BXI20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1197
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXI20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1197
File number(s): SYG 3449 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 3 October 2024 Catchwords: MIGRATION – Medical treatment visa – where applicant alleges failure by Tribunal to allow time to provide additional medical evidence and failure to consider evidence of doctor which was provided – allegation of denial of procedural fairness Legislation: Migration Act 1985 (Cth) s 357A Cases cited: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: General Federal Law Number of paragraphs: 49 Date of hearing: 3 October 2024 Place: Sydney The Applicant: In person Counsel for the Respondents: Mr B Smith Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3449 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXI20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 23 December 2019 is dismissed.
3.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $5,400.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), orders 2 and 3 above not be entered until the date of publication of written reasons for judgment revised from transcript, which for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth) will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 23 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 December 2019, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Medical Treatment Visitor Class UV visa (visa).
BACKGROUND
The background to the matter and summary of the Tribunal’s decision are derived from the written submissions of the first respondent. Unless otherwise indicated, they do not appear to be in dispute.
The applicant is a male national of China. He first arrived in Australia on 8 September 2007 as a holder of a TU-571 Student visa. The applicant last held a substantive visa on 15 March 2010.
On 6 October 2011, the applicant applied for another student visa TU 572. The application was refused on 16 January 2012.
On 30 July 2014, the applicant applied for a Protection visa. That application was refused on 7 April 2015. The applicant unsuccessfully sought merits review in respect of the Protection visa in the Tribunal, and subsequently judicial review of the Tribunal’s decision affirming the delegate’s decision. The application for judicial review was dismissed on 16 March 2018.
On 16 March 2018, the applicant applied for the visa the subject of these proceedings, which application was refused by the delegate on 4 April 2018.
The visa application was comprised of Department of Immigration and Border Protection forms:
(a)48ME: application for a medical treatment visa (Form 48ME); and
(b)1507: evidence of intended medical treatment (includes consultation) (Form 1507) (CB 1).
The applicant also submitted a form 956, appointing his migration agent as his representative.
By his Form 48ME, the applicant claimed to be “seeking medical treatment to [sic] anxiety and depression disorders” for the period from 14 March 2018 to 14 December 2018. The treating doctor was identified as a particular doctor (the Doctor) (CB 4).
By the Form 1507:
(a)the applicant’s “medical condition requiring treatment” was stated to be “Anxiety Disorder, Depression Disorder” (CB 13 to 15);
(b)the “treatment information” section, recorded that “the patient will be subjected to Cognitive Behaviour Therapy (CBT) further assessments and treatment in relation to new developments” (CB 16); and
(c)the Doctor was again identified as being the relevant treating medical practitioner.
As was recorded by the delegate, the applicant provided no evidence to corroborate the assertions that he needed to stay in Australia for the treatment, nor was any evidence of any scheduled appointments or treatment plan provided (CB 23).
On 24 April 2018, an application for review of the delegate’s decision was lodged with the Tribunal on the applicant’s behalf by his migration agent who had represented him in his visa application (CB 24). On 26 April 2018, the Tribunal sent the applicant (via his authorised recipient) a letter acknowledging receipt of the application, which stated that “if you wish to provide material or written arguments for us to consider, you should do so as soon as possible” (CB 28).
On 15 October 2019, the Tribunal invited the applicant (via his authorised recipient) to a hearing on 27 November 2019. The invitation also requested that the applicant provide any additional documents or information upon which he wished to rely by 20 November 2019 (CB 32).
By a “Response to Hearing Form”, the applicant’s migration agent responded to say that the applicant did not request that oral evidence be taken from persons other than the applicant at the Tribunal hearing (CB 36).
The applicant attended the Tribunal hearing to give evidence and present arguments the assistance of an interpreter in the Mandarin language (CB 46 at [4]). The record of the hearing dated 27 November 2019 does not evidence any documents having been received by the Tribunal during the hearing: (CB 39).
The Tribunal’s decision
By its reasons for decision, the Tribunal identified two issues for determination, namely, whether:
(a)the applicant had provided sufficient information to satisfy the criteria for the visa; and
(b)the Tribunal was satisfied that the applicant genuinely intended to stay in Australia only for the purposes of treatment.
The aforementioned issues reflect the primary criteria for the visa contained in cls 602.212 and 602.215 of the Migration Regulations 1994 (Cth) (Regulations), which relevantly provided as follows:
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;
…
(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 s subclause 602.212(6) are met in relation to the applicant.
At [11] to [14] of its decision (CB 47), the Tribunal considered whether the applicant satisfied sub-cl 602.212(6), noting that there was no suggestion that any of the other alternative sub-criteria are relevant in this case. The Tribunal found that sub-cl 602.212(6) could not be satisfied in circumstances where the applicant has not turned 50 years of age. He was 35 years old at the time of the Tribunal hearing (CB 47 at [13]).
