Bassi v Minister for Immigration

[2018] FCCA 866

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 866

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a), Schedule 2, cl.602.212(2)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: JAGPAL SINGH BASSI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2977 of 2016

Judgment of: Judge Manousaridis

Hearing date: 23 March 2018

Date of Last Submission: 23 March 2018

Delivered at: Sydney

Delivered on: 23 March 2018

REPRESENTATION

Applicant in person

Solicitor for the First Respondent: Ms S Sangha of Mills Oakley

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2977 of 2016

JAGPAL SINGH BASSI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application be dismissed because it does not raise an arguable case for the relief it seeks. The application to which I refer is one the applicant filed in which he seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a medical treatment (visitor) (class UB) visa (Medical visa).

2. By way of brief background, the applicant is a citizen of India. He arrived in Australia on a student visa in November 2008. He was subsequently granted a second student visa. On 7 December 2015, the applicant applied for a Medical visa. To have been entitled to the grant of a Medical visa the applicant had to satisfy, among other things, the criteria specified in cl.602.212(2) of schedule 2 to the Migration Regulations 1994 (Cth). That clause required that all of the following requirements be 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.

3. In the form by which the applicant applied for the Medical visa, the applicant stated that he would be under medical care while in Australia from 7 December 2015 to 24 February 2016. The applicant, however, did not complete those parts of the form that required him to describe the medical treatment he had arranged, or the costs of that treatment or of details of the doctor in the applicant’s home country who referred the applicant for treatment in Australia, or of the doctor or hospital in Australia who would be providing the applicant with medical treatment, or how the applicant will be maintaining himself financially while in Australia.

4. On 8 December 2015 a delegate of the Minister sent an email to the email address of the applicant’s migration agent requiring that within seven days the applicant provide additional information.  That included a medical treatment plan, evidence of the proposed treatment cost, evidence of payment of treatment concluded, and evidence of adequate funds or access to adequate funds. On 16 December 2015 the delegate sent another email requesting the same information.  The applicant did not provide any of the information requested, and, on 22 December 2015, the delegate refused to grant the applicant a Medical visa.

5. That led the applicant to apply, on 11 January 2016, to the Tribunal for review of the delegate’s decision. By letter dated 6 September 2016 the Tribunal invited the applicant to appear before it on 21 September 2016 to give evidence and present arguments relating to the issues arising in his case.  By email sent on 20 September 2016 the Tribunal requested the applicant provide information that questions 18, 19, 20 and 26 of the form of application for the Medical visa required the applicant to include in that form, but which the applicant did not include in the form. That information was: (a) the medical treatment the applicant arranged in Australia, and the estimated costs of that treatment; (b) details of the doctor in the applicant’s country who referred the applicant for treatment in Australia; (c) details of the doctor or hospital in Australia who will be providing the medical treatment; and, (d), details of how the applicant will be maintaining himself financially during his stay in Australia.

6. On 21 September 2016, the applicant provided the Tribunal with a medical certificate dated 20 April 2016 from a doctor certifying that he examined the applicant on that date, and that, in his opinion, the applicant “is suffering from: Adjustment disorder with anxiety and depression”. The applicant also provided a copy of prescriptions for anti-depressants dated 20 April and 14 September 2016. The applicant provided, as well, copies of untranslated death certificates in relation to his parents, one of whom died in December 2013, and the other in June 2015.

7. At the hearing before the Tribunal the applicant said he had difficulties at the college where he had been studying, which impacted on his ability to obtain an extension of his student visa, and that he had difficulties after the death of his mother, which coincided with the rejection of his wife’s visa application. The Tribunal, in its reasons, said it heard the impact these events had on his health, in particular, that the applicant was not eating and sleeping well, and had a diagnosis of depression.

8. The Tribunal, in its reasons, noted that it attempted to establish with the applicant what arrangements for treatment had been concluded. The applicant said he was suffering from depression. The applicant said the doctor who had given the medical certificate about the applicant’s depression did not refer to the applicant’s medical history because the applicant had been taking advice from his wife, who was a nurse with a bachelor of science degree. The Tribunal also asked the applicant why he was unable to receive medical treatment in India for depression. The applicant said he was unable to afford medical treatment for depression in India because he had already paid for health insurance in Australia. Having recorded these matters in its reasons for decision, the Tribunal simply concluded that it was not satisfied, based on the information the applicant provided in his application and at the hearing, that the applicant satisfied the requirements for obtaining a Medical visa.

9. I now turn to the grounds stated in the application and what transpired at the hearing before me. The application states one ground, which is as follows:

   I want to positive decision in favour with me, I won’t complete study.”

