Traill v Minister for Immigration
[2013] FCCA 2
•14 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAILL & ORS v MINISTER FOR IMMIGRATION | [2013] FCCA 2 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal of skilled residence visas – Commonwealth Medical Officer providing an adverse opinion about the second applicant – delegate relying on the opinion which did not meet the requirements for such an opinion – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.57, 476 Migration Regulations 1994 (Cth) |
| Blair v Minister for Immigration [2001] FCA 1014 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Minister for Immigration v Seligman (1999) 85 FCR 115 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Ramlu v Minister for Immigration [2005] FMCA 1735 Ramlu v Minister for Immigration (2005) 195 FLR 203 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Minister for Immigration; Ex parte Applicant S190 of 2002 (2002) 191 ALR 569 Robinson v Minister for Immigration [2005] FCA 1626; (2005) 148 FCR 182 Tewao v Minister for Immigration (2012) 126 ALD 185 X v Minister for Immigration [2005] FCA 429 |
| First Applicant: | DULARI DORAS TURAGABECI TRAILL |
| Second Applicant: | EDWARD TIMOTHY TRAILL |
| Third Applicant: | HEATHER ULAMILA MARY GRACE TRAILL |
| Fourth Applicant: | MERESIANA MARAVU RAILALA PRASAD |
| Fifth Applicant: | HELEN MARY ESTHER LASELA TRAILL |
| Sixth Applicant: | STEVEN JAMES TRAILL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1814 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 27 March & 9 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr J D Smith |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the Respondent: | Mr B D Kaplan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the decision of the Minister’s delegate made on 17 July 2012 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Minister, through his Departmental delegates, to redetermine the visa application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1814 of 2012
| DULARI DORAS TURAGABECI TRAILL |
First Applicant
EDWARD TIMOTHY TRAILL
Second Applicant
HEATHER ULAMILA MARY GRACE TRAILL
Third Applicant
MERESIANA MARAVU RAILALA PRASAD
Fourth Applicant
HELEN MARY ESTHER LASELA TRAILL
Fifth Applicant
STEVEN JAMES TRAILL
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for review of a decision of a delegate of the respondent Minister (Minister) to refuse to grant the applicants skilled (migrant) (class VE) subclass 175 (skilled – independent) visas.
It is common ground that because the visa application was made offshore, the decision of the delegate is not a “MRT reviewable decision” and so is not a “primary decision” within the meaning of s.476(4) of the Migration Act 1958 (Cth) (Migration Act). For that reason, the Court has jurisdiction to review the decision of the Minister’s delegate under s.476 of the Migration Act.
In this judgment I have found that the Minister’s delegate constructively failed to exercise his jurisdiction because he relied upon a medical report which did not properly address the visa criterion upon which it bore. I have also found that the process followed by the delegate was unfair because of the inadequacy of the medical report.
The following statement of background facts is derived from the submissions of the parties.
The first applicant is a citizen of the Republic of Fiji (Fiji)[1]. On 27 November 2008, she applied for a Class VE visa[2]. In her application form, she indicated that she wished to be assessed against the criteria for the grant of a Subclass 175 visa[3]. She included in her application her husband (the second applicant), two daughters and son (the third, fifth and sixth applicants), and mother-in-law (the fourth applicant)[4].
[1] Court Book (CB) 2
[2] CB 1-29, 138-142
[3] CB 1
[4] CB 3, 10, 12
On 7 December 2010, the Minister’s Department wrote to Mrs Traill, requesting, amongst other things, that all members of her family unit undergo a medical examination “to determine if they meet the Australian health standards for migrant entry”[5]. That letter instructed each applicant to complete a Form 26[6].
[5] CB 158
[6] CB 159
On 23 December 2010, the Department received a completed Form 26 (“Medical examination for an Australian visa”) from Mr Traill dated 13 December 2010[7]. His examining doctor, Emi Mataitoga, indicated[8] the following:
[A]ll other Body systems are normal but significant visual impairment 6/60 on right without glasses and blurring on left eye.
