Australian Immigration Daily News

The Federal Circuit Court handed down a decision earlier this week that should give all of us in the migration advice profession another reason to celebrate and be thankful during the holiday season!

This decision, Pokharel v Minister for Immigration & Anor (2016) FCCA 3295 (19 December 2016) shows that it is not the end of the story when a Medical Officer of the Commonwealth makes a determination that a member of an applicant’s family unit does not meet the health requirements contained in Public Interest Criterion 4005, or when the Tribunal concludes that it is bound, under regulation 2.25A, to accept the opinion of the MOC to be correct, or when the Tribunal refuses to adjourn a hearing to enable up-to-date information concerning the health condition of an applicant to be collected.

When it comes to cases where there are issues involving the health criteria, it doesn’t get much better than that, does it?

So, what happened in the Pokharel case?

The background was that the applicant originally applied for a Subclass 885 visa in July 2012, with his wife included as a member of his family unit. Then, in June 2013, the applicant informed the Department that his wife was pregnant. In March 2014, the applicant’s then newborn daughter was added to his application.  However, in February 2015, the Department refused the application on the basis that the applicant’s daughter did not satisfy PIC 4005.

The applicant filed an application for merits review with the Tribunal in March 2015. In November 2015 the Tribunal issued an invitation to the applicant to attend a hearing that was fixed for January 2016. But in December 2015, the applicant’s lawyers wrote to the Tribunal seeking an adjournment of the hearing. This first request was refused. Then, the applicant’s lawyers made a further request for an adjournment, saying that they needed time to obtain medical records and to engage medical experts and obtain their reports.

The Tribunal refused this second request for an adjournment, and then proceeded to affirm the refusal of the application.

What happened at the Tribunal was that the Tribunal accepted 2 reports of the MOC, dated June 2014 and February 2015, both of which stated that the applicant’s daughter suffered from a “mild developmental delay”, to be correct. And on the basis of these two reports of the MOC, the Tribunal found that the applicant’s daughter did not satisfy the health criterion. 

However, importantly, the Tribunal failed to note in its decision that the two reports of the MOC were based on a single medical evaluation of the applicant’s daughter that had been done when she was only 3 months old.  By the time of the Tribunal hearing in January 2016, the applicant’s daughter was approximately 2 years old.

It was argued before the Federal Circuit Court that the opinions of the MOC that had been based on the evaluation of the applicant’s daughter when she was only 3 months old could not have been validly formed with respect to her condition when she was 2 years old.

And indeed, the Federal Circuit Court followed the decision of the Federal Court in Applicant Y v Minister for immigration and Citizenship (2008) FCA 367 which had held that the Tribunal cannot generally disregard a substantial lapse in time between the issue of a MOC’s report and the making “of the Tribunal’s decision.  As said in Applicant Y, “it may be that an MOC’s opinion expressed many years before the Tribunal’s decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to the opinion’s relevance, currency and reliability”.

So, the Federal Circuit Court concluded that the Tribunal had committed  jurisdictional error by failing to consider whether either of the 2 opinions of the MOC (again based on the evaluation of the applicant’s daughter when she was only 3 3months old) truly reflected the severity of her condition as at the date of the Tribunal’s decision (when she was 2 years old), and by failing to “appreciate the true extent of its decisional freedom”  - namely that it was not bound to accept the opinions of the MOC to be correct because the opinions were not validly formed under the test stated in the case of Robinson v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) FCA 1626 (namely that the opinion was not correctly made “with reference to a hypothetical person who suffers from that form or level of the condition”. 

Additionally, the Federal Circuit Court concluded that the Tribunal’s refusal to grant the adjournment that had been sought by the applicant’s lawyers was legally unreasonable  because there was no evident and intelligible justification for the Tribunal’s decision that the severity of the condition of the applicant’s daughter had not changed between the time of the 2 MOC opinions (in 2014 and 2015) and the time of the Tribunal’s decision in 2016.

What are the lessons of this case? If there has been a substantial delay between the time that an opinion of the MOC is given and the time of the Tribunal’s hearing, and there have been changes in the condition of the applicant since the time of the MOC opinion or other circumstances which suggest that the MOC opinion does not accurately and reliably reflect the applicant’s health circumstances, then the MOC opinion may be subject to challenge as not validly formed.  And the Tribunal may be guilty of error if it considers itself bound to accept an out of date and inaccurate MOC opinion. And the Tribunal may also be guilty of jurisdictional error if, in circumstances where the MOC opinion is out of date and inaccurate, it refuses to grant an adjournment so that the applicant can prepare up to date evidence concerning the applicant’s health.

Yep, it all means that a negative opinion of the MOC ain’t necessarily the end of the visa application.

Happy holidays everyone!!!