Sarbouhi Manokian v Minister for Immigration & Multicultural Affairs [1997] FCA 1399 (3 December 1997)

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 624 of 1997

BETWEEN:	SARBOUHI MANOKIAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	DAVIES J
DATE OF ORDER:	3 DECEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 624 of 1997

BETWEEN:	SARBOUHI MANOKIAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

CORAM:	DAVIES J
DATE:	3 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This appeal is brought under s 476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision of an Immigration Review Tribunal ("the Tribunal"). The ground relied upon is that the Tribunal applied an incorrect interpretation of the applicable law.

The applicant, Mrs Sarbouhi Manokian, had applied for an aged parent visa (Class 804) in respect of herself and had included in her application her son, Jack Topalian, who had health problems. The application was lodged on 23 February 1994. It was refused by an officer of the Department on 28 June 1995 on the ground that Mr Topalian failed to meet the necessary health criteria. Subsequently, Mrs Manokian applied for review and a Review Officer on 10 October 1995 affirmed the primary decision. The matter then went to the Immigration Review Tribunal.

The decision made on 28 June 1995 refusing the application had been a decision falling within paragraph (a) of the definition of "Part 5 reviewable decision" in s 337 of the Act. It had therefore been a decision which was an internally reviewable decision. The Review Officer was empowered to exercise all the powers and discretions that are conferred by the Act on the person who made the original decision. When the matter went to the Immigration Review Tribunal, that Tribunal was empowered by s 346 of the Act to review decisions made by a review officer and it was empowered by s 349 to exercise all the powers and the discretions that are conferred by the Act on the person who made the original decision.

The application had been refused on the ground that the son, Jack Topalian, failed to meet the public interest criteria set out in clause 4005 of Schedule 4 of the Migration Regulations. The relevant criteria in clause 4005 read as follows:

"The applicant

...

(c) is free of any disease or condition which, during the applicant's proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer:

(i) require significant care or significant treatment (or both); or

...

(iv) result in the applicant becoming a significant charge on public funds."

When the matter came before the Immigration Review Tribunal for decision, two reports from Commonwealth medical officers were before it. In the opinion of both medical officers Mr Topalian did not satisfy the health criteria prescribed in clause 4005.

The Tribunal considered that it did not have power to review the opinion of the Commonwealth Medical Officers. The Tribunal referred to earlier cases decided by the Immigration Review Tribunal; Re Nelson, Re Papiannou and Re Doussa and it took the view that, in respect of the expressed opinions of the Commonwealth medical officers, "The Tribunal is unable to go behind this decision". The Tribunal went on to hold, therefore, that it had no option but to affirm the primary decision.

In my opinion, the approach taken by the Immigration Review Tribunal was correct. The subject matter of the proceedings before the Review Officer and before the Immigration Review Tribunal was a decision to refuse to grant a non-citizen a visa. In my view, the opinions of the Commonwealth medical officers, which I would accept to be decisions for the purposes of legislation such as the Migration Act 1977 and the Administrative Decisions (Judicial Review) Act (Cth), were not decisions refusing to grant a visa.

Counsel for the applicant, Mr J R Young, put the submission that, in a case such as the present, the decision to refuse to grant a visa involves the making of two decisions, one by a Commonwealth medical officer and one by an officer of the Department and that both the officer of the Department and the Commonwealth medical officer participated in the making of the decision to refuse to grant a visa.

In my opinion, however, the opinion of the Commonwealth medical officers cannot be given that categorisation. The function of Commonwealth medical officers is to determine whether certain health criteria which are specified in the public interest criteria of the Regulations is satisfied. Their decision is not a decision refusing to grant a visa. The visa was refused in a decision made by the officer of the Department. It was his powers which the review officer and subsequently the Immigration Review Tribunal could exercise. The primary decision-maker had no power to go behind the certificate of the Commonwealth medical officer that was before him, and in my opinion the Act gave no further power to the review officer or the Immigration Review Tribunal to go behind that certificate.

Mr Young put the point that the cases to which the Tribunal referred were decided at a time when the Regulations were different. He referred to the powers of review which were then given to Review Officers and the Immigration Review Tribunal by the Migration (Review) Regulations 1989 (Cth), namely the power to review relevant decisions made by the Minister personally or by the Secretary or a Senior Executive Service Officer of the Department, acting in either case as a delegate of the Minister, not to grant a visa or an entry permit. Mr Young submitted that, by the time the matter came before the Tribunal in July 1997, the regulations had changed and that the power of review was not defined by reference to the person who made the decision.

It appears to me nevertheless that the Act requires for there to be a power of review by the Immigration Review Tribunal that there be a Part 5 reviewable decision, in this case a decision to refuse to grant a non-citizen a visa.

In my opinion the primary decision-maker was the officer who, on 28 June 1995, refused that decision and not the Commonwealth medical officer who had given a certificate as to his opinion which the decision-maker took into account. The primary decision-maker was bound to act upon the certificate of the Commonwealth medical officer, for clause 4005 so required. Neither the review officer nor the Immigration Review Tribunal had any greater power than the primary decision-maker.

Counsel for the respondent, Ms R M Henderson, in the course of her submissions, mentioned a possibility that under the current provisions in the Migration Regulations, regs 2.25A and 2.25B, the Minister is bound to take the opinion of a medical officer of the Commonwealth to be correct, and is bound to take it to be correct for the purposes of deciding whether a person satisfies the public interest criteria.

I need not make any comment upon this submission. I doubt that those clauses had any application in the present case. They were not in fact applied for, as Mr Young pointed out, reg 2.25B specifies different criteria from those which were applied by the Commonwealth medical officers in the present case. I would need further submissions to persuade me that those regulations which came in after the application was lodged applied in the present case, had any relevant application.

However, for the reasons that I have given, I am satisfied that there was no error of law in the decision of the Immigration Review Tribunal. Therefore the application will be dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 3 December 1997

Counsel for the Applicant:	J R Young
Solicitor for the Applicant:	Johnston Vaughan
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 1997
Date of Judgment:	3 December 1997