Chhantyal v Minister for Home Affairs
[2019] FCA 1869
•27 November 2019
FEDERAL COURT OF AUSTRALIA
Chhantyal v Minister for Home Affairs [2019] FCA 1869
Appeal from: Chhantyal v Minister for Home Affairs [2019] FCCA 1054 File number: NSD 685 of 2019 Judge: JAGOT J Date of judgment: 27 November 2019 Catchwords: MIGRATION – application for leave to appeal from decision of the Federal Circuit Court of Australia – where applicant seeking to set aside decision of the Administrative Appeals Tribunal to refusal to grant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – no error found – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Date of hearing: 27 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of Mills Oakley Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 685 of 2019 BETWEEN: BISHNU CHHANTYAL
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
27 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal from orders of the Federal Circuit Court of Australia (FCC) made on 15 March 2019 and, in particular, order 2, that the application filed in the FCC on 20 September 2018 be dismissed. In its reasons for judgment, Chhantyal & Anor v Minister for Home Affairs & Anor [2019] FCCA 1054, the FCC recorded that the appellant is a female citizen of Nepal aged 25 years. The appellant sought to quash and have re-determined a decision of the Administrative Appeals Tribunal (the Tribunal) dated 16 August 2018 which affirmed a decision of a delegate of the first respondent refusing to grant to the appellant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa).
The FCC noted at [9] of its reasons for judgment that it was a requirement for the grant of the Medical visa that the appellant satisfy the primary criterion in Subclass 602. In particular, the appellant had to satisfy the criteria comprised in cl 602.211 and 602.215 of Sch 2 to the Migration Regulations 1994 (Cth) that she genuinely intended to stay temporarily in Australia for medical treatment. The FCC said at [11] that the appellant could not otherwise satisfy cl 602.212(6) of Sch 2 (that the appellant was unfit to depart Australia) because one of the requirements of that provision was that the appellant had turned 50, a requirement which was not satisfied in her case.
The FCC then turned to the decision of the Tribunal and summarised the reasons for its decision at [17]-[19]. In particular, the Tribunal had found that the appellant had not provided any evidence in relation to what medical treatment she sought, or the estimated costs of the treatment or her capacity to pay for the treatment, or why she required a visa for one year.
At [19] of the FCC’s reasons for judgment, the primary judge noted that the Tribunal had recorded its concerns about whether the appellant’s intentions were genuine and had found that the appellant did not have the financial capacity to fund any medical treatment in Australia and was not satisfied that she genuinely intended to stay temporarily in Australia for the purposes for which the Medical visa was to be granted. As a result, the Tribunal found that the appellant did not meet cl 602.215 of Sch 2 which is in the following terms:
(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.
At [21] of its reasons for judgment, the FCC identified the two grounds on which the appellant made the application, the first being an allegation of a denial of procedural fairness and the second being a generalised allegation of an error of law.
As to the first ground, the FCC said that the Tribunal had complied with its statutory procedural fairness obligations by inviting the appellant to attend the hearing which the appellant did. According to the FCC, the Tribunal did not deny the appellant procedural fairness as it discussed her application with the appellant at the hearing and gave meaningful consideration to the appellant’s claims: see [24]-[26] of the FCC’s reasons for judgment.
As to the second ground, the FCC said at [27] that it could not discern any jurisdictional error in the Tribunal’s reasons.
The notice of appeal to this Court also has two grounds. Those grounds are as follows:
1. The Federal Circuit Court Judge erred by failing or ignoring to find that the Second Respondent has failed to give me procedural fairness and natural justice based on its arbitrary views and comments towards my medical problems.
2. The Second Respondent fell into jurisdictional error by too readily concluding that I was not entitled to medical treatment visa based on its arbitrary views rather than the facts. I am a victim of the Second Respondent’s purported decision.
As to the first ground of appeal, in common with the primary judge, I am unable to discern any denial of procedural fairness to the appellant in the way in which the Tribunal dealt with her application.
As to the second ground of appeal, I am also unable to see that the Tribunal committed any jurisdictional error in its conclusion that the appellant did not satisfy cl 602.215 of Sch 2 to the Migration Regulations.
In summary, I accept the Minister’s submissions that the grounds of appeal fail to identify any appellable error by the primary judge in dismissing the application for judicial review.
At the hearing today, I invited the appellant to make any oral submissions she wished to make in support of her appeal. The appellant made no substantive submissions. Having reviewed the decision of the Tribunal and the FCC, it is not apparent to me that the appeal can succeed.
For these reasons, I make orders dismissing the appeal with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 10 December 2019
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