Zeng v Minister for Immigration

[2016] FCCA 292

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZENG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 292

Catchwords:
MIGRATION – Application for review of decision of the then Migration Review Tribunal – whether Tribunal breached procedural fairness requirements – whether Tribunal breached s.359A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 357A, 359A, 359AA, 360, 368, 474, 476

Part 5

Migration Regulations 1994 (Cth), reg.1.03, Schedules 1, 2

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214
NBKT v Minister for Immigration and Multicultural Affairs[2006] FCAFC 195; (2006) 156 FCR 419

Applicant: QING HAO ZENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3271 of 2013

Judgment of: Judge Nicholls

Hearing date: 2 September 2014, 6 August 2015

Date of Last Submission: 29 October 2015

Delivered at: Sydney

Delivered on: 16 February 2016

REPRESENTATION

Counsel for the Applicant: Mr I G Archibald

Solicitors for the Applicant: McQiu Lawyers

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 31 December 2013, and as ultimately amended on 6 August 2015, is dismissed.

2. The applicant pay the first respondent’s cost as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3271 of 2013

QING HAO ZENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 31 December 2013 and ultimately further amended on 6 August 2015, seeking review of the decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 3 December 2013 to set aside the decision made by the Minister’s delegate and substitute it for a new decision that the visa application made by Mr Qing Hao Zeng (“the applicant”) was invalid.

Background

1. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister. The following background can be ascertained from that material.

2. The applicant is a citizen of the People’s Republic of China. He applied for a Child (Residence) (Class BT) (Subclass 802) visa on 9 October 2012 (CB 1 to CB 158, including a number of annexures). The applicant was sponsored in his application by his mother (CB 1). He was assisted in his application by a registered migration agent. At the time of the making of the making of the application, the applicant was an adult (date of birth: 25 April 1991, CB 1). Included with the application were a number of medical and financial documents, purporting to assert that the applicant was dependent on his mother for his “basic needs” as he was “incapacitated for work” due to his mental health. Included was a report from Mr Alex Tong, a social worker at the Transcultural Mental Health Centre (CB 54 to CB 61), and a report from Dr John Jacmon, a “Consultant Psychologist” (CB 62 to CB 73).

3. The applicant provided further documents in support of his application on 23 October 2012 (CB 168 to CB 199). By letter dated 7 February 2013, the Minister’s department sought further information, in particular, a “Complete Permanent Residency Health Assessment” (CB 204). The applicant provided the requested documents on 19 March 2013 (CB 205 to CB 212).

4. To be granted the visa the applicant was, relevantly and in the circumstances, required to meet the requirements set out at cl.802.214 and cl.802.221 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). At the relevant time these were in the following terms:

   “802.214

   (1) If the applicant has turned 18:

   (a) the applicant:

   (i) is not engaged to be married; and

   (ii) does not have a spouse or de facto partner; and

   (iii) has never had a spouse or de facto partner; and

   (b) the applicant is not engaged in full-time work; and

   (c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   (2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

   …

   802.221

   (1) In the case of an applicant who had not turned 18 at the time of application, the applicant:

   (a) continues to satisfy the criterion in clause 802.212; or

   (b) does not continue to satisfy that criterion only because the applicant has turned 18.

   (2) In the case of an applicant who had turned 18 at the time of application:

   (a) the applicant:

   (i) continues to satisfy the criterion in clause 802.212; or

   (ii) does not continue to satisfy that criterion only because the applicant has turned 25; and

   (b) the applicant continues to satisfy the criterion in clause 802.214.”

5. The delegate refused the application for the visa on 25 March 2013 (CB 2013 to CB 223). The delegate found that, with reference to the material before her, the applicant was not “incapacitated for work”, and did not otherwise meet the definition of a dependent child.

6. The applicant applied to the Tribunal for review of the delegate’s decision on 10 April 2013 (CB 224 to CB 237). He was assisted by a different registered migration agent (CB 235).

7. The applicant appeared at a hearing before the Tribunal, with his mother and uncle as witnesses, and his representative, on 21 November 2013 (CB 309). The applicant’s representative had provided written submissions prior to the hearing, on 15 November 2013 (CB 271 to CB 274), and updated medical information in relation to the applicant’s mental health from Dr Jacmon, in the form of two reports dated 4 October 2012 and 29 June 2013 (CB 275 to CB 292), and further submissions on 19 November 2013 (CB 300 to CB 305).

8. The Tribunal set aside the delegate’s decision on 3 December 2013, on the basis of its finding that the applicant had not made a valid application for the visa. The Tribunal found that the applicant did not meet the requirements set out in Item 1108A of Schedule 1 to the Regulations, as he did not lodge, at the time of the making of the application, evidence from a medical practitioner in support of his claims. Therefore, the application was not valid.

9. The Minister now concedes that the Tribunal was incorrect in this finding that the visa application was not valid. The Tribunal failed to consider that item 1108A(3)(e)(i) of Schedule 1 to the Regulations could be met in one of two ways, either that the applicant had “not turned 25” or “claimed to be incapacitated for work due to total or partial loss of bodily or mental functions”. At the time of the making of the application, the applicant was under the age of 25, therefore he met the first option, and the application was, therefore, valid (see further below).

