AOC16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 646
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 646
File number(s): ADG 246 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 4 July 2024 Catchwords: MIGRATION – review of Administrative Appeals Tribunal (Tribunal) decision – medical treatment visa – refusal – no matter of principle. Legislation: Migration Act1958 (Cth) s 474
Migration Regulations 1994 (Cth) sch 2 cl 602.212, 602.215
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 15 Date of hearing: 4 July 2024 Place: Adelaide Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms M. Pappas Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance save as to costs ORDERS
ADG 246 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOC16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
4 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,400.
3.The applicant be assigned a pseudonym pursuant to s 91X of the Migration Act 1958.
4.The proceeding be assigned a new proceeding number, and all further documents be filed using the new proceeding number and pseudonym.
5.The publication or disclosure of the original proceeding number of this proceeding, other than to the parties and the Court, be prohibited pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021.
6.Documents in the proceeding which display the applicant’s name and the original proceeding number are confidential for the purposes of r 2.11(1)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 CAMERON
INTRODUCTION
The applicant is a citizen of Pakistan who first arrived in Australia on 28 August 2011 as the holder of a business visa. On 8 January 2018, he lodged an application for a medical treatment visa with what is now the Department of Home Affairs (Department). In his visa application, he claimed that he would be under medical care from 11 January 2018 to 10 April 2018 for treatment of hypertension. He also lodged a Form 1507 which specified he was going to see a Dr Chaudhary for medication and physiotherapy. On 22 January 2018, the applicant’s application was refused by a delegate of the first respondent (Minister). The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
As explained to the applicant at the hearing of his application, in this judicial review proceeding the Court cannot re-hear his application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error because that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION AND RULES
Clause 602.212 of sch.2 of the Migration Regulations 1994 (Cth) (Regulations) provided at all relevant times:
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a) the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i) the donor of the relevant organ is accompanying the applicant to Australia; or
(ii) all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d) the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e) arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3) All of the following requirements are met:
…
Support person
(4) All of the following requirements are met:
…
Western Province of Papua New Guinea
(5) All of the following requirements are met:
…
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.
Financial hardship
(7) All of the following requirements are met:
…
Compelling personal reasons
(8) All of the following requirements are met:
…
Clause 602.215 of the Regulations relevantly provided:
(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.
BACKGROUND FACTS
In the Minister’s written submission dated 20 June 2024, the applicant’s relevant migration history was summarised in the following terms which I adopt:
13. [The Tribunal] recorded that it had discussed the applicant's migration history with him and that the department records were consistent with his oral evidence. As noted by the Tribunal at [15]-[17] this included:
13.1. That he arrived in Australia in August 2011 as the holder of a Class UC, subclass 456 visa valid to 11 September 2011.
13.2. He last entered Australia on 30 August 2013 and his last substantive subclass 456 visa was valid until 30 November 2013.
13.3. Since then, he had been issued a 'number' of Bridging visas and was currently holding a WC-030P000 Bridging visa with a 'no work' condition.
13.4. Additionally, he had applied for a Protection visa on 19 November 2013, which was refused and then affirmed by a differently constituted Tribunal on 25 February 2016. He 'appealed' to the Federal Circuit Court but this was refused on 27 September 2016. He then appealed to the Federal Court and was unsuccessful: [2017] FCA 973. He 'appealed' to the High Court but was unsuccessful in a decision of 14 December 2017.
14. On 19 September 2017 his Bridging visa ceased and 'he remained in Australia by lodging the current' visa application.
(References omitted)
The Tribunal’s decision and reasons
The Tribunal’s decision to affirm the Delegate’s decision and its reasons for doing so was summarised in the Minister’s written submissions in the following terms which I also adopt:
10. The Tribunal identified that the visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes and that the issue in this case was 'whether the applicant intends to remain in Australia temporarily for this purpose and if not, whether there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted'.
11. The Tribunal considered the requirements of cl 602.212(6)((a)-(f) of schedule 2 of the Regulations. It found that the applicant had not yet turned 50 and that there was no evidence before it that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or condition. On this basis it found that the applicant did not meet the collective requirements of cl 602.212(6)((a)-(f) and that cl 602.215(1) accordingly applied.
12. The Tribunal then considered whether the applicant genuinely intended to stay temporarily in Australia having regard to the considerations set out in cl 602.215(1)(a) to (c).
…
15. The Tribunal noted that the applicant continued to agitate his same claims for protection and that it did not have the power to rehear those matters.
16. The Tribunal noted the delegate's comments that, at the time of the decision, no additional medical report or documentation had been provided. The applicant told the Tribunal that he did not have any recent or updated medical information and that he had not seen Dr Chaudhary or any other medical practitioner since the end of 2018. When asked what the diagnoses had been, the applicant responded that he suffered from high blood pressure and felt stressed. The Tribunal recorded that it had raised its concerns about whether the applicant is undergoing treatment in Australia and the applicant had reiterated that he had not been able to afford medical consultations.
