SZWCM v Minister for Immigration

[2015] FCCA 874

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 874

Catchwords:
MIGRATION – Migration Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115

Applicant: SZWCM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 347 of 2015

Judgment of: Judge Street

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Sydney

Delivered on: 7 April 2015

REPRESENTATION

Solicitors for the Applicant: Mr I. Chatterjee
HIV/AIDS Legal Centre

Counsel for the Respondent: Mr T. Riley

Solicitors for the Respondent: Ms K. Hooper
DLA Piper

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6825.

3. The Court book be marked Exhibit ‘A’.

4. The supplementary materials be marked Exhibit ‘B’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 347 of 2015

SZWCM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa made on 16 January 2015. 

2. The grounds in the application are as follows:

   1. The Second Respondent erred at law, in accepting as correct Form 884: Opinion of A Medical Officer Of the Commonwealth ("The MOC opinion") produced by the Medical Officer of the Commonwealth, that failed to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of condition.

   Particulars

   a. The form and level of the Applicant's condition were not taken into consideration.

   b. The Applicant's disease progression was not in line with the general progression for other people with the same general condition.

   c. The MOC opinion was on the basis of general disease progression imputed to the whole population.

   2. In the alternate, the Second Respondent failed to exercise its jurisdiction, in failing to ensure that the MOC opinion produced by the Medical Officer of the Commonwealth applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of condition.

   Particulars

   a. The Applicant sought an adjournment to allow enquiries to be made to confirm the basis on which the MOC opinion was determined.

   b. There was evidence before the tribunal that the MOC opinion was calculated on an inappropriate basis in policy documents of the Medical Officer of the Commonwealth.

   c. There was insufficient evidence before the Medical Officer of the Commonwealth to create a valid MOC opinion, and the Medical Officer of the Commonwealth failed to seek additional information.

   d. There was no evidence before the Second Respondent of the manner in which the Medical Officer of the Commonwealth actually generated its MOC opinion.

   e. The Second Respondent was of the opinion that it had no power to assess the validity of the MOC opinion, beyond bare criteria as to form.

   f. The Second Respondent did not grant an adjournment, and made no enquiries as to the Medical Officer of the Commonwealth as to the manner in which it generated the MOC opinion, or what evidence it relied upon to do so.

3. The applicant in fact applied for the visa on 30 September 2008, and it was not until 25 March 2014 that the delegate refused the application.  The applicant sought a review within the timeframe required and the applicant appeared before the Tribunal on 18 December to give evidence and present arguments.  

4. Relevantly, the Tribunal identified the critical issue was whether the applicant meets the Public Interest Criterion PIC 4005 as required by the criteria for the grant of the visa, and the Public Interest Criterion 4005 was attached to the decision of the Tribunal.

5. The applicant was referred to a medical officer by the Tribunal, who delivered an opinion on 10 November 2014. It is clear that that Medical Officer of the Commonwealth in the report expressed an opinion, and that the medical officer was in fact a Medical Officer of the Commonwealth, and it is equally clear from the second sentence in the report that the opinion was expressed upon whether the applicant meets the requirements of the applicable provision in Schedule 4, of the Migration Regulations 1994 which the medical officer identified as PIC 4005 (1)(c)(ii)(A). 

6. It is clear from the provision set out in the report the applicant’s history has been taken into account both in relation to the diagnosis of his asymptomatic infection and also the provision of a specialist report indicating that the applicant had received no antiviral treatment, and that his current immediate function is only mildly impaired. 

7. In this regard, the last paragraph of the report makes clear that the medical officer had regard to information available to date concerning the applicant, relevantly including a visa medical assessment on 18 June 2014 that identified the applicant's infection, and a report from Dr Virginia Furner dated 10 September 2014, and who materially was acting in the capacity as the applicant's specialist. 

8. That report relevantly identified the CD4+T-cell count and identified the viral load referrable to the applicant.  Those two matters are matters identified in the Notes for Guidance for Medical Officers of the Commonwealth of Australia as being relevant criteria to determine the prognosis of the patient. 

9. It is not necessary to set out the whole of Dr Ferner’s report.  Suffice to say that there is an optimistic assessment in relation to the applicant, because of his current state of health and that “he may well be a long-term slow progressor in relation to his infection”. 

10. The report data clearly identifies that the applicant will have to have regular medical follow-up and immune function monitoring.  The optimistic assessment of Dr Ferner as to hospitalisation and community costs is clearly material to which the Medical Officer of the Commonwealth had regard, and which was not binding upon the Medical Officer of the Commonwealth, nor was Dr Furner required to undertake the task of assessment that the Medical Officer of the Commonwealth is required to undertake. 

