AIN19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1019
•2 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1019
File number(s): SYG 1339 of 2023 Judgment of: JUDGE ZIPSER Date of judgment: 2 July 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether denial of procedural fairness – no jurisdictional error - whether grant of relief futile - application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 338, 474, 476
Migration Regulations 1994 (Cth) cls 602.212(6), 602.215 of Sch 2
Cases cited: Al-Mamun v Minister for Immigration & Multicultural Affairs [2000] FCA 1058
Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 12 June 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: A Westenberg of Sparke Helmore Lawyers ORDERS
SYG 1339 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIN19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
2 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum 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 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
JUDGE ZIPSER
INTRODUCTION
On 21 August 2023, the applicant filed, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 2 August 2023. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) (subclass 602) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In November 2013, the applicant, a citizen of India, arrived in Australia on a tourist visa.
On 12 August 2022, the applicant lodged an application for a subclass 602 medical treatment visa.
On 19 October 2022, a delegate of the first respondent refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 7 November 2022, the applicant applied to the Tribunal for review of the delegate’s decision.
On 1 August 2023, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments, with the assistance of a Punjabi interpreter.
On 2 August 2023, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a medical treatment visa.
TRIBUNAL’S DECISION
Clauses 602.212(6) and 602.215 of Schedule 2 to the Regulations provided at the time of the Tribunal’s decision:
602.212(6)
Unfit to depart
(6) All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f) the applicant 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.
…….
602.215
(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.
The Tribunal at [8]-[12] considered whether the applicant satisfied cl 602.212(6). The Tribunal at [12] found that “the requirements in cl 602.212(6) are not met” and “there is also no evidence before the Tribunal that the applicant seeks to meet, or meets, any of the alternative grounds in cl 602.212”.
The Tribunal at [13]-[27] considered whether the applicant satisfied cl 602.215(1) which required that “the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to” specified matters. The Tribunal at [24]-[25], after considering the specified matters, found that “the Tribunal is not satisfied that the applicant has an intention to comply with the conditions to which the subclass 602 visa would be subject” and “the Tribunal is not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations in cl 602.215(1)(a) to (c)”. The Tribunal at [26] concluded that “cl 602.215 is not met”.
PROCEDURAL HISTORY
Judicial review application and steps taken up to hearing on 12 June 2025
On 21 August 2023, the applicant filed in this Court an application for judicial review of the Tribunal’s decision which contained the following grounds (as written) (Application):
1.Minister of Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal have had made jurisdictional errors. After lodging my application for Medical Treatment Visa (subclass 602) on 12/08/2022, since then I am going through adverse health and financial problems and so not able to provide required documents in time. I have requested for time extension to submit documents but Home affairs department officer did not give me a chance to prove it and neglected the sections of Migration Act 1958 regarding such matters.
2.Administrative Appeals Tribunal also made same jurisdictional error by not considering current Migration Act 1958 about my genuine approach to provide medical documents rather they give more weight to immigration department officer's claim which was without a fair go for a chance to submit further evidence. Tribunal even did not look into the Natural Justice issues as it's arises from the current Migration Act 1958.
On 2 May 2024, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application with proper particulars and a written submission.
On 24 March 2025, the applicant appeared by telephone at a directions hearing at which, according to a notation on the Court's order that day:
(a)“the applicant confirmed that they have retained a copy of their court book” (which was a bundle of documents filed and served by the first respondent in September 2023 which contained a copy of the Tribunal’s decision and documents before the Tribunal) (Court Book); and
(b)"the Court summarised the concept of jurisdictional error to the applicant and explained that it would be necessary for the applicant to establish that the [Tribunal’s] decision was affected by such an error for their application for judicial review to be successful”.
On 30 April 2025, the registry of the Court informed the parties that the matter was listed for hearing on 12 June 2025.
On 28 May 2025, the first respondent filed a written submission.
The applicant did not file a written submission before the hearing on 12 June 2025.
On 11 June 2025, the applicant sent an email to chambers in which he stated:
Dear Sir,
With reference to above subject please note that I am not well (mentally and physically as I am very depressed). Please find attached year with my medical certificate in this regard. Please give me another date after four weeks.
Thanking you.
The applicant attached some medical documents, including a medical certificate dated 10 June 2025 in which a chiropractor opined that, after seeing the applicant on 10 June 2025, the applicant “will be unfit for full duties until 17 June 2025” (June 2025 Medical Certificate).
On 11 June 2025, chambers sent an email to the parties which refused the request for an adjournment, permitted the parties to attend the hearing by video link, and reminded the applicant to have the Court Book available or accessible at the hearing.
Hearing on 12 June 2025
At the hearing before this Court on 12 June 2025, the parties appeared by video link. The applicant appeared unrepresented, assisted by a Punjabi interpreter. Anthony Westenberg of Sparke Helmore Lawyers appeared for the first respondent.
At the commencement of the hearing, I asked whether the applicant had access to the Court Book. Despite the applicant confirming to a registrar of the Court on 24 March 2025 that he had a copy of the Court Book and the email from my chambers on 11 June 2025, the applicant stated that he did not have access to the Court Book.
