Yung v Minister for Immigration
[2020] FCCA 680
•25 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YUNG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 680 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (the Tribunal) – whether the Tribunal erred by taking irrelevant considerations into account – whether the Tribunal erred by failing to take relevant considerations into account – whether the Tribunal erred by failing to apply the correct and relevant test for evidence under Public Interest Criterion 4005 of Schedule 4 to the Migration Regulations 1994 (Cth) – whether the Tribunal failed to apply the statutory criteria by reference to the hypothetical person test – ground not made out – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 |
| First Applicant: | ROLAND YUNG |
| Second Applicant: | KIMBERLEY YUNG |
| Third Applicant: | JACKSON YUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 428 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 March 2020 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kaylinger |
| Solicitors for the Applicant: | WB Legal |
| Counsel for the Respondents: | Mr M.P. Cleary |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 13 February 2017 and as amended is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 428 of 2017
| ROLAND YUNG |
First Applicant
| KIMBERLEY YUNG |
Second Applicant
| JACKSON YUNG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 February 2017 and amended on 3 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which on 16 January 2017 affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicants Other Family (Residence) (Class BU) visas (“the visas”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Relevant Legislation
To be granted the visas the applicants were required to satisfy, amongst other things, cl.838.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). It was in the following terms at the relevant time:
838.224
(1) Each member of the family unit of the applicant who is an applicant for a Subclass 838 visa is a person who:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 , 4010 and 4020 ; and
(b) if the person had turned 18 at the time of application--satisfies public interest criterion 4019.(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 838 visa satisfies:
(a) public interest criteria 4001, 4002, 4003 and 4004; and
(b) public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
The Public Interest Criterion (“PIC”) 4005(1)(c)(ii)(A) was at the relevant time:
“4005 (1) The applicant:
…
(c) is free from a disease or condition in relation to which:
…
(ii) the provision of the health care or community services 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) …”
Background
The applicants are citizens of Papua New Guinea. Mr Roland Yung is the father of the second and third applicants. The third applicant is a dependent of Mr Yung (item 4 at CB 32).
They applied for the visas on 29 June 2015 (CB 3 – CB 43 and CB 124.3). On 6 October 2015 the Minister’s department wrote to the applicants requiring them to undergo health examinations necessary for the grant of the visas (CB 84 – CB 100). Amongst other matters, the criteria for the grant of the visas required that the applicants meet certain health standards. (See further below).
Subsequently, the applicants were invited to comment on information in response to “adverse information received” as a result of the medical examination of the third applicant on 26 November 2015 (CB 102 – CB 104). The correspondence attached a copy of the report by the Medical Officer of the Commonwealth (“MOC”) (“the first report”) (CB 105).
The MOC found that the third applicant had moderate autism spectrum disorder (CB 105.5) which was: “…likely to be Permanent” (CB 105.6), and that provision of Commonwealth/State disability services or Residential care services: “…would be likely to result in a significant cost to the Australian community” (CB 105.8). In coming to this conclusion the MOC considered that: “…a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above” (at CB 105.7).
The MOC found that the third applicant did not meet the health requirement Public Interest Criterion (PIC) 4005, as he did not satisfy “sub-subparagraph” PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations (at CB 105.4).
In response, the applicants provided various reports and letters including from a psychologist, psychiatrist, and from an Executive Officer of “CASS Group” disability services (CB 116 – CB 121), in addition to a statutory declaration by the first applicant, dated 11 February 2016 (at CB 114 – CB 115).
In a second MOC opinion, dated 17 February 2016 (“the second report”), the MOC again found that the third applicant did not meet the health requirement of PIC 4005 (CB 122). The MOC also found that the third applicant had “moderate autism spectrum disorder” which was likely to be permanent (CB 122.4). In addition, the MOC’s report also stated that: “A hypothetical person with this condition at the same severity as the applicant, would be likely to be eligible for use of community services, including disability support, and in time, residential care” (CB 122.5), and that such provision of these health care and/or community services would likely result in: “…a significant cost to the Australian community in the areas of health care and/or community services” (CB 122.8).
