COS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 857
Federal Circuit and Family Court of Australia
(DIVISION 2)
COS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 857
File number(s): SYG 613 of 2022 Judgment of: JUDGE LAING Date of judgment: 13 October 2022 Catchwords: MIGRATION – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal exceeded or constructively failed to exercise jurisdiction – whether the Tribunal ignored evidence in the form of a doctor’s letter – whether the Tribunal relevantly erred in conducting the hearing by telephone – application dismissed. Legislation: Migration Act 1958 (Cth) ss 357A, 359A, 360
Migration Regulations 1994 (Cth) cls 602.212(6), 602.215
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 13 October 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent Ms M. Harradine (Mills Oakley) appeared in person ORDERS
SYG 613 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COS22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
13 October 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’, dispensing with the need for the filing of any further document in that regard.
2.The application be dismissed.
3.The applicant pay the first respondent’s costs, fixed in the amount of $6,100.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 not be entered until the date of the 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 LAING
INTRODUCTION
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 (Visitor) (Class UB) visa (medical visa).
BACKGROUND
The applicant is a citizen of Malaysia.
On 15 June 2020, the applicant applied for the medical visa. The Delegate refused the visa application on 22 July 2020. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily or that he was unfit to depart Australia. Accordingly, the Delegate found that the requirements in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 7 August 2020, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal by telephone on 11 March 2022, assisted by an interpreter.
On 28 March 2022, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion in issue before the Tribunal was cl 602.215 of Schedule 2 of the Regulations, which provided:
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 subclause 602.212(6) are met in relation to the applicant.
The Tribunal was also required to consider cl 602.212(6) of Schedule 2 to the Regulations, which provided:
602.212
…
Unfit to depart
(6) All 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.
TRIBUNAL’S DECISION
The Tribunal identified that the issue before it was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted (at [15]).
The Tribunal observed that it was also required to consider whether the applicant satisfied the criteria in cl 602.212(6) of the Regulations including whether he was relevantly unfit to depart Australia (at [16]-[17]).
At [12], the Tribunal set out the applicant’s migration and visa history, including that:
(a)the applicant arrived in Australia on 28 July 2010 holding a visitor visa.
(b)on 9 November 2010, the applicant was granted a student visa that ceased on 12 December 2012.
(c)the applicant remained in Australia without a visa until 4 April 2014, when he applied for a protection visa. That application was refused on 3 December 2014. The applicant sought review of that decision up to the High Court, with the process finalising on 14 March 2018. The applicant also unsuccessfully sought Ministerial Intervention.
(d)on 11 May 2018, the applicant applied for another medical treatment visa, which was refused. His application for review was unsuccessful.
(e)on 15 May 2020, the applicant applied for the medical visa that is the subject of the current proceedings.
The Tribunal observed that at the hearing before it, the applicant had given evidence that he left Malaysia due to problems with loans and debts. The applicant told the Tribunal that lenders had come after his two sons who remain in Malaysia and that they are afraid (at [10]). The Tribunal heard that the applicant now lives with his daughter and son-in-law, who support him financially (at [11]). The applicant stated that he would return to Malaysia when everything was safe for him, but not now as he was afraid that he would be killed (at [14]).
The Tribunal found that the applicant did not meet the criteria in cl 602.212(6) of the Regulations (at [17]-[22]). This was because:
(a) the applicant did not appear to have met the criteria for the protection visa other than the health criteria; and
(b)there was also no evidence suggesting that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.
In assessing whether the applicant had a genuine intention to stay temporarily in Australia for the purpose of medical treatment, the Tribunal considered the following:
(a)while there was no evidence to suggest that the applicant had not complied with the conditions of his last substantive visa (the student visa) or subsequent bridging visas, the applicant had spent time in Australia without a visa (at [24]).
(b)the Tribunal accepted that the applicant would comply with condition 8201 of the medical visa by not undertaking any further studies. However, it considered that the applicant may seek waiver of condition 8503 (which limited entitlement to further substantive visas). In coming to this view, the Tribunal considered the applicant’s migration history and observed that he had a ‘strong motivation’ to remain in Australia (at [26]).
(c)when the Tribunal explained to the applicant the purpose of a medical treatment visa and the requirement that the applicant must have a genuine intention to stay temporarily in Australia for the purpose of the visa, the applicant responded that he “did not know”. When asked why he had applied for the medical visa, the applicant responded that he could not stay in Australia if he did not see the doctor and have a visa (at [27]).
(d)when asked about his medical conditions, the applicant responded that he could not sleep and sometimes gets swollen limbs from walking. The Tribunal noted this differed to some extent from the medical conditions relied upon by the applicant in his Form 1507, which were insomnia and depression. At the time of the hearing, the Tribunal had not been provided further medical evidence in support of the Form 1507. The applicant stated that he had not made an appointment to see a specialist, but that he had been advised to call and he may get an appointment in the next two or three months (at [28]-[29]).
(e)the applicant did not have a plan in place for his medical treatment and could not say how long he would remain in Australia. The applicant stated that he would need to speak to his doctor and the specialist (at [30]).
(f)based on the country information before it, Malaysia had an established healthcare system and it appeared that the applicant could access the required medical care in Malaysia (at [31]).