11. The conclusion of Dr Furner that at the present time no costs are being incurred in the provision of care to the applicant is not an application of the relevant criteria upon which the Medical Officer of the Commonwealth is required to apply. 

12. In seeking to advance the first ground of alleged error, the solicitor for the applicant took the Court to part of the Notes for Guidance for Medical Officers of the Commonwealth of Australia, and relevantly in paragraph 3.8, which referred to the utility of a series of readings over time for the purpose of assessment of the future retroviral needs of an individual.

13. It is apparent from the material that was before the Medical Officer of the Commonwealth that the applicant was not at this point of time one who was requiring an immediate assessment of their retroviral needs. Paragraph 3.8 does not require the Medical Officer of the Commonwealth to defer the task required by PIC 4005 (1)(c)(ii)(A) in schedule 4 to the Migration Regulations until there has been conducted a series of readings over time. That would be contrary to the purpose of the criterion as identified in Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115 at [74].

14. The Court was taken to the example found on page 38 of the Notes for Guidance for Medical Officers of the Commonwealth of Australia and an argument developed as to the need for information as to further data over a period of time of the applicant's CD4+T-cell count and HIV viral load.

15. In the scenario to which the Court was taken, it was expressly qualified by saying the scenarios below are not definitive and that the circumstance of individual applicants must be considered.  It is crystal clear that the Medical Officer of the Commonwealth has taken into account the individual circumstances of the applicant. 

16. I reject the suggestion that the Medical Officer of the Commonwealth’s opinion was a pro forma opinion. On no fair reading of the Medical Officer of the Commonwealth’s report does it manifest any hallmark of being a pro forma opinion. I accept that a pro forma exercise would not be a valid opinion within the requirements of the PIC4005(1)(c)(ii)(E) in Schedule 4.

17. It was a matter for the Tribunal to satisfy itself that there was an opinion expressed by the medical officer of the Commonwealth which was a valid opinion in accordance with the requirements of PIC4005(1)(a),(b) or (c), and it is clear that the Tribunal carefully considered whether or not the Medical Officer of the Commonwealth’s opinion was correct, and it is clear from para.15 of the Tribunal’s decision:

    15. … The Tribunal considers that the MOC has applied the correct test when making the opinion.

18. There was no failure by the medical officer to apply a hypothetical person test as the language of the report itself makes clear in the reference provision of services to a hypothetical person with the applicant’s condition.

19. There is no substance in ground 1.  I should add that even if there was some non-compliance by the medical officer of the Commonwealth with the Notes for Guidance for Medical Officers of the Commonwealth of Australia the non-compliance would not of itself give rise to a jurisdictional error provided there was compliance with the requirements as identified in paragraph 48 in Minister for Immigration & Multicultural Affairs v Seligman.  In that regard see El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45].

20. In relation to the second ground the Tribunal was bound by r.2.25A to take the opinion of the Medical Officer of the Commonwealth on the matter required to be correct.  Once the Tribunal was satisfied that it was an opinion and relevantly expressed by a Medical Officer of the Commonwealth and was an opinion on the subject of whether the applicant met the requirements of the relevant public interest criterion the Tribunal was bound to accept the correctness of the opinion.

21. Counsel for the applicant sought to submit that the approach adopted by the Tribunal in para.13 was in error by refusing to grant an adjournment to obtain further information in respect of the applicant and assessment of the applicant’s medical condition as a long term non-progressive and accordingly that there had not been a proper review.  There is no substance in this ground.

22. I am satisfied that the applicant had a genuine hearing and that it cannot be said that the Tribunal failed to exercise its jurisdiction or that it failed to conduct a proper review. It was open to the Tribunal to refuse an adjournment in the circumstances identified. Further it was clear that there would be no utility in granting an adjournment once the Tribunal was satisfied that there was, in fact, an opinion which it was required to take as correct. 

23. Adjourning the proceedings in those circumstances would have had no utility and it was open to the Tribunal to decline to adjourn the matter and to proceed with the review.  It cannot be said that the refusal to grant the adjournment lacks an evident and intelligible justification.  The findings made by the Tribunal were clearly open, and it was open to the Tribunal to find as set out in para.17.

24. Further, to the extent that it was advanced in relation to the second ground that there was insufficient material before the Medical Officer of the Commonwealth to form a valid opinion, there is no substance in this contention.  This was clearly a matter within the jurisdiction of the Tribunal to determine and is an impermissible challenge to the finding of fact.  This is a case where there was material upon which it was open to the Tribunal to come to the view that there was a valid opinion and the applicant has failed to identify any jurisdictional error.  The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015

CORRECTIONS

The First Respondent changed from the “Refugee Review Tribunal” to the “Migration Review Tribunal.”