10. However, in spite of the finding of invalidity, the Tribunal did turn to consider the substantial merits of the case before it “in the event that the application was validly made” (see [10] at CB 315). In that circumstance, the following is relevant to the ground before the Court now.

11. The Tribunal found that, as the applicant was over 18 years of age, he would be required to meet cl.802.214 of the Regulations.

12. Further, a “dependent child” was defined in reg.1.03 of the Regulations in the following terms at the relevant time:

    “dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a) has not turned 18; or

    (b) has turned 18 and:

    (i) is dependent on that person; or

    (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.”

13. The Tribunal considered the different reports provided throughout the visa application process. It noted that, before it, the applicant’s representative had submitted that no weight should be placed on the report from Mr Tong that the applicant did not suffer from any mental health disorder. The representative submitted that Mr Tong did not hold any formal qualification to have such an opinion.

14. The Tribunal noted the representative’s submission that “considerable weight” should be placed on the opinion given in the reports provided from Dr Jacmon, as he is a registered psychologist and he made a “psychometric and clinical assessment”. Dr Jacmon, relevantly, found that the applicant suffered from a major depressive disorder and “generalised” anxiety disorder.

15. The Tribunal placed “substantial weight” on the applicant’s answers and the findings of the medical examination contained in the “Form 26”, provided by the applicant to the Minister’s department on 19 March 2013 ([50] at CB 321 to CB 322, and see CB 206 to CB 212). The Tribunal noted that the applicant’s representative submitted that the applicant did not have medical training and would be unable to “self-diagnose” any conditions. However, it rejected this claim. The Tribunal also did not accept the applicant’s other explanations for his responses, including that “the female doctor made him feel nervous and he did not want anyone to know about his mental illness”, that he “was worried that he would be teased” or that “he had not received treatment for psychological illness because the doctor had asked the questions quickly and there was no interpreter” ([25] at CB 317 and [50] at CB 321 to CB 322).

16. The Tribunal made the following findings ([50] at CB 321 to [51] at CB 322 and [53] ‑ [54] at CB 322):

    “[50] In considering the review applicant’s incapacity for work, the Tribunal places substantial weight on the review applicant’s answers to Form 26 and the findings of his medical examination. The review applicant’s representative sought to explain the review applicant’s responses by submitting that ‘the applicant has no medical training whatsoever and is unable to self-diagnose his condition’, a claim which the Tribunal rejects. The Tribunal does not accept the review applicant’s other explanations, outlined earlier, for his responses to Form 26.

    [51] The Tribunal places great weight on the review applicant’s own statements to the medical advisor, namely that he did not believe he had any significant illness and on the results of the medical examination. It also places weight on his evidence that treatment was not necessary. The Tribunal does not accept the review applicant’s representative submission that the question of ongoing treatment is irrelevant.

    …

    [53] The Tribunal also places weight on the fact that the review applicant sought permission to work in the course of the processing of the present application.  The Tribunal does not accept the review applicant’s evidence that he was not sure whether he wanted to work and that he was ‘messed up’.

    [54] The Tribunal has had regard to the review applicant’s diagnosis and considered it in light of the findings of the medical advisor of the Commonwealth and the review applicant’s evidence relating to his health and his work. Based on all the material before it, the Tribunal is not satisfied that, at the time of application, the review applicant was incapacitated for work.”

Application Before the Court

1. The applicant has made a number of attempts to plead jurisdictional error on the part of the Tribunal. In his initial application, made on 31 December 2013, the applicant pleaded one ground. In essence, this was a claim that the Tribunal breached procedural fairness requirements because it was said to have relied on findings made by a “government medical officer” in relation to the application and that these findings were not put to the applicant for comment. There was no reference in the ground to any claimed statutory breach in this regard. Some care must be taken here because no legal representative was on the record at that time.

2. It appears that sometime in January/February 2014 McQiu Lawyers were instructed to represent the applicant. On the evidence before the Court, McQiu Lawyers had assisted the applicant before the Minister’s department, but not in the review before the Tribunal. Orders were made by consent on 25 February 2014 which, amongst other matters, gave the applicant the opportunity to file an amended application and any evidence by way of affidavit in support by 23 April 2014. The matter was set down for final hearing on 2 September 2014.

3. An amended application was filed on 23 April 2014 on behalf of the applicant and prepared by his lawyers. That application pleaded two grounds. The first ground asserted both common law and statutory breaches of procedural fairness obligations, relevant to the Tribunal’s consideration.

4. Notwithstanding this, the particulars only made reference to a failure to comply with s.359AA and s.359A of the Act. These breaches were said to be in relation to findings made by a Commonwealth Medical Officer (“CMO”), who had been appointed to examine and report on the applicant, and the applicant’s answers to a question as provided on a medical examination form, namely Form 26. The second ground alleged a breach of s.359AA of the Act in relation to further answers the applicant gave to the CMO.

5. At the final hearing on 2 September 2014 the applicant was represented by counsel. At the hearing, the applicant sought leave to file in Court a further amended application. That application again asserted a breach of common law and statutory procedural fairness obligations by the Tribunal.

6. However, the particular to the ground made reference to a breach of s.359A of the Act in relation to findings made by the Tribunal concerning an application for permission to work made by the applicant. No mention was made to the report from the CMO or the applicant’s answers to the CMO.

