Atta v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 205
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Atta v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 205
File number(s): SYG 2353 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 19 February 2025 Catchwords: MIGRATION – judicial review – Medical Treatment visa – whether Tribunal erred in finding that arrangements have not been concluded to carry out the treatment – whether Tribunal erred in finding that applicant not a support person – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 2 Pt 602 cl 602.212
Cases cited: ENB20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 204
Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Northern Territory v Sangare (2019) 265 CLR 164
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: [5 February 2025] Date of hearing: 12 February 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Mr T Patterson of Mills Oakley ORDERS
SYG 2353 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED MADGDY RASHED ATTA
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 14 October 2020 be dismissed.
4.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $5,500.
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 PAPADOPOULOS
Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 September 2020. The Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) made on 9 July 2018 to refuse to grant the applicant a Subclass 602 Medical Treatment (Visitor) (Class UB) visa (Subclass 602 visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
This application was heard in conjunction with the matter of ENB20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 204 (ENB20). The applicant in the present matter is the husband of the applicant in ENB20. In his Subclass 602 visa application, the applicant indicated that he was his wife’s support person and thereby was entitled to the grant of a Subclass 602 visa on the basis of having met subcl 602.212(4) in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1]
[1] Court Book (CB) 1.
For the following reasons, the application is dismissed.
BACKGROUND
The background of the matter was outlined within the Minister’s submissions, which I partially adopt.
The applicant is a male national of Egypt,[2] who arrived in Australia on 13 January 2009 as the holder of a Subclass 995 Diplomatic (Temporary) visa.[3]
[2] CB 1.
[3] CB 123.
On 12 June 2018, the applicant applied for the Subclass 602 visa on the basis that he was a ‘support person’ for his wife and thereby sought to meet the visa criterion specified in cl 602.212(4).[4] On 9 July 2018, the delegate refused to grant the visa as the applicant did not satisfy cl 602.212.
[4] CB 2.
Proceedings before the Tribunal
On 1 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision.[5] The applicant requested a reduction in payment of the review application fee, having already paid 50% of the prescribed fee.[6]
[5] CB 46.
[6] CB 79.
By way of a letter dated 7 August 2018, the Tribunal notified the applicant that it had refused to grant the fee reduction request and specified that the applicant pay the remainder of the application by 21 August 2018.[7] The letter also put the applicant on notice that if the remainder of the fee were not paid by the due date then the application would be allocated to a Member to determine whether a valid application had been made.
[7] CB 78-80.
On 16 August 2018, the Tribunal was informed by the applicant’s daughter that the applicant was ‘incapable’ of paying the remainder and that the applicant would await the Member’s decision.[8]
[8] CB 82.
On 27 August 2018, the Tribunal found it did not have jurisdiction in the matter as the prescribed fee had not been paid within the prescribed period and a determination of financial hardship had not been made.[9]
[9] CB 90-91.
Proceedings were brought before the Federal Circuit Court in which judicial review was sought in relation to this decision. On 10 December 2019, the applicant was successful before the Court and writs were issued.[10]
[10] CB 92.
Following remittal of the matter to the Tribunal, the Tribunal reconsidered the fee reduction request. On 11 March 2020, having considered further evidentiary material relating to financial hardship, the fee reduction was granted.[11]
[11] CB 120-121.
On 17 August 2020, the Tribunal invited the applicant to a hearing to be conducted via telephone on 8 September 2020 at 9.30 am.[12] The hearing was conducted as a combined hearing, along with the applicant’s wife, with the assistance of an interpreter in the Arabic and English languages.[13]
[12] CB 126-129
[13] CB 142-147.
During the hearing, the Tribunal explained to the applicant that if the delegate’s decision in relation to his wife’s visa application were to be affirmed, then he would be unable to meet the requirements set out in subcl 602.212(4), and the Tribunal may affirm the decision in his case.[14] When asked if he had any comments on this issue, the applicant indicated that he was concerned about the seriousness of coronavirus in Egypt, particularly given his wife’s asthma.
[14] CB 161 at [17].
At hearing the Tribunal asked if the applicant had applied for any other reason, explaining the requirement under subcl 602.212(2) for any arrangements for medical treatment to have been concluded.[15] The applicant told the Tribunal that he had been diagnosed with stomach ulcers in 1988 and takes medication for this condition. The applicant further indicated that he had been recommended to undergo an endoscopy and/or colonoscopy, but did not want to undergo those procedures. He also indicated that he had sufficient funds to pay for any procedure in the future.