10. There are a number of matters I should record about the hearing before me. One related to the court book. At the first court date, the Registrar made directions for the Minister to file and serve a court book. The applicant informed me that he was aware of that direction and that the court book had been provided to his migration agent. It appears that the address for service the applicant stated in his application was the address of his migration agent. The applicant said he was informed by his migration agent, in March of 2017, that the migration agent had misplaced the court book.  From what I understood the applicant said to me, he had not, in other words, received a copy of the court book.  To deal with that situation, I informed the applicant of the principal documents that were contained in the court book, and they were documents, it is reasonable to expect, the applicant was aware of well before today. I adjourned the hearing for approximately 15 minutes to permit the applicant to go through the court book. When the hearing resumed, the applicant indicated to me he had no objection to the court book being tendered. In due course, I admitted the electronic version of the court book as an exhibit.

11. The applicant tendered – or sought to tender – a number of documents.  One group of documents I identified as MFI1, and these consisted of a copy of an overseas student confirmation of enrolment form; a bank statement, dated 21 March 2018; and an elector photo identity card.

12. The second document, which I marked MFI2, is a copy of a medical certificate, issued on 22 February 2017, which noted an opinion that the applicant has been suffering from adjustment disorder, with anxiety and depression, but that he “has now fully recovered” and that at “this time he has no such issues and is fit for study at any institution”.  Ms Sangha, who appeared for the Minister, objected to the tender of these documents, on the grounds of relevance.  I noted that I would mark the documents for identification and rule on the objection for admissibility in my reasons for judgment.  It is to that question I now turn.

13. When I asked the applicant the purpose for which he wished to rely on these documents, the applicant submitted that they show that he was now in a position to resume his studies. For reasons which I will shortly state, whether or not the applicant is in a position to resume his studies has no relevance, arguable or otherwise, to his application for judicial review of the Tribunal’s decision.  Further, the documents were not documents that the applicant had provided to the Tribunal.

14. I then asked the applicant what he wished to say in support of his case. I note that I, at the outset, explained what the nature of a show cause hearing is, namely, that it is a hearing in which the issue is whether the applicant has an arguable case for the relief he seeks in the application. I invited, however, the applicant to tell me whatever he wished to say about his case. The applicant initially said that he has been studying for four years and that he has spent a lot of money doing so. He said he has not met his wife for two years, because he has no travel rights into and out of Australia – or, I should say, out or into Australia. He said he was looking to the future. He wants to get a normal visa – a student visa – and he wants the opportunity to make a future for himself and his wife. I specifically asked the applicant whether he believed the Tribunal did anything wrong or was unhappy with what the Tribunal did. The applicant simply said that his visa had been refused. He did not have enough documents, that he had previously suffered from depression, but he is over that now.

15. Ms Sangha, who appeared on behalf of the Minister, submitted that the applicant has pointed to no arguable error by the Tribunal.  Ms Sangha referred to the applicant saying that he applied for the medical visa through misguidance.  That is something to which I ought to have referred to a few moments ago.  At the time when the applicant was explaining to me what he believed to be the relevance of MFI1, he did say that he was misguided in applying for the Medical visa. Ms Sangha submitted that the ground on which the applicant relies discloses no arguable case for the relief sought in the application. 

16. In my opinion, the ground stated in the application discloses no arguable case of jurisdictional error. The Tribunal’s conclusions, that the applicant did not satisfy the relevant conditions of the medical visa, were not only reasonably open to it but, given the absence of information and, in particular, information which the Tribunal requested the applicant provide, there was no other finding the Tribunal could have made.

17. It is understandable that the applicant wants to study in Australia and be given an opportunity to make a life for himself and his wife in Australia.  That opportunity, however, is afforded to non-citizens only through the application of what is a complex body of statute and regulations based on that statute, the centrepiece of which is the creation of many different classes of visa.  Under that system the right of a non-citizen to remain in Australia depends on the non-citizen being granted a visa and a visa can only be granted on the satisfaction of the conditions attached to the granting of the relevant visa, as stated in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

18. It is apparent that the desire of the applicant, in this case, was to have an opportunity to obtain a student visa, and the difficulty is that he instead applied for a Medical visa. There is no question, on the material before me, that the Tribunal made no jurisdictional error in concluding that the applicant did not satisfy the conditions for the grant of that visa and, I should have said, there is no arguable case of jurisdictional error on the part of the Tribunal, in concluding that the applicant did not satisfy the conditions for the granting of a Medical visa. For these reasons, I am satisfied that the applicant has no arguable case for the relief he seeks and, after I hear submissions about costs, I propose to order that the application be dismissed, pursuant to r.44.12(1)(a) of the FCC Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 April 2018