FEDERAL COURT OF AUSTRALIA

Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) Pt 1 Sch 4 cl 4005(c)

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

Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [66] applied

GIOVANNA INGUANTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 298 OF 2001

HEEREY J

3 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is allowed.

2.         The decision of the Migration Review Tribunal given on 3 April 2001 is set aside.

3.         The visa application of the applicant be reheard by the Tribunal differently constituted with an opinion obtained from a different Medical Officer.

3.         The respondent pay the applicant’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Migration Review Tribunal given on 3 April 2001 affirming a decision of a delegate of the Minister to refuse to grant to Mr Gatano Urso, the brother of the applicant, a preferential relative (Migrant) (Class AY) visa subclass 104.

2                     The decision of the Tribunal was based on a finding that Mr Urso failed to satisfy health criteria in Pt 1 Sch 4 of the Migration Regulations 1994 (Cth) and in particular cl 4005(c) which is as follows:

“4005.  The applicant:

              (a)   …

(b)   …

(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)   …”

3                     Mr Urso was born on 18 May 1938 in Italy but is an American citizen.  The health condition on which the Tribunal relied is intellectual disability.  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.”

4                     Prior to the decision of the delegate a Medical Officer of the Commonwealth provided an opinion dated 20 March 1998 to the effect that Mr Urso did not meet the prescribed health criteria because he had very significant intellectual disability and required supervision with personal hygiene and other activities of daily living.  He was unable to live fully independently and would require daily assistance from a carer or substantial daily use of Community Home Care Services and would be likely to require residential care in the foreseeable future.  His medical condition would be likely to result in a significant cost to the Australian community and use of community resources in short supply.

5                     For the purposes of review by the Tribunal Dr Michael Pincus a review Medical Officer of the Commonwealth provided a report dated 20 October 2000.  Dr Pincus reviewed all the medical information provided including a psychologist’s report by Dr Peter Cook dated 28 August 2000 which confirmed the presence of an intellectual disability and the need for regular supervision and assistance, although these reports indicated that the applicant’s behaviour was socially appropriate and he was able to manage his personal basic daily living requirements.  However Dr Pincus, after quoting cl 4005(c), stated:

“The applicant is a person who has a disease or condition that during the applicant’s proposed period of stay in Australia, would be likely to result in a significant cost to the Australian community in the area of community services and prejudice access to services in short supply.

My reasons are as follows:

The applicant has an intellectual disability which is sufficiently severe to prevent him from living independently i.e. he needs regular supervision and assistance with daily activities.  He would meet the eligibility criteria for Government supported accommodation and special programs such as HACC (Home and Community Care) for people with disabilities.  He is likely to require nursing home care in the foreseeable future.”

6                     There was also evidence before the Tribunal as to the financial position of Mr Urso and his sister the applicant.  Their mother died in September 1996 in the United States.  After bequests of US $25,000 to each of the five grandchildren the residue of her estate was divided equally between Mr Urso and the applicant.  This resulted in each receiving A$414,500.  The applicant was named as trustee and guardian of Mr Urso.

7                     Mr Urso has currently A$420,000 held in a trust account for his benefit with the ANZ Bank.  He receives a pension of approximately A$1200 per month and a Union payment of A$165 per month which will increase to approximately A$300 per month when he reaches age 65.  It was submitted, and this was not contested, that the applicant had a family which comprised of five adult children who would always look after Mr Urso and would always have accommodation available for him  Should he require daily assistance from a carer or Community Home Care Services or Residential Care the applicant was in a position to draw on the money held in trust to pay for those services.  Mr Urso would not be a cost to the Australian community.  If he did not receive a visa he would have to live alone in New York with nobody to care for him. 

8                     In its reasons for decision the Tribunal noted that it was bound by reg 2.25A(3) to take the opinion of the Medical Officer to be correct.  It concluded that, based on that opinion, Mr Urso did not satisfy the public interest criteria in cl 4005.

9                     On review to this Court counsel for the applicant argued that cl 4005(c) was not valid because it was illogical and unreasonable.  This was because it required assessment of the likely cost regardless of whether care would actually be used.  The Tribunal, it was said, erred in accepting the Medical Officer’s opinion as a valid one.  It was invalid because it “attempted to perform the impossible”.  The last sentence beginning “regardless …” was inconsistent with the criteria established by the rest of the clause. 

10                  After argument in this case was heard I have had occasion to consider cl 4005(c) in Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011.  I refer to and adopt for the purpose of the present case what I then said (at [13] – [14]):

“[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.”

11                  The Tribunal was bound by reg 2.25A(3) to take the opinion of the Medical Officer as correct.  However that would only be so if it was an opinion of the kind authorised by the regulations:  Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [66].  In the present case I do not think the opinion of the Medical Officer was the kind required by the regulations.  Paradoxically this is so because of the Medical Officer appears to have adopted the same approach as that of counsel for the applicant.  The Medical Officer treated the question as being whether Mr Urso’s condition, as distinct from a condition of that nature suffered by a hypothetical person, would be likely to result in a significant cost to the Australian community.  This reading of his opinion is confirmed by the last paragraph quoted when he speaks of Mr Urso meeting the eligibility criteria for government supported accommodation and special programs.  However the whole thrust of cl 4005(c) is that the question of whether or not public funds will be incurred in looking after the particular applicant is irrelevant.

12                  If there were no material conflicting with the opinion of the Medical Officer insofar as the latter involved a medical assessment I would be inclined to exercise my discretion not to set aside the Tribunal’s decision.  However there is substantial material in the form of the psychological report by Dr Peter Cook already mentioned. The history taken by Dr Cook noted that Mr Urso’s father died when he was young.  His mother placed him in an institution in Italy when he was ten and his childhood incorporated significant deprivation with regard to emotional support and educational input.  Notwithstanding his low IQ, which Dr Cook assessed as showing severely impaired intellectual functioning, Mr Urso had a reasonably stable employment history during his years in the United States in doing unskilled factory work.  There was no indication of personality problems or any psychiatric disorder, anti-social behaviour or the like.  Presently he is responsible for his own self care, he spends much of his time walking and fishing and also breeds canaries.  In Dr Cook’s words:

“His daily activities incorporated a level of self direction and an awareness of social obligations.  For instance he was aware that he required a fishing licence and arranged its purchase.”

13                  Dr Cook was of the view that if Mr Urso was prevented from residing with his sister and her family it was highly likely that he would suffer significant emotional and other hardships.  In such circumstances it was likely that his emotional condition would deteriorate significantly and he would also be significantly at risk of exploitation from others. 

14                  There having been an error of law in the Tribunal’s determination, Mr Urso should not be denied a fresh consideration and the chance that a different view be taken of his condition. 

15                  Accordingly I would allow the application and set aside the decision of the Tribunal with the direction that it be reheard according to law with an opinion obtained from a different Medical Officer.  There will be an order that the respondent pay the applicant’s costs.

16                  Whatever the outcome of any further proceedings, I must say that this is a very strong case for compassionate consideration under s 351.

Associate:

Dated:              3 August 2001