AAE18 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1375

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AAE18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1375

File number(s):

SYG 1984 of 2021

Judgment of:

JUDGE CLEARY

Date of judgment:

5 September 2025

Catchwords:

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied Sch 2 cl 602.215 – whether applicant was genuine temporary entrant for purpose of medical treatment visa – whether applicant denied applicant procedural fairness - no jurisdictional error established – application dismissed.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) Sch 2 cl 602.215

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021  

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Kaur v Minister for Immigration and Border Protection [2016] FCA 132

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Minister for Immigration and Multicultural arid Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225

Minister for Immigration v Stretton [2016] FCAFC 11

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SZBYR v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

Division:

Division 2 General Federal Law

Number of paragraphs:

63

Date of hearing:

20 August 2025

Place:

Parramatta

Applicant:

In person

Solicitor for the Respondents:

Ms A. Wilford of Sparke Helmore

ORDERS

SYG 1984 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AAE18

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	5 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $6,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

REASONS FOR JUDGMENT

JUDGE CLEARY

INTRODUCTION

1. Before the Court is an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act).  The applicant seeks constitutional writ relief against the respondents in respect of a decision of the second respondent (Tribunal) dated 30 September 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Medical Treatment (Subclass 602) (medical treatment visa) under s 65 of the Act.

   BACKGROUND

2. On 12 January 2017, the applicant, a citizen of Malaysia, arrived in Australia as a holder of a visitor visa.

3. On 9 March 2017, the applicant lodged an application for a protection visa. On 16 June 2017, a delegate refused the grant of this visa. The applicant was unsuccessful in the merits review, judicial review and appeal to the Federal Court of Australia in relation to the protection visa refusal.

4. On 17 June 2019, the applicant applied for a medical treatment visa to undergo treatment of Polycystic Ovary Syndrome (PCOS) and hyperthyroidism between 18 June 2019 and 19 June 2020.

5. On 12 July 2019, a delegate of the First Respondent refused to grant the visa on the basis the applicant did not satisfy the criteria in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

6. On 29 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

7. On 24 August 2021, the Tribunal invited the applicant, pursuant to s 359 of the Act, to provide information in relation to her immigration history and the treatment she had received in Australia (s 359 invitation).

8. On the same day, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments by telephone on 29 September 2021.

9. On 14 September 2021, after the Tribunal granted an extension to respond to the s 359 invitation, the applicant provided the Tribunal with a letter from her doctor at Bridgeview Medical Practice dated 8 September 2021. The letter explained that the applicant was a regular patient who took medication for a thyroid problem and for depression. In the cover email, the applicant confirmed that whilst her protection visa application was pending, she discovered she had health issues requiring “constant medical treatment” and accordingly lodged the medical visa application.

10. On 29 September 2021, the applicant appeared before the Tribunal with the assistance of an interpreter.

11. On 30 September 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a medical treatment visa.

    TRIBUNAL DECISION

12. After setting out the relevant criteria that needed to be established for a medical treatment visa, the Tribunal identified the main issue it needed to decide in the review, namely, whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which such a visa is granted.

13. The Tribunal first considered the written material before it.  The Tribunal then considered the applicant’s oral evidence given at the hearing, including why the applicant left Malaysia and why she believed her life remained in danger.  

14. At  the hearing the Tribunal asked the applicant why she had remained in Australia since 19 June 2020, the date on which she said her treatment would end.  The applicant stated she did not claim her treatment would last until 20 June 2020.  She blamed her lawyer for putting that information in the visa application, and queried why she would put an end date to her treatment given that she suffered from anxiety and depression.

15. When the Tribunal asked the applicant how long she needed a medical treatment visa for, she responded that she cannot return to Malaysia and wanted to remain in Australia. She stated that if she stopped taking her thyroid medication, she would get sick. The applicant stated she had no intention of returning to Malaysia and even if she was fit and well, and she would need to remain in Australia for her own safety.

16. When asked why she had not returned to Malaysia after the refusal of her protection visa application, the applicant claimed she was now physically ill.

17. When asked to detail her current medical treatment, she said she sees a doctor and takes medication.  She said she used to go to a doctor every two weeks but could not afford do that anymore, so she just takes medication for depression, anxiety and her thyroid condition.

