BXZ20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 14

Federal Circuit and Family Court of Australia

(DIVISION 2)

BXZ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 14

File number(s):	SYG 2495 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	20 January 2023
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant a medical visa – whether the Tribunal misunderstood or failed to consider or act upon evidence – where the Tribunal was not satisfied that arrangements had been concluded for the carrying out of the proposed medical treatment – whether contended errors occurred and were material – application dismissed.
Legislation:	Migration Regulations 1994 (Cth) cls 602.212(2), 602.212(2)(b), 602.212(2)(e), 602.215
Cases cited:	Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Division:	Division 2 General Federal Law
Number of paragraphs:	41
Date of hearing:	2 December 2022
Place:	Sydney
Solicitor for the Applicant:	The applicant appeared in person with the assistance of an Arabic interpreter
Solicitor for the First Respondent:	Mr E. Taylor (Mills Oakley) appeared by video-link
Solicitor for the Second Respondent:	Submitting appearance, save as to costs.

ORDERS

SYG 2495 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BXZ20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	20 JANUARY 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

INTRODUCTION

1. 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 (Class UB) (Subclass 602) visa (medical visa).

   background

2. The applicant arrived in Australia in 2008 as the holder of a student visa. He was subsequently granted three further student visas in 2009, 2010 and 2012. The applicant applied for a protection visa in 2013, which was refused in 2014. That decision was affirmed by the Tribunal in 2015. The applicant then unsuccessfully applied to the Federal Circuit Court (as it was), the Federal Court and the High Court.

3. On 30 August 2017, the applicant applied for the medical visa that is the subject of the current proceedings.

4. On 14 September 2017, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 3 October 2017.

5. The applicant appeared at a hearing before the Tribunal on 13 June 2018.

6. On 8 August 2018, the Tribunal affirmed the Delegate’s decision.

   RELEVANT LAW

7. At issue before the Tribunal was the applicant’s ability to meet cl 602.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which was as follows (emphasis added):

   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.

   the tribunal’s decision

8. The Tribunal summarised the material before it at [7]-[15] of its decision. The Tribunal observed that the applicant had given evidence that he had applied for a medical visa because he had been seeing a clinical psychologist regularly following an attempted suicide in 2013. The applicant had explained, however, that he had ceased seeing the psychologist after his Medicare card expired in January 2018 (at [11]).

9. The Tribunal observed that it had raised with the applicant that he did not appear to meet the requirements of cl 602.212(2) of Schedule 2 to the Regulations, as he did not appear to have arrangements concluded for (at [12]):

   (a)treatment; or

   (b)the payment of that treatment.

10. The Tribunal observed that, in response, the applicant had stated that his psychologist was prepared to see him again and discuss the cost of the session, and that his friend would help with the costs if necessary. The Tribunal also summarised evidence that it had received after hearing, namely a letter from the applicant’s clinical psychologist and a letter from the applicant (at [12]-[15]).

11. The Tribunal then reasoned as follows (at [18]-[19]):

    18.At the time of application, the applicant submitted a Form 1507 indicating his medical condition and that he seeks ‘ongoing medical review’ and ‘ongoing /regular psychological treatment’. The Tribunal observes that he did not indicate any end date for the period to remain in Australia in his application. When he appeared before the Tribunal at hearing on 13 June 2018, he advised the Tribunal that he last saw his psychologist in January 2018 and had not seen her again because his Medicare Card expired. The letter from his psychologist provided to the Tribunal following the hearing, indicates a further review on 11 July 2018. The psychologist has ‘not ruled out risk factors in his mental health status’ and states that she cannot ‘deny his need for medical treatment’ however no information is before the Tribunal to indicate he has any future planned treatment.

    19. The Tribunal discussed with the applicant at the hearing, the issue before it is that on the available material he does not appear to have arrangements for further treatment concluded or arrangements for payment of that treatment. It allowed him further time to provide evidence to address this issue. He subsequently provided further evidence, including a letter from his psychologist. The Tribunal has considered this material, and the information contained in it. It notes that subsequent to the hearing, he has attended a further review with his psychologist on 11 July 2018. However, there is nothing before the Tribunal to indicate he has further sessions scheduled.

12. The Tribunal therefore concluded that it had “no option but to find” that the applicant did not meet cl 602.212(2) of Schedule 2 to the Regulations. The Tribunal observed that there was no suggestion that any of the alternative sub-criteria were relevant to the applicant’s circumstances (at [20]-[21]). However, the Tribunal considered at [25] that it was “open to the applicant to make a new application for a Medical Treatment visa in future should he in future make arrangements for (and for payment of) medical treatment”.

