Eshutu v Minister for Immigration and Ethnic Affairs [1998] FCA 353 | Case summary

This application is to review that decision. It is brought directly from that decision. The applicant on the hearing acknowledged that, in the circumstances, there was no entitlement to have the decision reviewed under Pt 5 of the Act, and that the decision of the respondent of the delegate was directly reviewable by the Court: s 475(1)(c). THE CONTENTIONS The applicant ultimately submitted that the respondent had committed four reviewable errors in making the decision the subject of the application for review. They were that: (1) in addressing subpars 4007(1)(c)(i) and (2), the respondent adopted an erroneous construction of the expression "health care or community services" as permitting consideration of the cost to the Australian community beyond "care or treatment" costs; (2) in addressing subpars 4007(1)(c)(i) and (2), the respondent erred in considering whether the cost was significant or undue without 'deducting the support from the Australian nominator' so as to assess those considerations by reference to the 'net cost' to the Australian community (the expression 'nominator' was used in a colloquial sense only, as the definition of 'nominator' in reg 1.13 makes it clear that a person providing the undertaking in respect of the visa sought by the applicant under reg 217.212(d) is not a nominator as so defined); (3) in addressing the waiver power in subpar 4007(2), the respondent erred by limiting consideration of matters relevant to the question of whether that power should be exercised to 'compassionate circumstances'; and (4) in the process of addressing the waiver power in subpar 4007(2), the respondent failed to observe procedures required by the Act to be observed in connection with the making of that decision by (a) having effectively foreclosed the decision by receiving the Waiver Opinion of the Medical Officer of the Commonwealth dated 20 January 1996 before inviting the applicant's submissions on the question, so that the issue was not addressed with an open mind; and (b) failing to disclose to the applicant the medical report dated 14 December 1996 or the Medical Health Centre Report apparently referred to in it, contrary to s 56 of the Act (at one point it was questioned whether the respondent had disclosed the Waiver Opinion to the applicant but correspondence from the applicant's solicitors indicates they were aware of its contents, and that aspect was not pressed). Grounds (1)-(3) were said to involve reviewable errors of law, pursuant to s 476(1)(e) of the Act, and ground (4) to give rise to the ground of review available under s 476(1)(a) of the Act. 'HEALTH CARE AND COMMUNITY SERVICES' It was accepted by the parties that the condition of the applicant is a condition for the purposes of par 4007(1)(c). The expression "health care or community services" is not defined. In my view, it is not correct to read the term "health care or community services" as being limited to "care or treatment" as contended for. The words do not say so. The expression is disjunctive so it is not appropriate to read down the words "community services" because they appear with the words "health care". In my view, a proper reading is that the two concepts of health care services and community services are separate. The focus of par 4007(1)(c) and 4007(2) is to assess the extent to which, by reason of a disease or condition of the visa applicant, there is likely to be a cost to, or impact upon, the Australian community if the visa is granted. There is no especial reason to assess that cost or impact only to a particular area, namely care or treatment. A condition or disease may result in such cost or impact beyond that narrow band of concern, as a successful visa applicant may be entitled to or may wish to make use of a range of community services available to persons with such a disease or condition. By way of illustration, counsel for the applicant identified that it would not fall within the expression "health care or community services" to consider the cost of community services such as paramedical services, special accommodation, home help, home delivery of food and the like. Contrary to that submission, in my view that illustration tends to confirm that there may be a cost to, or impact upon, the Australian community to which par 4007(1)(c) is directed and which goes beyond the narrower expression of "care and treatment". It would not serve the purpose of par 4007(1)(c) to exclude the wider 'community services' from consideration. I do not, of course comment on particular services; that is for the Medical Officer of the Commonwealth. It can also be seen from reg 2.25B that the word 'services' is there used to refer to either health care services or community services. Accordingly, I reject that contention of the applicant. The report of the Medical Officer of the Commonwealth dated 20 January 1997 concludes that the cost addressed is "in special training and financial support". I am not prepared to conclude that the Medical Officer of the Commonwealth, by reason of those words misconceived what is intended by the expression "health care or community services". It does not appear from the material what particular health care or community services the Medical Officer of the Commonwealth had in mind. There is, however, nothing to indicate that that Officer had regard to factors which fell outside those factors properly encompassed within the expression "health care or community services". It was pointed out by the respondent that par 4007(1)(c) prior to its amendment to the form now under consideration expressly used the words "care or treatment". It previously provided: "(1) Subject to subclause (2), the applicant: . . . (c) is free of any disease or condition that, during the applicant's proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer: (i) require significant care or significant treatment (or both); or (ii) require care or treatment (or both) involving the use of community resources in short supply; or (iii) prevent the applicant from pursuing the applicant's intended occupation (if any) in Australia; or (iv) result in the applicant becoming a significant charge on public funds."

