Manchandia v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1296

FedCFamC2G|2025-08-14

These proceedings were commenced by an application to show cause filed with the Court on 21 December 2020, at which time the applicant was unrepresented. On 24 February 2021, a Notice of Address for Service was filed which indicated that the applicant had become legally represented. On 11 March 2021, orders were made by a Registrar of the Court listing the proceedings to be listed for hearing on a date to be advised, and orders for preparation of the matter in advance thereof. The applicant was given an opportunity to file and serve an amended application. On 9 January 2025, the proceedings were docketed to me and I made orders listing the proceedings for final hearing before me at 2:15pm on 17 February 2025 and granting the applicants the opportunity to amend their application (January Orders). By the January orders, the applicants and the first respondent were required to file and serve a written outline of submissions 14 and 7 days before the hearing (respectively).
On 24 January 2025, a Notice of Withdrawal of Lawyer was filed by the applicants' solicitor, attaching a Notice of Intention to Withdraw which had been served on the applicants on 13 January 2025. On 3 February 2025, the applicants filed an Amended Application and written submissions within the time prescribed by the January Orders. On 10 February 2025 (being the day the first respondent's submissions were due to be filed), my Chambers received an email from the first respondent's solicitor (February email). The February email requested further time to take instructions and to respond to the issues raised by the Amended Application. Specifically, by the February email the first respondent requested the following orders be made in Chambers:
1. The hearing listed at 2:15pm on 17 February 2025 before Judge Given be vacated.
2. The matter be relisted on a date to be advised.
3. The first respondent file any affidavit evidence, a written outline of submissions, and a list of authorities seven days before the hearing.

We are awaiting a reply from the applicant and will let the Court know when we have a response.

On 11 February 2025, I made the following orders (emphasis in original):
1. The final hearing listed at 2:15pm on 17 February 2025 before Judge Given is adjourned to 10:15am on 8 April 2025 at Court 13.1 level 13, 80 William Street, Woolloomooloo.
2. The date in Order 3 made on 9 January 2025 is amended to 1 April 2025.
Written submissions were subsequently filed for the first respondent on 1 April 2025, as ordered. The applicants continued to rely upon the submissions filed with the Court on 3 February 2025.
At hearing on 8 April 2025, the applicant appeared represented but accompanied by the sponsor. The first respondent was represented by his Counsel. I made orders at the commencement of hearing, by consent, appointing the first applicant as litigation guardian of the second applicant, which had not previously been done. The sponsor sought, and was granted, leave to speak on behalf of the applicants. Despite the grant of leave, when called upon the sponsor said that he had nothing to add beyond that which is contained in the written submissions filed by the applicants on 3 February 2025. I confirmed with the applicant that she was content with that approach or wished to make any additional oral submissions. The applicant confirmed that she did not wish to say anything and relied on the written submissions.

By the Amended Application, the applicants raise the following four grounds of review (particulars omitted and errors in original):

Ground 1

The Tribunal's decision should be set aside due to apparent legal error, namely, the Tribunal failed to engage in active intellectual process. Alternatively, it submitted that the second medical opinion sought by the Tribunal is invalid

Ground 2

The Tribunal failed to comply with s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

Ground 3

The Tribunal failed to consider relevant consideration or information.

Ground 4

The tribunal letter sent to the applicant under s 359A of the Migration Act is invalid.

The first ground alleges that the Tribunal failed to engage in an active intellectual process or, alternatively, that the RMOC Opinion is invalid because the Tribunal failed to provide the RMOC with the "relevant medical documentation", said to be the MOC Opinion and the letter dated 14 March 2019 of costs estimates (14 March 2019 letter) (CB 144 to 145).
In respect of the first aspect of ground 1, the first respondent submitted that the applicants have not identified a proper basis upon which they say the Tribunal failed to engage in an active intellectual process and that the Tribunal's decision record demonstrates it meaningfully engaged with the relevant statutory test. This being whether the applicants met the criteria in PIC 4005, citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [43] to [46] and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [37]. Further the first respondent submitted that the brevity of the Tribunal's decision is not, in and of itself, a sufficient basis to establish jurisdictional error.
In relation to the second aspect of ground 1, the applicants submitted that the Tribunal was under a legal obligation to forward the relevant materials to the RMOC and that, had the Tribunal provided the 14 March letter to the RMOC, there is a reasonable possibility that his opinion would have been different (CB 144 to 145).
The first respondent says that there was no requirement for the Tribunal to provide the RMOC with the first MOC Opinion nor the 14 March 2019 letter. The first respondent noted that despite having been invited to provide additional information after the MOC Opinion was provided on 1 November 2018 (CB 129), and before the RMOC was sought, the applicants did not provide any new information (CB 180 to 182).

