FEDERAL COURT OF AUSTRALIA VQAS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 832 VQAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V523 of 2003 RYAN J 6 AUGUST 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V523 of 2003 BETWEEN: VQAS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE OF ORDER: 6 AUGUST 2003 WHERE MADE: MELBOURNE THE COURT ORDERS: 1. THAT the respondent within 14 days of the date of this Order appoint a medical specialist to consider whether or not it should be certified for the purposes of Reg 2.20(9) of the Migration Regulations 1994 that the applicant has a special need based on health in respect of which the applicant cannot properly be cared for in a detention environment. 2. THAT by 12 August 2003 a draft letter of the appointment referred to in paragraph 1 of this Order be served on the applicant's solicitors. 3. THAT liberty be reserved to either party to apply on not less than 24 hours notice in writing to the other party. 4. THAT there be no order as to the costs of the application. 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 V523 of 2003 BETWEEN: VQAS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE: 6 AUGUST 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is before the Court an application under s 39B of the Judiciary Act 1904 (Cth) in which the applicant seeks a direction that he: 'meets the grounds for the grant of bridging visa (E)' under the Migration Regulations 1994 ("the Regulations"). It appears from the submissions that have been made this morning and the respondent's outline of argument that each party has come to court under a misapprehension as to the real legal basis of the relief sought. It is not necessary to ascribe reasons for the parties thus being at cross-purposes, but it does explain the course which the argument has taken which centres on whether an obligation has arisen on the respondent under reg 2.20(9) of the Regulations. 2 That regulation provides, in part, that subreg (9) applies to a non-citizen: '(c) who has a special need based on health or previous experience of torture or trauma in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment, and (d) in respect of whom the minister is satisfied that adequate arrangements have been made for his or her support in the community.' 3 It now appears to be common ground that no appointment of a medical specialist has been made by Immigration in terms of par (c) of the regulation which I have just quoted. It was submitted on behalf of the respondent that the need to make such an appointment only arises when something in the nature of a prima facie case has been demonstrated that the non-citizen cannot properly be cared for in a detention environment. 4 That view seems to have been shared in part by the drafter of migration series instruction which I have been advised from the bar table was promulgated yesterday, 5 August. At page 14 of that instruction, section 7.6, dealing with special health need, recites: '7.6.1 Upon notification that a person is seeking a bridging (E) visa and may come within regulation 2.20 subregulation (9), prompt contact should be made with health services staff employed by the detention services provider. 7.6.2 That contact is to determine if there is a basis on the medical facts as known that the potential applicant cannot be properly cared for in a detention environment. 7.6.3 Copies of any documentation given by the potential applicant in relation to their medical condition should be provided to the health service staff. 7.6.4 If the opinion referred to 7.6.1 above is that the potential applicant cannot be cared for in a detention environment, prompt contact should be made with an appropriately qualified medical specialist to have the person examined by an appropriate medical specialist on behalf of the department. 5 It is unnecessary to refer to the rest of the instruction, but it does suffer from the defect that, although par 7.6.4 refers to an opinion referred to in 7.6.1, that latter paragraph does not seem to be predicated on an opinion. Paragraph 7.6.2, although it is inelegantly drafted, suggests that there is a need for somebody within the Department to determine whether there is a basis on the medical facts as known for concluding that the applicant cannot properly be cared for in a detention environment. 6 I am unable to read into reg 2.20(9)(c) a requirement that the appointment should be preceded by the formation by a Departmental officer of an opinion that there is a prima facie case or question arising about the ability of the applicant to be properly cared for in a detention centre. I consider that the implied obligation on the Department to make the appointment arises whenever there is material which seriously suggests a special need based on health which might, arguably, not be properly catered for in a detention environment. 7 That is not to say that every frivolous application should be allowed to initiate an appointment of a medical specialist, or that, once a certificate has been given or refused under subpar (c) of reg 9, an applicant can initiate a new appointment simply by making a request for one without demonstrating the emergence of new facts and circumstances. However, in the present case there is a multitude of evidence in the form of medical reports dating from at least December 2001. The general tenor of those reports is to demonstrate a progressive deterioration of the applicant's spinal condition and an inability by various attempts at physiotherapy and other forms of symptomatic relief to alleviate the condition. 8 I do not consider that the question which I have identified has been resolved in such a way as to make it unnecessary to make the appointment contemplated by reg 2.20 subreg (9) par (c). The main consideration that has led me to that conclusion is the clear impression that none of the medical practitioners providing the reports to which I have referred seems to have made any coherent assessment of the care which can be accorded to the applicant in a detention environment. 9 Indeed, the authors of those medical reports portray at various points in the reports an understanding of the facilities available in a detention environment and what is constituted by such an environment, which is superficial at best. For these reasons, I am persuaded to make an order in terms substantially that is suggested by Mr Burnside QC who appears with Mr Hay for the applicant. I should say that the respondent has not had an opportunity, having regard, as I explained, to the way in which the matter developed, to formulate, on appropriate instructions, his client's attitude to the proposed order. But, in the circumstances and having regard to the urgency of the matter, I consider that I should make an order today. 10 I shall therefore order: 1. That the respondent within 14 days of the date of this order appoint a medical specialist to consider whether or not it should be certified for the purposes of regulation 2.20(9) of the Regulations, that the applicant has a special need based on health in respect of which the applicant cannot properly be cared for in a detention environment. 2. That by 12 August 2003 a draft letter of the appointment referred to in paragraph 1 of this order be served on the applicant's solicitors. 3. That liberty be reserved to either party to apply on not less than 24 hours' notice in writing to the other party. 11 [After further discussion with Counsel, his Honour continued]; As I indicated in the course of the remarks which opened my reasons in this matter, the parties came to Court today somewhat at cross-purposes and, indeed, the application, as originally instituted, may have been affected by a misapprehension as to what had happened within the Department and what needed to be done to activate reg 2.20(9). As I also remarked in the course of my reasons for making the substantive orders, it is not appropriate to attribute any responsibility for the parties being at cross-purposes in the way that they were. In those circumstances, I think that the proper course is to make no order as to costs and I shall take that course. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 6 August 2003 Counsel for the Applicant: Mr J Burnside QC with Mr S D Hay Solicitor for the Applicant: Kon Karapanagiotidis Footscray Asylum Seeker Resource Centre Counsel for the Respondent: Dr S Donaghue Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 2003 Date of Judgment: 6 August 2003