AYX23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 280
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AYX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 280
File number(s): SYG 610 of 2023 Judgment of: JUDGE LAING Date of judgment: 21 April 2023 Catchwords: MIGRATION – application for review of a decision affirming refusal of a medical treatment visa – applicant did not appear at the Tribunal hearing – whether the Tribunal made errors of law – whether the Tribunal afforded the applicant procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 357A, 360, 360A, 358, 359, 359A, 359AA, 359B, 360, 360A, 363, 379A
Migration Regulations 1994 (Cth) 4.21, Schedule 2 cl 602.212, 602.215
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 14 April 2023 Solicitor for the Applicant: The Applicant appeared via telephone with the assistance of an interpreter Solicitor for the First Respondent: Mr Z McCaughan (Minter Ellison) appeared in-person ORDERS
SYG 610 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYX23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
21 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (medical treatment visa).
BACKGROUND
The applicant is a citizen of Bangladesh. The applicant first arrived in Australia in 2009.
The applicant subsequently made multiple attempts to obtain a protection visa, which were unsuccessful.
On 6 February 2021, the applicant made an application for a medical treatment visa.
On 8 February 2021, the applicant was invited to comment on information concerning his migration history and time in Australia. These matters were said to give rise to concern over whether the applicant intended to remain in Australia temporarily. The applicant responded on 12 February 2021.
On 24 February 2021, the Delegate refused to grant the applicant the medical treatment visa. This was on the basis that the Delegate considered that the applicant did not intend to stay in Australia temporarily and therefore did not meet the criteria contained in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant sought review by the Tribunal on 9 March 2021. On 3 August 2022, the Tribunal sent an invitation to attend a telephone hearing on 19 August 2022 to the email address nominated in the application for review. It also attached an Information About Hearings Fact Sheet, which relevantly stated that:
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
On 11 August 2022, the applicant sent the following request to the Tribunal for the hearing to be heard later in the day:
I refer to the forthcoming hearing on 19/08/2022 at 10.00 am (AEST). I am thanking you for giving me the opportunity to explain and clarify my claim with the Hon. Tribunal.
I would like to mention to you that my brother, as mentioned in the hearing form, is a vital witness in my application who wants to give evidence to the hearing. Unfortunately, global time is the killer. When it is 10.00 am in Sydney, it will be 6.00 am in Bangladesh. It will be very inconvenient for the witness to be on the phone at that awkward time. I, therefore, urge the Hon. Tribunal to reschedule the time just for 4 hours on the day while it will be 10.00 am in Bangladesh. I want the change of time but not the day or date. The date can remain the same but if you can change only the time. This is my only humble request to the Hon. Tribunal.
Should you have any queries regarding the same please let me know. Please consider my request. Thanking you in anticipation.
By email that day, the following response was sent:
Thank you for your email received today, 11 August 2022.
Unfortunately the Member has another hearing later in the day on 19 August 2022 and the time cannot be changed.
If you have any questions, please contact us immediately at [email protected], or call 02 9276 5368.
The applicant did not reply to this email. However, on 19 August 2022, on the morning of the hearing, the applicant sent a request for adjournment by email on the following basis:
I refer to my hearing today on 19/08/2022 at 10.00 am (AEST). I am thanking you for giving me the opportunity to clarify my claim with the Hon. Tribunal.
I would like to inform you that yesterday, 18/08/2022, I fell sick and was compelled to visit the doctor with my sore throat and runny nose. I am having also a temperature. The doctor has suggested me to have rest and not go out.
I am frustrated and confused by this unforeseen situation. I don't know how to present myself before the Hon. Tribunal with crocky voice and sore throat today. I am really very sick. I enclose herewith the scan copy of the medical certificate for your ready reference.
I urge the Hon. Tribunal, if possible, to reschedule the hearing for another day. Please consider my situation. Thanking you in anticipation.
Annexed to that email was a medical certificate stating the following:
This is to certify that [the applicant] is unable to work from 18/08/2022 to 24/08/2022 inclusive due to a medical condition.
The following reply was sent by email at 8.50am:
Thank you for your email received today, 19 August 2022.
The Tribunal has carefully considered your request for a postponement of the hearing and has declined the request. The hearing will proceed today at 10:00am as scheduled.
The applicant did not attend the scheduled hearing at 10am. Multiple attempts to contact him by telephone were unsuccessful.
On 29 August 2022, the Tribunal affirmed the Delegate’s decision.
RELEVANT LEGISLATION
Clause 602.215 of Schedule 2 to the Regulations relevantly provided:
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.