13. On the basis of the above, the Tribunal affirmed the Delegate’s decision (at [26]).

    proceedings before this court

14. The applicant commenced the present proceedings by an application filed on 6 September 2018. He relied upon the following grounds contained in an amended application filed on 17 December 2018:

    1.The Tribunal Member had sufficient information concerning my medical condition especially the report from Clinical Psychologist yet failed to act on it and made a decision that I do not intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal's opinion is legally wrong and made on assumption as I do have a genuine intention to stay temporarily in Australia for medical treatment purpose.

    2.Contrary to the opinion of the Member I have indicated that I wish to receive medical treatment from August 2017 till September 2019 which is reasonable time to complete treatment.

    3.The Tribunal misunderstood the seriousness of my medical treatment and failed to give me the visa which I requested according to my evidence before the Tribunal.

    4.I provided that I will be supported financially by my brother as well as by a friend whose name appears in Court Book p.4.

    5.In the Court Book p. 10 the psychologist of Campsie Medical Centre clearly specified that I suffer major depression yet the Tribunal failed to grant me the visa for the genuine purpose of genuine medical treatment.

    Ground 1

15. Ground 1 took issue with what was understood to be the Tribunal’s finding that the applicant did not intend to stay in Australia temporarily for the purpose for which the visa was granted. However, whilst this was the basis of the Delegate’s decision, the Tribunal did not consider it necessary to determine whether the applicant was able to meet this criterion in cl 602.215. This was because the Tribunal found that the applicant was unable to meet another criterion for the visa, namely cl. 602.212. 

16. Ground 1 also contended that the Tribunal “failed to act” on the report from the clinical psychologist. As noted above, the Tribunal expressly considered the report from the clinical psychologist at [15] and [18]-[19] of its decision. The Tribunal observed that the report did not evidence that further planned treatment had been scheduled with the clinical psychologist, nor that “arrangements for treatment” had “been concluded”. On this basis, it was open to the Tribunal to find, as it did, that the applicant was unable to meet cl 602.212(2)(b).

17. For these reasons, ground 1 is unable to succeed.

    Ground 2

18. Ground 2 contended that, contrary to what was found by the Tribunal, the applicant had indicated that he wished to receive medical treatment from August 2017 to September 2019. At the hearing before the Court, the applicant directed attention to his visa application form, in which he had stated this period in response to a question regarding the period in which he wished to remain in Australia.

19. However, two questions subsequently on the form, the applicant additionally stated that the period during which he was to be under medical care in Australia was “[t]o be confirmed”. At the hearing before the Tribunal, in response to questions of “...what is the plan for this visa? What do you want to do? What type of treatment? Until when do you want this medical treatment?”, the applicant replied “I honestly don’t know” (at page 20 of the transcript).

20. Given this, and in the absence of evidence regarding scheduled future treatment, it was open to the Tribunal to find that “arrangements for treatment” had not “been concluded”.

21. For these reasons, ground 2 is unable to succeed.

    Ground 3

22. Ground 3 contended that the Tribunal misunderstood the seriousness of the applicant’s medical treatment and “failed to give [him] the visa”.

23. My reading of the materials does not support a finding that the Tribunal misunderstood the seriousness of the applicant’s medical condition, nor the evidence that he had provided regarding medical treatment. The Tribunal set out the evidence in this regard at [11] to [15] of its decision. The Tribunal’s reasoning, the sympathetic manner in which a number of questions were asked of the applicant at hearing, and the member’s suggestion at [25] of avenues they considered may be open to the applicant going forward, all indicate to me that the Tribunal member in this case was highly conscious of the seriousness of the evidence before them regarding the applicant’s mental health condition.

24. However, the Tribunal was obliged to assess the evidence before it against the criteria for the visa. As it was not satisfied that the criterion in cl 602.212(2)(b) was met, on the evidence before it at the time of its decision, the Tribunal had no option other than to affirm the Delegate’s decision.

25. The applicant’s disappointment with the outcome of the review is understandable. However, disagreement with the Tribunal’s decision, without more, does not demonstrate any legally recognised ground of review.