I accept the submissions of the first respondent. A comparison of the MOC Opinion (CB 129) and the RMOC Opinion (CB 194) shows that each describes the information to which they had regard in preparing their respective reports in identical terms, each recording that:

In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the report of the visa medical examination and assessment of activities of daily living dated 30 October 2018.

In Dang v Administrative Appeals Tribunal [2019] FCAFC 220; (2019) 273 FCR 87 at [30] to [31] Colvin and Jackson JJ said the following (citing Robinson (supra) see [22] above):

30. In Robinson, and in the present case, the specified opinion was not formed by reference to a detailed calculation of the actual cost and consequences for access to services. It seems unlikely that expertise as a medical practitioner would inform or qualify the Medical Officer as to the making of an assessment of that kind. The fact that the formation of the required opinion is entrusted by the legislation to a medical practitioner informs the proper construction of the provision. A medical practitioner may be able to form a view, based upon medical expertise, as to the likely prognosis and consequently the likely extent in general terms of the level of health care and community services that may be required in caring for a person with a particular type of condition over a lifetime. Based on that general assessment, perhaps aided by inquiry, the practitioner will then be able to make an informed judgment as whether the cost of providing that level of services will likely be significant and also whether the services are readily available (such that additional demand might prove difficult to meet without prejudicing access to the same service by an Australian citizen or permanent resident).

31. It would be expected that a medical practitioner forming such an opinion would draw principally upon the likely prognosis and the general level of understanding that a medical practitioner would have of the types of services that the person is likely to require and for how long.

As noted at [22] above, the Tribunal was aware that it must take the MOC Opinion as being correct once satisfied the MOC had applied the correct test in forming that opinion and, specifically referred to the principles in Robinson (supra).
I am not satisfied that there was any error on the part of the Tribunal by not providing the material particularised by ground 1, to the RMOC. Even if I am wrong in that conclusion, I am not satisfied, applying a counterfactual, that any resulting error was material: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321. Accordingly, there is no jurisdictional error as alleged by ground 1.

Grounds two and four each pertain to the s 359A of the Act (as it applied at the time of the Tribunal's decision), so it is convenient to address them together.
By ground two the applicants contend the Tribunal failed to comply with s 359A of the Act by failing to include a copy of PIC 4005 with the s 359A letter.
The first respondent says in this regard that the Tribunal was not statutorily required to provide the applicants with a copy of PIC 4005. In any event, attention is drawn to the fact that relevant parts of PIC 4005 were extracted in the delegate's decision (CB 160 to 163) and the applicants do not suggest that they were otherwise unaware of its requirements.
Ground four alleges that the s 359A letter is invalid because it was not signed, did not indicate that the letter was sent pursuant to s 359A and did not state the position held by the Tribunal officer who issued it (CB 160 to 163).

As detailed at [13] above, on 21 September 2021, the Tribunal wrote to the applicants pursuant to s 359A of the Act. The first respondent submitted, and I accept, that the s 359A letter complied with the relevant requirements of the Act by:

(a) providing clear particulars of the information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, namely that:

(i) it was a requirement for the grant of the visa that each visa applicant (including members of the family unit) meet the health requirements specified in PIC 4005; and

(ii) on 7 September 2020, a RMOC had formed an opinion that the second applicant did not meet the health requirements. The s 359A letter also provided clear particulars of the RMOC Opinion.

(b) explaining to the applicants that the information was relevant to the review because it could lead the Tribunal to find that the second applicant did not meet the health requirements in PIC 4005 and, if relied upon, that the information would mean the applicant did not satisfy a requirement for the grant of the visa, which would be a reason for affirming the decision under review;

(c) inviting the applicants to comment on or respond to the information in writing;

(d) being sent to the applicants at the last email address provided to the Tribunal in connection with the review; and

(e) providing the applicants with the correct prescribed period in which to comment on or respond to the information (by 6 October 2020), namely 14 days after the invitation was received (CB 190 to 193).

There is no obligation on the Tribunal pursuant to s 359A(1) of the Act, to give the applicants source documents, provided it gives clear particulars of the information which has engaged the section and is being put for comment. The discretion in s 359A(1) extends to the Tribunal determining for itself the manner in which it gives the information as being that which it "considers appropriate in the circumstances". It can be inferred that the Tribunal did not, in the particular circumstances of this case, consider it appropriate (or necessary) to provide the applicants with a full copy of PIC 4005. There is no error in the election not to do so. Nor is there any error as alleged by ground 4 in respect of the manner in which the letter concluded and the applicants have advanced no legal basis to substantiate the alleged error in relation to the signature of the letter.