On 9 March 2016 the Minister’s delegate refused to grant the applicants the visas as the third applicant did not meet the health criterion in PIC 4005, therefore did not satisfy cl.835.224 (see CB 129.10 – CB 130.1 and CB 131.3), and cl.835.322 (see CB 133.4 and CB 135.6) of Schedule 2 to the Regulations (CB 124 – CB 135).
Before the Tribunal
The applicants applied for review of the delegate’s decision on 23 March 2016 (CB 136 – CB 148). On 17 August 2016 the Tribunal sent the applicants correspondence giving them the opportunity to obtain a further opinion of a MOC (CB 214 – CB 219).
On 8 September 2016 a Review MOC (“RMOC”) (“the third report”) found that the third applicant did not meet the health requirement to satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations. The RMOC found that the third applicant had: “…Moderate autism spectrum disorder” (CB 275.5) that was: “…likely to be Permanent” (CB 275.6). Further, that provision of services would likely: “…result in a significant cost to the Australian community in the areas of health care and/or community services” (CB 275.10). In preparing the report, the RMOC had regard to information, provided up to 8 September 2016, including medical and psychologist reports and the first and second reports (CB 276).
Further, the report stated (at CB 275.7):
“I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.”
The correspondence was sent to the applicants on 13 September 2016 inviting them to comment on, or respond to, information, in writing, by 27 September 2016 (CB 261 – CB 265). This included an opinion given in the third report by a RMOC, on 8 September 2016 (CB 263.9 – CB 264.3 and see CB 275 – CB 276 generally). In response, the applicants’ representative provided submissions and attached supporting documents to the Tribunal on 26 September 2016 (CB 266 – CB 299).
On 28 September 2016 the applicants were invited to attend a hearing before the Tribunal (CB 300 – CB 307) scheduled for 16 November 2016 (CB 302.5). The first applicant attended the hearing, accompanied by his representative, and a consultant psychologist as a witness. He was assisted by an interpreter in the Mandarin language (CB 313).
On 17 November 2016 the Tribunal sent the applicants correspondence giving them the opportunity to obtain a further opinion from a RMOC (CB 316 – CB 318).
On 19 December 2016 a RMOC found that the third applicant did not meet the health requirement in PIC 4005(1)(c)(ii)(A) as he had “mild-to-moderate autism spectrum disorder” (“the fourth report”) (CB 344 – CB 345).
The RMOC noted that this condition was: “…likely to be Permanent” and that: “…a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified”, which would likely result in a “significant cost” to the community (CB 344).
The RMOC also noted that these services would likely include Commonwealth/State disability services (CB 344). The RMOC had regard to information regarding the third applicant available up to 19 December 2016, including a number of reports, and medical assessments, in addition to the previous MOC and RMOC reports, when preparing the opinion (CB 344.10 – CB 345).
The applicants were notified by letter dated 20 December 2016, sent via email on the same date, of the outcome of the RMOC opinion, and were provided a copy of the document (CB 339 – CB 345). The letter also notified them that the Tribunal had not: “…made up [its] mind about the information” (CB 341.5), and invited them to comment on, or respond to, the information, in writing, by 3 January 2017 (CB 341 – CB 343).
On 9 January 2017 the applicants’ representative contacted the Tribunal to request an extension of time to provide comments, as the law firm had been closed for the Christmas period from 17 December 2016 to 9 January 2017. It appears that they had been unaware of the Tribunal’s 20 December 2016 correspondence until that time (CB 346 – CB 348). The Tribunal attempted to call the representative for the applicants on 9 January 2017, and left a message informing them that the decision would not be made before 16 January 2017 (CB 349).
On 13 January 2017 the applicants’ further submissions were sent by email in the form of a letter (with attachments) to the Tribunal (CB 350 – CB 362). The applicants’ representative also called the Tribunal to confirm that they had been granted the extension of time to provide the written submissions. The representative was informed by a Tribunal officer that as the decision would not be made before 16 January 2017, any submissions received up until that time would be accepted (CB 363).
