Vinh QUANG Han v Minister for Immigration
[2006] FMCA 591
•2 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINH QUANG HAN v MINISTER FOR IMMIGRATION | [2006] FMCA 591 |
| MIGRATION – Review of Minister’s decision – refusal of visa on public health grounds by reference to Medical Officer opinion – not satisfied that Medical Officer opinion was properly formed – decision quashed. |
| Applicant: | VINH QUANG HAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2764 OF 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 3 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Quantum Lawyers |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
A Writ of Certiorari shall issue, quashing the decision of the delegate of the Respondent made 10 January 2005.
An Order in the nature of mandamus shall issue directing the respondent to consider the Applicant’s Application for a visa.
The Respondent shall pay a contribution to the Applicant’s costs and disbursements of and incidental to the Application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2764 OF 2005
| VINH QUANG HAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Applicant, a citizen of Vietnam, applied for a Business Owner visa sub-class 127. One of the conditions for the grant of the visa is that the members of the Applicant’s family passed the “public interest” health criteria.
Because the Applicant’s (then) 10 year old son BINH was said not to meet this “public interest” health criteria, the Applicant and his family were refused a visa. As the Applicant was off-shore, and the category of visa he was applying for was not relying on an on-shore sponsor, there is no right of review to the Migration Review Tribunal from the decision. As a result, relief is available directly from the decision of the Respondent, if there is jurisdictional error.
The judicial review application
I gave leave to the Applicant, without objection from the Respondent, to file an amended Application at the Hearing before me on 3 March 2006. The grounds and particulars of the Applicant’s claim are as follows:-
“A precondition to the valid exercise of the Respondent’s power, namely an opinion validly formed, within jurisdiction, by a Medical Officer of the Commonwealth pursuant to regulation 2.2A, namely that the Applicant’s son did not meet the “public interest” “health criteria” prescribed by Migration Regulation, schedule 2, clause 127.225, was not satisfied, in that the Medical Officer of the Commonwealth failed to exercise his jurisdiction, and failed to ask the right questions.
Particulars:
Particular 1.1
1.1 The delegated Medical Officer of the Commonwealth failed to identify any “condition” or “disease” afflicting the applicant’s son which could attract the application of schedule 4, clause 4005(c )(II)(a) of the Migration Regulations 1958.
1.1.1 A “developmental delay” is not a “condition or disease” within the meaning of the regulation.
Particular 1.2
1.2The delegated Medical Officer of the Commonwealth failed to identify the degree of severity or the form of any condition of the Applicant, and then failed to ask what an hypothetical person with such a condition would be likely to require in the way of additional “community services”.
Particular 1.3
1.3 The delegated Medical Officer of the Commonwealth failed to identify what “community services” would be required which would result in significant cost to the Australian community over and above the cost of providing such services to those not suffered from a “disease” or “condition”.
1.3. The delegated Medical Officer of the Commonwealth identified only unparticularised “special intervention” in an unparticularised context, of unparticularised duration, unparticularised level, and unparticularised cost, as leading to a “significant cost”.”
Statutory framework
As Siopis J, in Robinson v MIMIA (2005) FCA 1626 identified:
“The power of the first respondent to grant visas is conferred by s 29 of the Migration Act 1958 (Cth)(“the Act”). Section 31 of the Act provides for prescribed classes of visas. Section 31(3) of the Act provides that the Migration Regulations 1994 (Cth)(“the Regulation”) may prescribe criteria for visas of specified classes. Section 60 of the Act provides for a medical examination in relation to an applicant’s health, physical condition or mental condition. Section 65 relevantly provides that if, after considering a valid application, the first respondent is satisfied that the health criteria for it (if any) have been satisfied and the other criteria for it prescribed by the Act or the Regulations have been satisfied he or she is to grant the visa or if not so satisfied, is to refuse to grant the visa”.
The Applicant must satisfy paragraph 4005 in Schedule 4 which provides relevantly:-
4005 The applicant:
(a) …………
(b) …………
(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 service; or
(B)meet the medical criteria for the provision of a community service;
during the period of the applicant’s stay in a 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 service; 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) …………….
Furthermore, under regulation 2.25A(3) (authorised by section 505 of the Migration Act 1958 (Cth)(“the Act”):
“(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in sub-regulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion”.
The application for visa
The Applicant made an Application dated 15 August 2002 for the said visa. Although much of the material in the Court Book (CB) relates to issues in respect of the business and financial criteria to be satisfied, those issues are not relevant to these proceedings.