NB See accompanying specialist report.[9]
[7] CB 167-172
[8] at CB 172
[9] This appears to be a reference to a report by Dr Shaheen Asgar dated 13 December 2010. See [13] below
It appears that Mr Traill was also referred by Dr Mataitoga to Dr Mark Rudel, an ophthalmologist in Fiji. In a report dated 21 February 2011 (and received by the Department on 28 February 2011), Dr Rudel relevantly said[10]:
[10] at CB 206
On examination visual acuity was right and left 6/75. There was unfortunately no improvement with glasses.
Anterior segments were normal.
Intraocular pressures were 16 mm Hg bilateral.
Dilated fundoscopy showed bilateral maculopathy with Drusen. His poor vision is due to this maculopathy which to my knowledge can’t be improved with surgery.
Subjective and objective refraction didn’t improve his eyesight.
On 15 March 2011, Dr Kennedy Maxwell, the Commonwealth Medical Officer (MOC) provided a report in which he concluded that the second applicant did not meet the health requirement in public interest criterion (PIC) 4005 (being item 4005 of Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations))[11].
[11] CB 213-214
On 24 March 2011, the Department sent to the applicants a letter inviting them to comment on the MOC’s report[12]. However, the Department received no response from any of the applicants[13].
[12] CB 208-212
[13] CB 222, 223
On 17 July 2012, a delegate of the Minister made a decision to refuse to grant each of the applicants a Subclass 175 visa.
The judicial review application
The present proceedings began with a show cause application filed on 21 August 2012. I gave leave for the applicants to rely upon an amended application filed on 15 March 2013. There are two particularised grounds in that amended application:
1. The decision of the delegate of the Respondent to refuse the application for a Skilled (Migrant) (Class VE) visa is infected with jurisdictional error due to a failure to accord the Applicants procedural fairness.
PARTICULARS
(a) The visa refusal decision was based on an opinion of the Medical Officer of the Commonwealth dated 15 March 2011 to the effect that the Second Applicant did not meet the requirements of Item 4005, in Schedule 4 of the Migration Regulations 1994 (“the opinion of the MOC”).
(b) The opinion of the MOC itself is subject to jurisdictional error. While the opinion identified a medical condition that the Second Applicant suffered from, it failed to also specify:
(i) What medical treatment or community services that the Second Applicant’s medical conditions would require; or
(ii) Any quantification of the likely costs associated with those specific medical treatment or community services.
(c) A delegate of the Respondent could only lawfully rely upon an opinion of the MOC which was lawful and not subject to jurisdictional error.
2. The delegate of the Respondent constructively failed to exercise his jurisdiction because he relied on an opinion of the MOC that did not address the criterion in clause 4005.
PARTICULARS
The MOC failed to:
(a) identify the specific condition of the second applicant; and
(b) Determine whether provision of community services to a [person] with that specific condition would likely result in significant costs to the Australian community in the areas of health and community services.
I have before me as evidence the court book filed on 5 October 2012. I also received as an exhibit[14] documents produced under subpoena by the Minister which include a report on an examination of Mr Traill’s eyes by Dr Shaheen Asgar in Fiji on 23 November 2010. Although not specifically stated, it is common ground that this report was provided to the Minister’s Department by or on behalf of the applicants with their visa application and that it was before the MOC when he prepared his report.
[14] Exhibit A1
Both parties provided written and oral submissions. I heard oral argument over two days on 27 March 2013 and 8 May 2013.
Consideration
Preliminary observations
The Minister’s submissions draw attention to some appropriate preliminary observations. I accept those points.
First, it is generally not helpful to dissect a MOC’s opinion, sentence by sentence. Such an opinion should be read beneficially and as a whole[15]. If the opinion were an administrative decision (which the Minister denies) and if the MOC were an administrative decision-maker (which he also denies), a line by line analysis of an opinion would not sit comfortably with the oft-cited cautionary words of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration v Wu Shan Liang[16].