On 16 January 2017 the Tribunal affirmed the delegate’s decision to refuse the grant of the visas (CB 367 – CB 370).
The Tribunal’s Findings
The Tribunal found that the third applicant did not satisfy the requirements of PIC 4005 ([14] at CB 370). In coming to its conclusion, the Tribunal had regard to the relevant law, in addition to the MOC and RMOC reports, and evidence and submissions provided by the applicants to the Tribunal at the hearing, and variously in writing.
The applicants had put to the Tribunal that the RMOC opinion of September 2016 (the third report) was “at odds” with medical reports provided by the applicants. However, the Tribunal did not consider that differences in medical opinion established a legal error, as the medical evidence provided by the applicants was before the RMOC in preparing the third report, and the Tribunal was: “…not required to form its own views on the [third] applicant’s medical condition or resolve the differences in medical opinions” ([9] at CB 369). The Tribunal was therefore satisfied that the RMOC opinion was “validly made”.
The first applicant’s oral evidence at the hearing suggested that the RMOC (the third report) did not take into account all the medical evidence ([10] at CB 369). The Tribunal agreed to a request for a further RMOC report (“the fourth report”).
The RMOC in the fourth report again found that the third applicant did not satisfy PIC 4005. The RMOC gave consideration to a “hypothetical person” with the same: “…disease or condition, at the same severity as the applicant”, and concluded that they would be likely to require health care or community services which would result in a “significant cost” to the Australian community (CB 344).
The report also stated that the RMOC had regard to information available to date, including the previous MOC and RMOC opinions, as well as the related medical documentary evidence (see CB 344 – CB 345).
In their response to these findings, the applicants asserted that: “…the medical evidence had been ignored or not given due weight” ([10] at CB 369).
The Tribunal found that there was no basis for this submission, and noted that the weight to be given to evidence, and: “…what outcome such evidence should lead to, is a matter for the medical officer” ([10] at CB 369).
Ultimately the Tribunal was satisfied that the medical officer applied the relevant statutory criteria, with reference to a “hypothetical person”, and found that: “The fact that the applicant objects to the outcome does not render the opinion invalid” ([10] at CB 369).
The Tribunal noted that it was bound by the MOC opinion after finding that the medical opinion was valid ([10] – [11] at CB 369).
The applicants’ submissions of 13 January 2017 to the Tribunal also made reference to various Conventions to which Australia is a signatory. The Tribunal noted that these were not relevant matters for its consideration of whether or not to grant the visa ([12] at CB 369 – CB 370).
Before the Court
The applicants were legally represented at the time of making the application to the Court. On 2 March 2017 orders were made, by consent, by a Registrar of this Court, for the filing of various documents, including the filing of an amended application, and the filing of written submissions by the applicants and respondent, 14 days and 7 days, respectively, prior to the hearing.
An amended application was filed by the applicants on 3 May 2017. However, written submissions were not filed by the applicants in accordance with that order (see further below).
The Sole Ground of the Application
The sole ground of the amended application filed on 3 May 2017 is in the following terms:
“The Applicant seeks judicial review of the decision made by the Administrative Appeals Tribunal Migration Division (Tribunal) on the grounds that the Tribunal fell into jurisdictional error and breached the Migration Act 1958 (Cth). The Tribunal erred in law by taking into account irrelevant considerations and/or failing to take into account relevant considerations with respect to the appeal of the Applicant’s migration application.
Particulars of irrelevant consideration
a.The Tribunal erred by erroneously finding that the opinion of the Review Medical Officer of the Commonwealth was not what the Applicant had hoped for or expected, a subject matter which was irrelevant for the purposes of determining the validity of the opinion of the medical officer.
b.The Tribunal erred by holding that failure by the medical officer to meet the hopes or expectation of the Applicant does not render the opinion invalid.
