CMC16 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1246

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CMC16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1246

File number: MLG 1643 of 2023
Judgment of: JUDGE CHAMPION
Date of judgment: 7 August 2025
Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the Tribunal was satisfied that the Applicant met some but not all of the criteria for the grant of a visa – Where the Applicant had made arrangements for medical treatment in Australia and met criteria for the grant of a visa under cl. 602.212(2) of Schedule 2 to the Migration Regulations 1994 – Where the Tribunal found that the Applicant did not genuinely intend to stay temporarily in Australia and did not meet the criteria under cl. 602.215 for the grant of a visa – Whether the Tribunal failed to consider the Applicant’s compelling circumstances – Whether the Tribunal’s conclusion was legally unreasonable – Held no jurisdictional error – Application dismissed
Legislation:

Migration Act 1958 (Cth) ss. 65, 91X

Migration Regulations 1994 (Cth) Sch. 2 cll. 602.211, 602.212, 602.215
Cases cited:

CMC16 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCASL 132

CMD16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1247

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCFCA 11

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M1/2021 v. Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law
Number of paragraphs: 60
Date of last submission/s: 1 July 2025
Date of hearing: 1 July 2025
Place: Melbourne
Applicant: In person
Solicitor for the First Respondent: Ms Petrovski of Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 1643 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CMC16

First Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

7 AUGUST 2025

THE COUT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.

2.The Applicant’s application, filed on 21 September 2023, is dismissed.  

3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

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 CHAMPION:

INTRODUCTION

  1. The Applicant, whose name has been anonymized as a protection visa applicant under s. 91X of the

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Details
AGLC
CMC16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1246
Case
[2025] FedCFamC2G 1246
Decision Date

CaseChat Overview and Summary

The matter of CMC16 v Minister for Immigration and Multicultural Affairs involved a judicial review application brought by the Applicant, who had been denied a medical treatment visa by the Tribunal. The Applicant, a citizen of India, sought to remain in Australia for the treatment of her severe mental health issues, including depression and anxiety, which she claimed had been exacerbated by a traumatic event in her home country. The Applicant's husband, who was also a party to the proceedings, supported her financially and intended to provide continuous care and support during her stay. The Applicant had made arrangements for psychological treatment in Australia and provided extensive documentation to support her application. The Tribunal had found that while the Applicant met some criteria for the grant of a visa, she did not genuinely intend to stay temporarily in Australia, and therefore did not meet the criteria under clause 602.215 of the Migration Regulations. The Applicant argued that the Tribunal failed to consider her compelling circumstances and that its conclusion was legally unreasonable.

The central legal issues in the case were whether the Tribunal had erred in failing to consider the Applicant's compelling circumstances and whether the Tribunal's conclusion that she did not genuinely intend to stay in Australia temporarily was legally unreasonable. The Applicant argued that the Tribunal did not adequately weigh her compelling personal circumstances, including the trauma she experienced and the impact it had on her mental health, and that her migration history did not necessarily indicate an intention to remain in Australia permanently. The Applicant also contended that the Tribunal's conclusion was unreasonable given the evidence of her deteriorating mental health and the support she received from her husband.

In dismissing the application, the court found that the Tribunal had appropriately considered the Applicant's compelling circumstances, including the evidence of her mental health issues and the impact of the traumatic events in her home country. The court held that the Tribunal was entitled to weigh the Applicant's migration history in reaching its conclusion that she did not genuinely intend to stay temporarily in Australia. The court further found that the Tribunal's conclusion was not legally unreasonable given the evidence of the Applicant's inconsistent statements and the fact that she had remained in Australia beyond the period specified in her initial application for a medical treatment visa. The court held that the Tribunal had properly exercised its discretion in reaching its conclusion.

The final orders of the court were that the application for judicial review be dismissed with costs. The court found no jurisdictional error in the Tribunal's decision and upheld the Tribunal's conclusion that the Applicant did not genuinely intend to stay temporarily in Australia for the purpose of medical treatment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