The applicant understood that the hearing on 12 June 2025 concerned his application for judicial review of a decision of the Tribunal dated 2 August 2023 refusing to grant him a medical treatment visa. The applicant recalled the Tribunal’s decision. I explained that, for the applicant to win the court proceeding, he must persuade the Court there is a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. I explained the main categories of jurisdictional error.
Mr Westenberg tendered a copy of the Court Book (CB).
The applicant then made oral submissions. He stated that:
(a)He has a severe medical condition, he needs time for the medical condition to be treated, he sees a doctor every two months, and he does not have medical insurance. For these reasons, he needs time to get a proper visa.
(b)He and his wife have a three year old baby.
Mr Westenberg in his oral submissions principally relied on the first respondent’s written submission filed in May 2025.
CONSIDERATION
Ground 1
Ground 1 complains about the conduct of a “Home affairs department officer” who “did not give me a chance to prove it and neglected the sections of Migration Act 1958 regarding such matters”. The meaning of this complaint is unclear. Further, the complaint concerns conduct of the delegate leading up to its decision dated 19 October 2022. As stated in the first respondent’s written submission, on application of ss 338, 474 and 476 of the Act, the Court “has no jurisdiction” (s 476(2)) in relation to the delegate’s decision.
For the above reasons, Ground 1 does not identify a jurisdictional error, let alone a jurisdictional error in respect of which the Court can grant relief.
Ground 2
The applicant complains that the Tribunal did not give the applicant “a fair go for a chance to submit further evidence”. However, on 19 June 2023 the Tribunal sent a letter to the applicant inviting him to provide information to the Tribunal by 3 July concerning specified matters, including “concerning your medical treatment”, “your current medical treatment” and “any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment”: CB 44-45. On 3 July 2023, the applicant provided documents in response to the invitation and requested until 27 July 2023 (which was the date of the applicant’s next appointment with his chiropractor) to provide further information. By email dated 10 July 2023, the Tribunal informed the applicant that he now had until 31 July 2023 to provide further information: CB 53. The applicant did not request a further extension of time prior to the hearing on 1 August 2023. The Tribunal’s reasons at [15] record the following discussion at the hearing:
In an email to the Tribunal dated 5 July 2023, the applicant sought to submit necessary medical documents from his doctor after 27 July 2023 as he claimed to have an appointment for final assessment on that date. When asked during the hearing why he had not submitted further evidence of ongoing treatment, the applicant claimed that he was unsure which documents he should submit. He told the Tribunal that all his medical reports were with his doctor.
These reasons do not indicate that the applicant requested a further extension of time at the hearing.
In circumstances where there was no further request for an extension of time by the applicant which the Tribunal refused, it is unclear how the applicant can complain to the Court that the Tribunal did not give him “a fair go for a chance to submit further evidence”.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Since neither ground in the Application identifies a jurisdictional error, the Application must be dismissed.
Futility
The first respondent contends in its written submission at [27] that, since “the applicant has provided no evidence, neither to the Tribunal nor to the Court, indicating that he requires further medical treatment beyond the period sought” in his visa application, even if the Court found the Tribunal’s decision was affected by error, “the Court should decline to grant relief on the basis that it would be futile to do so”.
As stated above, on 11 June 2025 the applicant sent an email to chambers which attached the June 2025 Medical Certificate. The chiropractor recorded in the certificate:
[The applicant’s] condition will be monitored, and he will be guided through a progressive series of graded exercises to help improve movement, decrease pain through his shoulders and low back … will reassess and determine the best course of action depending on his response to care within the next 4 weeks”.
The applicant did not seek to tender the June 2025 Medical Certificate at the hearing on 12 June 2025. In this context, there was no discussion at the hearing about:
(a)whether the June 2025 Medical Certificate was admissible to respond to the first respondent’s complaint that “the applicant has provided no evidence … to the Court indicating that he requires further medical treatment beyond the period sought”; and
(b)if it was admissible, why the June 2025 Medical Certificate did not respond to the first respondent’s concern.
In light of case law concerning the circumstances in which relief will be refused on grounds of futility (see, for example, Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [48] –[53]), if there was a jurisdictional error in the Tribunal’s decision, I would be cautious about declining to grant relief on this basis. However, since the applicant has not identified a jurisdictional error in the Tribunal’s decision or in respect of which the Court can grant relief, this is a moot point.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Westenberg sought an order that the applicant pay the first respondent’s costs in the sum of $6,500 which was not greater than the first respondent’s solicitor/client costs. This is less than the scale amount of $8,371.30. I consider the amount sought by Mr Westenberg is reasonable. The applicant stated that he has no money to pay this amount. However:
(a)In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12 at [69]), I consider the amount of $6,500 sought by the first respondent is reasonable.
(b)I consider that indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is fair and just in the present matter: see Al-Mamun v Minister for Immigration & Multicultural Affairs [2000] FCA 1058 at [5].
I will make the order sought by Mr Westenberg.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 2 July 2025
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