Ground three alleges that the Tribunal failed to consider the costings from the MOC (CB 144) or the sponsor's letter dated 6 October 2020 (CB 196 to 198). It was clear from the applicants' written submissions that the focus of their challenge to the Tribunal's decision arises from this ground. The applicants take issue with what they allege to be a failure on the part of the MOC and/or the Tribunal to inquire into the particular financial circumstances of the applicants or their family members. This arises from the sponsor having made submissions to the Tribunal about his willingness to fund the care needs of the second applicant.
The first respondent says the Tribunal did engage with the evidence advanced for the applicants and with the claims that the sponsor had funds to support the second applicant (CB 223 at [12]). The first respondent observers that the Tribunal in fact accepted the evidence of the sponsor, but found that it could not substitute its own views for the views of the RMOC.

In Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 at [13] to [14] per Heerey J observed as follows:

13. In my opinion the regulation is not invalid. The criterion in cl4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in para(i) and para(ii). The "person" referred to in (i) is not the applicant but a hypothetical person who suffers from the disease or condition which the applicant has. The criterion requires assessment as to whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The assessment of the likelihood of health care or community services is a qualification or characterisation of the kind of disease or condition in question, just like saying "this is a surgical procedure which usually requires general anaesthetic". It is not a prediction of whether the particular applicant will, in fact, require health care or community services at significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with "regardless".

14. The intention behind this regulation is understandable, particularly in the light of reg2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or any family members or friends or other sources of financial assistance.

I accept the submission of the first respondent, consistent with Imad (supra) that PIC 4005(1)(c)(ii)(B) and reg 2.25A specifically render any consideration of whether potential health costs would be incurred in connection with the applicants concerned, to be irrelevant. It can be well understood that the applicants disagree with the intent and the effect of the regulation in question or are even distraught by its impact. Unfortunately for them, that is not a basis upon which the matter can be remitted absent jurisdictional error.
The Court is not unsympathetic to the position of the applicants. However, it is the case that the Tribunal comprehensively considered the applicant's claims as it was statutorily required to do: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [57], citing with approval Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. Beyond this, the individual ability of the sponsor (or any other person) to meet the ongoing financial needs of the second applicant was unfortunately not a relevant consideration.
I am not satisfied there is an error as alleged by ground 3.

Absent a jurisdictional error the decision of the Tribunal is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

On 11 April 2019, the applicants applied to the Tribunal for review of the delegate's decision (CB 164 to 165).
On 17 April 2019, the Tribunal gave the applicants an opportunity to request a further opinion from another MOC (CB 175 to 179). On 17 May 2019, the sponsor provided a completed Request for a Further Opinion from a Review Medical Officer of the Commonwealth (RMOC) to the Tribunal (CB 180 to 182).
On 21 September 2020, the Tribunal wrote to the applicants pursuant to 359A of the Act, attaching a copy of the opinion of the RMOC dated 7 September 2020 (RMOC Opinion) and inviting them to comment on the RMOC Opinion (s 359A letter). The Tribunal's letter noted that the RMOC had also formed an opinion that the second applicant did not meet the health requirements of PIC 4005 (CB 190 to 195).
On 6 October 2020, the sponsor responded to the s 359A invitation (on behalf of the applicants) submitting that he had "enough funds to bear the expenses" of the second applicant's ongoing care in Australia (CB 196 to 198).
On 16 October 2020, the applicants were invited to attend a hearing of the Tribunal scheduled for 25 November 2020 (CB 199 to 208). The first applicant and the sponsor attended that hearing by telephone (CB 215 to 217).
On 25 November 2020, the Tribunal affirmed the delegate's decision (CB 223).
The Tribunal identified that the issue in the review was whether the applicants met PIC 4005 (CB 222 at [5] to [6]). The Tribunal found that, because the applicant had applied for a permanent visa, the exclusion provision in PIC 4005(3) did not apply (CB 222 at [7]).
The Tribunal observed that reg 2.25A of the Regulations required a MOC Opinion to be obtained to determine whether a person met PIC 4005(1) (save in limited circumstances which are not relevant in the present case) and, that where an opinion of a MOC was required, it must take the MOC Opinion to be correct: see reg 2.25A(3) (CB 222 to 223 at [8]).
Having regard to the applicants' country of nationality and the health outcome in relation to the second applicant, the Tribunal found that a MOC opinion was required (CB 223 at [9]).
The Tribunal was satisfied the second applicant was a member of the family unit of the primary visa application. The Tribunal found that each of the applicants were required to meet PIC 4005 for the purpose of cl 804.226 (CB 223 at [10]).
The Tribunal also noted that a further medical opinion had been sought and provided from the RMOC, and that the RMOC Opinion was that the second applicant did not meet the health requirements (CB 223 at [11]).
The Tribunal set out the sponsor's evidence that the second applicant would not be required to rely on any government services because the family had the funds to support him. While the Tribunal accepted this evidence, it found that it could not substitute its own views for the opinion of the MOC (CB 223 at [12]). Rather, the Tribunal observed that it must take the MOC Opinion as correct but, first must be satisfied the MOC had applied the correct test in forming the opinion. The Tribunal referred to the decisions in Robinson Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 (Robinson) and Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735 in support of the proposition that:

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