[15] CB 161 at [16].
On 9 September 2020, the Tribunal affirmed the decision to refuse to grant a Subclass 602 visa to the applicant’s wife, having found she did not meet any of the requirements of subcl 602.212.[16]
[16] CB 161 at [19].
On 11 September 2020, the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting him to comment or respond to information it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review.[17] By way of that s 359A invitation, the Tribunal:
(a)outlined that the applicant’s wife’s review application had been unsuccessful whereby she had not met cll 602.212(2) or (3) and the delegate’s decision in relation to her had been affirmed by the Tribunal on 9 September 2020;
(b)stated that if the Tribunal relied upon that information, then it:
(i)will find the applicant does not meet the requirements of subcl 602.212(4)(a); and
(ii)may also find that he did not meet any of the other criteria in cl 602.212.
[17] CB 149-151.
On 21 September 2020, the applicant responded to the Tribunal’s s 359A invitation.[18] By way of that response, the applicant:
(a)expressed his disagreement with the Tribunal’s conclusions with regard to his wife’s application. He referred to his wife’s physical and psychological problems, and the accompanying medical evidence. He noted that coronavirus was ‘out of control’ in Egypt, and that the medical treatment in Australia was not available in Egypt. He also stated that his wife was unfit for travel and referred to the coronavirus restrictions on travel.
(b)referred to his stomach condition, and his doctor’s advice that he undertake an endoscopy. He further stated that due to coronavirus he was unable to have the recommended endoscopy.[19]
[18] CB 154.
[19] CB 154.
TRIBUNAL DECISION
The Tribunal found that there was no evidence that the applicant’s spouse had been granted a:
(a)Subclass 602 visa on the basis that the requirements in either subcl 602.212(2) or (3) had been met;
(b)Subclass 675 Medical Treatment (Short Stay) visa on the basis that requirements in subcl 675.212(2) had been met; or
(c)Subclass 685 Medical Treatment (Long Stay) visa on the basis that the requirements in subcl 685.212(2) or (3) had been met.[20]
[20] CB 161 – 162 at [22].
Accordingly, the Tribunal found that the applicant did not meet subcl 602.212(4).
The Tribunal also considered whether the applicant could meet the alternative criteria in cl 602.212 and found that there was no evidence or claim that arrangements had been concluded to carry out medical treatment for his condition. Having made that finding, the Tribunal concluded that the applicant did not satisfy the requirements of subcl 602.212(2).[21]
[21] CB 162 at [24].
The Tribunal considered the applicant’s submissions regarding the impact of coronavirus and determined that this circumstance was not covered by cl 602.212.[22]
[22] CB 162 at [30].
RELEVANT LEGISLATION
Clause 602.212(2) in Part 602 of Schedule 2 to the Regulations provides:
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.
Clause 602.212(4) in Part 602 of Schedule 2 to the Regulations provides:
Support Person
(4) All of the following requirements are met:
(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i) the requirements described in subclause (2) or (3) are met; or
(ii) the requirements described in subclause 675.212(2) or (3) are met; or
(iii) the requirements described in subclause 685.212(2) or (3) are met;
(b) the person to whom the applicant is to provide support holds:
(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c) the applicant satisfies public interest criterion 4005.
PROCEEDINGS BEFORE THIS COURT
By way of an originating application, filed on 14 October 2020, the applicant seeks judicial review of the Tribunal’s decision and raises the following unparticularised grounds (reproduced without alteration):
1.The Tribunal misunderstood my circumstances and my medical condition and the fact that coronavirus is out of control in Egypt and the medical treatment in Australia is not available in Egypt.
2.I will provide particulars when my wife and I receive copy of the documents.
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicant at hearing where he was afforded an opportunity to particularise his grounds and raise any further matters which indicated that the Tribunal had erred in making its decision.
On 29 January 2025, the applicant filed an affidavit affirmed by his wife which contained various statements relating to his wife’s current circumstances and ongoing health treatments. Annexed to that affidavit were various documents, none of which were before the Tribunal.