Particulars of relevant consideration
c.The Tribunal failed to apply the correct and relevant test for evidence under the Public Interest Criterion (PIC) 4005(1)(c)(ii)(A) which clearly requires the Medical Officer to form an opinion that the provision of health care or community services would be likely to result in a significant cost to the Australian community in areas of health care and community services.
d.Tribunal erred by failing to apply the test laid down in Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626 by failing to apply the statutory criteria by reference to a hypothetical person who suffers from the same form or level of condition as the Applicant and the Tribunal also erred by failing to address the test.
Both the relevant and irrelevant considerations are nontrivial and if accepted have a direct and influential impact on the overall decision such that if any single aforementioned consideration was accepted there would be sufficient grounds to quash or order a redetermination of the earlier decision.”
Before the Court - Further
On 4 March 2020 the applicants filed written submissions drafted by counsel. No express reference was made to the ground of the amended application in the applicants’ written submissions. These submissions appeared to raise new matters not raised in the amended application and do not appear to relate to the particulars of the sole ground other than, perhaps, particular “c.”, and particular “d.”.
The Minister filed his written submissions on 5 March 2020 in accordance with the relevant order made by the Registrar. Those submissions addressed the sole ground, and particulars, of the amended application. The Minister’s submissions made no reference to the applicant’s written submissions.
At the hearing the parties were represented by their respective counsel. The applicants confirmed that they did not press particulars “a.”, “b.” or “c.” to the ground.
Having regard to the evidence before the Court, and the applicants’ submissions, the ground and the particular in support, can be understood, and more properly articulated, as making the following assertion of legal error.
The applicants’ ground asserts a failure by the Tribunal to take into account a relevant consideration.
While a number of authorities provide relevant direction to this Court, for current purposes the following is appropriate, and sufficient, to give shape to the Court’s consideration.
In their submissions neither party made reference to such authorities as Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24 (“Peko-Wallsend”) or Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”). (See Peko-Wallsend in particular at page 39 – page 42). Nor did the applicants have regard to the following principles arising from Peko-Wallsend.
For current purposes, if it can be shown that the Tribunal failed to take into account a relevant consideration, then this may entitle the applicants to the relief they seek. Such a ground, however, can only be made out if it can be shown that the Tribunal failed to take into account a consideration it was statutorily bound to take into account.
The factors which the Tribunal was bound to take into account in the current circumstances are to be determined by construction of the relevant legislation.
Of course, not every consideration that the Tribunal was bound to take into account, but failed to do so, will be sufficient for the grant of the relief the applicants seek. As was said in Peko-Wallsend, such a failure must be material to the outcome. As to what may constitute jurisdictional error, see more recently Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 (“SZMTA”) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”).
Absent any statutory indication of the weight to be given to the matters that the Tribunal was bound to consider, the assignment of weight is for the Tribunal to assign, of course acting reasonably.
In the current case the applicants drew attention to the following evidence.
One, on 23 November 2016 they provided, amongst other things, a report from a registered psychologist, dated 21 September 2016, in relation to the third applicant (CB 328 – CB 333). In an addendum to the report the psychologist stated (at CB 334.3):
“Due to this unique, individual characteristic of ASD [Autism spectrum disorder], it is important that a thorough assessment is conducted and progress over time is noted. A short observation or a brief sighting of a person with ASD can easily lead to misinterpretation of the person’s ability and potential, and is not to be used to determine the person’s severity of disability or impairment. Separate from the severity of impairment, an adaptive functioning assessment using a standardised tool is required to obtain an objective, detailed and bias-free description of the person’s level of functioning.”
[Emphasis in the Original.]
Two, on 19 December 2016 the RMOC provided a (fourth) report. This is in the following terms (at CB 344 – CB 345):
“FORM 884: OPINION OF A REVIEW MEDICAL OFFICER OF THE COMMONWEALTH
THE APPLICANT DOES NOT MEET THE HEALTH REQUIREMENT
HAP Id 9086228
Client Surname YUNG
Client Given Names JACKSON
Birth Date 19/07/1989
Sex MALE
Visa Sub Class 835
The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.
