DET22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 774
Federal Circuit and Family Court of Australia
(DIVISION 2)
DET22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 774
File number: MLG 1725 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 16 September 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant Medical Treatment (Visitor) (Class UB) visa – whether Tribunal failed to make findings in relation to cl 602.212(2)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider purpose for which visa would be granted – whether Tribunal erred by taking into account an irrelevant consideration – whether Tribunal failed to take into account evidence provided by applicant – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) cll 602.2, 602.211, 602.212, 602.215
Cases cited: Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137
El Mir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1093
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 29 July 2022 Place: Perth Counsel for the Applicant: Ms K Chan Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1725 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DET22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
Introduction
By application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 14 May 2018 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
The applicant raises three grounds of application alleging that the Tribunal failed to perform its review function by not identifying the purpose for which the medical treatment visa would be granted, by taking into account an irrelevant consideration and by failing to take into account corroborative documentary evidence.
For the reasons explained below, I have found that these grounds are not established and the application for judicial review is dismissed.
Background
The applicant is a non-citizen who arrived in Australia in August 2013 as a dependent on her husband’s subclass 457 visa. This visa was cancelled in March 2015.
The applicant applied for the medical treatment visa on 1 September 2017.
On 7 September 2017 a delegate of the Minister refused to grant the applicant the medical treatment visa. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted, as required by cl 602.215 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 22 September 2017 the applicant lodged an application to the Tribunal for review of the delegate’s decision.
The Tribunal convened hearings on 22 February 2018 and 16 April 2018. Both the applicant and her husband gave oral evidence to the Tribunal.
On 14 May 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a medical treatment visa.
Tribunal decision
The Tribunal identified that the issue for its consideration was whether the applicant genuinely intended to stay in Australia temporarily for the purpose of which the visa is granted, or whether that requirement does not apply because the applicant is medically unfit to depart.
The Tribunal identified that when determining whether the applicant genuinely intended to stay temporarily for the purpose for which the visa is granted, the Tribunal must have regard to whether the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the medical treatment visa would be subject and any other relevant matter.
The Tribunal found that there was no evidence before it that the applicant had not complied with the conditions of the last substantive visa that she held, nor was there evidence that she had not complied with the terms of her bridging visa. The Tribunal considered the applicant’s evidence that she did not advise the Department of her and husband’s changed circumstances when her husband lost his job because she did not know the terms or conditions of that visa. The Tribunal considered that this indicated that the applicant may be less likely to know and therefore comply with conditions to which the medical treatment visa may be subject.
The Tribunal considered that the applicant’s migration history was a relevant matter. The Tribunal was satisfied that the applicant arrived in Australia as the holder of a subclass 457 visa, attached to her husband’s visa, and this visa was cancelled on 27 March 2015 because of her husband’s employment being terminated. The Tribunal found that the applicant remained in Australia unlawfully until 1 September 2017, but noted that there was no evidence before it that the applicant was notified of the decision to cancel her visa. The Tribunal was satisfied that the applicant knew her husband’s employment contract was terminated in December 2013 and that this would have an effect on their visas and that noted that neither the applicant nor her husband contacted the Department to notify it of their changed circumstances after the husband’s employment contract was terminated.
The Tribunal also had regard to the applicant’s financial circumstances. The Tribunal accepted that the applicant and her family receive financial assistance from their church and friends or members of the church. However, the Tribunal did not accept that the financial support provided by the church covered all of the family’s financial commitments and needs, and was not satisfied that there was a definitive commitment to cover all of the financial obligations and commitments of the applicant and her family. The Tribunal did not find it plausible that the applicant and her husband would commit to private school fees for their children, private health cover and the costs of running a vehicle in addition to the standard needs for a family of four when they rely on charity for all their expenses and have no income at all, and did not accept that the applicant or her husband had no income other than charity since December 2013.
