Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 137
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137
File number(s): SYG 3124 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 October 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant medical visa – whether the Tribunal did not accept the applicant’s evidence – whether the Tribunal acted harshly or unfairly towards the applicant – whether the Tribunal ought to have made inquiries of doctor treating applicant – whether it was open to Tribunal not to accept the applicant has a genuine intention to stay temporarily in Australia because the medical evidence on which the applicant relied did not set out a plan for the course of treatment to be provided, or any clear indication of when the treatment will be concluded – application dismissed Legislation: Migration Act 1958 (Cth) ss 348, 476
Migration Regulations 1994 (Cth) Sch 2, cls 602.212, 602.215
Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 8 October 2021 Date of hearing: 6 October 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Ms J Xiao of Clayton Utz Lawyers, by telephone ORDERS
SYG 3124 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KESHAB PRASAD ADHIKARI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,467.
THE COURT NOTES THAT:
3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical visa).
BACKGROUND
The applicant is a citizen of Nepal. He arrived in Australia in 2004 as the holder of a sponsored visa, which ceased in March 2005. In January 2005 the applicant applied for a protection visa, which was refused by a delegate of the Minister in February 2005. The applicant applied to the Refugee Review Tribunal (RRT) for a review of the decision. There then followed a history of legal proceedings and administrative proceedings that ended in December 2017.
The applicant applied for a Medical visa in January 2018. To have been entitled to the grant of such visa the applicant was required to satisfy the criteria specified in cl 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2). Relevant to this proceeding is cl 602.212(6), which requires, among other things, that an applicant has turned 50 years of age, and “is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth”; and cl 600.215 which applies if the requirements of cl 602.212(6) are not met. Clause 602.215 provides:
(1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c) any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
In his application for a Medical visa the applicant claimed he is suffering from mental illness, and is receiving “medical treatment from his doctor and psychology [sic]”; and that the estimated costs of the treatment is $4,600. The applicant stated that the period for which he will be under medical care in Australia would be from 4 January 2018 to 31 December 2018.
On 26 March 2018 the delegate refused to grant the applicant a Medical visa because the delegate was not satisfied the applicant met the requirements of cl 602.15 of Schedule 2.
BEFORE THE TRIBUNAL
On 17 September 2019 the Tribunal sent by email a letter to the applicant’s representative in which it stated as follows (emphasis in original):
You are invited to provide the following information in writing:
·You applied for a Medical Treatment visa on 12 January 2018.
·You indicated in your application that you wished to remain in Australia from 04 January 2018 to 31 December 2018 for the purpose of undergoing medical treatment.
·Your application was refused because you did not meet cl.612.215. Clause 602.215 that [sic] requires that an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
1. When did the medical treatment you have undertaken end, or when is it due to end? Please provide supporting medical evidence.
2. Noting that you have been is [sic] Australia since 18 December 2004, please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The information should be received by 1 October 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
The applicant’s representative responded by email sent on 1 October 2019 in which he attached a letter from a person who I find to be a general practitioner. The letter states (errors in original):
This is to certify, that [the applicant] is suffering from .Major Depression and is currently on medication as well as having Counselling sessions with the Psychologist regularly..
He will continue to have the treatment which I envisage for many a years more.
He does also suffers from Vague Back and Neck pain which are probably related to his Tension and Depression.He does Swimming and gets therapeutic massages and Nurofen which give him partial relief.
I will be happy to answer any further querries you may have.
By letter dated 10 October 2019 the Tribunal invited the applicant to appear before it on 28 October 2019 to give evidence and present arguments. The letter stated that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.
By email sent on 20 October 2019 the applicant’s representative provided to the Tribunal the following documents:
(a)A letter dated 19 October 2019 from Dr Kirupal to the “Admitting Doctor” at “Blacktown Hospital”. He refers to the admitting doctor having seen the applicant in relation to “ongoing chesty productive cough, Shortness [sic] of breath, fevers & sweats”, to the applicant’s not responding much to two medications, and to the applicant “feeling more unwell in the last couple of days”. Dr Kirupal then states the applicant “will benefit from further assessment and management at the hospital”.
(b)A discharge sheet issued by Blacktown Hospital. It records 19 October 2019 as the admission date and 20 October 2019 as the discharge date although there appears at the bottom of each page of the document “20/10/2019 00:29”, suggesting the applicant was discharged at 12:29 am on 20 October 2019. It notes that 10 days ago the applicant started to have a congested nose, sore throat, productive cough, chest pain associated with the cough, and other symptoms. It notes the applicant was “Usually well”, “alert, well, low grade fever” and “still congested nose”.