The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 27 year old person with:
- Mild-To-Moderate autism spectrum disorder
The applicant has mild to moderate cognitive impairment secondary to autism spectrum disorder and requires ongoing services assisting in communication, cognition and social skills. A hypothetical person with this condition at the same severity as the applicant, would be likely to be eligible for vocational training and income support. This condition is likely to be Permanent.I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
Commonwealth disability services
State disability servicesProvision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to The previous MOC opinions of 26th November 2015, 17th February 2016 and 8th September 2016. In addition all available reports have been considered including, the visa medical assessment of 20th October 2015, report from psychologist Mingga Anggawan (2015), report from Dr Stanley dated 18th November 2015, report from Dr Zhang (GP) dated 13th September 2014, report from Dr Tienang (psychiatrist) dated 22nd May 2012, report from Ms Sparrevohn (psychologist) dated 21st September 1994, report from Dr Webb (GP) dated 9th September 1994. The additional reports noted include from Ms Eva Liu,(disability services) dated 28 January 2016 and 15th July 2016, and Dr Paisley dated 4th February 2016 as well as supporting videos and photos submitted.
The information provided demonstrates that the applicant has some social skills and independent living skills however it is likely that he will continue to require some support.
Medical Officer of the Commonwealth
Position Number: 60032175
A Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met.
Department of Immigration and Border Protection”
The applicants’ submission was that the RMOC failed to directly acknowledge that the third applicant’s condition was “dynamic”, as set out in the psychologist’s report, and that it was difficult to assess because it varied in presentation, including changes over time. Further, that there had been a continuing improvement in the third applicant’s condition.
What was described as the “lack of specification” by the RMOC resulted in a failure to comply with what had been found to be the appropriate approach to the drafting of such opinions in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 (“Robinson”).
The applicants drew attention to Robinson at [43]:
“43 I turn to deal with the first issue. In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. 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 higher level of generality by reference to a generic form of the condition.”
The applicants’ argument flowing from this was that in the current case, even though the (fourth) RMOC’s report made reference to the hypothetical person, the RMOC did not “sufficiently” detail, in the report, the improvement in the third applicant’s condition, as reported by the psychologist. The RMOC therefore did not take this factor into account in the process of considering the “parity” between the third applicant and the hypothetical person.
What was said, therefore, to make the RMOC opinion “invalid”, was that the RMOC did not go “far enough” in applying the “hypothetical person test”, because the RMOC, in that consideration, did not take into account that aspect of the third applicant’s condition, as identified by the psychologist.
The applicants submitted that in that light the (fourth) RMOC report was invalid. The Tribunal fell into jurisdictional error in finding that it was a valid opinion.
There are a number of difficulties with the applicants’ argument, including, but not limited to, the failure to properly address the relevant regulatory scheme (as with respect is made clear in Robinson), a failure to view the RMOC report contextually, and holistically, what, with respect, was the actual reasoning in Robinson viewed in its totality, and the Tribunal’s reasoning and findings which, after all, are the subject of the current judicial review (s.476 of the Act).
With respect, the relevant parts of Robinson giving rise to what was said at [43] of that case (on which the applicants now rely) are as follows.
One, the relevant statutory framework in Robinson was set out by the Court at [5] – [8]. For current purposes, in determining whether a person meets PIC 4005(1)(a), (b) or (c) (which the applicants in the current case were required to satisfy before the visa could be granted – cl.838.224 of Schedule 2 to the Regulations), the Tribunal must, pursuant to reg.2.25A of the Regulations, obtain the medical opinion of a MOC.
Two, in Robinson the Tribunal sought such an opinion. In doing so it provided relevant documentation to the MOC ([23] of Robinson). A MOC report was provided ([24] of Robinson). The opinion of the MOC was as follows (at [24]):
“…
The applicant is a person intellectual impairment (sic) and speech disorder associated with Down‘s syndrome. He currently requires special eduction [sic] support and is likely to require further special education and allied therapies support in future. It is considered unlikely that he would be capable of open employment as an adult, and thus would be likely to be eligible for use of income and community support services.