The Tribunal considered medical evidence from the applicant’s general practitioner, which recorded that she had four medical conditions for which she was prescribed medication and referred to a counsellor and dietitian. The Tribunal noted that tests and procedures had been considered but there was no evidence that the tests or procedures had been undertaken. The Tribunal also accepted that the applicant had an operation in November 2015. The Tribunal acknowledged the applicant’s oral evidence that she had an appointment with her specialist shortly after the hearing, but noted that there was no medical report to confirm the appointment or the possibility of further surgery. The Tribunal also acknowledged the evidence that the applicant had been consulting a psychologist and considered two medical reports provided by the psychologist. The Tribunal found that the report lacked definition of the medical treatment proposed as the purpose for which the visa is granted.
The Tribunal acknowledged that the requirement of cl 602.215 did not apply if the applicant met the criteria in cl 602.212(6) and was medically unfit to depart Australia. The Tribunal found there was no evidence of a report from a Medical Officer of the Commonwealth that the applicant was medically unfit to depart, and acknowledged that the applicant through her representative indicated that she did not meet the criteria to be medically unfit to depart. The Tribunal was therefore not satisfied that the applicant met the requirements of cl 602.212(6).
The Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted and therefore did not meet the requirements of cl 602.215.
Proceedings before this Court
The application for judicial review was filed 18 June 2018 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises the following three grounds of review:
1.The Tribunal erred by failing to perform its review according to law by not making findings in relation to whether and how [the applicant] satisfied cl 602.212(2)(a) – “the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia” and was thereby disabled from lawfully considering whether [the applicant] genuinely intended to stay temporarily in Australia for the purpose of the visa grant.
2.The Tribunal erred by taking into account an irrelevant consideration, being that [the applicant] did not inform the Department that her husband had lost his job in circumstances where there was no requirement for her to have done so.
3.The Tribunal failed to take into account important documentary evidence of her scheduled appointment with her medical specialist.
The evidence before the Court comprised the court book and an affidavit of Gabrielle Campbell affirmed on 29 June 2022 which annexes transcripts of the two Tribunal hearings.
Relevant legislation
The following clauses in Schedule 2 to the Regulations are relevant to the grounds of application:
602.211
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
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
…
Unfit to depart
(6) All of 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.
…
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.
Ground 1
Ground 1 as pleaded asserts that the Tribunal erred by not making findings in relation to whether and how the applicant satisfied cl 602.212(2)(a) in Schedule 2 to the Regulations, which imposes a requirement for the grant of the medical treatment visa that ‘the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia’. Ground 1 as argued by the applicant was much broader and essentially amounted to an argument that the Tribunal failed to identify the purpose for which the visa was sought. Regrettably, no amended application was filed to reflect the way in which the ground was advanced in submissions. The Minister has not taken issue with the argued ground being broader than the pleaded ground, so I will consider the broader ground. The applicant has not abandoned the ground as pleaded, so the Court will consider that too.
I first address the ground as pleaded, which appears to be based on El Mir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1093 (El Mir), although that case was only cited in the applicant’s submissions in relation to materiality. The error found in El Mir was identified at [13]-[15], where the Court said (footnotes omitted):
13.The Tribunal correctly stated at [7] that the issue to resolve in this case was whether Mr El Mir genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. On my reading, the Tribunal only explored the application of clause 602.212 in order to determine whether that question could be avoided through the operation of clause 602.212(6).
14.In my view, the Tribunal took the wrong approach. It was wrong for two reasons. The first is that it was obvious that Mr El Mir could not satisfy clause 602.212(6) because he had not attained the age of 50 years. The subclause was hence irrelevant to his circumstances.
15.Secondly, the criterion that was most relevant to Mr El Mir’s circumstances was clause 602.212(2). That was not considered by the Tribunal, apparently on the basis that it was not suggested that Mr El Mir satisfied it. On the facts that he presented, however, in my view it was the only criterion in clause 602.212 that Mr El Mir could have satisfied. In that regard, I accept that he could have faced difficulties because of the lack of clarity in relation arrangements to carry out the treatment for which he was in Australia and arrangements for the payment of all costs related to the treatment.