While sub-cl 602.212(2) may also have been relevant, there was no evidence before the Tribunal that arrangements had been concluded to carry out medical treatment as required by cl 602.212(2)(b) (CB 48 at [19]).
The Tribunal separately found that cl 602.215 was not satisfied (albeit noting that this sub-clause was not required to be satisfied if sub-cl 602.212(6) applied (CB 47 to 48 at [15] to [21]).
The Tribunal recorded the applicant’s oral evidence to the effect that (CB 48 at [18]):
(a)the applicant could not recall when he last saw his psychologist;
(b)he was not sure why he had applied for a Medical Treatment Visa;
(c)he had “not attended treatment sessions during the period he requested to stay (14 March 2018 to 14 December 2018)”; and
(d)he wanted to have a “working visa” and he “wanted to work and make money as he owed money to a lot of people”.
The Tribunal recorded that it had not been provided “with any medical evidence to indicate that he has been receiving treatment on an ongoing basis or that he requires ongoing medical treatment in the future”, and that the applicant did not provide “medical evidence that a long flight would be injurious to his health” (CB 48 at [19]).
Relying on those findings referred to in the preceding paragraph, the Tribunal concluded that it could not be satisfied that the applicant was seeking to remain in Australia for the purpose of medical treatment or related purposes, and therefore that cl 602.215 was not met (CB 48 at [20] to [21]).
PROCEEDINGS IN THIS COURT
The applicant commenced the present proceedings by an application to show cause filed on 23 December 2019. The matter was initially docketed to another Judge of this Court (first primary Judge). On 6 February 2020, a Registrar made orders by consent which included leave to the applicant to file an amended application by 16 April 2020. The proceedings were next to be listed (either for final hearing before the first primary Judge or a callover before a Registrar of the Court) on a date to be advised administratively to the parties.
The applicant did not file an amended application in accordance with the initial grant of leave. Other than a Notice of Address for Service filed on 6 October 2023, the applicant has not filed any additional documents in these proceedings at all. The proceedings were placed in the central migration docket and were next called-over in a telephone callover before a Registrar on 5 October 2023, on which occasion the applicant appeared with the assistance of an interpreter in the Mandarin language, and at which he confirmed having previously received the Court Book.
The proceedings remained in the central migration docket until 28 August 2024, on which date they were docketed to me and I made orders on that date listing them for hearing before me at 10:15am today. The applicant was granted further leave to file any amended application by 19 September 2024. The applicant and the first respondent were each ordered to file written submissions 14 and 7 days before the hearing, respectively.
The applicant appeared before me this morning with the assistance of an interpreter in the Mandarin language. The Minister is represented by Counsel. The Court Book was tendered for the first respondent and marked Exhibit “1R”. The Minister also filed written submissions as ordered in advance of the hearing.
While the originating application was accompanied by an Affidavit made by the applicant, because the body of the Affidavit contained nothing substantive and the document otherwise only went to annexing the Tribunal's decision, which now forms part of Exhibit “1R”, regard was not had to it.
Grounds of review
The grounds contained in the originating application are as follows (errors in original):
1.The Tribunal failed to provide the time for the applicant to submit the documentary medical evidences, particularly on the paragraph 18.
2.The Tribunal failed to consider the medical evidence provided by [the Doctor].
3.The Tribunal failed to afford the procedural fairness.
Each of the grounds was interpreted to the applicant in turn, and he was given the opportunity to address them.
Ground 1
By ground 1, the applicant alleges that the Tribunal failed to provide him time to submit documentary medical evidence and says, "particularly on the paragraph 18." When asked to speak to this ground, the applicant said that he had nothing to say. When I asked the applicant if he had requested additional time from the Tribunal in which to provide documentary medical evidence, the applicant said he could not remember.
When asked to which documentary medical evidence he was referring by ground 1, the applicant said he did not know how to answer. When asked if he had anything else to say in relation to ground one, the applicant said “no”.[1] The aforementioned responses were accompanied often by a period of silence, and the applicant was eventually prompted to give his responses. Counsel for the Minister says, in relation to the submissions made by the applicant from the Bar table today that, the applicant has failed to identify any documentary medical evidence that could be considered to be the subject of this ground.
[1] Transcript 3 October 2024 at T4.19 to T4.21
I agree with the submissions of the Minister in relation to the history of the matter and the background to the Tribunal's decision, that the applicant was in fact invited to provide additional documents and information via his migration agent who was his authorised recipient. The period given in which to provide documents was more than four weeks, and I agree with the Minister's submission that that was more than adequate in the circumstances. Further, there is nothing in the Tribunal's decision, nor in the hearing information form (CB 39 to 41) to suggest that the applicant sought additional time at the Tribunal hearing in which to provide additional evidence, such that there could be any suggestion (whether the applicant can remember it or not) that he did seek additional time from the Tribunal either at hearing. Nor is there anything before the Court to suggest if such a request was made, that the Tribunal refused it.