18. The Tribunal asked the applicant about her PCOS.  She stated it related to “mental disturbance”. When the Tribunal said that it understood PCOS to be a hormonal disorder causing enlarged ovaries and cysts, the applicant claimed not to understand the question.

19. The Tribunal recorded that it asked the applicant whether she wished to say anything in support of her claim that she genuinely intended to stay temporarily in Australia for medical treatment. The applicant stated she thought she would remain in Australia after her medical treatment was completed and may do so by seeking asylum.

20. The Tribunal noted that the applicant’s prior protection claims had already been rejected and asked her how she planned to remain in Australia. The applicant said that she did not know.

21. The Tribunal accepted that the applicant suffered with anxiety, depression and thyroid problems. The Tribunal also accepted that she was receiving treatment for these conditions by way of medication, on the basis of the medical letters the applicant provided.

22. The Tribunal accepted that the applicant was referred to a psychologist but was not currently being treated by one because she could not afford the cost, and that she previously had PCOS issues, but that she was not currently receiving treatment.

23. Although the applicant had a genuine medical condition, the Tribunal considered that this did not mean that she had a genuine intention to remain temporarily in Australia for the purpose of treatment for that condition.

24. The Tribunal was satisfied that the applicant intended to remain in Australia permanently, noting her oral evidence. It found that the lodgement of a protection visa application demonstrated her unwillingness to return. The Tribunal also considered her evidence that she would not return to Malaysia even if her medical treatment concluded.

25. The Tribunal was not satisfied that the applicant genuinely intended to remain in Australia temporarily for her medical treatment. The Tribunal was satisfied the applicant intended to stay permanently because she refused to return to Malaysia.

26. The Tribunal found the applicant did not satisfy cl 602.215 and affirmed the decision under review not to grant the applicant a medical treatment visa.

    APPLICATION FOR REVIEW

27. On 25 October 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 30 September 2021. The application contains three (3) grounds of review, both containing several particulars. They are (as written):

    Ground 1

    The Tribunal exercised its discretion unreasonably and failed to ask relevant question.

    Particulars

    In the decision of AAT at paragraph 19 asked the applicant why you remained in Australia since 19 June 2020. The Tribunal never considered the fact the of the pandemic that was going on that was in place during that period and the travel restrictions.

    The Tribunal also failed to ask relevant question at paragraph 22 regarding the applicants' psychological issues and failing to understand during the Pandemic many people were undergoing severe mental health problems.

    The applicant should have been given time to provide all his medical records as it was difficult to meet and take medical examination during the Pandemic. The applicant during Covid 19 restrictions with her existing medical condition only managed to provide a letter dated 08 September 2021 from her treating Doctor.

    Ground 2

    The AAT failed to engage in active intellectual process by failing ask relevant questions and failed to assess relevant criteria required to grant the visa.

    AAT should consider compelling reasons when assessing to grant the visa. In the applicant's case the Tribunal failed to ask relevant questions on whether there are any compelling reasons for the grant of visa or failed to consider the compelling reasons in the case. The applicant was not able to engage in specialist treatment from the period starting 20 January 2020 till 19 June 2020 due to the Covid 19 situation. There was compelling reason to grant the applicant medical treatment visa.

    Ground 3

    The AAT denied applicant procedural fairness by failing to put Information under Section 359A of the Migration Act.

    AAT in its decision that as per the Departmental records that the applicant came to Australia on a visitor visa dated 12.01.2017. This is an 'information' covered under Section 359 A of the Migration Act. By failing to put that 'information' to the applicant required under the Act, the Tribunal committed a legal error.

28. On 7 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.

29. On 25 June 2025, the proceedings were docketed to me and set down before me for final hearing on 20 August 2025.

    HEARING ON 20 AUGUST 2025

30. At the hearing of this matter on 20 August 2025, the applicant appeared unrepresented assisted by a Tamil interpreter. Ms Wilford of Sparke Helmore appeared for the first respondent.

31. This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.

32. It has been suggested that the best approach is to give the unrepresented litigant enough information to make an effective choice in the conduct of the proceedings: see, for example, SZRUR at [60].

