Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011

FEDERAL COURT OF AUSTRALIA

Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011

MIGRATION – Family (Residence) (Class AO) visa subclass 804 (Aged Parent) – review of decision of Migration Review Tribunal – applicant suffering cardiac condition – reliance by Tribunal on opinion of Medical Officer of the Commonwealth – whether invalid because no account taken of capacity of applicant's family to pay for her medical expenses

Migration Regulations 1994 (Cth) Sch 4 Pt 1 cl 4005(c) Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 DEBLE IMAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 810 OF 2001 HEEREY J 26 JULY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 810 OF 2001

BETWEEN: DEBLE IMAD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 26 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 810 OF 2001

BETWEEN: DEBLE IMAD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 26 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Migration Review Tribunal given on 21 September 2000 affirming a decision of a delegate of the Minister to refuse her a Family (Residence)(Class AO) visa, subclass 804 (Aged Parent). 2 The applicant is a Lebanese citizen aged 72. She entered Australia on 31 October 1994 on a long stay visa and has had a number of similar visas since then. Her application for the visa presently under consideration was lodged on 23 July 1996. 3 The applicant is a widow. She lives with her daughter, Mrs Timon Nigen, who is aged 46 and has three children now aged eight, five and three. Mrs Nigen's husband has left her and she suffers some psychological disability. The applicant is responsible for the household. The applicant's daughter is an Australian permanent resident and her grandchildren are Australian citizens. I raised in the course of argument the possibility that the applicant may be eligible for a special need relative visa and I was informed that such an application may be made. 4 The conditions of the relevant visa include the public interest criteria set out in Sch 4 Pt 1 cl 4005 of the Migration Regulations 1994 (Cth). That criterion is as follows "4005. The applicant: (a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and (c) is not a person who has a disease or condition to which the following subparagraphs apply: (i) the disease or condition is such that a person who has it would be likely to: (A) require health care or community services; or (B) meet the medical criteria for the provision of a community service; during the period of the applicant's proposed stay in Australia; (ii) provision of the health care or community services relating to the disease or condition would be likely to: (A) result in a significant cost to the Australian community in the areas of health care and community services; or (B) prejudice the access of an Australian citizen or permanent resident to health care or community services; regardless of whether the health care or community services will actually be used in connection with the applicant; and (d) if the applicant from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking." 5 Regulation 2.25A(1) and (3) provides for the Minister (and accordingly on review the Tribunal) seeking the opinion of a Medical Officer of the Commonwealth. The regulation is as follows: "2.25A (1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c) … of Schedule 4 … (3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) … to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion." 6 The Minister's delegate obtained the relevant medical opinion, which was dated 11 December 1998, and it was in these terms: "The above opinion is based on the applicant's declaration that residence is being sought on a permanent basis. In reaching my opinion I took into account the medical examination report and associated reports of 11/11/1998; and reports from Dr Thompson dated 22/2/1996; Dr Chrysostomou dated 13/5/1997 and 3/3/1998; Dr Dowling dated 1/7/1998 Dr Chapman dated 2/9/1997; and Dr Meusemann dated 9/6/1998. Ms Majdlani has severe cardiac dysfunction. In 1997 she was admitted to hospital with a cardiac arrest. She underwent coronary angiography which revealed a ventricular aneurism and coronary artery disease. Twelve months ago she had surgery for these conditions and is since said to be asymptomatic. Recent investigations of her cardiac function however indicate marked impairment. At the medical assessment in November she had evidence of a degree of cardiac failure despite treatment. Currently Ms Majdlani's cardiac function is just sufficient for her daily activities. Deterioration with time is likely resulting in further periods of hospitalisation, treatment and increasing incapacity and dependency on others. Ms Majdlani also has evidence of peripheral vascular disease of the left leg, hypertension, a history of thyroid surgery, cataract of the right eye, and chronic gastritis. She was to be investigated for Addison's Disease, however the results of this are not known. These conditions are likely to require ongoing treatment and frequent specialist visits with a regular need for pathology testing and possible hospitalisation. It is likely with deterioration that Ms Majdlani will develop difficulties performing the full range of daily living activities which are necessary for independent functioning in the community. Permanent or intermittent residential care, or respite care, would be required if family support were not to be available and may be needed as the conditions deteriorate. Catherine WEBSTER – Health Services Australia, (Melbourne) A Medical Officer of the Commonwealth for the purpose of providing an opinion on whether prescribed health criteria under the Migration Regulations are met." 7 The applicant was sent a copy of that opinion in a letter dated 2 February 1999 which told her that if the circumstances of her health had changed she may provide further medical specialist reports. The Departmental file contains a note that the applicant's general practitioner rang to say that her health and condition "has now improved" and that specialist reports would be forwarded by 18 March 1999. No such reports were provided. 