17. The Tribunal noted that the applicant had said he had complied with the 'no work' condition since it was imposed in January 2018. The Tribunal accepted and put weight on the applicant's oral evidence that he told the Tribunal he did not intend to leave Australia at any stage and that he wanted to stay in Australia for 'treatment ... to live here ... and work here' and that he wanted to bring his family here.
18. Having considered the above, the Tribunal was not satisfied the applicant intended to remain in Australia temporarily for the purpose for which the visa was granted having regard to the considerations in cl 602.215(1)(a) to (c) and all relevant matters regarding his circumstances.
19. The Tribunal then considered 'whether the applicant has compelling or exceptional circumstances to warrant departure from normal policy and legal requirements of the genuine visit criterion, placing emphasis on the purpose of the visa'.
20. The Tribunal accepted that the applicant had remained in Australia beyond the expired Bridging visa on 19 September 2017 until lodging the visa application on 8 January 2018. It accepted that he had remained to receive some treatment for hypertension in the past but that there had not been any treatment for several months. It noted that the applicant had not provided any medical evidence that he is receiving ongoing medical treatment for hypertension or any other condition. The applicant did not persuade the Tribunal that he must remain in Australia for treatment. The Tribunal considered the applicant's response that he was able to access a medical doctor and obtain pharmaceuticals in Pakistan relevant. The Tribunal accepted that the applicant could obtain the required medical services in his home country. It acknowledged that the applicant maintained his same protection claims but considered these had already been concluded in other proceedings.
21. The Tribunal was not persuaded that the applicant would comply with the conditions of a medical visa if granted requiring temporary stay. It was apparent from his immigration history that he had maintained persistent attempts to secure ongoing residency or indefinite stay in Australia and his oral evidence was that he did not intend to leave Australia.
22. Having considered the material before it, the Tribunal was not satisfied that the applicant intended to remain in Australia temporarily for the purpose for which the visa was granted having regard to considerations set out in cl 602.215(1)(a) to (c). It was also not satisfied that there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa was granted.
23. Given these findings, it concluded that cl 602.215 was not met and affirmed the decision under review.
(References omitted)
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1 The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
2. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.
Additionally, in his affidavit filed in support of his application, the applicant said:
2.The Tribunal decision was unjust and was made without considering legal and factual error and denied me natural justice …
Ground 1
The first ground of the application is unparticularised and so lacks meaningful substance. Specifically, the applicant has not sought to identify which provisions of the Act have not been followed. It should be noted in that connection that the Tribunal’s decision turned on the operation of the Regulations, not the Act, although a failure in respect of the former is likely to amount to a failure in respect of the latter. No attempt was made to identify any particular error of either sort, and so this allegation is not made out.
Ground 2
The second ground of the application is also unparticularised. Given that the allegation makes the Delphic claim that the Tribunal misunderstood the nature of the applicant’s evidence rather than a particular element of it, it cannot succeed. In any event, the thoroughness of the Tribunal’s consideration of the evidence before it has not been shown to be lacking.
Ground 3
The applicant also alleged in the second paragraph of his affidavit in support of his application that the Tribunal had failed to consider questions of legal and factual error and had denied him natural justice. The first element of that allegation reflects the process of judicial review, rather than the merits review conducted by the Tribunal, and does not advance the matter. The second element fails to identify in what way the applicant was denied natural justice. In his oral submissions to the Court today, the applicant did say that he had been denied a hearing before the Tribunal, but the evidence of the Court book contradicts that claim, and I reject it. It is not apparent that any of the Tribunal’s natural justice obligations were not met.
Ground 4
The Minister also identified an error in the Tribunal’s approach, which is to be found in paragraphs 23 to 28 of its decision record, where it considered, having already found that the applicant did not satisfy the criteria for the grant of the visa he sought, whether compelling or exceptional circumstances required that he nevertheless be granted one. No such consideration applied in this case and, in any event, the Tribunal found that there were no such compelling or exceptional circumstances in this case. Having first raised the straw man, the Tribunal then knocked it over. Put another way, the irrelevant consideration canvassed by the Tribunal had no effect on the outcome of the review and, to the extent that that discussion was erroneous, it did not deny the applicant the opportunity to achieve a more favourable outcome before the Tribunal.
Ground 5
Today the applicant has also spoken of his health conditions and asserted that the Tribunal did not believe his evidence on this topic. This was a criticism of the Tribunal’s fact-finding based on a disagreement with the Tribunal’s conclusion, not an error in the process by which the Tribunal arrived at it. No jurisdictional error is demonstrated in this regard.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 22 July 2024
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