In the said Application, when asked:
“Have you, or any other person included in this application, ever had or currently have tuberculosis or any other serious disease (including mental illness), condition or disability?” he answered “No”.
The Applicant’s son Binh, born 28 September 1994, was included in the Application.
On 3 March 2004, the Department gave notice to the Applicant that:
“The Health Assessment Service (HAS) of the Australian Department of Immigration and Multicultural and Indigenous Affairs has requested that further tests be carried out” in respect of Binh.
In response a “Psychiatric Evaluation Report” dated 22 March 2004 was produced (CB 114 – 116). The Report purpose was for an “intellectual evaluation”. This report contains the following evaluation:-
“Evaluation and Recommendation:
This 10 year old Vietnamese male patient, academic level of grade1/12 was born prematurely by caesarean.
Delayed psychomotor and speech development.
Since childhood – patient has been duller than peer age children.
No history of psychotic symptom.
The examination shows patient is alert, well groomed in contact. Impaired intellect at mild degree specially in calculation ability and calm performance debut exam, but hyperactive.
The neurological examination reveals nothing abnormal.
Diagnosis:
317. Mild Mental Retardation with Hyperactive. No History of harmful behaviour. Can do self care. Need for special schooling. Can live independent. Need continuous family supervisor. In the future, he would be able to hold simple job with special training”.
In a document dated 18 May 2004 (CB123-124), which appears to be in a standard form (FORM 884) a Medical Officer of the Commonwealth Dr PROCHAZKA, opines that:
“The Applicant is a person with developmental delay. He is being educated at a special school and would require special intervention. This would be a significant cost to the community”.
Dr Prochazka formed the view that Binh “does not meet “Public Interest Criterion(s) 4005”.
The Applicant was provided with a copy of the Form 884 and by letter dated 31 May 2004 the Applicant was advised that:-
“Before making a decision on this application, I am inviting Mr Han to provide any further comment. It is recommended that he does so after consulting a doctor of his choice, so that a professional person can explain the medical situation”.
Despite an offer by the Applicant to bring the child to Australia for “an independent specialist health opinion in Australia”, (with an appointment having been made), a visitors visa was not issued for this purpose.
The Applicant additionally indicated that Dr Paul Hutchins, Senior Staff Physician and Head of the Child Development Unit at the at “the Children’s Hospital at Westmead” was prepared to re-assess Binh but again that was not possible because the child was not permitted to enter Australia.
By letter dated 23 July 2004, the Department sought an explanation from the Applicant “as to why, in his migration Application he responded “no” to question 64”. Also he was given notice of an “anonymous allegation” suggesting the Applicant:-
a)had amassed substantial funds through the use of graft in his government position;
b)had stated his son “is ill” and that the “Australian Government will take care of his medical problems”.
By declaration dated 20 July 2004 (CB 139-140), the Applicant denied the business impropietary and relevantly explaining that:-
“4. I have always believed that my son is a slow learner and does not have mental illness. He continues to attend school and is progressing steadily. I believe that his learning ability is not a serious illness and therefore I ticked “No” to question 64 on form 478U. I believe that my son is slow learner and believe that his learning ability will progress as he gets older”.
Because of the inability for the child to enter Australia for local health assessment, the child was assessed at the National University Hospital in Singapore on 4 September 2004. A copy of the Report is before the Court (CB 150 – 153) which provided the following:-
“Summary and Conclusion:
“QUANG BINH is a 9 year 8 month old Vietnamese boy who was referred by Dr Jennifer King for an intellectual assessment in view of documentation required for application to migrate to Australia. The results of the WISC – 111 assessment show that his non-verbal (performance) IQ is found to be in the borderline range. His adaptive behaviours were found to be in the low range ……. His overall adaptive functioning is around 4 year and 10 month level.
In view of current assessment results, QUANG BINH will benefit from specialised support in an educational setting. He will benefit either from integration support in a supportive mainstream school setting or from placement in a special school setting.
QUANG BINH has difficulties coping with his school work as well as forming friendships in school. He will take longer time to learn things and so parents and teachers need to be aware of his difficulties. He needs guidance in establishing meaningful friendships with other children. It is highly recommended that QUANG BINH and his family consult professionals which as developmental paediatricians, speech and occupational therapists and psychologists to follow up his learning”.
Thereafter some documents were forwarded to Dr Prochazka. The CB does not assist in detailing what further material was provided. The Medical Officer’s response does not assist in being clear what “further documents” were before the Medical Officer when he gave his final and determinate opinion on 13 October 2004, in these brief terms:
“Further documents received with thanks. Please refer to the opinion of 18 May 2004”.