Clause 602.212(6) of Schedule 2 to the Regulations provided:
602.212
…
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.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[6] of its decision, including its refusal of the applicant’s adjournment request. At [5]-[7], the Tribunal stated:
5. On 19 August 2022, the Tribunal received an email from the applicant that was sent at 6.04am. It indicated that he fell sick on 18 August 2022 with a sore throat, runny nose and temperature, visited his doctor and was told to rest and not go out. He requested that his hearing be postponed. He enclosed a Medical Certificate from [redacted] dated 18 August 2022 which indicated that he was unable to work from 18 August 2022 to 24 August 2022 due to a medical condition. It did not indicate that he was unable to attend a telephone hearing from his home.
6. At 8.50am on 19 August 2022, the Tribunal sent an email to the applicant to inform him that his request for a postponement of the hearing had been carefully considered and declined. He was advised that the hearing would proceed at 10.00am on 19 August 2022 as scheduled. This email was sent to the email address he had provided the Tribunal and had used to correspond with the Tribunal. The Tribunal did not receive any notification that the email had not been delivered.
7. The applicant did not attend the hearing on the date and time scheduled. He has not contacted the Tribunal since then. He has not provided the Tribunal with any documentary evidence to support his application for review. In these circumstances, the Tribunal will proceed to make a decision on the review.
The Tribunal found at [9] that the issue for consideration was whether the applicant met cl 602.215. Having noted the requirements of cl 602.215 contained an exception if cl 602.212(6) were satisfied, the Tribunal found that the applicant did not meet the requirements of cl 602.212(6) (at [10]-[14]). The Tribunal made this finding as the applicant did not meet cl 600.212(6)(b), (c) or (d) as he was under 50, had not applied for and met the criteria of another permanent visa other than the health criteria, and had not provided the requisite evidence that he was medically unfit to leave Australia. He was therefore required to meet cl 602.215.
The Tribunal then considered whether the applicant genuinely intended to stay in Australia temporarily for the purpose of the visa. The Tribunal found that:
(a)the applicant had not complied with conditions of previous visas and had remained in Australia unlawfully without a visa (at [16]);
(b)although the applicant’s Form 1507 dated 5 February 2021 indicated that the proposed treatment was “follow up with Cardiologist”, he had not provided evidence of the outcome of this “follow up”, what treatment if any was proposed, nor evidence in relation to its cost (at [18]); and
(c)it was not satisfied that the applicant had the financial capacity to support his medical treatment or intended to comply with condition 8101 (no work) of the visa (at [17]-[21]).
Having regard to the applicant’s immigration history, including his maintenance of residence in Australia for over 11 years, unsuccessful pursuit of a permanent visa, non-compliance with previous visa conditions and residence in Australia unlawfully, the Tribunal concluded that these matters indicated that the applicant had “a strong desire to live in Australia permanently” (at [22]-[25]).
Although the Tribunal accepted that part of the reason the applicant wanted the visa was so that he could remain in Australia and receive medical treatment for his heart murmur, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa is granted (at [26]).
Accordingly, the Tribunal found that the applicant did not meet cl 602.215 and affirmed the Delegate’s decision (at [27]-[29]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings by an application filed on 13 September 2022. The following was stated under “Grounds of application”:
1.The Administrative Appeal Tribunal (Migration division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicants’ medical visa rejection by the Minister's delegate.
2.The second respondent (the Tribunal) has exercised its power in error pursuant to s358(l)(a), s358(1)(b), s359AA(l)(b)(ii)(iii), s359B(2) and s359B(3) of the Migration Act 1958 and have denied the applicant’s natural justice and procedural fairness.
3.The second responded did not afford the applicant whose interest has adversely affected by the decision as it did not give the opportunity to present his case. The applicant was genuinely sick.
Ground 1 asserted that the Tribunal made an “error of law and failed to exercise the proper procedure”.
The ground did not specify what error of law was contended to have been made, nor how the Tribunal was said to have “failed to exercise the proper procedure”.
The Tribunal correctly set out the provisions in issue at [10] of its decision. I am unable to identify any basis for finding that the Tribunal made any error of law in this regard, nor in its application of those provisions.
The Tribunal’s procedural fairness obligations were limited under Part 5 of the Migration Act 1958 (Cth) (Act): s 357A.
Ground 2 suggested that issue was taken with the Tribunal’s procedure by reference to ss 358(l)(a), 358(1)(b), 359AA(l)(b)(ii)(iii), 359B(2) and 359B(3) of the Act.
Section 358(1)(a) and (b) of the Act provides that an applicant may give the Tribunal a written statement or arguments. It is not apparent how the Tribunal’s procedural fairness obligations could be said to have been breached by reference to those provisions, nor how the Tribunal could be said to have otherwise materially erred in that regard. I accept that the Tribunal did not refer to every detail of the evidence that was before it. Certain documents, such as medical records from 2011 and 2012, were not separately referenced. However, the Tribunal was not required to refer to every aspect of the evidence that was before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47]. The dated nature of such documents tends against an inference being drawn that they were not considered simply because they were not expressly referred to in the Tribunal’s decision.
