Chhantyal v Minister for Home Affairs

[2019] FCCA 1054

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHANTYAL & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1054

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application by first applicant for a Medical Treatment (Visitor) (Subclass 602) visa – second applicant improperly and unnecessarily joined as a party – second applicant removed pursuant to r.9.08 of Federal Court Rules 2011 (Cth) – first applicant asserts jurisdictional error by Administrative Appeals Tribunal in affirming Delegate’s decision not to grant to her a Medical Treatment (Visitor) (Subclass 602) visa – no jurisdictional error identified by the first applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth)
Migration Regulations 1994 (Cth)

Applicant: BISHNU CHHANTYAL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2671 of 2018

Judgment of: Judge Dowdy

Hearing date: 15 March 2019

Delivered at: Sydney

Delivered on: 15 March 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Ms A. Zinn

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. That the Second Applicant cease to be a party to this proceeding under r.9.08 of the Federal Court Rules 2011 (Cth) as being a party who has been improperly and unnecessarily joined as a party.

2. The Application filed in this Court on 20 September 2018 is dismissed.

3. The First Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the First Applicant have up to and including 8 May 2019 to file any Notice of Appeal from orders 2 and 3 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2671 of 2018

BISHNU CHHANTYAL

First Applicant

DEEPAK CHHANTYAL

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The First Applicant is a female citizen of Nepal aged 25 years, having been born on 2 May 1993. 

2. By Application filed in this Court on 20 September 2018, she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 August 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 August 2017 refusing to grant to her a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa).

Background

1. The First Applicant arrived in Australia on 17 May 2012 as the holder of a Temporary Graduate (Class VC) (Subclass 485) visa as the dependant partner of the Second Applicant, who I note was not an applicant for the Medical visa, nor a proper applicant for merits review to the Tribunal and who is not a proper party to this proceeding. Accordingly he will be subject to an order that he cease to be a party to this proceeding as having been improperly and unnecessarily joined as a party pursuant to r.9.08 of the Federal Court Rules 2011 (Cth).

2. The First Applicant arrived in Australia during 2012 and she has not departed since that time. On 8 November 2012, the Second Applicant lodged an onshore application for a Student (Class TU) Subclass 572 visa (Student visa) in which the First Applicant was included as a dependant.  However, on 18 December 2012, that visa application was refused and on 28 January 2013 the Bridging visa associated with the application for the Student visa ceased.

3. The First Applicant and her partner then remained in Australia unlawfully.  On 29 April 2013, the First Applicant and her partner lodged an onshore Protection (Class XA) (Subclass 866) visa (Protection visa) application with the First Applicant being the principal applicant.  On 20 December 2013 the Protection visa application was refused and on 24 June 2014 the then Refugee Review Tribunal affirmed the decision of the Delegate not to grant the Protection visa.

4. The Applicants then sought judicial review in this Court, being the Federal Circuit Court and the judicial review application was dismissed on 7 December 2015 by Judge Nicholls.  On 9 May 2016 the Applicants’ appeal to the Federal Court of Australia from the decision of the Federal Circuit Court was dismissed. Both Applicants remained unlawfully in Australia until 14 July 2017 when the First Applicant was granted a Bridging visa in relation to her application for the Medical visa.

5. In answer to question 17 of the First Applicant’s Medical visa application form lodged on 12 July 2017, where she was asked to describe the medical treatment in Australia which she had arranged and the estimated cost and the relevant time period, she answered that the period under which she would be subject to medical care would be for the year from 15 July 2017 to 15 July 2018 and that she would provide the details of the medical treatment in Australia that she had arranged once she had been able to consult with a medical professional in relation to her medical treatment.

6. In answer to question 21 of the Medical visa application form in relation to work details, she stated that she sought the right to work.  On the associated Form 1507 for the First Applicant, which was signed and provided by a general practitioner, being Dr Bing Liu, it was said as follows:

   Details of treatment

   4. Medical condition requiring treatment

   Depression, stress related

   5. Treatment information

   Referred to psychologist 

7. It was a requirement for the grant of the Medical visa that the First Applicant satisfy the primary criterion in Subclass 602.  Sub-clause 602.211 of the Migration Regulations 1994 (Cth) (Regulations) sets out the scope and purpose of the Medical visa, being that the applicant seeks to visit Australia or remain in Australia temporarily for the purposes of medical treatment or for related purposes.

8. Further, the First Applicant had to satisfy the criteria comprised in cl.602.215 that she genuinely intended to stay temporarily in Australia for the medical treatment.

9. I note with respect to cl.602.215(2) of the Regulations that the First Applicant, obviously, could not satisfy cl.602.212(6) in that she had not turned 50 years of age and she did not claim that she had a written statement from a Medical Officer of the Commonwealth to the effect that she was medically unfit to depart Australia: see cl.602.12(6)(b) and (f).

Decision of Delegate

1. The Delegate in her Decision Record found that the First Applicant did not satisfy cl.602.215 of the Regulations. She found that the Form 1507 to which I have referred did not give any specifics about the treatment for which the First Applicant claimed she needed to remain in Australia until July 2018, and that at the time of the Delegate’s decision no further medical details or documentation had been received. The Delegate further noted that the First Applicant had not provided evidence that she had attended therapy or check-ups.