7. In the circumstance where, without reasonable notice, a new issue was raised by the applicant, the hearing was adjourned to enable the applicant to properly prepare his case, and to enable the Minister to be in a position to make a meaningful response. Subsequently the final hearing was set down for resumption on 6 August 2015. The estimated time for the hearing was the “usual” half day that is set aside for migration matters.

8. On that day the applicant was again represented by the same counsel. The hearing commenced with counsel proceeding with the breach of s.359A of the Act assertion, but in relation to both the permission to work matter (which was the sole subject of the particular of the ground before the Court) and in relation to the CMO report matter, which had been abandoned on the previous occasion.

9. When this was pointed out to counsel, a further amendment to the application was sought. No satisfactory explanation was provided by the applicant’s legal representatives as to why on a second occasion, and given the passage of time, a further amendment to the application was sought.

10. In the circumstances, I did not accept as satisfactory the explanation proffered from the Bar Table, that the applicant’s solicitor had only “recollected” three days prior to the resumed hearing (see the affidavit of Xiaolin Qiu, solicitor of 5 August 2015 at [2] and see further below) of events relevant to the medical report matter. The solicitor was on the record in these proceedings since, at least February 2014, and had previously represented the applicant in his application for the visa made on 9 October 2012 (see CB 1, CB 35 and CB 51).

11. Notwithstanding this, I granted leave for a yet further amended application to be filed in Court. The reason was that I took the view that the applicant should not be disadvantaged or prejudiced by the failure of his legal representatives to properly prepare his case in the length of time available to them to do so.

12. I note that submissions on this matter took up some time which had not been anticipated when setting the matter down for the resumed hearing. Further, without leave, the applicant filed two affidavits on 5 August 2015 (the day before the resumed hearing) which he sought leave to read into evidence.

13. These were the affidavits of Xiaolin Qiu and Brenton Christopher Halligan, solicitor and registered migration agent, of 5 August 2015, who represented the applicant before the Tribunal.

14. Further time was taken dealing with objections to the evidence and cross-examination of both witnesses. In short, little time was left for oral submissions. Both parties agreed that, rather than again adjourning the hearing, final arguments were to be made in written submissions. The Minister subsequently filed written submissions (on 2 October 2015). The applicant filed two sets of written submissions (on 15 September 2015 and 29 October 2015).

15. The application before the Court, as ultimately amended on 6 August 2015, contained a single ground, as follows:

    “The Tribunal erred by reason of:

    a. breach of procedural fairness, and,

    b. failure to comply with a mandatory statutory procedure, in a manner amounting to jurisdictional error.

    Particulars

    i. failure to comply with sections 359A of the of the Migration Act 1958 (‘the Act’) in relation to:

    1. the findings of Dr Susan Baroudy being the Medical Officer of the Commonwealth (‘the Medical Officer’) appointed to examine and report on the applicant,

    2. The permission to work application lodged by the representative of the applicant with the Department of Immigration and Border Protection in December 2012.”

    [Errors in the originals.]

Evidence Before the Court

1. In further evidence before the Court were the following affidavits:

   1)The affidavit of Xiaolin (Kathy) Qiu, solicitor, made on 23 April 2014, filed by the applicant. This affidavit annexed a copy of the transcript of the Tribunal hearing (“T”). No objections from the Minister. [I note that the name on this affidavit differed from the following affidavits, but I understood that it was affirmed by the same person.]

   2)The affidavit of Xiaolin Qiu, solicitor, made on 2 September 2014. No objection from the Minister.

   3)The affidavit of Xiaolin Qiu, solicitor, made on 5 August 2015. The Minister had the following objections and required the deponent for cross-examination:

   i)Paragraph 5. The Minister objected to the “recollection”. The applicant withdrew the paragraph.

   ii)Paragraph 13. The Minister objected to the following phrase on the grounds of speculative hearsay:

   “However my memory from that time is that the Medical Officers used to make the results of the medical examinations available within the Department, so that there was no need in fact for us as the representatives of the applicants to send the forms back to that Department.”

   The applicant made no submissions on that objection. That section was not read.

   iii)Paragraph 19. The Minister objected on the ground of opinion and speculative reconstruction. The applicant submitted that the witness was able to form an opinion based on her recollection as to what is likely to have occurred and it was for the Court to put the appropriate weight to that opinion. I allowed the paragraph to be read into evidence, and will deal with it on the basis of weight subject to what occurred at the hearing.

   4)

   The affidavit of Brenton Christopher Halligan, solicitor and registered migration agent, made on 5 August 2015. The Minister had the following objections and required the deponent for

   
   

   cross-examination:

   i)Paragraph 5. The Minister objected on the ground of relevance. The Minister withdrew the objection.

   ii)Paragraph 6. The Minister objected on the same grounds of relevance and opinion. The paragraph was not pressed and was withdrawn by the applicant.

   iii)Paragraph 7. The Minister objected on the grounds hearsay and alleged expertise. The paragraph was not pressed and was withdrawn by the applicant.

   iv)Paragraph 8. The Minister objected on the ground of relevance and that it was covered in affidavit evidence from Ms Qiu who had direct knowledge. Not read into evidence.

   v)Paragraph 9. The Minister objected on the ground of relevance and that it was covered in affidavit evidence from Ms Qiu who had direct knowledge. Not read into evidence.

   vi)Paragraph 10. The Minister objected on the ground of relevance and covered in affidavit evidence from Ms Qiu who had direct knowledge. Not read into evidence.

   vii)Paragraph 14(b). The Minister objected on the ground of speculation. The applicant submitted that it was central to the argument before the Court. I allowed the paragraph to further argument.