That earlier form of par 4007(1)(c) preceded the introduction into the Regulations of regs 2.25A and 2.25B. The respondent contends that the change indicates that it is intended by the expression under review to encompass a wider consideration of the cost of services than direct care or treatment costs. Where an expression in an Act or in regulations has been amended, generally that will indicate an intention on the part of the Legislature that the later expression should bear a different meaning or scope from the earlier expression: Amalgamated Wireless (A/sia) Ltd v Philpott (1962-1963) 110 CLR 617 at 624. There is ample authority for the view that the construction of an earlier expression may be enlightened by a subsequent amendment of that expression: Grain Elevators Board (Victoria) v Shire of Dunmunkle (1946) 73 CLR 70, and also see cases referred to in Pearce and Geddes, Statutory Interpretation in Australia, Butterworths, 4ed par 3.18. Such considerations also lead to the view that the expression 'health care or community services' does not simply mean 'care or treatment'. Regulation 4007(1)(c) previously referred to 'care or treatment'. The adoption of the different expression indicates that the current expression is intended to bear a different sense or scope from 'care or treatment'. It is clearly an expression of wider import. Whatever that import, the amendment points clearly to the current expression not bearing the meaning contended for by the applicant. The respondent also contended that the delegate of the respondent is bound in any event by the opinion of the Medical Officer of the Commonwealth by reason of reg 2.25A(3), and there is therefore no power to review that opinion even if the Medical Officer of the Commonwealth misunderstood the factors to be taken into account in determining the cost of "health care or community services". Davies J in Manokian v Minister for Immigration and Multicultural Affairs (3 December 1997, unreported) addressed such a contention. The application for a visa in that case had been refused because of a failure to meet a requirement of par 4005 of the Public Interest Criteria, which for present purposes is parallel to the requirement of par 4007(1)(c)(i). Reports from Commonwealth Medical Officers said that the health criteria prescribed were not satisfied. The decision of the primary decision-maker was a Pt 5 reviewable decision, so the decision of the Minister was reviewed by the Immigration Review Tribunal. That Tribunal concluded that it was unable to go behind the decision of the Commonwealth Medical Officers concerned, and therefore had to affirm the primary decision. Davies J upheld that ruling. His Honour said: "The subject matter of the proceedings before the Review Officer and before the Immigration Review Tribunal was a decision to refuse to grant a non citizen a visa. In my view, the opinions of the Commonwealth Medical Officers, which I would accept to be decisions for the purposes of legislation such as the Migration Act and the Administrative Decisions (Judicial Review) Act 1977 (Cth), were not decisions refusing to grant a visa. . . ." His Honour described the function of Commonwealth Medical Officers as being to determine whether certain health criteria specified in the Public Interest Criteria of the regulations is satisfied, and not as a decision refusing to grant a visa. The visa was refused in a decision made by the officer of the department. It was that latter decision which was reviewable. The primary decision-maker had no power to go behind the certificate of the Commonwealth Medical Officer. His Honour concluded that the Immigration Review Tribunal did not err in law in itself concluding that, standing in the shoes of the primary decision-maker, it also had no greater power than the primary decision-maker in that regard. The applicant contended that that decision is not directly on point. It was not argued that that decision was erroneous. It was said that in the present matter the application is directly from the decision of the primary decision-maker. There is therefore no issue as to the power of any intermediate review entity being entitled to do something which the primary review officer was expressly not entitled to do. I do not think that relevantly distinguishes the decision. The application for review is from the decision to refuse the visa, and is confined to the grounds set out in s 476. The respondent, under reg 2.25A(3) was bound to accept the view of the Medical Officer of the Commonwealth and did not err in law in so doing. Consequently, on the basis of Manokian (above), I do not think it is open for the applicant to contend that the Medical Officer of the Commonwealth misinterpreted the phrase, and that that misinterpretation necessarily infected the decision of the respondent because the respondent was bound to adopt it. No authority was adduced in support of that proposition. I do not wish to be taken as concluding that, in such circumstances, a visa applicant will never have recourse to judicial review. Section 475(1)(c) empowers the Court to review "other decisions made under . . . the regulations, relating to visas". It may be arguable, in an appropriate case, that an opinion of a Medical Officer of the Commonwealth may itself be a reviewable decision. There may also be