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 or community services or would be likely to meet the medical criteria for the provision 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 Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services.
Therefore the applicant does not meet Public Interest Criterion(s):
4005
…”
[Errors in the Original.]
Three, the applicant in Robinson argued that the proper construction of the relevant statutory/regulatory scheme required the MOC to assess the specific nature and extent of the applicant’s condition: “…and then apply the statutory criteria to a hypothetical person having that specific condition” (Robinson at [27]).
The argument was that the Tribunal in Robinson should have found that the MOC in that case had misconceived the relevant task because he: “…had not applied the proper test but had assessed [the applicant’s] position on the basis of a person suffering from Down’s Syndrome generally” (Robinson at [27]).
Four, in Robinson the applicant submitted (at [34]):
“34 Counsel for the applicant submitted that the case of Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 (‘Seligman’) was authority for the proposition that the Tribunal was only able to treat the MOC’s opinion as correct if it was an opinion which was given under the Regulations. Counsel submitted that there was really only one ‘crisp point’ in the application, namely: What was the appropriate test to be applied by an MOC in assessing whether the statutory criteria in Public Interest Criterion 4005(c) applied to the applicant in question?”
The Court at [43] of Robinson accepted the applicants’ argument as to the appropriate test. (See [55] above).
Ultimately the Court in Robinson found that the Tribunal in that case had committed jurisdictional error (at [57]):
“57 The second issue is whether the Tribunal committed jurisdictional error in the way in which it approached the question of determining whether to accept the opinion of the RMOC as correct under reg 2.25A(3) of the Regulations. The Tribunal rejected the applicant’s argument as to the appropriate test to apply in assessing whether the opinion of the RMOC was to be taken as correct on the grounds that the decision of Carr J in the Blair case was inimical to the applicant’s argument. As I have mentioned above, the decision of Carr J in the Blair case is not, in my view, inimical to the applicant’s contention. It follows that by rejecting the test contended for by the applicant, the Tribunal made an error of law which precluded it from exercising its jurisdiction according to law. It therefore committed jurisdictional error.”
For current purposes the critical question for the Tribunal, arising from Robinson, was whether the (fourth) RMOC report, complied with the relevant regulatory requirements.
The Tribunal’s reasoning and findings in relation to the MOC and RMOC reports, including the fourth RMOC report, are set out at [10] – [11] of its decision record (CB 369):
“10. In oral evidence the applicant referred to his son's condition and suggested the MOC did not take into account all the medical evidence. The Tribunal agreed to arrange a further RMOC review. On 19 December 2016 the RMOC again formed the view that Jackson did not meet the health requirements in PIC 4005. The applicant was invited to comment on that information in accordance with s. 359A of the Act. In his response to the Tribunal dated 13 January 2017 the applicant argues that the RMOC failed to have regard to the improvement in the applicant's condition and such improvement ought to have been the basis of the opinion. The Tribunal does not accept that the RMOC failed to have regard to the applicant's health condition. The opinion indicates that the medical evidence presented by the applicant has been considered. The Tribunal is of the view that there is no basis for the representative's suggestion that the medical evidence had been ignored or not given due weight. How much weight to give to such evidence, and what outcome such evidence should lead to, is a matter for the medical officer. Similarly, the representative suggests that the RMOC opinion is flawed because of the conclusion that the applicant's condition is likely to be permanent, which contradicts other evidence. The Tribunal is not satisfied that the RMOC opinion is invalid. The fact that the applicant objects to the outcome does not render the opinion invalid. The opinion indicates that the RMOC ascertained the level of condition and applied the statutory criteria by reference to a hypothetical person. The Tribunal has formed the view that the medical opinion is valid and binding on the Tribunal.
11. The applicant provided additional evidence about the availability of support from family members, including housing, financial and social support. The Tribunal acknowledges that evidence but is unable to have regard to such information. The Tribunal is bound by a valid opinion of the RMOC and the availability of any support from family members or other sources is not a matter that alters that opinion or that the Tribunal is able to have regard to.”