There is also no evidence that the applicant sought a further opportunity or time to provide further material to the Tribunal before the hearing held on 27 November 2019. To the contrary, the applicant expressly waived the opportunity to lead oral evidence from the Doctor (see [14] above). This is despite the fact the delegate’s decision to refuse the visa was expressly based on a lack of supporting evidence as to the applicant’s need for medical treatment or future appointments or treatment plan (see [11] above). Where the determinative and dispositive issue was addressed in the delegate’s decision, the applicant is taken to have been aware of it on his application before the Tribunal: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The applicant had almost a year and a half to submit any documentary evidence (medical or otherwise) to the Tribunal hearing before hearing, and there is no evidence that he sought further time to do so.
To the extent that ground 1 specifically refers to paragraph [18] of the Tribunal’s decision, that paragraph should be set out. It says as follows (CB 48):
At the time of hearing the applicant told the Tribunal that he could not recall when he last saw the psychologist but it had not been in the last year. He was not sure why he had in fact applied for this visa. He said he had not attended treatment sessions during the period he had requested to stay (14 March 2018 to 14 December 2018). When asked by the Tribunal what his future intentions were he said he wanted to have a working visa. He said he wanted to work and make money as he owed money to a lot of people. He said it was his intention to stay in Australia. The Tribunal put to him his answers were not supportive of a finding he was able to meet the requirements of the visa he had applied for, he said he was unsure of that.
Absent any further detail from the applicant, a fair and independent reading of [18] of the Tribunal's decision does not give rise to any other error that the Court can discern either. Accordingly, ground one is not made out.
Ground 2
By ground 2, the applicant alleges that the Tribunal failed to consider the medical evidence provided by the Doctor. The applicant was asked to identify to which evidence, he says, the Tribunal failed to have regard. The applicant responded:[2]
It's my own problem.
[2] Transcript 3 October 2024 at T4.30
When asked what he meant by this statement, the applicant said he did not know what to say, and when asked to which medical evidence he was referring, the applicant again said he could not remember.
In the absence of having filed written submissions, the applicant was invited by the Court to address the ground generally and said that he had nothing to add. As already noted in the procedural background above, the applicant did not seek to lead any evidence from Dr D.
The applicant has led no evidence to support a contention there was medical evidence provided by the Doctor to the Tribunal. To the extent the applicant is referring to the Forms 48ME and 1507, the Tribunal expressly noted those documents at [8] of its decision and engaged with their contents at [16] to [17]. The first respondent submitted that there can be no suggestion that the Tribunal failed to read, identify, evaluate and understand those forms: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ.
At hearing, Counsel for the Minister made submissions in line with the preceding paragraph. I agree with those submissions. Ground two is not made out.
Ground 3
In relation to ground 3, the applicant alleges simply that the Tribunal denied him procedural fairness. When asked to speak to this ground, and in particular the manner in which he alleges that he was denied procedural fairness, the applicant responded that he could not remember.
Having regard to the documents in the Court Book, and in particular the Tribunal's decision record, there is nothing the Court can discern to indicate that the Tribunal did anything other than accord the applicant procedural fairness pursuant to the requirements of Part 5 of the Migration Act 1985 (Cth) (Act). In respect of Division 5 of Part 5 of the Act, s 357A of the Act has the effect that the requirements of the natural justice hearing rule are met by compliance with the requirements of that Division.
The Tribunal was required to invite the applicant to a hearing. It did so. From the face of the documents in the Court Book and the decision record, that hearing opportunity appears to have been a meaningful one. There is nothing emanating from the Tribunal's decision or any of the other evidence before the Court to indicate that the applicant was in any other way denied procedural fairness by the Tribunal in reaching its decision.
Accordingly, ground 3 is also not made out. The applicant has failed to establish an error on the part of the Tribunal by the grounds raised in the originating application, or at all.
CONCLUSION
Overall, I am independently satisfied that the decision of the Tribunal is not affected by jurisdictional error. Absent jurisdictional error, the decision is a privative clause decision and should be dismissed. I will so order.
Consequent upon dismissal of the application, the Minister seeks an order that the applicant pay some part of his costs and seeks that those costs be fixed in the sum of $5,400. When asked what he wished to say in relation to whether costs should follow the event, and if so, in what amount, the applicant asked why the amount was $5,400, and said that he “can't afford that much”.[3] The applicant asked if he could pay in instalments. The Court explained to the applicant that he would receive correspondence from the Minister's solicitors with details of how such a matter could be negotiated with the Department, but the impecuniosity of the applicant is not a basis upon which the Court would generally decide that an applicant who is unsuccessful in migration proceedings should not pay some part of the Minister’s costs.
[3] Transcript 3 October 2024 at T7.11
I am satisfied that costs should follow the event. I am also satisfied that the amount sought is reasonable, including having regard to the Court's current scale for proceedings that conclude at a final hearing.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 November 2024
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