   5)The affidavit of Katherine Nicole Hooper, solicitor, made on 10 September 2014, filed by the Minister. No objections from the applicant. The affidavit was read into evidence.

1. The applicant had served on the Minister a Notice to Produce on 3 August 2015. The Minister submitted, before the Court, that he had documents to produce in relation to [2] of that Notice, and no documents to produce with respect to [1] and [3] of that Notice. The documents included an envelope, with the folio number “145” written on the top right hand corner. The applicant tendered this envelope, being the last two pages of the bundle of produced documents (marked as “AE1”).

Consideration

1. A number of further preliminary matters require explanation.

2. First, the Tribunal expressed its decision as follows (CB 313):

   “The Tribunal sets aside the [delegate’s] decision and substitutes a new decision, namely that the visa application was invalid.”

3. As set out above, the Minister agreed that the Tribunal was in error to find that the visa application was invalid. However, the Tribunal also considered, as set out in its decision record, whether the applicant satisfied the relevant criteria for the grant of the visa. It found that he did not. It is this part of the Tribunal’s reasoning that the applicant seeks to address in his application to the Court.

4. The Act gives jurisdiction to this Court to review “migration decisions” (see ss.5, 474 and 476 of the Act). In this case, the Tribunal expressed its decision as being one of invalidity of the visa application. It set aside the delegate’s decision on this basis and substituted a new decision. That is, that the visa application was invalid (see [58] at CB 322).

5. The Minister’s position is that, in effect, the Tribunal made two decisions. That is, first, to set aside the delegate’s decision on the basis of the visa application’s invalidity and, second, to affirm the delegate’s decision on the basis that the applicant did not satisfy the criteria for the grant of the visa.

6. In my view, there is a distinction between a Tribunal making one decision but relying on a number of independent bases to support that decision, and making two seemingly contradictory decisions in the one case.

7. An example of the former is where the Tribunal decides to affirm a delegate’s decision to refuse the grant of a protection visa to an applicant on the basis that it could not be satisfied that the applicant’s claims rose to the level of serious or significant harm, and, separately, a finding that even if there was such harm in an applicant’s local area, he or she could relocate elsewhere in the relevant country, and thereby avoid harm.

8. In the current case, however, it is at least arguable that the Tribunal expressed one “concluding” decision. Namely, the invalidity of the visa application. On this basis, the decision was to set aside the delegate’s decision. It may have been arguable that where it purported to then consider the merits of the applicant’s claims against the relevant visa criteria, its findings in this regard did not support, and could not be said to be a basis for, the finding that the delegate’s decision should be set aside. In fact that “finding” is inconsistent with a finding that the delegate’s decision should be affirmed.

9. In my view, there is a distinction to be drawn between a “decision” (in respect of which the Act gives jurisdiction to the Court), and a Tribunal decision record which explains, and is required to provide an explanation for, that decision with reference to, relevant to the current circumstances, s.368 of the Act. That section makes plain the distinction between a “decision on a review” and the obligation to “make a written statement” in relation to that decision.

10. I understood the Minister’s submission to be that, while the Tribunal expressed its ultimate “decision” as being one of the invalidity of the application, on a fair reading of its decision record, and notwithstanding what it ultimately expressed as being “the decision”, the Tribunal made two decisions.

11. The applicant would have been aware of the Minister’s position given his written submissions of 26 August 2014 (see at [2] of those submissions). The applicant, who it must be stressed was represented before the Court by counsel and a solicitor at least as at that time, did not seek to raise any argument with the Minister’s position, despite the clear opportunity to do so.

12. The applicant’s approach appears to be that he accepted the Minister’s position, and pressed jurisdictional error in relation to the Tribunal’s second “decision” that the applicant did not satisfy relevant criteria and the “consequent” affirmation of the delegate’s decision in that regard. It is not for the Court to make out an applicant’s case for him, particularly in circumstances where he is legally represented. In the circumstances, I have proceeded to consider this matter in light of the Minister’s position on this point, with which the applicant appeared to agree.

13. Second, I ultimately understood the applicant’s ground asserting jurisdictional error on the part of the Tribunal to be as follows. The Tribunal breached its procedural fairness obligations pursuant to s.359A of the Act. It did so because it “relied” on two pieces of information to affirm the delegate’s decision but did not give this information to the applicant as required by s.359A of the Act.

14. The two pieces of information were, one, in relation to the medical report from the CMO (“the CMO’s findings”), and two, information in the application for permission to work (“the permission to work”).

15. Third, while the applicant made submissions which appeared to assert that the Tribunal failed to properly comply with s.359AA of the Act, I ultimately understood that the applicant’s position in the circumstances could only properly be that the Tribunal did not utilise the facility available to it pursuant to s.359AA of the Act, to satisfy the obligation in s.359A of the Act.

16. Fourth, the applicant’s ground as ultimately pleaded, in light of the history of the development of his arguments, and when read in light of submissions, gives rise to a question as to whether he was also asserting a breach of procedural fairness at common law.