8 On 6 January 2000 the Department wrote to the applicant stating that a decision would be made on the application based on the information held on her file. On 10 January 2000 the applicant's general practitioner Dr Evon Shihata wrote saying that the applicant's medical condition "improved after her operations and medication". The doctor offered to provide further information if telephoned. On 11 February 2000 the Commonwealth Medical Officer gave a further opinion stating that she had reviewed the original medical documentation, her opinion of 11 December 1998 as well as the letter from Dr Shihata and stated that her opinion was not altered by this information. 9 On 18 February 2000 the delegate made a decision rejecting the application. The applicant sought review by the Tribunal. On 12 July 2000 the Tribunal write to the applicant enclosing the opinion of the Medical Officer and inviting comment. On 24 July 2000 a nurse from Dr Shihata's surgery telephoned the Tribunal and stated that a response would be given to a letter requesting information. That letter, although dated 20 March 2000, was noted as being received by the Tribunal on 1 August 2000. It stated that the applicant was a 71 year-old widow who currently resided with her daughter. She needed to be with her daughter as the daughter was suffering from hypertension, thyroid gland problems, et cetera, and was on, "specified medication". It was said that Mrs Nigen was separated from her husband and needed her mother's constant support in raising her three children. 10 In its decision the Tribunal referred to the relevant regulations and noted, in particular, the opinions of the Medical Officer of the Commonwealth of 11 December 1998 and 11 February 2000. The Tribunal stated: "The Tribunal is bound by subregulation 2.25A(3) to take the opinion of the Medical Officer of the Commonwealth to be correct for the purposes of deciding whether the visa applicant meets a requirement or satisfies a criterion. The visa applicant has provided no further documentary evidence to suggest that the opinion of the medical officer should change. Therefore, based on the opinion of the medical officer of the Commonwealth, the Tribunal is satisfied that the visa applicant does not satisfy proper interest criterion 4005. There is no provision for waiver of the 4005 criterion specified in subclause 804.226. Accordingly the Tribunal finds that the visa applicant fails to satisfy clause 804.226." 11 On the hearing before me, counsel for the applicant submitted that cl 4005 was invalid because it was "incapable of meaning or application". It imposed, he said, an impossible task and that rendered the opinion of the medical officer invalid. Thus the Tribunal had no valid opinion on which to base its decision. 12 In dealing with this point, it is to be noted that the regulation in its present form was substituted after a Full Court of this court held that an earlier provision was invalid: Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115. 13 In my opinion the regulation is not invalid. The criterion in cl 4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in paragraphs (i) and (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 reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other 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. 15 Accepting, as I do, that cl 4005 is valid, I then turn to the contentions of the applicant which were as follows: "7. The applicant contends that the opinion formed by the medical officer of the Commonwealth according to Regulation 4005() was not a proper opinion of the medical officer on the basis that: (1) the medical officer failed to take any or any proper account of the fact that the applicant's family would pay for and provide any costs associated with the treatment of the applicant; (2) the medical officer failed to consider the opinion of the applicant's treating doctors; (3) the medical officer failed to consider that the applicant's family have paid for all costs associated with the medical treatment of the applicant; (4) the medical officer failed to consider any possibility that the applicant's condition may change. 8. The MRT failed to consider: (1) any humanitarian aspect concerning the applicant's case; (2) the fact that the applicant was aged and had no family or support in Lebanon; (3) the fact that the applicant has no home in Lebanon to which to go; (4) the fact that the applicant is the principal care giver of three of her grandchildren in Australia aged between 4 and 8 years; (5) the fact that the removal from Australia of the applicant will have adverse effects for her daughter and grandchildren who are Australian citizens." 16 These were said to amount to an error of law within the meaning of s 476(1)(e) of the Act. As to 7(1), for the reasons already mentioned, the medical officer was not required to take any account of the fact that the applicant's family would pay for and provide any costs associated with treatment of the applicant. In fact cl 4005 specifically directed the medical officer not to take account of any such matters. As to 7(2), the officer in fact noted the opinion of the applicant's treating doctors but of course had to form her own opinion. 7(3) is not relevant for the reasons already mentioned. As to 7(4) the medical officer did consider the possibility the applicant's condition may change and formed the opinion that it may deteriorate. 17 The matters in par 8 (1) to (5) certainly excite sympathy for the plight of the applicant. As I have mentioned, it may be that there is some other visa that will meet her situation but they are plainly matters not relevant for the purpose of the present review. The application will be dismissed. There will be an order that the applicant pay the respondent's costs.