The Minister objected the admission of this affidavit on the basis that it was all evidence which was not before the Tribunal and is not relevant. By way of response to the Minister’s objection, the applicant explained that the stress of having his wife’s visa refused has increased the severity of her health conditions, which has led to her deteriorating mental health.
Whilst the Court has considerable sympathy for the predicament faced by the applicant and his wife, this does not alter the fact that the material presented was not available to the Tribunal and is therefore inadmissible. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] as per Nicholson J, it was held that it is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Accordingly, it is not open for this Court to admit the affidavit and accompanying annexures in order to reconsider the merits of the applicant’s case.
CONSIDERATION
Ground 1
Insofar as ground one alleges that the Tribunal misunderstood the applicant’s circumstances, the Minister submits that the Tribunal comprehensively set out the applicant’s claim, having considered the applicant’s medical condition, the circumstances surrounding the coronavirus situation in Egypt, and the availability of medical treatment in Egypt.[23] The Minister submits, and I agree, that there was nothing in the Tribunal’s decision that indicates any misunderstanding or lack of comprehension over the applicant’s evidence.
[23] CB 161 at [19]-[21] and [24].
By way of oral submission, the applicant did not press this ground further in terms of particularising any failure on the Tribunal’s part in relation to its assessment of his ability to meet cl 602.212(2). The applicant maintained that he did not object to the Minister’s submissions in this regard and that he was managing his own health condition.
In my view, in relation to the Tribunal’s assessment of the applicant’s medical condition, there was no evidence before the Tribunal to indicate that the applicant would be unable to take medication or otherwise receive treatment for his condition upon his return to Egypt, and no evidence that the applicant would be unable to undertake an endoscopy or colonoscopy if he chose to do so in Egypt.[24] In addition to this, the applicant’s own evidence before the Tribunal was that he had not made arrangements for such treatment,[25] leaving it open for the Tribunal to conclude that arrangements had not been concluded to carry out medical treatment as required by subcl 602.212(2)(b).
[24] CB 162 at [24].
[25] CB 162 at [16] and [21].
By way of oral submissions, the applicant told the Court that his main concern related to his wife’s deteriorating health condition and the need she had for his support.
In my view, in relation to the Tribunal’s assessment of the applicant’s ability to qualify as his wife’s support person, the Tribunal outlined the requirements for a support person in its decision,[26] before finding that as her review application had been unsuccessful the applicant could not satisfy subcl 602.212(4).[27] The potential for this finding to be made was first brought to the applicant’s attention at hearing,[28] before being formally put to him in writing pursuant to s 359A of the Act after his wife’s review application had been unsuccessful.[29] The applicant responded to the Tribunal’s concerns at hearing, and to the s 359A invitation. Subsequently, the Tribunal took notice of the applicant’s responses and made the only conclusion that was available based upon the evidence before it, which was that the applicant could not satisfy subcl 602.212(4).
[26] CB 159 at [7].
[27] CB 161-162 at [22].
[28] CB 161 at [17].
[29] CB 149-151.
Consequently, no error could be established with regard to the Tribunal’s assessment of the applicant’s circumstances and his eligibility for the Subclass 602 visa.
Accordingly, this ground must fail.
Ground 2
In relation to the second ground, I regard this to be a simple statement that the applicant ‘will provide particulars’ when he and his wife had received documents. When asked at hearing to particularise this ground further, the applicant stated that he had no further submissions to make in that regard.
I agree with the Minister that this is not a proper ground of review and is incapable of establishing any error on the Tribunal’s part.
Subsequently, this ground must also fail.
CONCLUSION
For the above reasons, the application is dismissed.
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $6,100. I find that costs should follow the event and that this amount is not entirely reasonable in the circumstances given that the work undertaken by the Minister in this case (including preparation of the Court Book, drafting of written submissions and appearance at the hearing) was significantly less in complexity and duration than that in the related proceeding of ENB20 in which costs in the sum of $6,100 were found to be reasonable. In such circumstances, I find the amount of $5,500 to be reasonable in this case.
Whilst I acknowledge the applicant’s submission that he may have difficulty paying such an amount, the applicant’s financial standing is not a sound basis upon which to rest an argument that Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare [2019] HCA 25 at [35]; (2019) 265 CLR 164 at 176-177 (Sangare) per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ, as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $5,500.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: [19 February 2025]
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