Han v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: BROMWICH J
• Judgment Date: 11 March 2019
• Neutral Citation: [2019] FCA 331
• Date: 11 March 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Han v Minister for Home Affairs [2019] FCA 331

Appeal from:	Han v Minister for Home Affairs & Anor [2018] FCCA 2207
File number:	NSD 1637 of 2018
Judge:	BROMWICH J
Date of judgment:	11 March 2019
Catchwords:	MIGRATION – appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where leave sought to rely upon new proposed ground of appeal not raised in Federal Circuit Court – whether opinion of the Medical Officer of the Commonwealth formed in accordance with law – whether jurisdictional error – held: leave to rely upon new proposed ground of appeal refused – opinion of the Medical Officer of the Commonwealth formed in accordance with law – no jurisdictional error – appeal dismissed
Legislation:	Migration Act 1958 (Cth) Pt 8, s 476A, Migration Regulations 1994 (Cth) reg 2.25A; cl 885.224 (repealed) of Sch 2, cl 4005 of Sch 4
Cases cited:	AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Coulton v Holcombe (1986) 162 CLR 1 Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765; 298 FLR 375 Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046 JP1 & Ors v Minister for Immigration and Citizenship [2008] FMCA 970; 220 FLR 37 Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 NKWF v Minister for Immigration and Border Protection [2018] FCA 409 Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 Pillay v Minister for Immigration [2009] FMCA 517 Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; 148 FCR 182 Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 Traill & Ors v Minister for Immigration and Citizenship [2013] FCCA 2 Triandafillidou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 20; 181 FLR 302 University of Wollongong v Metwally [1985] HCA 28; 60 ALR 68; 59 ALJR 481 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Date of hearing:	13 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	66
Counsel for the Appellant:	Mr I R Coleman SC and Ms T Baw
Solicitor for the Appellant:	ProActive Legal
Counsel for the First Respondent:	Ms A Douglas-Baker
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 1637 of 2018
BETWEEN:	YUELIN HAN Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	11 MARCH 2019

THE COURT ORDERS THAT:

1. The appellant be refused leave to rely upon the sole proposed ground of appeal contained in the draft amended notice of appeal annexed to her submissions dated 30 January 2019.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1. This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 15 August 2018. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 December 2017 (an earlier decision of the Tribunal of 9 May 2016 having been set aside by consent). The Tribunal had affirmed a 4 March 2015 decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse to grant the appellant, Ms Yuelin Han, a Skilled (Residence) (Class VB) Skilled Independent (Subclass 885) visa.

2. A criterion for the grant of the visa was that Ms Han satisfy public interest criterion 4005 in Schedule 4 of the Migration Regulations 1994 (Cth) (PIC 4005). The Tribunal found that Ms Han did not satisfy a particular aspect of PIC 4005. The part that Ms Han was found not to meet was that she was “free from a disease or condition to which … the provision of the health care or community services would be likely to … result in a significant cost to the Australian community in the areas of health care and community services”: cl 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations (health care costs criterion). Despite the reference to both health care services and community services, it is common ground that the only services in question are health care services. Those health care services relevantly included “ongoing specialist medical review and immunosuppressive medication”, following Ms Han having a successful liver transplant in 2011.

3. No actual error on the part of the primary judge is now suggested, as opposed to a constructive error in failing to uphold a ground of review that was never advanced before his Honour. The appellant therefore in substance seeks a fresh trial, using this Court’s appellate jurisdiction to overcome this Court’s lack of original jurisdiction, on a ground of judicial...