The Minister relied on Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137 (Adhikari) to support the proposition, amongst others, that there was no requirement to consider cl 602.212 first or separately. The Minister otherwise acknowledged that the Tribunal did not make findings as to whether cl 602.212 was met (save for cl 602.212(6)) but submitted that even if this was an error it was not material because the Tribunal was plainly aware of and considered the purpose for which the medical treatment visa was sought.
In Adhikari the Court said at [22]-[24]:
22.Ground 5 arises from, on the one hand, the Tribunal accepting that the applicant is suffering from depression, and is receiving ongoing treatment for that depression, but, on the other hand, the Tribunal finding that medical evidence on which the applicant relied did not set out a plan for the course of treatment to be provided, or any clear indication of when the treatment will be concluded. That implies that the Tribunal was of the view that cl [602.215] of Schedule 2 cannot be satisfied unless an applicant establishes he or she is suffering from some identifiable medical condition that is amenable to being medically treated to achieve a particular outcome, and there is period of time that is capable of being estimated during which such treatment will be undertaken. Does this disclose any error by the Tribunal?
23 In my opinion it does not. Clause 602.215 of Schedule 2 requires two things. The first is that an applicant must have a genuine intention to stay temporarily in Australia. The second is that an applicant’s intention to stay temporarily in Australia must be for a particular purpose, namely the purpose for which the Medical visa is granted. Where, as the Tribunal found in the applicant’s case, there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intends to stay temporarily in Australia. Stated another way, if the evidence reveals an applicant will undertake medical treatment indefinitely, and the applicant’s intention is to stay in Australia to receive such treatment, it is impossible to find that the applicant has a genuine intention to stay temporarily in Australia. An applicant’s intention would be to stay in Australia indefinitely, which is not what cl 602.215 requires.
24.For these reasons, even though the Tribunal accepted the applicant’s evidence about his medical condition, and the medical treatment he was receiving, it was open to the Tribunal not to accept the applicant intends to stay temporarily in Australia for the purpose for which he applied for the Medical visa….
I do not consider that the Tribunal’s failure in the present matter to make any finding about whether the applicant met the criteria in cl 602.212(2) amounted to an error. There are a number of primary criteria that an applicant must meet in order to be granted a medical treatment visa: see cl 602.2 in Schedule 2 to the Regulations. These criteria include, but are not limited to, cll 602.212 and 602.215. If an applicant does not satisfy cl 602.215(1) then the applicant is not eligible for the grant of a medical treatment visa unless they meet the requirement in cl 602.212(6): cl 602.215(2) in Schedule 2 to the Regulations. This is the case irrespective of whether the applicant can meet the criteria in cl 602.212 or any other primary criteria.
In the context of the present matter, the Tribunal affirmed the delegate’s decision based on its finding that the applicant did not meet the requirements of cl 602.215. This necessarily required the Tribunal to consider whether the applicant met cl 602.212(6) because of the exception to the requirement to meet cl 602.215(1) set out in cl 602.215(2). The Tribunal made no finding and did not consider whether the applicant met the criteria in cl 602.212 more generally. Had it found that the applicant did not meet the criteria in cl 602.212 without considering subcl 602.212(2), that would have been an error because cl 602.212 requires an applicant to satisfy only one of seven alternative criteria and cl 602.212(2) would seemingly be the most relevant in the present matter. However, that is not how the Tribunal determined this matter.
I do not consider that the judgment in El Mir establishes any general principle that in every case a Tribunal is required to consider all of the potentially relevant subclauses within cl 602.212 before considering whether an applicant meets cl 602.215. There may well be cases where this is appropriate or necessary, but the present matter is not such a case.
Even if I am wrong in this conclusion, and there is a requirement to consider cl 602.212 before considering cl 602.215, I would not find that the error is material.