33. I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong.

34. Accordingly, I took the applicant through each of the three grounds of review and asked what was meant by each ground. As to ground 1, the applicant told the Court she was depressed and, since the hearing in the Tribunal, she had lost her work rights and has been unable to see a doctor.  As to ground 2, the applicant repeated what she said in her oral submissions on ground 1, adding she had a fear of harm in Malaysia because she borrowed money when she was living there. As to ground 3, she told the Court she did not understand the ground. Generally, the applicant told the Court that she did not want to go back to Malaysia and wanted a protection visa. I told the applicant that this hearing was not about any protection visa she had lodged in the past. Ms Wilford told the Court the applicant had previously made a protection visa application which had been refused and that decision was the subject of a judicial review application in this Court and a subsequent appeal to the Federal Court. Those appeals were unsuccessful. I note in paragraph [34] the Tribunal referred to that previous protection visa application made by the applicant.

35. Ms Wilford made brief oral submissions summarising the first respondent’s written submissions. Ms Wilford submitted that none of the matters raised by the applicant orally in her submissions to this Court identified any arguable jurisdictional error by the Tribunal. I agree with that submission. The applicant’s oral submissions only went to the merits of her claim in the Tribunal which are not reviewable by this Court.

36. The applicant made a brief submission in reply to Ms Wilford. Again, she made submissions about the merit of her claims for a protection visa and then for the medical treatment visa. She also made a general allegation that her lawyer did not handle her visa application very well.

    CONSIDERATION

37. Courts have a relatively confined function in judicial review proceedings. The issue before this Court in this case is whether the Tribunal’s decision contained a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid”): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ).

38. Further, as Hill J re-affirmed in BSQ17 at [14], the issue before this Court is not whether the Tribunal’s decision is correct on its merits.

39. Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.

    Ground 1

40. The applicant’s first contention in ground 1 is that the Tribunal’s “exercise of discretion” was legally unreasonable or that it failed to ask, “relevant questions”. There are three particulars in support of this ground (as set out above).

41. Legal unreasonableness is a well-established category of jurisdictional error. Legal unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it: see Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225 (Li) at [28] per French CJ. A plurality in Li also held that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: see Li at [76] per Hayne, Kiefel and Bell JJ.

42. It is also well established that any discretion exercised by the Tribunal must be exercised reasonably: See Li at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J.

43. However, legal unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of facts, or the evaluative judgments made by the decision maker: see Li at [30], [113].

44. A bare assertion that the Tribunal failed to ask relevant questions is not a known category of jurisdictional error. Except in very specific circumstances, there is no obligation on the Tribunal to investigate an applicant’s claims: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural arid Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of claims. The Tribunal must then decide whether that claim is made out: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [187] per Gummow and Hayne JJ.

45. In the first paragraph in support of ground 1, the applicant asserts in a challenge to paragraph [19] of the Tribunal decision, that the Tribunal never considered the COVID-19 pandemic that was going on during that period and the travel restrictions. This assertion misunderstands paragraph [19]. Paragraph [19] was a summary of information which the Tribunal requested from the applicant on 24 August 2021, to which the applicant responded: see paragraph [20] of the Tribunal’s decision. There was nothing legally unreasonable about what was said in paragraph [19] as it merely set out details of correspondence between the Tribunal and the applicant. Nor was the Tribunal obliged under the Act to ask or “consider” that COVID-19 was going on, or that travel restrictions were in place in the context of the request in paragraph [19], or at all. The first paragraph in support of ground 1 is unmeritorious.

46. In the second paragraph the applicant argues there was an obligation on the Tribunal to consider (in paragraph [22] of its decision) the applicants' psychological issues as a result of the COVID-19 pandemic where many people were undergoing severe mental health problems. The Tribunal accepted she suffered from untreated mental health problems, unrelated to COVID-19: see paragraph [32] of the Tribunal decision. There was no mental health claim made by the applicant based on COVID 19. The second paragraph in support of ground 1 is also unmeritorious.

1. In the third paragraph of ground 1 the applicant asserts she should have been given time to provide all her medical records as it was difficult to meet and take medical examination during the COVID-19 pandemic, and all she could obtain was a letter dated 8 September 2021 from her treating Doctor. Putting to one side that the onus is on the applicant to advance whatever evidence or argument she wishes to advance in support of claims, there is no evidence the applicant asked the Tribunal for the opportunity to put on further medical evidence of the kind she identifies in this ground of review: see paragraphs [25]-[28] of the Tribunal decision which details the exchange between the applicant and the Tribunal about her evidence and claims. As the first respondent submitted, the applicant was afforded sufficient time and opportunity to provide her medical records, she also availed herself of the opportunity to provide evidence in response to the s 359 invitation. There was nothing in the Tribunal’s decision record to suggest that the applicant requested further time to provide evidence at the hearing: see paragraph 29 of the first respondent’s written submission. Paragraph three is unmeritorious.