17. Ultimately, I understood the applicant’s position to be that his references to concepts of procedural fairness at common law were put in the context of informing the understanding of procedural fairness under the statute. I proceeded on the basis that only one legal error was asserted in the sole ground. That is, a breach of s.359A of the Act in relation to the two pieces of information referred to above (at [48]).

18. In his oral and written submissions to the Court, the applicant made various references to the Tribunal’s alleged failure to, for example, put the applicant on notice as to the “critical issues or factors on which the decision was likely to turn” (see [13] of the applicant’s submissions of 15 September 2015).

19. It is not clear whether this was part of the applicant’s submissions in relation to s.359A of the Act or common law procedural fairness. In any event, s.359A of the Act is concerned with “information” that the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision. The use in submissions of the words “issues” or “factors” may have been relevant to any argument of a breach of s.360 of the Act (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592), but they do not assist with the ground as ultimately pleaded. That is, an alleged breach of s.359A of the Act.

20. What constitutes information for the purposes of, relevantly, s.359A of the Act was the subject of consideration by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”). That is, the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision under review. Further, the High Court gave directions as to what did not constitute “information” for the purposes of, relevantly, s.359A of the Act (see SZBYR at [17] – [18]). The High Court made clear that the Tribunal’s consideration is antecedent to the time of drafting the decision record (see SZBYR at [17] – “would be”). Nonetheless, the decision record can assist in informing what was involved in the Tribunal’s relevant consideration (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J).

21. It is, of course, for the applicant to establish, on balance, that there was such information caught by s.359A of the Act, and that the Tribunal failed to comply with its relevant statutory obligation. In this light, the applicant submitted that the Tribunal made various references in its decision record to both the CMO’s findings and the permission to work application (see [50] at CB 321, [51] at CB 321 to CB 322 and [54] at CB 322 for the Tribunal’s consideration in relation to the CMO’s findings, and [53] at CB 322 for its consideration in relation to the permission to work – see [17] above).

22. The Minister’s position primarily was that the information “relied” on by the Tribunal was information caught by the exemption to s.359A(1) set out in s.359A(4) of the Act.

23. Dealing first with the CMO’s findings. Some explanation is necessary. As part of the processing of the application for the visa the applicant was required to undergo a medical examination by the CMO. To facilitate this process and the CMO’s report, the Minister’s department made available a “Medical Examination for an Australian visa” form (“Form 26”). This is in two parts. The first contains questions and requires answers from the applicant (CB 206 to CB 209). The applicant did not assert that this was not caught by the exemption in s.359A(4)(ba) of the Act.

24. The matter before the Court turns on the second part of the form which contains a series of questions to be answered by the CMO (CB 210 to CB 212). The applicant’s complaint is that the Tribunal relied on the CMO’s findings contained there. These findings were information caught by s.359A(1) of the Act. However, this information did not fall within any of the exceptions set out in s.359A(4) of the Act.

25. The Minister’s position is that the CMO’s findings, as expressed in the relevant part of Form 26, were given to the delegate by the applicant through his then registered migration agent, Ms Qiu, and, therefore, fell within the exception set out in s.359A(4)(ba) of the Act.

26. As set out above, both Ms Qiu and Mr Halligan gave evidence before the Court, and were cross-examined. The applicant elected not to give evidence. I do not draw any adverse inference from that fact. However, its relevance to the current consideration is that in relation to matters asserted and proposed in the applicant’s case, the efficacy of those submissions are diminished in the absence of evidence from the applicant as to what he relevantly knew, or did not know, or did, or did not do.

27. On the evidence available, I make the following findings. Sometime in March 2013, Ms Qiu received a sealed envelope from “Medibank Health Solutions” (see “AE1”). The envelope contained the applicant’s relevant medical report. Ms Qiu knew that the envelope contained this report (see her letter of 19 March 2013 at CB 205 – “We herein enclose with the resulted [sic] of Mr Zeng Health Examination check for your information”, see also “AE1”, with the reference to the applicant and his date of birth).

28. The envelope had on its face an instruction “Do Not Open. You must PRESENT this sealed envelope to the Department of Immigration and Citizenship” (see “AE1”). I accept on the evidence that Ms Qiu did not open the envelope, and that she sent it to the Minister’s department unopened as instructed. I accept Ms Qiu’s evidence that, at the relevant time, she did not know the detail of what was written on the form.

29. In the current case, this raises the question of whether the giving of the sealed envelope, containing the medical report, to the Minister’s department in connection to the processing of the visa for which the applicant had applied, but without knowledge of the detail of the information contained in the medical report, can be said to constitute the giving of information to the Minister’s department, within the meaning of s.359A(4)(ba) of the Act, such as to be caught by that exemption.

30. It is here that the applicant’s submissions as to the principles of procedural fairness at common law have some relevance. It is the case that s.359A of the Act is located within Division 5 of Part 5 of the Act. Section 357A(1) of the Act provides that Division 5 is taken to be the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62).

31. Section 357A(3) of the Act provides an explanation to the Tribunal that in applying the Division it “must act in a way that is fair and just”. In my view, this provides the context within which the sections of the Division must be understood to operate.

32. Section 359A of the Act is plainly directed to the fair and just outcome of an applicant knowing of, and being given the opportunity to comment on, or respond to, information which the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision.