Was the opinion of the Medical Officer validly formed
The Respondent submits this is the only real point in the proceedings. In my view it is the determinative issue.
The Applicant asserts in respect of this issue that:
a)even if it be accepted that “developmental delay” constitutes a “disease or condition”, the Medical Officer has not asked what the degree of severity or form of the disease is, and then applied it to a hypothetical person;
b)this is the same error identified in Robinson V MIMIA (2005) FCA 1626 (see in particular [54] to [56];
c)as Binh was identified as having only a “borderline” disability in the later report (and only a “mild disability” in the earlier report), determining the severity was critical;
d)there is no evidence identified which demonstrates the child’s developmental delay will result in community expense that is significant or for how long it would be required.
The Respondent asserts broadly that:
a)whether the Medical Officer adequately assessed the degree or seriousness of the condition or disease requires an examination of what he said in the context of the report that he had before me;
b)the Medical Officer does not have to describe what is the nature of the “special intervention” he considers is required – the fact that he describes it as “special” means it is not a “mere” intervention. It goes beyond perhaps the level of someone who needs “a small amount of intervention”.
Analysis and conclusion
The Respondent is not assisted by what can only be described as the bare minimum of words used by the Medical Officer.
I agree that the opinion of the Medical Officer (who to some degree in a case like this, because of the operation of Regulation 2.25A(3), becomes akin to the “administrative decision maker”), must be viewed, not with an eye too keenly attuned to the perception of error, but must be read broadly. An overly “pernickey approach” should not be adopted.
However I have formed the view that I can not be satisfied that the Medical Officer has actually turned his mind and consideration to all of the evidence and applied the proper test.
The proper test has been recently considered by SIOPIS J in Robinson (supra) when his says at [43] that:-
“A proper construction of Public Interest Criterion 4005 of the Regulations requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a high level of generality by reference to a generic form of the condition”.
By the Medical Officer using the generic term of “developmental delay” without any further clarification, I cannot be satisfied that he has determined the actual level and severity of the delay and how long it may endure.
Furthermore, when he gives the later opinion, he makes no comment as to whether, in apparently confirming his view that there would be “significant cost to the Australian community”, that is based in Binh attending “a supportive mainstream school” or a “special school”.
If I accept that “developmental delay” is a “condition” for the purposes of 4005 (as I am inclined to do), it seems obvious that the impact on this hypothetical person is the need for educational/intellectual support.
In the case of IMAD v MIMIA (2001) FCA 1011, Heery J , when considering the construction of Public Interest Criterion 4005 (c) said at [14]:
“The intention behind this regulation is understandable, particularly in light of Regulation 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other had, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or family member or friends or other sources of financial assistance”.
The issues raised in the reports relied upon by the Applicant all deal with “educational” delay. One may not expect a medical officer to be qualified to assess the issues of educational impairment – although there have been cases where they have commissioned further reports to assist them to form an opinion (see BLAIR v MIMIA (2001) FCA 1014).
In RAMLU v MIMIA (2005) FMCA 1735, Driver FM was confronted with an opinion from the Medical Officer which he found was “far from clear” and observed, correctly in my view that “in order to be reliable for the purposes of the Regulations, a RMOC opinion must be clear on its face as to what the disease is to which the public interest criteria relate”.
A combination of a failure by the Medical Officer to properly identify in the reasons:
a)the nature of the condition by other than the generalised description of “developmental delay”;
b)the level of severity of that condition and its likely longevity;
c)the concerns of the Medical Officer’s expertise to properly assess any likely impact, and therefore the cost to the Australian community, of the different avenues of educational support identified in the Singapore report;
d)the uncertainty of what was before the Medical Officer before giving the last definitive opinion.
all are sufficient in my view, because of the “borderline” challenges this child confronts, to raise a concern about whether the opinion of the Medical Officer was properly made under the relevant conditions.
In my view the delegate’s decision, reliant as it was upon the opinion of the Medical Officer, is tainted by jurisdictional error and cannot stand.
I propose to order in the nature of certiorari, quashing the decision of the Respondent and will order in the nature of mandamus directing the Respondent to reconsider the Applicant’s Application for a visa.
Costs ought follow the event, and I agree with the approached adopted by Driver FM in RAMLU (supra), that the costs now prescribed by the Rules as payable in migration decisions (namely $5000), should apply in this case even though the rules do not necessarily apply to Applications filed before 1 November 2005. I will so order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: E Keen
Date: 02.05.2006
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