circumstances where, depending upon the particular provisions of regulations then in force, the compulsory rejection of a visa application by the respondent based upon the opinion or view of some other person may lead to that opinion or view being the substantive rejection of the visa application. Those matters were not argued at length. In the view I have taken as to the meaning of the expression "health care or community services" it is unnecessary to further consider them. MEASUREMENT OF "COST" This submission criticises the Waiver Opinion, which expresses the view that the likely cost to the Australian community of health care or community services is $420,000 (in financial support). It is unclear how that figure is arrived at. Steps taken by the applicant under the Freedom of Information Act 1982 (Cth) have not led to material being disclosed which indicates how that figure was arrived at, and indeed correspondence suggests that there is no material available to the respondent directly on that topic. It is asserted by the applicant that, in arriving at that figure, the respondent failed to have regard to the value of the undertaking proffered by the relative of the applicant pursuant to reg 217.212. That regulation requires that a near relative (in this case an uncle) of the applicant who at material times is either an Australian citizen or an Australian permanent resident and who is usually in Australia should give to the respondent a written undertaking to meet subreg 217.212(d). It requires that that near relative: "(d) gives the Minister a written undertaking that specifies assistance: (i) that the near relative will provide to the applicant and the applicant's dependants after their entry to Australia; and (ii) that is acceptable to the Minister, having regard to the needs of the applicant in the period of 6 months following the applicant's entry to Australia; with regard to the following matters: (iii) food, clothing, accommodation and household goods; and (iv) personal support; and (v) access to community and public services; and (vi) obtaining employment; and (vii) language interpretation and securing English language instruction; and (viii) community involvement and self-reliance; and (ix) reimbursing the Commonwealth for its costs (if any) in providing accommodation services to the applicant." An appropriate undertaking was given. It is contended that the measurement of the cost to the Australian community, for the purposes of par 4007(1)(c)(i), must be the net cost after having regard to the value of that undertaking, or that the Minister should have sought an undertaking for a longer period and then assessed the net cost having regard to any such extended undertaking. It was argued that it had to be net cost because par 4007 refers to a 'significant cost to the Australian community', or an 'undue cost to the Australian community', each of which places a focus upon actual as distinct from potential cost. The focus, it is said, is as to the assessment of the actual cost likely to be incurred. Consequently, it is necessary to have regard to the value of the contribution of the "nominator or sponsor" pursuant to reg 217.212. In my view, the reasons advanced by the respondent in opposition to those contentions are correct. Regulation 2.25B specifically directs that the assessment of significant cost to the Australian community must be in relation to the person's need and eligibility for health care or community services, without regard to whether that person will use the services. In my view that plainly indicates the assessment by the Medical Officer of the Commonwealth is to be on the basis that the visa applicant, once given entry to Australia, may by reason of the disease or condition need health care or community services and will be eligible to receive them. The fact that the visa applicant might not use those services because of support from relatives, or other financial arrangements which might be able to be made by that person, does not remove from the assessment to be made consideration of what the visa applicant, once given entry to Australia, may need and may be eligible for by way of such care or services under the legislative and administrative arrangements for the provision of such care or services within Australia. The issue is whether the disease or condition may give rise to that need and eligibility once the visa applicant becomes an Australian resident. Regulation 2.25B expressly directs the Medical Officer of the Commonwealth not to have regard to whether the visa applicant will or will not in fact use such services. Furthermore, as the respondent contended, the undertaking is of limited relevance to the issue in question, firstly because it is for a period of six months only, and secondly because it does not commit the near relative to pay for health care services or community services which the visa applicant might need and be eligible for upon residence in Australia except, perhaps, in respect of that referred to in reg 217.212(d)(ix) concerning the provision of accommodation services to the applicant. The undertaking requires the provision of assistance to be given in more general matters such as food, clothing, accommodation and household goods, personal support, access to community and public services, and the like. It does