasons for proceeding to a decision on the review was that the applicant had had her opportunity to submit material to MHS and that the time for doing so had passed.

3. It is important to note in that connection that the Tribunal’s decision on the review was made on 11 June 2013, a fortnight after the authorised recipient’s letter was received, and thus some time had elapsed between the two events.  There is no evidence that any report of Mr Succar’s general practitioner was provided to the Tribunal in that period or even that one was sent, to the extent that doing so would have been relevant.  More importantly, no postponement of the decision was sought, no date by which the doctor’s report might be received was specified and no request for a further Carer Visa Assessment Certificate was indicated or foreshadowed.

4. Moreover, in the months preceding its decision, as the Court Book records, the Tribunal had gone to some lengths to afford the applicant and her brother the time and means by which they could obtain a fresh, and legally correct, certificate from MHS.  Given their inability to take meaningful action in that regard and their failure over two weeks to do anything substantive in relation to the report foreshadowed in the authorised recipient’s letter of 28 May 2013, I am not of the view that no reasonable Tribunal would have exercised its discretion on the review in the way the Tribunal did on this occasion.  For that reason I find that the Tribunal’s decision to make a decision was not unreasonable in the relevant sense, namely the sense discussed in Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618.

Other matters

1. At the hearing of this application a number of matters arose which were the subject of further submissions.

2. In her further submissions the applicant submitted that the conclusion reached and then expressed in the third Carer Visa Assessment Certificate was irrational and illogical.  No evidence was adduced which would permit me to find that no reasonable doctor would have reached that conclusion.

3. The applicant also submitted that pages 95 to 97 of the Court Book indicated that the Minister’s department accepted that her brother met the requirements of a positive carer visa assessment.  The letter reproduced there does not support such an inference but, even if it had, it is the Tribunal’s decision which is under review, not the delegate’s.

1. At the hearing of the application I expressed concern regarding whether the third certificate was a document which met the formal requirements of reg.1.15AA. I accept and agree with the Minister’s subsequent written submission that it satisfied reg.1.15AA(2)(b).

2. The Minister also submitted that the Tribunal is required to accept the opinion expressed in a Carer Visa Assessment Certificate and cannot question such a certificate as long as it deals with all the issues which reg.1.15AA requires it to address. The Minister submitted in this regard that considerations such as those discussed in Minister for Immigration & Citizenship v Maman (2012) 200 FCR 30 did not apply to Carer Visa Assessment Certificates. As the applicant did not engage with that latter submission, and as it is not a matter on which the outcome of the proceeding turns, it need not be considered further. In that connection, apart from the allegation of irrationality and unreasonableness already referred to, the applicant did not suggest that any denial of procedural fairness or miscarriage of discretion associated with the Carer Visa Assessment Certificates rendered them ineffective as certificates of that sort such that the Tribunal could not base its decision on them.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 4 April 2014