There are a number of elements in the Tribunal’s reasoning and findings that require note.
One, there is no dispute from the applicants now that the Tribunal was correct to find that it was: “…bound by a valid opinion of the RMOC…” (at [11], CB 369).
Two, the argument raised now by the applicants through their legal representative in criticism of the RMOC report is, in essence, the same argument raised by the applicants through their then representative before the Tribunal. That is, the claimed failure to have regard to the impact of the third applicant’s improvement on the assessment of his health condition, and that the condition is not permanent.
The Tribunal found that how much weight to give to the medical evidence was a matter for the RMOC, and that the RMOC in ascertaining the level of the third applicant’s condition: “…applied the statutory criteria by reference to a hypothetical person” ([10] at CB 369). Thus rendering the opinion valid.
Whether or not it was reasonably open to the Tribunal to make these findings depends on the relevant evidence before it. That is, in essence, the fourth RMOC report, when read in light of the medical evidence before the RMOC, and the earlier MOC, and RMOC reports.
Contrary to the situation in Robinson, the RMOC in the current case made express reference to the “hypothetical person test” (at CB 344.6):
“I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.”
[Emphasis Added.]
The applicants now assert that while the RMOC made reference to the “hypothetical person test”, this constituted a general assessment, and lacked the specificity of a reference to the psychologist’s evidence of an improvement in the third applicant’s condition.
It is here that the weakness in the applicants’ argument is revealed. When the RMOC’s report is read at least fairly, the applicants’ complaint is really a challenge to the weight given by the RMOC to the medical evidence before her/him. As the Tribunal correctly found, matters of such weight are for the RMOC to determine.
The RMOC understood that the opinion was to be provided in the context of, and with reference to, the relevant statutory criteria (CB 344.4). The report reveals that the RMOC provided the opinion within that framework.
Unlike the MOC in Robinson, the RMOC in the current case not only made reference to the “hypothetical person”, but properly applied it to the circumstances presented, in a manner consistent with Robinson (CB 344.5).
Relevantly, and specifically, the RMOC considered the impact on the hypothetical person with the condition: “…at the same severity as the applicant…” (CB 344.6).
Further, the RMOC stated that she/he had regard to: “…all available [medical] reports” (CB 345.1). The fact that some of the reports have been specifically listed in the RMOC’s report, does not, in the circumstances presented, give rise to a conclusion that the psychologist’s report relied on now by the applicants was ignored.
The RMOC acknowledged that (at CB 345.3):
“The information provided demonstrates that the applicant has some social skills and independent living skills however it is likely that he will continue to require some support.”
This, amongst other matters, is one of the points made by the psychologist in the report otherwise relied on by the applicants now (see CB 334 generally, and the extract at [51] above in this judgment).
In all, and contrary to the assertions in the applicants’ submissions now in explanation of particular “d.” to the ground, the (fourth) RMOC’s report did properly apply the “hypothetical person” test, with reference to Robinson. It did take into account that the third applicant had some social and life skills. This is a point not made in the earlier MOC reports (see CB 105 and CB 122).
The third report, that is, the first RMOC report, did make reference to this (at CB 276.3):
“The most recent reports have indicated that the applicant continues to make progress in learning new social skills however it is unlikely he will be able to live independently.”
The (fourth) RMOC made specific reference to having regard to the information concerning the third applicant, including the earlier RMOC report (CB 344.10 – CB 345.2). The improvement in the third applicant’s situation, as revealed over the time of the MOC and RMOC reports, was taken into account.
There is no legal error in the Tribunal’s finding that the (fourth) RMOC report was valid. There is no legal error in the Tribunal’s finding that the RMOC report was a valid opinion, and further, that in that circumstance, it was bound by it ([11] at CB 369). The ground of the application is not made out.
Conclusion
As no jurisdictional error has been demonstrated by the applicants it is appropriate to dismiss the application, as amended. I will make the appropriate order.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 March 2020
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