The applicant relied on El Mir in relation to materiality, noting that in that case, the Court found that the Tribunal’s error was material because, had it considered the application of cl 602.212(2), it would have been better informed for the purposes of its consideration of cl 602.215, and might have come to a different conclusion under cl 602.215: see El Mir at [18]. The applicant also referred to her evidence that she wanted medical treatment to get better and, in oral submissions, suggested that the Tribunal might have better explored the further treatment that the applicant might require had it first considered cl 602.212. I do not accept that the Tribunal could have been better informed in its consideration of cl 602.215 if it had considered cl 602.212 first in the present matter because, as discussed below, the Tribunal considered the medical evidence provided by the applicant in relation to each of her conditions in its consideration of cl 602.215. There is no realistic possibility that the Tribunal might have reached a different outcome if it had considered cl 602.212 before considering cl 602.215.
As noted above, the applicant’s submissions were broader than her pleaded ground and asserted more generally that the Tribunal needed to make a finding as to the purpose for which the visa would be granted. In her written submissions, the applicant submitted that, in identifying that the issue for its determination was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal recognised that it needed to identify and consider the purpose for which the visa was sought. The applicant submitted that that concept is carried over from cll 602.211 and 602.212(2)(a) in Schedule 2 to the Regulations. The applicant submitted that the Tribunal did not then consider or make any findings about the purpose for which the visa would be granted. The failure of the Tribunal to make a finding about the purpose of which the visa would be granted meant that the Tribunal did not perform its function of review according to law and, it was submitted, such an error could be characterised as a failure to correctly apply the law. In oral submissions, counsel for the applicant submitted that the Tribunal simply summarised the evidence without making any real findings or evaluating the evidence in relation to the applicant’s physical conditions. Counsel for the applicant submitted that the Tribunal’s finding at [40] that the report lacks definition of the medical treatment proposed relates only to the psychologist’s report and does not extend to the applicant’s physical conditions. The applicant also submitted that the Tribunal’s finding was unclear.
The Minister submitted that the Tribunal decision, when read as a whole, clearly indicates that the Tribunal was cognisant of the purpose for which the applicant sought the medical treatment visa, namely that she had a number of medical issues and was seeking treatment of varying degrees for each of them. The Minister further submitted that the Tribunal has to respond to the case and the material that it is given to it.
I accept the Minister’s submissions in this regard. It is plainly evident from the Tribunal decision as a whole that the Tribunal was aware that the visa could only be granted for the purpose of medical treatment. The Tribunal considered each of the medical conditions referred to in the application for the medical treatment visa and in the medical evidence that was provided to the Tribunal. I note that:
(a)The applicant in her application for the medical treatment visa indicated that she was seeking treatment for ‘severe left sciatica, abdominal pain, anxiety, depression and hypothyroidism’. These were the same conditions referred to in the Form 1507 completed by her medical practitioner and dated 21 September 2017 that accompanied her visa application.
(b)The Tribunal referred to a report from the applicant’s general practitioner dated 2 February 2018, which recorded that the applicant suffered from sciatica, secondary hypothyroidism, abdominal pain (collectively, physical conditions) and anxiety and depression (collectively, psychological conditions). These are the same medical conditions referred to in the applicant’s medical treatment visa application.
(c)The Tribunal considered the evidence of the applicant’s treatment or proposed treatment in relation to each of these conditions. The Tribunal noted at [36] of its reasons that the applicant had been prescribed Thyroxine, and was referred to a counsellor and dietician. The Tribunal also noted that some further abdominal tests or procedures were considered but there was no evidence that they were undertaken. In this regard, although not explicitly stated in the Tribunal reasons, the Tribunal’s comments that there was no evidence that the further tests and procedures had been undertaken should be viewed in the context of the Tribunal decision being made on 14 May 2018, and the documentary evidence in relation to further tests and procedures being dated months earlier. The evidence before the Tribunal in relation to the applicant’s abdominal pain included a referral to another practitioner for opinion and management dated 20 December 2017 and an imaging request for a CT scan dated 16 January 2018, and the Tribunal also had before it referrals for testing in relation to the applicant’s thyroid condition, including a request for an ultrasound dated 13 November 2017 and a pathology referral dated 2 March 2018.
