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QUESTION
Read the decision of Haque & Ors v Minister for Immigration & Anor [2015] FCCA 1765 (2 July 2015) attached to this assignment.
Critically evaluate the implications of the decision of Haque & Ors v Minister for Immigration & Anor [2015] FCCA 1765 (2 July 2015) in terms of the binding nature of opinions from Medical Officers of the Commonwealth and the Tribunal’s role in conducting merits review.
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Before evaluating the impact of the decision given by the Federal Circuit Court of Australia in Haque & Ors. v Minister for Immigration & Anor, it is pertinent to lay out a brief overview of the case. This case involved one particular subclass of visa where the decision-maker did not have the sole discretion to determine whether all the criteria have been met or not. In such cases, the decision-maker (the Minister or the Tribunal) had to place reliance on the opinion of a third party (in this case- a Medical Officer) regarding a particular application. However, there are certain conditions placed on the acceptance of the opinion rendered by the third party i.e. the opinion must have been supported by evidence in a proper form and the visa applicant must be afforded an opportunity to challenge a negative ruling given by the third party.
This case laid down some important principles with regard to the jurisdiction of the Tribunal in addressing concerns related to a medical opinion. Following is an analysis of the two important issues addressed by the case which are being regarded as a precedent in cases related to the scope of powers of the tribunal while relying on the opinion of a third party.
The primary bone of contention, in this case, was the conflicting nature of the medical opinion from Medical Officers of the Commonwealth. Now, as per the Migration Regulations 1994, the Minister has to take the opinion of the Medical Officer of the Commonwealth (MOC) with regard to the referred issue to be correct. This requirement of accepting the opinion of the Medical Officer to be correct was equally applicable to the Migration Review Tribunal while reviewing a decision refusing the grant of a visa. Also, for the tribunal to rely on the opinion of the Medical Officer, it was essential that it was in conformity with requirements specified in the legislation. According to the decision given in this case, the requirements of a 'legally effective' opinion are that they are factual basis and evidence supporting the findings of the Report.
Therefore, the Court held that the Migration Review Tribunal committed a jurisdictional error in assuming that it was mandatory for the Tribunal to accept the opinion of the MOC even if it did not conform to legislative requirements. After this decision, it is being said that the visa applicants would have better opportunity to challenge the opinion of the Medical Officer of the Commonwealth which concluded an alleged failure to comply with health requirements in the visa subclass.
This decision also brought a different perspective into the role of the Migration Review Tribunal while conducting merit reviews. Now, as per the Migration Act 1958, the Tribunal was required to invite the visa applicant to represent his/her case before the Tribunal after the Minister's decision to deny the grant of the visa. It is imperative to note here that the decision under review before the tribunal was based on the opinion of a third party i.e. the Medical Officer of the Commonwealth. Therefore, even though the Minister was required to accept the opinion to be correct, the visa applicant must have been afforded an opportunity to challenge the opinion given by the Medical Officer. It is imperative to note here that the decision given by the Migration Review Tribunal was based on the opinion of the RMOC and not the MOC. Also, the RMOC gave an entirely new opinion which was based upon different evidence. Hence, the Tribunal was still required to give the visa applicant an opportunity to be heard unless the provisions under the Migration Act 1994 were not being violated.