(g)after the hearing, the applicant provided the Tribunal a letter from his General Practitioner (GP) (at [34]). The letter stated that the applicant had been receiving treatment for around two and a half years for stress, anxiety and depression, from which the applicant continued to suffer despite treatment and counselling [7]. The Tribunal observed that the letter was brief and did not provide “specific particulars” of treatment, nor the proposed length of treatment. It also did not refer to other medical issues suffered by the applicant (at [36]).
The Tribunal did not accept that the applicant had a genuine intention to stay temporarily in Australia for the purpose of medical treatment (at [35]). The Tribunal considered that the applicant’s evidence at hearing indicated an intention to remain in Australia indefinitely and that he had strong incentives to do so. Whilst the applicant had complied with past visa conditions (although he had spent time in Australia without a visa) and there was no evidence suggesting that he would not comply with the conditions of the medical visa, these factors did not outweigh the Tribunal’s concerns regarding whether the applicant had a genuine intention to stay temporarily in Australia for the purpose of medical treatment (at [37]-[39]).
The Tribunal found at [40] that the applicant did not have a genuine intention to remain in Australia temporarily for the purpose for which the medical visa would be granted. It concluded that cl 602.215 of Schedule 2 to the Regulations was not met and that the applicant did not meet the requirements for the medical visa (at [41]-[42]).
Accordingly, the Tribunal affirmed the Delegate’s decision (at [43]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings by an application filed on 27 April 2022, relying upon the following grounds:
1. The Tribunal had no Jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived according with provision of the Migration Act.
2. The Tribunal exceeded its Jurisdictional or constructively failed to exercise its Jurisdiction or denied procedural fairness in that the Tribunal ignored doctor’s letter.
The grounds contained limited particularisation. Ground 1 did not state how the Tribunal’s ‘reasonable satisfaction’ was not arrived at in accordance with the Migration Act 1958 (Cth) nor how the Tribunal was otherwise contended to have lacked jurisdiction. Ground 2 did not suggest how the Tribunal could be said to have exceeded or failed to exercise its jurisdiction, or denied the applicant procedural fairness, other than by reference to the applicant’s contention that it had ignored the doctor’s letter.
As set out earlier, the Tribunal considered the letter that was provided by the applicant’s General Practitioner. This was at [7], [34] and [36] of its decision. At [7], the Tribunal summarised the effect of the letter which was that the clinic had “been seeing the applicant for around two and a half years for stress, anxiety and depression, which the applicant continue[d] to suffer from despite treatment and counselling”. The Tribunal again referred to the letter at [34]. At [36], the Tribunal identified the limitations that it had found with this evidence, namely that the letter was “brief and does not provide specific particulars of the treatment being provided to the applicant for his mental health issues or the length of treatment proposed”. The Tribunal also observed that the letter did not refer to other health issues (such as a problem with limbs that had been claimed by the applicant).
From this, it is apparent that the Tribunal actively engaged with the doctor’s letter but did not find that it outweighed the other concerns that it had identified in its decision. I therefore do not accept that the Tribunal ignored the doctor’s letter.
From my own review of the materials, it is not apparent how the Tribunal could be said to have denied the applicant procedural fairness or otherwise made a decision that was beyond jurisdiction. The Tribunal’s procedural fairness obligations were limited by s 357A of the Act. The applicant was invited to and attended a hearing pursuant to s 360 of the Act, at which he appears to have been given the opportunity to give evidence and present arguments relating to the issues that arose upon the review. I have identified no information capable of enlivening s 359A of the Act, nor any other basis in the materials for contending that the applicant was denied procedural fairness.
At the hearing of this matter, the applicant suggested that he had further evidence that he could provide regarding his treatment by a specialist. That evidence was not before the Tribunal. As I explained during the hearing, it was not apparent how such evidence could assist the Court in determining whether the Tribunal’s decision was affected by any material, legally recognisable error. The question for the Court is whether the Tribunal’s decision was relevantly open to it, based upon the material that was before it. It is not apparent how the proposed evidence could assist the Court in determining that question.
The applicant also submitted that the hearing before the Tribunal was conducted by telephone. He asked to be given a further hearing before the Tribunal in person to allow him to provide all of the documents that he wished for the Tribunal to consider. However, it appears from the evidence that the applicant requested that the hearing before the Tribunal be conducted by telephone. This was after he was invited to a hearing by video conferencing. It appears that the applicant at least consented to this occurring. The applicant explained that this was due to the situation with the COVID-19 pandemic. He also suggested that he did not feel like he had a choice. However, there is nothing in the evidence before me to suggest that any impediment or objection to proceeding by telephone was raised by the applicant to the Tribunal. There is also nothing to suggest that the applicant was denied a meaningful ability to give evidence and present arguments before the Tribunal. I am therefore not persuaded that any relevant error can be demonstrated on this basis.
CONCLUSION
For these reasons, I am unable to find that the Tribunal’s decision is affected by jurisdictional error. It is therefore necessary to dismiss the application.
The Minister sought costs fixed in the amount of $6,100. I am satisfied that this amount is appropriate, having regard to the work performed in this matter. I also note that the amount is below the Court’s scale.
26 I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 13 October 2022
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