33. In my view, the exceptions set out in s.359A(4) of the Act must be understood as operating in that light. Plainly, it is not unfair or unjust for the Tribunal to proceed on information which the applicant had given to the Tribunal, and about which he had knowledge, and the opportunity therefore to comment.

34. In the current circumstances, I agree with the applicant that when Ms Qiu sent the sealed envelope containing the medical report it cannot be said she, on behalf of the applicant, gave the information contained in that medical report to the Minister’s department in the sense contemplated by s.359A(4)(ba) of the Act. At its highest, she gave a sealed envelope. While she knew generally of the subject matter of its contents, she did not know the detail of the information contained in the report. Section 359A of the Act is concerned with the giving of information, not necessarily sealed and unopened envelopes.

35. The question, however, still remains as to whether the applicant himself otherwise knew the contents of the information set out in the medical report given to the Minister’s department at the time it was given. Here the absence of any evidence from the applicant himself is problematic. Both parties made submissions on this point. The applicant’s submission that there was no evidence that the envelope was ever in his possession relies entirely on the evidence of Ms Qiu, that she did not “believe” the applicant had ever opened it. The Minister’s submission was that there is no evidence before the Court, from the applicant, that he did not otherwise know of the contents of, in particular, the second part of the Form 26.

36. The evidence before the Court reveals that the applicant attended in person and was examined by the CMO on 12 March 2013 (CB 210). It appears the applicant was examined by two doctors, Dr Susan Baroudy and Dr Karen Kirwan (CB 212).

37. The date stamp over their signatures is recorded as being the same date as the examination. In one part of the form the hand written word “Discussed” appears next to question 20 (CB 211.5). This raises the question as to whether some of, or the entirety of, the findings in the report, or those parts subsequently “relied on” by the Tribunal, were discussed with the applicant at the time of the examination. Thus making the giving of the medical report to the department by Ms Qiu on his behalf the giving of information of which the applicant had knowledge.

38. In any event, in the circumstances of this case it is not necessary to pursue this particular question. That is because the information, which, on the evidence, the Tribunal considered to be information that would be a part of the reason for affirming the delegate’s decision, was given to the Tribunal by the applicant’s representative before it. Mr Halligan, who represented the applicant at the relevant time, gave the Tribunal a copy of the delegate’s decision which contained details of the relevant CMO’s findings. Thus, the CMO’s findings, as information, fell within the exception set out at s.359A(4)(b) of the Act.

39. In his submissions, the applicant initially relied on the Tribunal’s decision record for what he says was the relevant information relied on by the Tribunal. The applicant emphasised that the Tribunal made reference to the medical findings. That is in the plural (see [50] at CB 321 to CB 322). He submitted that the Tribunal relied on all the medical findings, and these were not all recorded in the delegate’s decision.

40. It is the case that the delegate’s decision record makes specific mention of only one item in the medical report (CB 222.6 to CB 223):

    “On 13/3/2013, the MOC assessed the applicant as meeting the prescribed health requirement for a permanent stay in Australia under the Migration regulations. The MOC based this opinion on the available medical and radiological reports.

    It was noted in the MOC’s completion of the assessment, in response to Question 18, Part D on the Form 26 (‘Are there any physical or mental conditions which may prevent this person from attending a mainstream school, gaining full employment, or living independently now or in future?’), the Medical Officer of the Commonwelth has responded ‘No’.

    I have considered that the applicant has been deemed to meet the medical requirement and also been deemed to not be incapacitated for work. I have also considered Regulation 2.25A(3), which states ‘The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.’

    Based on this information, I was not satisfied that the applicant met the criterion outlined in sub-paragraph (b)(ii) of the definition of ‘dependent child’ and therefore

    
    

    sub-clause 802.214(2) does not apply to the applicant, ie. The applicant is not incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.”

    [Errors in the original.]

41. The Tribunal’s decision record must be read fairly. It is clear that the Tribunal understood that to be granted the visa the applicant had to satisfy the criteria for the grant of a subclass 802 visa as set out a Schedule 2 to the Regulations.

42. It is to be remembered that the visa the applicant had applied for was a dependent child visa. The applicant, at the time of the application for the visa, was over the age of 18. In fact, he was over 21 years of age (CB 1).

43. However, the definition of “dependent child” for the purposes of the visa, as set out in reg.1.03 of the Regulations, did allow that person over the age of 18 who was dependent on, in this case, a parent in Australia, or was “incapacitated” for work due to the “total or partial loss of the child’s bodily or mental functions” (reg.1.03(b) of the Regulations), would meet the definition.

44. On any plain, let alone a fair, reading of the relevant part of the Tribunal’s analysis it is clear that the issue on which this part of the Tribunal’s “decision” turned was whether the applicant was incapacitated for work.

45. The applicant, through his representative Mr Halligan, understood that this was a central issue. Mr Halligan made detailed submissions to the Tribunal on this point and the wider regulatory context in which it arose (see CB 300 to CB 304). The Tribunal specifically raised the matter of incapacity to work at the hearing, including in the context of the CMO’s findings (see in particular, T8, line 40 and T11, lines 30 to 42).

1. I agree with the Minister that there was, relevantly, only one finding made by the medical officer which was relied on by the Tribunal. That was as set out at item 18, “Are there any physical or mental conditions which may prevent this person from attending a mainstream school, gaining full employment, or living independently now or in future?” (at CB 211).