(c)A response to the hearing invitation.
(d)A letter from the applicant’s son stating he continues to support the applicant.
At the hearing before the Tribunal, the applicant gave evidence about the medical he was receiving. According to the Tribunal’s reasons for decision, the applicant gave the following evidence:[1]
[41] At the hearing the Tribunal discussed the purpose of a medical treatment visa and the requirement that an applicant must have a genuine intention to stay in Australia temporarily for the stated purpose. The Tribunal noted that the applicant had provided some medical evidence from his general practitioner that he was receiving treatment for depression and anxiety. The applicant stated that he is receiving monthly counselling from a psychologist . . . . His psychologist had suggested that he engage in swimming, yoga and listening to music to help with his condition.
[42] The applicant was not able to indicate when his medical treatment was to end; he stated it was hard because there were many ongoing issues. The Tribunal put it to the applicant that country information indicated there are mental health services available in Nepal and that medications for mental health conditions are readily available. If the treatment for his condition was to continue the Tribunal put it to him that he could obtain that treatment in Nepal.
[43] The applicant agreed but stated his son is a registered nurse and provides him with necessary support. His other children also gave him lots of support in Australia and this would not be available to him in Nepal if he returned. The Tribunal pointed out that the visa is a temporary visa and that his evidence suggested that he intended to stay in Australia indefinitely. He stated that perhaps if was [sic] granted a visa for one or two years he would see then if his family situation had changed.
[44] The Tribunal asked the applicant if he wished to provide any further evidence supporting his claim that he intended to stay temporarily in Australia for the purpose of medical treatment, bearing in mind that he had been in Australia since 2004 and had taken many steps to obtain a permanent visa. He stated he was telling the truth.
[1] CB99-100
TRIBUNAL’S REASONS
The Tribunal did not accept the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment; and that is because the Tribunal considered the applicant did not provide “reliable and probative evidence of an intention to remain temporarily in Australia”.[2] The Tribunal relied on the following matters:
(a)The medical reports from the applicant’s general practitioner “are short, they lack specific particulars of the treatment being provided and were vague in terms of the length of treatment proposed”.[3]
(b)Although the applicant gave evidence he was seeing a counselling psychologist, the applicant did not provide a report from the counsellor indicating the nature of the treatment the counsellor was administering, or whether the recommended treatment was continuing or indefinite, or whether there was a treatment plan which anticipated an end to the course of treatment.[4]
(c)Nor did the medical evidence on which the applicant relied support the applicant’s claim that he intended to remain in Australia temporarily for the purpose of medical treatment. The medical evidence did not set out a plan for the course of treatment to be provided, or any clear indication of when the treatment will be concluded.[5]
(d)Country information indicates that mental health and medication is available in Nepal. If, therefore, the applicant’s medical needs are indefinite and continuing, the applicant could access that care.
(e)The applicant’s visa history, all the actions he has taken in the past, and his evidence at the hearing indicates the applicant intends to remain in Australia indefinitely, and has a strong motivation to do so. The Tribunal referred to the applicant’s son being an Australian citizen, to the applicant’s two daughters living in Australia holding student visas, and the applicant’s wife living in Australia and having applied for a protection visa which included the applicant as a dependant.[6]
(f)The applicant gave evidence that he obtains support from his family in Australia, and there were many “issues” that prevented him from proposing a specific end date to his residence in Australia.[7]
[2] CB100, [45]
[3] CB100, [46]
[4] CB100, [46]
[5] CB100, [49]
[6] CB100, [47]
[7] CB100, [48]
The Tribunal, therefore, affirmed the delegate’s decision.
GROUNDS OF APPLICATION
In his application the applicant, who is not legally represented, stated the following (errors in original):
not fairly way the decision done.
Talking about not the things with my case.
My right to get treatment with the family.
decision maker not fair thinking about my helth.
if the things like what they saying Please do the punishment.
Also it is discriminatory as well.
The applicant also attached the following statement to the affidavit he filed with his application (errors in original):
I am writing this request to you regarding my case. I do respect the dicision maker, that was made by 30th October 2019. But, there are number of not truth arguments in oppose to my application. The most preponderant one is that I didn’t receive an Justice and my truth and reality was not listened. It is very distressing and painful for me that truth is distorted regarding my request.
