Bridging visa applications
On 6 August 2003 in VQAS v. Minister For Immigration V523 of 2003 Ryan J. in the Federal Court ordered that the Immigration Department, within 14 days, appoint a medical specialist for the purpose of addressing the matters referred to in paragraph 2.20(9)(c) in the Migration Regulations. That paragraph requires a certificate from a medical specialist to the effect that the detainee is unable to receive appropriate medical treatment in detention.
The ruling was predicated expressly on the basis that the recent (5 August) Migration Series Instruction MSI 384, paragraph 7.6.1 to 7.6.4 are misconceived.
His Honour held that once a detainee applies for a bridging visa E then, provided the application is not frivolous, the Department is obliged to seek the advice of an appropriate medical specialist. Furthermore, the medical specialist should be provided with such information as may be necessary to enable him or her to certify (or not) the matters to which paragraph (c) refers.
His Honour accepted that the Department has a positive duty to take steps to enable the criterion in paragraph (c) to be satisfied (or not, as the case may be).
It is implicit in His Honour’s Reasons for Judgment that if an application for a bridging visa is refused on the grounds that the detainee does not satisfy paragraph (c), then the detainee’s representative would be entitled to get access both to the certificate received from the medical specialist and the letter of instructions which prompted that certificate.
The decision builds on the ruling by Finkelstein J. in VLAA.
The judge made the folowing orders:
1. The Respondent must within 14 days appoint a medical specialist to consider whether the Applicant meets the criterion for a Bridging Visa (E) specified in regulation 2.20 (9) (c) of the Migration Regulations 1994 by reason of a special need based on health grounds.
2. By 12 August 2003 the Respondent must provide to the Applicant’s solicitors a draft of the letter of appointment to be used for the appointment of the medical specialist referred to in paragraph 1 hereof.
(9) This subregulation applies to a non-citizen:
(a) who, on or after 1 September 1994:
(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and
(b) if:
(i) on or after 1 September 1994:
(A) the non-citizen made a Protection (Class AZ) visa application that is not finally determined; or
(B) the non-citizen applied for judicial review of a decision to refuse a Protection (Class AZ) visa; or
(C) the Minister has applied for judicial review of a decision in relation to the non-citizen’s Protection (Class AZ) visa application; or
(ii) on or after 20 October 1999:
(A) the non-citizen made a Protection (Class XA) visa application that is not finally determined; or
(B) the non-citizen applied for judicial review of a decision to refuse a Protection (Class XA) visa; or
(C) the Minister has applied for judicial review of a decision in relation to the non-citizen’s Protection (Class XA) visa application; and
(c) who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment; and
(d) in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.