My reasons as to dismissing the wife’s application for judicial review follow.The Tribunal’s decision It is convenient to set out some background as to the Tribunal’s consideration of issues in connection with the Applicant’s depression and anxiety and the arrangements she had made for treatment of it in Australia.Clause 602.212(2) – treatment for anxiety and depression In its decision the Tribunal noted at [6]:According to the visa application form:•The applicant is seeking to remain for medical treatment for mental illness to be provided by [psychologist, name omitted]. The applicant states that she is suffering from severe mental health issues including depression and anxiety.•The applicant is supported financially by her husband who will finance her stay [she provided her husband's banking documents showing one account with a closing balance of over $50,000 on 1 September 2022, and an access account with which he undertakes transactions including making payments to the applicant]. She requires his assistance in the form of continuous caring and support.•She seeks to remain in Australia from 15 September 2022 to 31 March 2023. The Tribunal noted the nature and content of a letter from the Applicant’s treating psychologist as follows (TD, [8]):A typed letter from the psychologist dated 1 September 2022 stated that the applicant had begun psychological treatment sessions for treatment of generalised anxiety disorder and major depressive disorder. It is stated that the applicant reported that she had come to Australia from India in 2007. She had left India after an attack on her family and an attempted kidnapping. Her brother had come to Australia soon after this. She completed studies and had been working until recently. She reported that in 2021 her brother had been through anxiety and depression and she had provided care and support to him, which had had a significant impact on her, she became overwhelmed with anxiety and is unable to participate in daily tasks as she used to. The psychologist accepted that the applicant had experienced trauma in India and had provided support to her brother, on the basis of essentially self-reporting: specifically on the basis of the applicant's reporting of past events, her reporting of her symptoms, as well as the results of her Depression, Anxiety and Stress Scale questionnaire [a self-reporting questionnaire completed on 7 June 2022 where the applicant provided responses to a series of questions including, but not limited to, whether she finds it hard to wind down or experience positive thoughts, whether she worries, whether she felt downhearted and blue, whether she over-reacts and whether she was not enthusiastic about things](footnote omitted) The psychologist opined that it would be detrimental to the applicant to return to India without treatment. It was recommended that the applicant have fortnightly sessions of cognitive behaviour therapy (CBT) to provide her with the tools to relax.

Ratio Decidendi

Legal Principle Established

Further, the Tribunal was entitled to weigh in its consideration the Applicant’s “migration history” in support of a conclusion that she did not intend to stay in Australia temporarily. As of the date of the Tribunal’s decision, the Applicant had been in Australia for 16 years. The Tribunal observed (TD, [50]):The Tribunal referred to its concern that the applicant's migration history indicated an intention to remain in Australia. It noted that her last substantive visa was a Subclass 485 visa which ceased more than 10 years ago, and that she subsequently applied for 2 permanent visas, and she has never returned to India since 2007. The Tribunal put to her that her migration history may indicate that she does not have an intention to return to India. She responded that she will definitely go, she does not want to stay here. The Tribunal asked why she does not want to stay here and she said that she just wants to focus on her medical treatment and she will go back to India. The Tribunal considers that her migration history does indicate an intention to remain indefinitely in Australia.[Footnotes omitted and emphasis added] In addition, the Tribunal expressed three “further concerns” (TD, [51]) about her evidence. First, the Tribunal expressed a concern that the Applicant had outstayed the period set out in her initial application for a medical treatment visa. In her initial application for a medical treatment visa the Applicant said that she wished to remain in Australia for 6 months of treatment until March 2023 but by the date of the Tribunal decision she had remained in Australia until August 2023, four months beyond that 6 month period (TD, [51]). Second, there was an inconsistency between her evidence – “that she is getting worse every day” – and her husband’s evidence that “she is improving and she is getting more positive” (TD, [52]). Third, the Tribunal reasoned that there was an inconsistency between (on the one hand) the Applicant having argued for the purposes of her protection visa application that she needed to stay permanently in Australia and that she had a well-founded fear of serious harm if she returned to India yet (on the other hand) one month later for the purposes of her medical treatment visa application having argued that she intended to return to India in 6 months (TD, [55]). The Tribunal concluded that (TD, [60]):…. The applicant was either prepared to say what she considers to be necessary to obtain a desired visa outcome in the current application, or that the feared claims of harm/death in the protection visa proceedings were not reliable. The Tribunal’s conclusion was set out as follows (TD, [67]):The Tribunal is not satisfied that she is seeking to remain in Australia for the purpose of medical treatment. Instead, her evidence, migration history and her recent pursuit of 2 permanent visa applications, the latter to the High Court, indicates that she does want to stay in Australia permanently. The Tribunal does not accept that, if a condition of no further stay was imposed, she would comply with this. The Tribunal does not accept her claim that she intends to stay in Australia for the purposes of medical treatment and then return to India.