The medical document that I provided regularly regarding my ongoing treatment and the one that I was treated is truth and truth. The decision maker mistrust and so many opinion about my ongoing treatment process. If that is the same way like decision maker thinking then please kindly punish me.
At the hearing before me the applicant, who was assisted by an interpreter, made a number of submissions.
(a)The applicant had been discharged from hospital just before he was due to appear at the Tribunal hearing, but the applicant still attended even though he did not feel OK. The Tribunal asked him a lot of questions.
(b)The Tribunal was “very harsh”, and had “no sympathy”.
(c)The Tribunal did not contact the applicant’s doctor, and make inquiries about the nature and extent of the treatment the applicant would receive. The Tribunal was very inhumane in not making inquiries of the medical advice he received.
(d)The Tribunal (by which the applicant later clarified he intended to refer to the RRT) did not believe he had a wife or any children, but now that the Tribunal accepts he has a wife and children the Tribunal has realised its mistake and would not grant the applicant the Medical visa.
(e)The applicant has a right to medical treatment.
(f)The applicant told the truth.
The Minister, on the other hand, submitted the Tribunal accepted the applicant’s evidence, and, therefore, it did not rely on any adverse credibility finding against him; the applicant had been discharged from hospital on 20 October 2019, at least one week before the date on which the Tribunal hearing was due to be held, and there is no evidence the applicant’s ability to give evidence and present arguments to the Tribunal was impaired; and the Tribunal was not under a duty to make inquiries of the applicant’s doctor about the treatment the applicant was receiving.
The applicant may be taken to make the following claims:
(a)The Tribunal did not accept the applicant was telling the truth (ground 1).
(b)The Tribunal acted unfairly and harshly towards him (ground 2).
(c)The applicant was impaired in giving evidence and presenting arguments to the Tribunal (ground 3).
(d)The Tribunal ought to have made inquiries of the applicant’s treating doctor and counsellor (ground 4).
(e)To the extent the Tribunal accepted the applicant’s evidence about his medical condition, and his evidence of the medical treatment the applicant was receiving, it was not open to the Tribunal not to accept the applicant intends temporarily in Australia for the purpose for which he applied for the Medical visa (ground 5).
DETERMINATION
Grounds 1, 2, and 3
The Tribunal did not find the applicant was not telling the truth. On the contrary, the Tribunal accepted the applicant’s evidence. Further, there is nothing in the material before me that could reasonably suggest the Tribunal acted unfairly or harshly in relation to the applicant. And there is nothing to suggest the applicant was in any way impaired in his ability to give evidence and present arguments to the Tribunal. Thus, grounds 1, 2, and 3 disclose no jurisdictional error by the Tribunal.
Ground 4
It has been said in relation to the Refugee Review Tribunal (RRT) that “it is for the applicant for a protection visa to establish the claims that are made”;[8] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[9] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[10] and the RRT “is required to deal with the case raised by the material or evidence before it”.[11] These observations apply equally to the exercise of the Tribunal’s jurisdiction under s 348 of the Act to review Part 5-reviewable decisions.
[8] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[9] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[10] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[11] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; (Black CJ, French and Selway JJ)
Further, as the Minister submits, by its letter dated 17 September 2019 the Tribunal informed the applicant that the delegate refused to grant the applicant a Medical visa because the applicant did not meet the requirement that he genuinely intends to stay temporarily in Australia for the purpose for which the Medical visa is granted; and the Tribunal specifically invited the applicant to provide information about when the medical treatment the applicant had undertaken ended or would end, and that this information be supported by medical evidence. The applicant, therefore, was on notice that he would need to provide medical evidence about when his treatment would end.
For these reasons, ground 4 does not disclose any jurisdictional error.
Ground 5
Ground 5 arises from, on the one hand, the Tribunal accepting that the applicant is suffering from depression, and is receiving ongoing treatment for that depression, but, on the other hand, the Tribunal finding that medical evidence on which the applicant relied did not set out a plan for the course of treatment to be provided, or any clear indication of when the treatment will be concluded. That implies that the Tribunal was of the view that cl 602.15 of Schedule 2 cannot be satisfied unless an applicant establishes he or she is suffering from some identifiable medical condition that is amenable to being medically treated to achieve a particular outcome, and there is period of time that is capable of being estimated during which such treatment will be undertaken. Does this disclose any error by the Tribunal?