[15] Blair v Minister for Immigration [2001] FCA 1014 at [42] per Carr J
[16] (1996) 185 CLR 259 at 272
Secondly, when reading an administrative decision-maker’s reasons, it should not be assumed that, “in making the ultimate decision, the [decision-maker’s] substantive consideration proceeded in a strict sequence, each step being a wholly self-contained exercise.”[17] In Re Minister for Immigration; Ex parte Applicant S20/2002[18], Gleeson CJ said (at 1169 [14]):
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
[17] Tewao v Minister for Immigration (2012) 126 ALD 185 at 193-194 [24] per Cowdroy, Reeves and Jagot JJ
[18] (2003) 77 ALJR 1165
I accept that there is no reason as to why these observations ought not to apply with equal force to opinions of MOCs. The applicants’ analysis of the MOC’s opinion should be considered consistently with those observations.
Thirdly, the MOC is under no obligation to give reasons for his or her opinion (although in the present case the Minister concedes he did so)[19]. Administrative decision-makers (such as delegates of the Minister) are not under an obligation, at common law, to give reasons for their decisions. What Gibbs CJ said in Public Service Board of New South Wales v Osmond[20] remains good law in Australia[21]. The task of the MOC 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 of the delegate.
[19] See, for example, my decision in Ramlu v Minister for Immigration (2005) 195 FLR 203 at 208 [14], 210 [22]
[20] (1986) 159 CLR 656 at 662-663 and 666-667
[21] See, for example, Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 394 [106] per Basten JA; Re Minister for Immigration; Ex parte Applicant S190 of 2002 (2002) 191 ALR 569 at 575 [21] per Kirby J
A constructive failure to exercise jurisdiction?
It was a criterion for the grant of the visa that each of the applicants satisfied public health criterion 4005. That criterion is found in Schedule 4 of the Regulations. At the time of the visa application, paragraph 4005 provided:
4005 The applicant:
(a) is free from tuberculosis; and
(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c) is not a person who has a disease or condition to which the following subparagraphs apply:
(i)the disease or condition is such that 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 of the applicant’s proposed stay in Australia;
(ii)provision of the health care or community services relating to the disease or condition 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; and
(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking.
At that time, regulation 2.25A provided that, in determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a MOC on whether a person (whether the applicant or another person) meets the requirements of, among other things, paragraphs 4005 (a), 4005(b), and 4005(c). Further, the Minister was required to take the opinion of the MOC on that matter as correct[22]. However, if the Minister relies on the opinion of a MOC that is affected by some error of law, then the Minister’s decision is flawed for jurisdictional error[23].
[22] Regulation 2.25A(3)
[23] X v Minister for Immigration [2005] FCA 429 at [10]; Minister for Immigration v Seligman (1999) 85 FCR 115
Here, the delegate sought the opinion of the MOC in relation to Mr Traill. Dr Maxwell gave an opinion dated 15 March 2011 stating that Mr Traill did “not meet the Public Interest Criterion(s): 4005”[24]. The delegate found that Mr Traill did not satisfy the criterion in paragraph 4005 as a result of the MOC’s opinion and so refused to grant the applicants visas[25].
[24] CB 213-214
[25] CB 221-224
The first issue in this application is whether the MOC’s opinion was on or about the relevant visa condition in the sense that it addressed and did not go beyond the elements of the visa condition properly construed[26]. That issue requires an examination of the MOC’s opinion.
[26] X v Minister for Immigration [2005] FCA 429
The applicants complain that there are two deficiencies in the MOC’s statement of opinion which result in a constructive failure to exercise his and (in consequence of the delegate’s reliance upon the opinion) the delegate’s jurisdiction.
The MOC first stated that Mr Traill was a person with severe visual impairment and that this condition was permanent. The applicants contend that that was not a sufficient analysis of Mr Traill’s condition to allow a proper consideration of whether or not he met the criterion in paragraph 4005. What is required is to go beyond a generic description of the condition because, although there is a test by reference to a hypothetical person, that person must have the same condition as the applicant[27].
[27] Robinson v Minister for Immigration [2005] FCA 1626 at [43]–[56]
After reference to Mr Traill’s condition, the MOC stated that a hypothetical person “with this condition and severity, staying for the proposed duration which is permanent, would likely be eligible for community services.” He then stated that this “would be a significant cost to the Australian community.” The applicants note that the MOC does not, at this point, identify whether that cost would be “in the areas of health care and community services” for the purposes of paragraph 4005(c)(ii)(A). The applicants contend that there is no logical basis to proceed from that finding to any finding that this eligibility would be likely to result in significant cost to Australia in anything else but the area of community services.