(d)The Tribunal also noted the applicant’s oral evidence given at the hearing about an upcoming appointment with her specialist who would assess her blood test results and consider whether any further operation may be recommended, but noted the lack of documentary evidence about the appointment and the possibility of further surgery.
(e)The Tribunal considered the applicant’s proposed treatment for her psychological conditions in more detail, presumably because the applicant provided more evidence in relation to her psychological conditions. The Tribunal considered the evidence of the applicant’s psychologist in three paragraphs of its decision and acknowledged the difficulty of creating a management plan in a crisis situation, but ultimately found that the psychologist’s report ‘lacks definition of the medical treatment proposed as the purpose for which the treatment is sought’.
(f)The Tribunal in its conclusion referred again to the applicant’s medical treatment and said at [47]:
I accept the applicant sees a psychologist monthly since last November, and has had seven appointments with the psychologist who advises she will see the applicant for an uncertain and undefined period described as ongoing crisis intervention in the future. I am satisfied that the applicant sees a medical practitioner and takes ongoing prescribed medication for the thyroid condition. … In the circumstances, after considering the applicant’s health, migration history, general credibility, and the lack of definition of the treatment for which the visa is sought, I am not satisfied that the applicant intends to stay temporarily in Australia for the purpose the visa is granted.
The Tribunal has effectively considered all evidence relied on by the applicant in relation to her medical conditions and proposed treatment. In so doing, the Tribunal has considered all of the conditions for which the applicant had suggested she was seeking treatment and understood that the purpose for which the applicant sought the visa was for medical treatment. I consider that the finding of the lack of definition of the treatment for which the visa is sought made at [47] of the Tribunal’s reasons relates to all of the applicant’s conditions and not just her psychological conditions.
There is no error in the Tribunal not identifying with specificity the future treatment proposed and the time during which that treatment would be required in relation to the applicant’s physical conditions, because there was no such evidence before the Tribunal. The only evidence of specific proposed treatment before the Tribunal was a series of imaging and pathology requests and referrals to specialists, ranging in date from two to six months prior to the Tribunal’s decision, and evidence of an appointment which was to take place with the applicant’s endocrinologist after the Tribunal hearing but over three weeks prior to its decision. There was no specific evidence from a medical professional about the proposed next steps in the treatment of the applicant’s physical conditions, and no evidence in relation to any proposed treatment scheduled to take place after the date of the Tribunal decision.
There may well be other matters where the Tribunal is required to identify the purpose for which the visa would be granted with much greater specificity than the Tribunal did in the present matter. In the present matter, the sufficiency of the Tribunal’s identification of purpose has to be viewed in the context of the lack of specificity in the evidence advanced by the applicant.
Ground 1 is not established.
Ground 2
By ground 2 the applicant asserts that the Tribunal erred by taking into account her failure to inform the Department that her husband lost his job. This was said to be an irrelevant consideration as there was no requirement for the applicant to inform the Department that her husband had lost his job. The applicant asserted that the Tribunal’s consideration of this issue influenced the Tribunal in reaching a negative view of the applicant’s general credit and migration history.
The Tribunal referred to the applicant’s failure to inform the Department that her husband lost his job in the following paragraphs of its reasons:
·At [14], where the Tribunal said, ‘I have considered the applicant’s explanation for not advising the Department of her husband and her changed circumstances, (the loss of her husband’s employment contract), was that she did not know the terms or conditions of the visas. The evidence of the applicant that she did not know the conditions of the previous Visa, indicates she may be less likely to know and therefore comply with conditions to which the Subclass 602 may be subject’.
·At [19] where the Tribunal said, ‘I am satisfied based on the evidence of the applicant, that neither the applicant nor her husband contacted the Department after her husband’s employment contract was cancelled to notify the Department of their changed circumstances’.