26. For these reasons, ground 3 is unable to succeed.

    Ground 4

27. Ground 4 refers to evidence that the applicant would be supported by his brother and a particular friend (Friend).

28. The applicant indicated on page 4 of his medical visa application that he would be financially supported by his Friend. The Friend also provided two statutory declarations, in 2017 and 2018, expressing his intention to support the applicant (including financially). The applicant gave oral evidence to the Tribunal that the Friend was supporting him (at page 21 of the transcript). 

29. I was not directed to any part of the evidence that was before the Tribunal regarding support from the applicant’s brother. In any event, the primary thrust of the applicant’s evidence was that he would be financially supported by his Friend. The applicant also told the Tribunal that he intended to try and renew his Medicare card (at page 15 of the transcript).

30. At [8] of the Tribunal’s decision, the Tribunal referred to the applicant’s evidence that he was “assisted financially by friends, one of whom provided a statement of support with his review application”. The Tribunal acknowledged the applicant’s evidence about his intention to renew his Medicare card at [11]. At [12], the Tribunal additionally referred to the applicant’s evidence at hearing that his Friend would help him with the costs of treatment if necessary.

31. The Tribunal did not refer in specific terms to the second statutory declaration that had been provided by the Friend after the Tribunal hearing. This was not referred to at [15] of its decision, where the Tribunal set out further evidence it had subsequently received (namely, letters from the applicant and his clinical psychologist). It is unclear whether the Tribunal overlooked this document, or whether this was the document referred to at [8] as the “statement of support” provided with the applicant’s “review application”.

32. Even if the Tribunal did overlook the second statutory declaration (and/or evidence provided regarding financial support from the applicant’s brother), I consider that I am obliged to accept Mr Taylor’s submission for the Minister that such error was incapable of being material on the facts of this case: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. This is because, regardless, the Tribunal was not satisfied that arrangements had been concluded for the carrying out of the proposed medical treatment, as required by cl 602.212(2)(b). The applicant was therefore unable to meet the criteria for the medical visa, whether or not he might otherwise have been able to meet cl 602.212(2)(e).

33. For these reasons, ground 4 is unable to succeed.

    Ground 5

34. Ground 5 referred to page 10 of the Court Book, which contained a Form 1507 signed by the applicant’s clinical psychologist in August 2017. The document refers to the applicant’s ongoing review and treatment for his psychological condition (including depression). Ground 5 complained that the Tribunal did not grant the applicant a medical visa despite evidence that he was suffering from major depression.

35. As stated above, the Tribunal considered the evidence that had been submitted regarding the applicant’s condition at [11]-[15] of its decision. At [18]-[19], the Tribunal explained why it was unable to find, despite this evidence, that the applicant met the criteria for the visa. This was because the Tribunal found that the evidence did not establish that the “arrangements for treatment” had “been concluded”.

36. Ground 5 does not demonstrate that this conclusion was not open to the Tribunal on the material before it. It is therefore unable to establish jurisdictional error.

    Further matters raised at hearing

37. At the hearing of this matter before the Court, the applicant expressed that he also wished for the Court to have regard to the grounds raised in his original application, which were as follows:

    1.The Tribunal Member was sympathetic yet refused my application which is under medical treatment visa because according to her opinion I do not intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal's opinion is wrong because my intention is to stay and comply with the requested visa and the Tribunal failed to understand the length of time I need for medical treatment.

    2.My circumstances are beyond my control and the Tribunal failed to grant me the visa which I believe I am entitled to.

38. The first ground in the original application raises similar issues to grounds 1 and 2 of the amended application. For the reasons given in relation to those grounds, it is unable to succeed. The Tribunal’s decision did not turn on any finding that the applicant did not intend to stay in Australia temporarily for the purposes of the visa. It was open to the Tribunal to consider, based upon the evidence set out above, that “arrangements for treatment” had not “been concluded” (including the proposed period of medical treatment).

39. The second ground of the original application disagrees with the outcome of the Tribunal’s review. As I have said above, it is understandable that the applicant has been disappointed by that outcome. However, this Court does not have any power to amend the outcome on the basis of the applicant’s disagreement with it. The powers of this Court are limited to assessing whether the Tribunal’s decision was legally open to it, based upon the materials that were before it. I have not identified any basis for concluding that the Tribunal’s decision was affected by any material, legally recognisable error. It follows that the application before this Court is unable to succeed.

    CONCLUSION

40. For the above reasons, the application must be dismissed.

41. I will hear from the parties in relation to costs. 

42          I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 20 January 2023