2. This question went directly to the matter of incapacity to work. The Tribunal’s relevant analysis in its decision record resulted in the conclusion that ([54] at CB 322):

   “…Based on all the material before it, the Tribunal is not satisfied that, at the time of application, the review applicant was incapacitated for work.”

3. To the extent that that finding, in part, relied on information from the CMO’s findings, that information was specifically mentioned in the delegate’s decision record (CB 222).

4. In this context, I also note the Minister’s submissions that where the Tribunal made reference to the “findings” (plural) of the CMO (see [50] at CB 321 to CB 322 and [54] at CB 323), this must also be understood in light of the Tribunal’s earlier reference in its decision record to ([18] at CB 318):

   “…the delegate refused the application, having regard to the review applicant’s responses to the Form 26 and the findings of the medical advisor…”

5. It is well to be reminded here of the often quoted extract from the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]:

   “When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker (23). The Court continued (24):

   ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”

6. On the evidence before the Court, the applicant, through his then representative, Mr Halligan, gave a copy of the delegate’s decision to the Tribunal. There is no dispute between the parties that Mr Halligan provided the delegate’s decision record to the Tribunal (see also his covering letter of 19 November 2013 at CB 293 and CB 294 to CB 299).

7. The applicant’s position before the Court, however, appeared to be that Mr Halligan was “compelled” by the Tribunal to give the delegate’s decision record to it. His submissions focussed on Mr Halligan’s evidence and whether, or not, Mr Halligan sent the decision record as a result of a request from a Tribunal officer (a Mr Mark Binotto). The applicant urged that the Court should find that Mr Halligan sent the decision record in these circumstances.

8. There are a number of difficulties with the applicant’s submissions. First, he was unable to point to, and nor is the Court aware of, any statutory or regulatory requirement for an applicant to provide the delegate’s decision record to the Tribunal. Before the Court, in his evidence, Mr Halligan agreed that any failure to provide the decision record would not invalidate the application for review.

9. Second, the evidence in the Court Book does not contain any record from any Tribunal officer asking, or requesting, or even demanding, that Mr Halligan give a copy of the delegate’s decision to the Tribunal. In the covering letter, which Mr Halligan sent with the enclosed delegate’s decision, there is no reference to any request, or that he was responding to any communication from a Tribunal officer.

10. Mr Halligan’s evidence was that “to the best of my knowledge, recollection and belief and based on my usual practice as a migration agent” ([14] of Mr Halligan’s affidavit) a copy of the decision record was “inadvertently” not attached at the time of the making of the application for review. He received a “communication” from the Tribunal, “most likely through Mr Mark Binotto” noting the omission and “requesting” that he attend to it. He then sent the copy of the delegate’s decision to Mr Binotto.

11. In cross-examination, Mr Halligan gave evidence that, in his practice, if he sent correspondence in reply to a telephone call, if he took the call personally, he would make reference to the call in the correspondence. The letter at CB 293 makes no such reference. There was no evidence as to whether he took a call from Mr Binotto. In his affidavit, at best, he says “I received a communication from the Tribunal” ([14] of Mr Halligan’s affidavit). Further, it was Mr Halligan’s evidence that he would make a record of any communication if he took a telephone call in relation to a case. I note that Mr Binotto rang to speak to Mr Halligan personally on two occasions (CB 261 and CB 266).

12. Mr Halligan also gave evidence that he had completed the application for review to the Tribunal on behalf of the applicant (CB 224 to CB 237). He agreed, under cross-examination, that in completing the form he had intended to attach a copy of the delegate’s decision record. That intention was expressed by his notation at item 28 of the form for application for review to the Tribunal (at CB 234). He also gave evidence that he had no specific recollection of his subsequent letter to the Tribunal attaching the decision record.

13. In his evidence, Mr Halligan made no reference to any contemporaneous record, file note, or any other notation, of having received any relevant communication from a Tribunal officer. Mr Halligan’s evidence in his affidavit, that the communication was “likely” to have been from Mr Binotto, supports the view that his evidence proceeded from what may have occurred, rather than from what he actually can say occurred in this case.

14. Mr Halligan also gave evidence that he was “familiar” with the process of making “appeals” to the Tribunal, that he had “lodged many of them”, and he was “aware that the decision record, when available, has to be forwarded to the Tribunal…”. He subsequently explained that this was a “procedural requirement”.

15. I did not understand Mr Halligan to be saying that he believed there was any mandatory statutory or regulatory requirement to provide the delegate’s decision to the Tribunal. Rather, from his experience, there was an expectation, as indicated on the relevant Tribunal form, that the delegate’s decision record be attached to the application for review to the Tribunal.

16. On the evidence, I find that I cannot be satisfied that Mr Halligan received any communication from a Tribunal officer. On balance, I find that Mr Halligan understood that there was an expectation, and even a practice, that the delegate’s decision record should be given to the Tribunal with the application. At some time subsequent to the making of the application Mr Halligan realised that, “inadvertently”, a copy of the delegate’s decision record had not been attached to the application for review. He subsequently acted to address this by sending the copy of the delegate’s decision record to Mr Binotto.