The applicants submit that the MOC’s finding does not address the statutory criterion. They submit that PIC 4005(c)(ii)(A) requires that cost to be in both areas of community services and health care. That is the ordinary grammatical consequence of the plural (“areas”) and a conjunction (“and”). It may be noted that the previous version of this paragraph had the disjunctive “or” between the two areas. For that reason, the applicants contend that the opinion was one which the delegate was required to not accept as correct and the fact that he did so meant that he constructively failed to exercise his jurisdiction.
There are two parts of the opinion that may be seen to militate against this conclusion. First, the fourth paragraph on CB 214 which states:
This is consistent with the likely requirement for health care and community services of a hypothetical person with the form and level of the condition suffered by the applicant and represents a significant cost to the Australian community.
The difficulty with that paragraph is that it is disconnected from its context. Logically the “this” at the beginning of the paragraph should refer to the immediately preceding paragraph, namely, that the eligibility for community services would be a significant cost to the Australian community. However, that cannot be. Replacing “this” with what it should refer to, the paragraph reads:
Eligibility for community services would be a significant cost to Australian community which is consistent with the likely requirement for health care and community services of a hypothetical person … and represents a significant cost to the Australian community.
The applicants’ point is not just that there is some illogicality in the opinion, but that there is something more fundamentally wrong. That is either that this paragraph does not form part of the reasoning at all or that the MOC understood that eligibility for community services was also a requirement for health care. The first of these possibilities indicates that the MOC’s real findings are only in the three first paragraphs of CB 214. The second may reveal that the MOC misunderstood the statutory criterion.
Similarly, the next paragraph also refers to “areas of health care and community services”. However, the applicants contend that this paragraph either does not represent any part of the reasons or findings of the MOC or reveals further error.
The applicants break down the paragraphs into separate propositions, the relevant parts being:
a)This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) apply;
b)regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia;
c)a person with such a disease or condition would be likely to require:
i)health care; or
ii)community services; or
iii)would be likely to meet the medical criteria for the provisions of a community service; and
d)provision of such health care or community services relating to the disease or condition would be likely to:
i)result in a significant cost to the Australian community in the areas of health care and community services; or
ii)prejudice the access of Australian citizens or permanent residents to health care and community services.
(emphasis added)
The applicants’ purpose of dissecting this paragraph and highlighting each of the disjunctions is to show that this paragraph does no more than repeat, in narrative form, the criteria in paragraph 4005(c)(ii)(A). There is no reference anywhere else in the opinion to a disease or to any prejudice to access of citizens or residents. Rather, when read as a whole, the opinion is that the applicant has a condition, that this is likely to make him eligible for community services and that this will result in a significant cost in the area of community services. The applicants contend that that shows that the MOC’s opinion did not meet the statutory criterion.
The Minister seeks to avoid a finding of jurisdictional error by a contrary analysis of the MOC’s opinion.
Contrary to the applicants’ submissions, the Minister submits that the MOC’s opinion did not suffer from the vice which affected the MOC’s opinion the subject of consideration by Siopis J in Robinson v Minister for Immigration[28]. Having regard to the second applicant’s Form 26 (which contained a summary of an examination by Dr Mataitoga) and the report of Dr Rudel, the MOC ascertained the “form or level of the condition” as being a “severe visual impairment” which is “permanent”. Accordingly, the Minister submits that the MOC identified, and considered, not only the second applicant’s disease (informed by the opinions of Drs Mataitoga and Rudel), but also its level or seriousness.[29] This is said to satisfy the test enunciated by Siopis J in Robinson at 193-194 [43].