not compel the payment of money. Indeed, subclause (v) seems to involve providing assistance to the applicant in getting access to the sort of community services which the applicant's disease or condition might require and for which he is eligible. The applicant also contended that the sum of $420,000 referred to in the Waiver Opinion necessarily meant that the undertaking had not been taken into account by the respondent in considering par 4007(2). It was said that, as a matter of arithmetic, an expense of $200 per week to a male aged twenty four ceasing upon attaining age sixty equals approximately $420,000. Thus is was contended that the decision did not address the actual cost of health care or community services likely to be incurred. I do not accept that contention. There is no reason to think that the figure was so calculated. The need for health care or community services does not suddenly stop at age sixty. If such a calculation were made, in any event, it might be discounted for present value or be adjusted for future inflationary or other costs increases. I do not know how that figure was arrived at, but I reject the suggestion that that is the way in which the figure was calculated. In my view the Waiver Opinion provided but a piece of information to which the respondent could have regard in the consideration of whether to exercise the discretion to waive the requirements of par 4007(1)(c) under par 4007(2). I have separately considered whether the undertaking should have been addressed when consideration is given by the respondent to par 4007(2). Whether a significant cost is 'undue' might arguably be affected by whether the applicant will actually use health care or community services, even if the applicant has a need for and is eligible to receive such services. The short answer is that, for the reasons given, the undertaking really does not have any direct impact upon whether that cost is likely to be incurred in fact by the Australian community. More generally, I conclude that any proposed economic contribution by or on behalf of an applicant towards the cost of health care or community services which, by reason of the applicant's disease or condition, is likely to be incurred by the Australian community should not be taken into account by the respondent. Firstly, par 4007(2) refers back specifically to the requirements of par 4007(1)(c) and the expressions in subpars (i) and (ii) of each are obviously intended to correspond. The intent is that the respondent should, having regard to the significant cost, or to the impact upon access of Australian citizens to health care or community services, consider whether that cost or prejudice would be undue. Clearly, there may be other relevant matters such as the personal circumstances of the visa applicant or family of the visa applicant. It is neither appropriate nor possible to list every possible relevant consideration. Secondly, Public Interest Criteria 4005, 4006A and 4007 deal with criteria concerning diseases or conditions. There is no waiver provision in respect of Public Interest Criterion 4005, which is otherwise in the same terms as criterion 4006A(1) and 4007(1). Paragraph 4006A(2), which is a waiver provision in respect of the requirements of par 4006A(1)(c), is in the same terms as par 4007(2), provides: "The Minister may waive the requirements of paragraph 1(c) if the relevant employer has given the Minister a written undertaking that the relevant employer will meet all costs relating to the disease or condition that causes the applicant to fail to meet the requirements of that paragraph." Thus, the issue of whether the payment of costs for health care or community services by or on behalf of a visa applicant, when the cost of such services to the Australian community is to be considered, has been allowed for expressly in the limited circumstances for which par 4006A(2) provides. That express reference tends also to suggest that that matter is not relevant for the purposes of the respondent's consideration under par 4007(2). For the purposes of considering waiver under par 4007(2), the respondent invited the applicant to present material which the applicant considered relevant. The respondent is not empowered under reg 217.212 to require an undertaking for a longer period than six months. There is no legal obligation upon the respondent to require, or even to invite, any offer to extend that undertaking either as to its period of operation, or as to its scope. The applicant might have, but did not, present to the respondent any extended undertaking. In my view, no error of law on the part of the respondent is established by reason of not having sought any extended or wider undertaking than that which was provided under reg 217.212. In any event, for reasons already expressed, I am of the view that any such extended or wider undertaking would not be relevant to the respondent's consideration under par 4007(2). FACTORS RELEVANT TO WAIVER The applicant's contention was that, in addressing the question of waiver under par 4007(2), the respondent erroneously limited consideration to "compassionate circumstances". So much appears, it is said, from the notice of the decision which was given. It was contended that that constituted an inappropriate limitation upon factors which might be relevant to