2. Ground 1 does not establish the Tribunal committed jurisdictional error.

   Ground 2

3. This ground alleges the Tribunal failed to engage in an active intellectual process by failing to ask relevant questions and failed to assess relevant criteria required to grant the visa. The applicant asserts that the Tribunal should have considered “compelling reasons” when assessing to grant the visa. The compelling reason was said to be: not being able to engage a specialist doctor due to Covid-19 restrictions in 2020.

4. In determining whether the decision-maker had an active intellectual engagement, the Full Court at [37] in Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh), (Reeves, O'Callaghan and Thawley JJ), found that the following two matters to be relevant:

   1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

   2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

   a.the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

   b.it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

   c.conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

5. Clause 602.215 required that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This was the issue before the Tribunal. As the Tribunal itself found, cl 602.212(6) did not apply to the applicant as she was under 50 years of age.

6. The Tribunal found that despite having a genuine medical condition the applicant did not intend to stay temporarily in Australia. The Tribunal found, after considering the evidence, at [31]-[35]:

   31.For the following reasons, the Tribunal has decided that the under review should be affirmed.

   32.The Tribunal accepts that the applicant suffers with anxiety/depression and has thyroid problems. The Tribunal accepts on the basis of the medical letters provided that she, is receiving treatment for these conditions and the treatment is medication. The Tribunal accepts that was referred to a psychologist but that she is not currently being treated by a psychologist because she cannot afford to pay for that care. The Tribunal also accepts that she has previously had issues with polycystic ovary syndrome but that she is not currently receiving treatment for this condition.

   33.However, just because the applicant genuinely has a medical condition does not mean that she genuinely intends to stay temporarily in Australia for the purpose of treatment for that condition.

   34.The Tribunal is satisfied that the applicant's intention is to remain in Australia permanently. Her oral evidence is that she left Malaysia because she feared for her life. It was that reason that she did not return to Malaysia. She lodged a protection visa which demonstrates her unwillingness to return to Malaysia. The applicant claims that the danger in Malaysia continues to be present.

   35.The applicant told the Tribunal that she will not return to Malaysia, even if her medical treatment concluded.

7. These paragraphs show the Tribunal engaging in an active intellectual process with the evidence and the criteria in cl 602.215 as required by Singh. As the applicant herself gave evidence that she had no intention of returning to Malaysia, regardless of her health and medical treatment (see [35] above), the Tribunal’s finding that it was not satisfied the applicant genuinely intended to stay in Australia temporarily for medical treatment was both reasonably (and clearly) open to it on the evidence. For completeness, as referred to above, there was no obligation on the Tribunal when engaging in an active intellectual process with the evidence and the requirements of cl 602.215 as required by Singh, to ask particular questions or make out the applicant’s claims for her: see Abebe at [187].

8. Further, for completeness, I also agree with the first respondent’s submission that at no point in her written or oral evidence to the Tribunal did the applicant claim that she could not engage in medical treatment because of the COVID-19 pandemic.

9. Ground 2 is unmeritorious.

   Ground 3

10. Ground 3 alleges a breach of s 359A in that the Tribunal should have put the departmental record of her arrival on a visitor visa in 2017 to the applicant under s 359A for comment.

11. There was no failure to comply with s 359A as alleged. The department record of her arrival on a visitor visa in 2017 did not “contain in [its] terms a rejection, denial or undermining” of the applicant’s claims to need medical treatment: SZBYR v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1, at [17].

12. Rather, it was simply a record of the applicant’s movement and immigration history in Australia. Further, as the first respondent pointed out the “reference to the applicant’s immigration history was also contained in the delegate’s decision record, which the applicant provided to the Tribunal (see Court Book page 33), which information is excluded from the obligation under s 359A under s 359A(4)(b).

13. Ground 3 does not establish the Tribunal committed jurisdictional error.

    CONCLUSION

14. For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error.

15. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.

16. The application is dismissed.

    COSTS

17. The first respondent seeks costs fixed in the sum of $6,500.  I consider the amount sought by the is reasonable for this type of matter.  I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       5 September 2025