[28] (2005) 148 FCR 182
[29] Ramlu v Minister for Immigration [2005] FMCA 1735 at [18]
The Minister contends that, having identified the form or level of the condition suffered by the second applicant, the MOC applied the criteria in PIC 4005 by reference to a hypothetical person who suffers from that form or level of the condition. The MOC formed the view that the hypothetical person with “this condition and severity” (namely, severe visual impairment that is permanent), staying in Australia permanently, would be likely to require health care or community services, or would be likely to meet the medical criteria for the provision of a community service[30]. This aspect of the MOC’s opinion adequately dealt with PIC 4005(1)(c)(i). (It should be noted that the phrase “community services” is defined in regulation 1.03 as including “the provision of an Australian social security benefit, allowance or pension.”)
[30] CB 214
The MOC also found that provision of health care or community services relating to the second applicant’s condition (severe visual impairment that is permanent) would be likely to result in a significant cost to the Australian community in, or prejudice the access of Australian citizens or permanent residents to, both of those areas[31]. This aspect of the MOC’s opinion is said to have adequately dealt with PIC 4005(1)(c)(ii).
[31] CB 214
The Minister contends that the Court need not determine whether the conjunction “and” in PIC 4005(1)(c)(ii)(A), read in context, operates conjunctively or disjunctively. That is so because the MOC has proffered an opinion that a hypothetical person with the second applicant’s condition would be likely to require health care and community services. The Minister notes, however, that the applicants’ construction of PIC 4005(1)(c)(ii)(A) would have the odd result that, if an MOC were of the view that a hypothetical person would be likely to require only health care, the MOC’s opinion would be one that is not authorised by the Regulations unless he or she opined that provision of such health care would be likely to result in a significant cost to the Australian community in the areas of health care and community services. That would apparently be so, notwithstanding that the MOC has not proffered an opinion that the hypothetical person would be likely to require community services. The same odd result would be reached if the MOC were of the view that the hypothetical person would be likely to require only health care and not community services. Accordingly, the Minister submits that the word “and” in PIC 4005(1)(c)(ii)(A), when read in context, ought to be read disjunctively. The Minister stresses, though, that the Court need not resolve this issue in the present case.
I prefer the applicants’ submissions in material respects and find that there was a constructive failure of jurisdiction. The MOC’s opinion relevantly states[32]:
[32] CB 214
The applicant is a 41 year old person with severe visual impairment. The condition is permanent.
A hypothetical person with this condition and severity, staying for the proposed duration of stay which is permanent, would likely be eligible for community services.
This would be a significant cost to the Australian community.
This is consistent with the likely requirement for health care and community services of a hypothetical person with the form and level of the condition suffered by the applicant and represents a significant cost to the Australian community.
This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) – new in Schedule 4 of the Migration Regulations 1994 apply, regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia. A person with such a disease or condition would be likely to require health care of community services or would be likely to meet the medical criteria for the provisions of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australia community in the areas of health care and community services, or prejudice the access of Australian citizens for permanent residents to, health care and community services.
Therefore the applicant does not meet Public Interest Criterion(s):
4005
The MOC stated that in preparing his opinion he had regard to[33]:
available reports to date concerning the applicant, including, but not limited to, the Form 26 dated 13/12/2010 and the report dated 21/02/2011 by Dr Rudel.
[33] CB 213
In my view, the reference to the “Form 26” must include the report of Dr Asgar in relation to his examination on 23 November 2010. That report is dated 13 December 2010 and it is common ground that it was almost certainly provided with the Form 26. Dr Asgar relevantly states:
Mr Traill manages his work and normal daily activities with his vision. Visual acuity is 2/60 and he manages computer screen work and reading.
He doesn’t drive and says that he has no problem seeing people and objects in the distance.
He has no ocular pathological symptoms.
It follows from Dr Asgar’s report that Mr Traill displayed a visual disability (which he did not specify) and which appeared to have only a minor impact on his daily functioning. The lack of pathological symptoms suggested no particular need for medical intervention.
The report of Dr Mark Rudel, also considered by the MOC, appears at CB 206. Dr Rudel relevantly states in his report:
On examination visual acuity was right and left 6/75. There was unfortunately no improvement with glasses.
Anterior segments were normal.
Intraocular pressures were 16 mm Hg bilateral.