the exercise of that discretion, and so involved legal error. As it was put, a prism was applied to the exercise of the discretion to produce the wrongful focus. There is no provision in par 4007(2) which explicitly restricts the considerations which might be relevant to the respondent's decision whether or not to waive the requirements imposed by par 4007(1)(c). Obviously factors personal to the applicant or the applicant's family may be relevant to that consideration. There may be other factors which are relevant. The respondent by letter of 13 February 1997 sought submissions from the applicant, through his legal advisers on that issue, using the expression of "compassionate or compelling circumstances". The applicant through his legal advisers, by letter of 11 August 1997, ultimately provided a detailed submission of considerable length and depth. The respondent considered it. Although the invitation to make submissions may have been couched in an apparently somewhat restricted way, I do not think it was necessarily inappropriate. Compassionate considerations are clearly relevant. "Compelling" in its context really means no more than significant enough to result in the favourable exercise of the discretion. There is no foundation for thinking that the applicant was not given the opportunity to say or to put to the respondent anything which he wished to put. I sought to explore with counsel for the applicant what the applicant might have put, but did not, because of the form of invitation. He said that the respondent "got the submission he asked for, not what the Regulation permits". There was no identified factor, or piece of information, or topic of information, which it was suggested might have been brought to the respondent's attention, but was not brought to the respondent's attention because of the form of the invitation. There is nothing to indicate that the applicant, in making the submissions which he did through his legal advisers, was inhibited in any way in the sort of information which he presented to the respondent. In my view, the invitation did not proscribe any particular areas of submission. In the applicant's response, clearly, the major factor urged upon the respondent was compassionate circumstances. The respondent has taken those circumstances into account. It was not inappropriate, nor is it indicative of error, in those circumstances for the decision as notified to the applicant to be in the terms expressed. In my view, the respondent did not fail to take into account matters identified to him by the applicant as relevant to the exercise of his discretion, nor was the applicant on the material before me inhibited in any way in bringing to the attention of the respondent things which the applicant regarded as relevant to the exercise of that discretion. This ground of review must also fail. PROCEDURES REQUIRED BY THE ACT The applicant's fourth contention had two limbs, namely the respondent's alleged failure to approach the decision called for under par 4007(2) with an open mind, and secondly the respondent's failure to disclose to the applicant certain medical reports. Counsel for the applicant specifically eschewed any suggestion that the first of those limbs involved any allegation of bias, reviewable under s 476(1)(f). Rather it was put that the regulations contemplated a two stage decision-making process under par 4007 but that, by reason of the Waiver Opinion dated 20 January 1997, the respondent had telescoped the second stage with the first stage being the decision under par 4007(1)(c). That contention can be dealt with briefly. It may be assumed that a two stage process (or procedure) for decision-making is required under par 4007(1)(c) and (2). It may further be assumed that such a process imposes a procedure for the making of the decision in relation to the visa application, such as to give rise to the ground of review under s 476(1)(a). However, in my view, the process (or procedure) said to have been so prescribed has, in any event, been followed. On 20 January 1997, the respondent received the medical opinion of the Medical Officer of the Commonwealth on the matters addressed by par 4007(1)(c)(i). By its silence, it may also be taken to have been the opinion that par 4007(1)(c)(ii) was not an obstacle to the applicant. The respondent was obliged to seek that opinion, and to take it as correct: reg 2.25A. At the same time, the respondent received the Waiver Opinion. It dealt with the matters addressed by par 4007(1)(c)(ii), reflecting the conclusion above. The Waiver Opinion also addressed the matters referred to in par. 4007(1)(a) and (b). The Waiver Opinion said it was for the purpose of consideration of waiver of the requirements of par 4007(1)(c). The relevant section is set out above. It did not in any sense foreclose the respondent's decision under par 4007(2). It was simply a piece of information that was then considered. It may be categorised as information procured under s 56. Although there is no express obligation upon the respondent to provide that information to the applicant, it was appropriate to do so. The respondent apparently did so. The information was addressed by the applicant. More generally, the applicant was invited to provide further information relevant to the decision to be made under par 4007(2) by