2. Further, the First Applicant had not provided sufficient evidence of any intention or incentive to depart Australia and the Delegate noted that she had been residing long term in Australia, at times unlawfully, for lengthy periods.  The Delegate further noted that the First Applicant and her partner had made repeated attempts onshore to gain permanent or long-term residence. 

3. In the result, the Delegate expressed the view that she was satisfied that the First Applicant was attempting to obtain a Medical visa to maintain ongoing residence in Australia and to continue working in Australia and to access services in Australia, and that she did not meet the requirements of cl.602.215 of the Regulations and she refused to grant the Medical visa to the First Applicant.

4. I note at this point that the First Applicant’s migration history as recited by the Delegate erroneously referred to an appeal to the Full Court of the Federal Court of Australia: see [18] below.

Tribunal Decision

1. On 22 August 2017, the First Applicant sought merits review of the Delegate’s decision and appeared before the Tribunal on 15 August 2018 to give evidence and present arguments with the Second Applicant in support. 

2. In its Decision Record, the Tribunal found at [10], [11] and [12] as follows:

   [10]The applicant has not provided the Department or the Tribunal with any evidence in relation to what medical treatment she sought or is seeking or the estimated cost of the treatment or her capacity to pay for the treatment or why she required a visa for one year.

   [11]At hearing the Tribunal asked the applicant what details she has about the medical treatment.  She responded that she does not have the details because [she] did not go to see a doctor. She stated that she gathered information but because of her financial situation she was unable to actually seek treatment.  She stated that she became depressed when she had a still-born birth.  She could not recollect when she was pregnant or when she lost the baby.

   [12]The Tribunal asked her whether there was any prospect of her financial position changing so that she could undertake treatment.  She responded in the negative.  The applicant gave oral evidence that neither she nor her husband work.  She stated that they live with her cousin and they obtain money to support themselves from friends and relatives.

3. The Tribunal at [15] of its Decision Record recorded that it asked the First Applicant if her migration history as outlined in the Decision Record of the Delegate was accurate, and she agreed that it was.  I ought to note that, because it seemed odd to me that there had been an appeal from a Judge of the Federal Court of Australia to the Full Court of the Federal Court of Australia as recited in the Decision Record of the Delegate, I checked the Court’s internal records which disclosed that the appeal from the decision of Judge Nicholls was to Logan J, and there was no appeal to the Full Court of the Federal Court.  

4. At [16] of its Decision Record, the Tribunal recorded that it had concerns about whether the First Applicant’s intentions were genuine and found that the First Applicant did not have the financial capacity to fund any medical treatment in Australia and it was not satisfied that she genuinely intended to stay temporarily in Australia for the purposes for which the Medical visa was to be granted.

5. Accordingly, the Tribunal found that the Applicant did not meet cl.602.215 of the Regulations and affirmed the Delegate’s decision not to grant the Medical visa to the First Applicant.

Grounds of Attack on Tribunal Decision in this Court.  

1. The Grounds in the Application are as follows:

   1. I do not agree with the Tribunal Member’s decision on the ground of procedural fairness.

   2. I believe that the Tribunal member’s decision has [been] affected by an error of law in my case.

2. These Grounds are generalised and unparticularised and are thus, in effect, meaningless in terms of an assertion of jurisdictional error.  The First Applicant has not filed any written submissions in support of her Grounds, although having agreed on 12 October 2018 to a consent order that she could do so.

3. Further, at the hearing in this Court today she has not made any meaningful submissions at all and has not amplified the procedural fairness or error of law of which complaint is made in the two Grounds. 

Ground 1

1. The Tribunal, in my view, complied with its statutory procedural fairness obligations by despatching to the First Applicant a valid invitation to attend a hearing, which she did. In my view the Decision Record of the Tribunal evidences that the requirements and criteria for the Medical visa were discussed with the First Applicant at the hearing and that the Tribunal gave meaningful consideration to her claims for the Medical visa.

2. The Tribunal offered the First Applicant the opportunity to give evidence and present arguments on the issues arising under the review and she had given a copy of the Decision Record of the Delegate to the Tribunal and was thus aware of the reasoning of the Delegate, which was similar to the reasoning of the Tribunal, and of which fair notice appears to have been given by the Tribunal at the hearing before it.

3. In my view, Ground 1 fails to establish that the Tribunal’s consideration of the merits review application was in any way affected by procedural unfairness.

Ground 2

1. This Ground complains that the Tribunal committed an error of law but such error of law is not identified.  For myself, I cannot discern any jurisdictional error by way of an error of law.  The decision of the Tribunal appears to me to be legally reasonable and not lacking an intelligible justification or otherwise affected by legal illogicality, capriciousness or irrationality.

Adjournment Application

1. At the hearing the First Applicant in reply sought an adjournment of two to three months so that she could “explain everything in detail”.  The Minister opposed the adjournment. I did not consider it to be in the interests of justice for there to be any adjournment.  The Application had been commenced in this Court on 20 September 2018. 

2. Procedural orders were made on the first court date, being 12 October 2018 by consent to get the matter ready for hearing and the matter was stood over for final hearing today. The First Applicant has had ample time to get ready for the hearing and it is important that any matter, including migration matters, be heard at the earliest possible opportunity, like any other case.

3. If I were to adjourn this matter for two or three months, as I am booked out to nearly mid-2020, I would probably have had to vacate the hearing of another case so that this matter might be heard and I do not regard that as reasonable.  Accordingly I refused the application for adjournment.

Conclusion

1. In my view, the First Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 17 April 2019