Dilated fundoscopy showed bilateral maculopathy with Drusen. His poor vision is due to this maculopathy which to my knowledge can’t be improved with surgery.
Subjective and objective refraction didn’t improve his eyesight.
Please don’t hesitate to contact me for further information.
There is no indication that the MOC took up the invitation from Dr Rudel. That report confirmed a visual disability but a finding of acuity different from that of Dr Asgar. Dr Rudel identified the cause of the disability as “bilateral maculopathy with Drusen”. He confirmed that no medical intervention was warranted. Dr Rudel made no comment on the impact of the disability on Mr Traill’s daily functioning.
In my view, in the light of the opinions of Dr Rudel and Dr Asgar, the MOC report is uninformative at the most basic level. The MOC expresses no agreement or disagreement with the opinions of either Dr Rudel or Dr Asgar. The MOC’s report makes no comment on the diagnosis of Dr Rudel and the opinion of Dr Asgar on Mr Traill’s capacity to function. The MOC also makes no comment on the opinion of both doctors that no medical intervention is warranted in the case of Mr Traill. The MOC report fails to identify the visual impairment suffered by Mr Traill, although stating that, whatever it may be, it is “severe”. The MOC’s statement that the condition is permanent appears to support the opinions of Dr Rudel and Dr Asgar that no medical intervention is warranted.
There is no discussion in the MOC report of Dr Asgar’s opinion concerning Mr Traill’s capacity to function in his daily life without support. There is a bald assertion by the MOC that Mr Traill would be eligible for community services and that this would be a “significant cost to the Australian community”. The basis for that assertion is unexplained. The reference in the last substantive paragraph in the MOC’s opinion that “a person with such a disease or condition would be likely to require healthcare or community services” is meaningless without the identification of what the disease or condition is. It is, in my view, simply a template statement drawn from a precedent used by the MOC.
In my view, the MOC report was so uninformative that it was impossible for the Minister’s delegate to rely upon it in order to make a decision on the visa application by Mr and Mrs Traill. In the words of Siopsis J in Robinson at [43] the MOC failed to properly ascertain the form or level of the condition suffered by Mr Traill and then proceeded to make an assessment at a higher level of generality by reference to a generic form of an unidentified condition. Because the MOC opinion was unreliable, and the delegate did rely upon it, there was a constructive failure of jurisdiction and the applicants should receive the relief they seek.
In these circumstances, it is unnecessary for me to resolve the question of construction of PIC 4005(1)(c)(ii)(A) raised in the parties’ submissions.
Procedural fairness
Section 57 of the Migration Act does not apply in this case by reason of subsection (3). I accept that, under the general law, procedural fairness required the disclosure of the MOC report by the delegate (which had not been previously discussed with the applicants by the MOC). The report clearly had a fundamental adverse impact on the visa application. The Minister’s Department purported to comply with that obligation by letter dated 24 March 2011[34]. That letter apparently enclosed a copy of the MOC’s opinion and drew attention to the statement that Mr Traill had been assessed as not meeting the health requirement for the grant of a visa. There was no attempt to explain the MOC opinion. Neither could there have been because the opinion was, on its face, inexplicable. In the absence of the identification of the condition or disease suffered by Mr Traill and, in the absence of any comment upon the reports provided in support of the visa application, and in the absence of any discussion about Mr Traill’s need for medical intervention or support, nothing could have been said by the Minister’s delegate to assist the applicants to understand the opinion and respond to it.
[34] CB 208-209
I accept the Minister’s submission that there was no obligation on the delegate to provide a commentary on the MOC’s report. The report should speak for itself. The vice here is that the report is so uninformative as to be virtually silent. Even if there had been an obligation on the delegate to explain the report, it would have been impossible for him to do so. That simply underscores the unreliability of the report. A further consequence, however, is that the opportunity to comment on the report was a meaningless one and the process was therefore unfair.
Conclusion
The Minister’s delegate fell into jurisdictional error by relying upon the MOC’s opinion which failed to meet the minimum standard for such an opinion. The opportunity to comment on the report was unfair because the report was uninformative. I will provide relief in the form of the writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 14 June 2013
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