In my opinion it does not. Clause 602.215 of Schedule 2 requires two things. The first is that an applicant must have a genuine intention to stay temporarily in Australia. The second is that an applicant’s intention to stay temporarily in Australia must be for a particular purpose, namely the purpose for which the Medical visa is granted. Where, as the Tribunal found in the applicant’s case, there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intends to stay temporarily in Australia. Stated another way, if the evidence reveals an applicant will undertake medical treatment indefinitely, and the applicant’s intention is to stay in Australia to receive such treatment, it is impossible to find that the applicant has a genuine intention to stay temporarily in Australia. An applicant’s intention would be to stay in Australia indefinitely, which is not what cl 602.215 requires.
For these reasons, even though the Tribunal accepted the applicant’s evidence about his medical condition, and the medical treatment he was receiving, it was open to the Tribunal not to accept the applicant intends to stay temporarily in Australia for the purpose for which he applied for the Medical visa. Ground 5, therefore, also fails.
OTHER MATTERS
For completeness I should refer to two other matters. The first is the applicant’s affidavit made on 21 July 2020, which I read over objection, but subject to relevance. The affidavit annexes a letter dated 8 July 2020 from a psychologist. The psychologist states he first saw the applicant on a date in July 2018, and the applicant “has been attending a number of appointments since and still requires psychological support”. After setting out matters relating to the claims for protection the applicant has made, the psychologist stated the applicant is tormented by the length of time it is taking to process his application. The psychologist states the applicant does not have a life in Nepal, and all his connections are in the Australian community. The applicant’s affidavit also annexes a letter dated 9 July 2020 from the applicant’s general practitioner. The general practitioner says the applicant still suffers badly from post-traumatic stress disorder, and concludes that the general practitioner would be grateful “if your department will be kind enough to Approve his Permanent Residency Visa Application as soon as possible”.
These letters are not relevant to whether the Tribunal made a jurisdictional error, because the letters were not created before the Tribunal made its decision, and therefore could not have been before the Tribunal before it made its decision. But it might be helpful to note that if letters to this effect were before the Tribunal when it made its decision, it is very likely the Tribunal would have viewed these letters as evidence that the applicant does not have a genuine intention to stay temporarily in Australia.
The second matter I need to refer to is an email the applicant sent to the Court on 8 October 2021, after the hearing. The email is as follows (errors in original):[12]
[12] I have caused to mark the email “Exhibit A”.
I have very beautiful family two son and one doughier also I done so much to them done higher education so big son doing Blacktown hospital and daughter nursing hom I have two lovely gran kids name . . . . I continue requesting nearly Two decades years My wish my dream is one day I get justice . . . . In my mind always comes one day I get justice I can setup the my family so that always in my mind coming Justic justice
I’m breathing on all most last I think I wouldn't able to hold breath any more because i’m having very Discrimination and unfair I can’t move on so longer they finished our life they make damaged so which way i can hold my breath ?if I will not getting justice soon then?
I came from different countries different languages everything different that’s why they doesn’t cares what I requesting Minister side they don’t care .my request are from the being I requesting
1/ politic involvement
2/ killed friends and family
3/kids and wife’s details
4/medical report
Minister side what they briefing every time different briefing it is not acceptable They shouldn’t guess like this it is really effects for our life. they need to understand others right too but they didn’t at all .
This is all most last request to the court please kindly give me the justice writing Explanation to minister to protect our life Also luck down is all must finish I will get writing with some one Lawer too.kindly please let me know Kind regards Keshab Adhikari
Although I can understand frustration and hopes the applicant conveys by this email, it is not relevant to the question I have jurisdiction to determine; and that is whether the Tribunal made a jurisdictional error in affirming the delegate’s decision not to grant the applicant a Medical visa because the Tribunal was not satisfied the applicant has a genuine intention to stay temporarily in Australia. I have concluded that the applicant has not demonstrated the Tribunal has made any jurisdictional error, and I am satisfied there is nothing in the material before me that could suggest the Tribunal made a jurisdictional error.
DISPOSITION AND COSTS
The applicant has not shown the Tribunal made any jurisdictional error, which means I will order that the application be dismissed.
The Minister seeks costs in the sum of $7,467. I explained to the applicant that the usual order as to costs is that an unsuccessful party is required to pay the costs of the successful party. I asked the applicant whether he wished to say anything in relation to costs. The applicant said he had not thought about anything else, and he just hoped he would get justice. I am satisfied it is appropriate that costs should follow the event, and that the amount the Minister seeks is a fair indemnity of the costs the Minister has incurred. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $7,467.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the order I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 15 October 2021
3
4
2