Section 359AA of the Act provides a mechanism for the Tribunal to comply with s 359A of the Act by putting certain information to the applicant at hearing. The applicant did not attend the hearing before the Tribunal. It is also not apparent how any material before the Tribunal could be said to have enlivened s 359A of the Act. As the Tribunal did not send the applicant any invitation pursuant to ss 359 or 359A of the Act, s 359B (which sets out the requirements for such invitations, if sent) was similarly inapplicable.
Ground 3 contended that the Tribunal did not afford the applicant an opportunity to present his case, in circumstances where he contends that he was “genuinely sick”.
As set out above, the applicant was invited to a hearing before the Tribunal pursuant to s 360 of the Act. Having reviewed the materials and the legislative requirements for such invitations, I accept the Minister’s submission that the invitation complied the requirements of s 360A in that it:
(a)gave the applicant notice of the time, date and place for appearance: s 360A(1);
(b)was given by one of the methods specified in s 379A (by email to the address last provided by the applicant in connection with the review): ss 360A(2)(a) and s 379A(5);
(c)gave at least 14 days’ notice: s 360A(4) and reg 4.21; and
(d)enclosed a brochure containing a statement to the effect of s 362B: s 360A(5).
The Tribunal declined two adjournment requests made by the applicant. The first concerned the applicant’s request that the hearing be held later in the day because the scheduled time would be inconvenient to his brother on account of the time difference. The second was on account of the applicant’s claimed illness.
The Tribunal had the power to adjourn the review: s 363(1)(b) of the Act. The discretion in relation to this power had to be exercised reasonably. Its exercise or non-exercise therefore needed to have “an evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] and [76] per Hayne J, Kiefel J (as her Honour was) and Bell J.
The refusal to adjourn the hearing to a time later in the day does not appear to be the subject of the applicant’s complaint under ground 3. However, for completeness, I accept the Minister’s submission that this refusal was not legally unreasonable. The Tribunal gave an intelligible reason for not acceding to this request, namely that the Member was not available later in the day due to another hearing. I accept that the Tribunal’s exercise of discretion in this regard was not legally unreasonable, in circumstances where the applicant had not claimed that his brother was unable to attend the scheduled hearing.
I also accept the Minister’s submission that the Tribunal’s decision not to adjourn on the day of the hearing, but instead to proceed to a decision, was not legally unreasonable. As the Tribunal observed at [5] of its decision, the medical evidence that the applicant provided indicated that he was “unable to work” and “did not indicate that he was unable to attend a telephone hearing from his home”. This provided an evident and intelligible basis for the Tribunal’s refusal of the adjournment. When considered with the applicant’s non-attendance at the hearing, and lack of contact subsequently (at [7]), I accept that the Tribunal’s decision to proceed as it did 10 days later was not legally unreasonable. This was in a context where the applicant had been notified, with the hearing invitation, that any adjournment request for a medical reason needed to be accompanied by a doctor’s certification that stated that he was “not able to attend the scheduled hearing”.
The evidence before the Court does not establish that the applicant was incapable of participating in the Tribunal hearing in the sense considered in cases such as Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575.
For the reasons given above, the grounds raised in the application for review are unable to succeed.
Other matters
In an affidavit filed with his application, the applicant contended that the Tribunal was “preoccupied” at the time of its decision. At the hearing, the applicant submitted that by this he meant that the Tribunal had predetermined its dismissal of his application. He therefore contended that the Tribunal was biased.
I accept the Minister’s submission that the high thresholds for grounds such as actual or apprehended basis are not capable of being met in the present case. It is well settled that a contention of actual bias is a serious matter which carries a heavy onus. It requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J. Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ.
In support of his argument, the applicant relied upon the fact that his adjournment applications had been refused. However, without more, refusal to adjourn a matter does not meet the high thresholds for grounds of bias. I have found above that the Tribunal’s decision not to adjourn the matter was not legally unreasonable. Further, the Tribunal’s multiple attempts to contact the applicant by telephone when he did not attend the hearing, and delay of making a decision until 10 days after the hearing, indicate that the Tribunal was not determined to refuse the review application.
The balance of the matters raised by the applicant at hearing were directed towards the merits, rather than the legality, of the Tribunal’s decision. It is understandable that the applicant may disagree with the Tribunal’s decision, in circumstances where he feels that he should have been granted the visa. However, such disagreement without more does not provide this Court with a basis for setting aside the decision of the Tribunal.
CONCLUSION
For the above reasons, no jurisdictional error is demonstrated by the grounds relied upon by the applicant. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. I will hear from the parties in relation to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated:21 April 2023
0
9
0