17. It is clear that, by the time of sending the delegate’s decision record to the Tribunal, Mr Halligan would have been aware that Mr Binotto was a Tribunal officer who had some relevant involvement in the applicant’s case given a number of letters that Mr Binotto, as a Tribunal officer, had otherwise sent to Mr Halligan in relation to the applicant’s matter (see CB 247, CB 249, CB 261 to CB 262 and CB 264). Mr Halligan had also sent correspondence addressed to Mr Binotto in relation to the applicant’s case prior to the sending of the copy of the delegate’s decision record to the Tribunal (see CB 250 to CB 251, CB 253, CB 255 and CB 268).

18. Third, and perhaps most telling against the applicant’s position in this matter, is the following. There was no satisfactory explanation in his submission to the Court that even in circumstances where Mr Halligan believed that he was required, expected, or even compelled to provide the copy of the delegate’s decision record, how this had any consequence for the operation of s.359A(4)(b) of the Act.

19. That subsection exempts the Tribunal from the requirement pursuant to s.359A(1) of the Act to give information to the applicant that is the reason, or a part of the reason, for affirming the delegate’s decision. Section 359A(4)(b) of the Act operates where the information was given to the Tribunal by the applicant. Mr Halligan, on behalf of the applicant, submitted the copy of the delegate’s decision. I cannot see that any expectation that he had to provide the decision record, and the information it contained, affects the operation of s.359A(4)(b) of the Act.

20. Even on the applicant’s submissions relating to the consequence of s.357A of the Act, no unfairness or injustice arose, or can be seen, in the circumstances where the applicant gave evidence to the Tribunal that he had read the delegate’s decision (T4, ll.7 ‑ 8), and understood it (T4, ll.10 ‑ 11). To the extent, therefore, that the delegate addressed in the decision record the critical information provided by the CMO in Form 26, the applicant (on the evidence, himself, and not through his representative) understood what had been said. Further, the transcript of the hearing reveals that he and his representative were given the opportunity to make relevant comments.

21. The ground of the application to the Court is not made out to the extent that it relies on the first particular.

22. The second particular to the ground is in relation to an application made by the applicant to the Minister’s department in December 2012 seeking permission to work in Australia.

23. The applicant made lengthy written submissions. What was not made clear, however, was the identification of the exact information which can be said would be information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision (with reference to s.359A(1) of the Act).

24. The applicant’s starting point for his submissions was the Tribunal’s decision record, in particular at [53] (at CB 322, see above at [17]). It is important to note, on a plain reading of the Tribunal’s decision record, that the information, on which it relied, relevantly, was the fact that the applicant had applied for permission to work in Australia.

25. The Tribunal found that it placed great weight on this fact because the applicant had sought such permission during the time of his application for the visa when a central part of his case for the grant of the visa was that he was unable to work because of “incapacity”.

26. The matter of the permission to work was also raised by the Tribunal at the hearing with the applicant (T11, ll. 44 – 47):

    [Tribunal]: Your representative at the time when you lodged this application – lodged a permission to work application for you in December of last year. Can you tell me about that application?

    [Applicant]: I didn't get the permission eventually.”

27. As set out above, the obligation in s.359A of the Act is subject to the exception set out in s.359A(4) of the Act. Relevantly, s.359A(4)(b) of the Act exempts information from the obligation in s.359A of the Act where an applicant affirms the information in response to questioning by the Tribunal (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [91] per Moore J, [173] per Weinberg J and [264] per Allsop J (as he then was), NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [1] per Gyles J, [2] per Stone J and [58] per Young J).

28. In his submissions to the Court, the applicant made reference to parts of the transcript of the Tribunal hearing (in particular, T12,

    
    

    ll. 17 – 30) to submit that the current matter is far more complex than the circumstances involved in the authorities on which the Minister relied.

29. In this light, the applicant’s submissions made reference to evidence before the Tribunal concerning the applicant’s emotional and mental health, referring to the report from Dr Jacmon, to also argue that the applicant did not positively affirm that he had made an application for permission to work. In particular the applicant appears to focus on T11 at line 47, where his answer to the Tribunal’s question, to explain the application, was that he did not eventually get permission to work (see [105] above).

30. However, the applicant did make such positive affirmation of the fact that he had made an application for permission to work (T12,

    
    

    ll.26 – 27):

    “[Applicant]: ...That's why I asked my agent to help me apply working visa, but I didn't want to work.”

31. As set out above, the information that the Tribunal relied upon was simply the fact of his having made the application, albeit through his agent. On any plain reading of the Tribunal’s decision record, the reasons for making that application to work cannot be said to be information on which the Tribunal relied.

32. As the Minister submitted, the reasons as to why the applicant made the application for permission work do not alter the fact that he made it. His submissions now in relation to these reasons are, therefore, not of assistance to him. Nor can his attempts to distinguish the circumstances in the authorities on which the Minister relied with the current circumstances be of assistance to him.

33. The fact of his having made an application for permission to work was positively affirmed by the applicant and, therefore, falls within the exemption in s.359A(4)(b) of the Act from the obligation in s.359A(1) of the Act. The applicant gave the information to the Tribunal for the purposes of the review. That is, that he had made, through his agent, an application for permission to work. The second particular also does not make out the ground of the application.

Conclusion

1. In all, the applicant’s sole ground, as ultimately amended, and explained does not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and thirteen (113) are a true copy of the reasons for judgment of Judge Nicholls

Date: 16 February 2016