letter of 13 February 1997. He responded at length. The response was considered. On 23 September 1997, the respondent by the delegate decided to refuse the visa. In my view, the material does not support the complaint that the appropriate sequence of steps for consideration leading to the decision under review was not followed. In Eshutu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300, the Full Court (Davies and Burchett JJ, Whitlam J dissenting) decided that s 420 of the Act described certain procedures with which the Refugee Review Tribunal is bound to comply, so that a breach of those procedures may constitute a ground of review under s 476(1)(a), and notwithstanding s 476(2)(a). There seems to be no reason why that decision should not apply in respect of the operation of s 353 of the Act in relation to the Immigration Review Tribunal. There is, however, no analogue to ss 353 or 420 which applies to decision-making by the respondent, and in particular there is no provision which imposes upon the respondent an obligation expressly to pursue the objective of providing a mechanism of review that is "fair, just, economical, informal and quick": ss 353(1) and 420(1), or to act according to "substantial justice and the merits of the case": ss 353(2)(b) and 420(2)(b). To activate s 476(1)(a) of the Act, it will be necessary to identify what procedure required by the Act to be observed in connection with the making of the decision was not observed. Part 2, Div 3, subdiv AB was generally relied upon by the applicant, but in particular s 56 of the Act. That subdivision is headed 'Code of procedure for dealing fairly, efficiently and quickly with visa applications' and contains ss 52-64. The heading of that subdivision is deemed to be part of the Act: s 13(1), Acts Interpretation Act 1901 (Cth). I have carefully considered those provisions. Section 54 obliges the respondent to have regard to all the information set out in or attached to the application for the visa, or subsequently provided before the decision is made: s 55. Section 56, the section specifically relied upon, provides: "(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. (2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way." By way of contrast, s 57 expressly obliges the respondent to give certain information to a visa applicant. Section 57 does not apply to the current application as the visa could not be granted when the respondent was within Australia and the respondent's decision was not reviewable either internally under Pt 5 of the Act or by the Refugee Review Tribunal under Pt 7 of the Act: see s 57(3). The remaining provisions of subdiv AB were not said to touch relevantly upon the contention. In my view, neither s 56 alone nor s 56 in its context in the Act, obliged the respondent to disclose to the applicant the medical report of 14 December 1996, or any Medical Health Centre medical report. Its wording does not suggest such an obligation. It provides the respondent with power to obtain information. The contrast with the obligation imposed by s 57, which does not apply to the subject application, is acute. More widely, the obligation imposed by ss 353 and 420 on the Immigration Review Tribunal and the Refugee Review Tribunal respectively, and the more specific procedural obligations imposed upon those Tribunals under the Act, also are by way of contrast. Those considerations leave no room to imply from s 56 an obligation of the nature asserted. In any event, even if there were an obligation to put material to the applicant upon which he should have an opportunity to comment, in my view, so far as the information presently before the Court is concerned, that obligation would have been satisfied. It is true that the applicant did not see the medical report dated 14 December 1996. The relevant part of that medical report of 14 December 1996 is recited in both the opinion of the Medical Officer of the Commonwealth of 20 January 1997 provided for the purposes of reg 4007(1)(c) and in the Waiver Opinion. The applicant was aware of it. There is no information in the medical report of 14 December 1996 on that topic beyond that contained in the material of which the applicant was given notice, and upon which he was given the opportunity to comment generally. There is nothing to indicate that the respondent had, or had regard to, any Medical Health Centre report to which the medical report of 14 December 1996 only cryptically refers. There is also nothing to indicate that the respondent had access to, or had regard to, any other information as to how the Medical Officer of the Commonwealth formed the opinions expressed, including as to the assessment of the applicant's intelligence quotient. The fact that there is no information from the Medical Officer of the Commonwealth as to how those opinions were formed does not of itself impose on the respondent a procedure which the respondent was obliged to follow in the making of the decision, and has failed to follow. CONCLUSION In the light of the above, in my view the application must be dismissed. I so order. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Eshutu v Minister for Immigration and Ethnic Affairs

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Judgment (8 paragraphs)

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