·At [23] where the Tribunal said, ‘I am satisfied that the applicant was aware that the cancellation of her husband’s employment contract in December 2013 would have an effect upon their visas. I have considered the applicant’s evidence that she was aware her husband’s had lost his employment contract, and that she had not notified the Department of her husband’s loss of the employment contract’.
Whether the Tribunal’s consideration of the applicant’s failure to advise the Department of her husband’s loss of employment gives rise to jurisdictional error will, in the context of this ground, turn on whether there is an express or implied limitation in the legislation which prohibits the Tribunal from taking it into account. As Mason J (as his Honour then was) said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 at [15(b)] (emphasis added):
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard…
As can be seen from the extracts of the legislation above, the range of matters to which the Tribunal may have regard in deciding whether an applicant meets cl 602.215(1) is broad and includes whether they have complied substantially with the conditions of past substantive and bridging visas, whether they intend to comply with the conditions of the medical treatment visa and any other relevant matter.
It can be clearly seen from the Tribunal’s reasons at [14] that the Tribunal considered the reason offered by the applicant for not advising the Department of the loss of her husband’s employment, namely that she did not know the terms or conditions of the visa, was relevant to its assessment of whether she intended to comply with the conditions that would attach to the medical treatment visa. Essentially, the Tribunal considered that the applicant’s lack of knowledge of the conditions on past visas meant that she was less likely to know, and therefore comply with, the conditions of the medical treatment visa. In this way, the information was relevant to the Tribunal’s assessment of the consideration to which it was required to have regard under cl 602.215(1)(b).
The Tribunal also considered that the applicant did not tell the Department of her husband’s loss of employment when considering the applicant’s migration history, which it took into account as another matter that it considered to be relevant for the purposes of cl 602.215(1)(c). Clause 602.215(1)(c) is broad in its terms, allowing the Tribunal to take into account ‘any other relevant matter’.
There is nothing in the terms of cl 602.215 that, expressly or by implication, restricts the Tribunal from having regard to the fact that the applicant did not advise the Department of her husband’s loss of employment.
The applicant submitted that the information was irrelevant because there was no obligation on the applicant to inform the Department of her husband’s loss of employment. For completeness, I note that the Tribunal was mindful that the applicant herself was not obliged to advise the Department of this circumstance. The Tribunal expressly acknowledged this at [46] of its reasons, where it said:
I have also considered that there is no evidence that there was non-compliance with the substantive 457 visa by the applicant or her subsequent bridging visa. I accept that there was no requirement as a condition of the visa for the applicant to contact the Department to notify them of her husband’s employment contract being cancelled.
Even if the Tribunal asked questions of the applicant at the hearing on the basis that she had an obligation to advise the Department of her husband’s loss of employment, it clearly understood at the time of its decision that the applicant did not have an obligation to update the Department about this circumstance.
Ground 2 is not established.
Ground 3
Ground 3 directs attention to [37] of the Tribunal’s reasons, where the Tribunal said:
I have considered the oral evidence of the applicant that she has an appointment with her specialist in the near future, who will assess blood test results and a further operation may be recommended. I note there is no medical report to confirm this appointment or the possibility of further surgery.
The applicant asserts that the Tribunal failed to take into account documentary evidence of the applicant’s scheduled appointment with her medical specialist. The applicant has referred the Court to an appointment card, which indicates that the applicant had an appointment on 27 April 2018 at 10.00 am. There is nothing on the face of the appointment card to indicate who the appointment was with, although it has been presented on a scanned page together with a pathology request issued by a doctor with the same last name as a doctor that the applicant referred to at the hearing before the Tribunal as an endocrinologist.
The applicant submitted that in overlooking the medical appointment card, the Tribunal has ignored relevant evidence. The applicant submitted that this error is material because the Tribunal referred at [47] to the lack of definition of the treatment for which the visa is sought as one of the reasons for finding that the applicant did not intend to stay temporarily in Australia for the purpose for which the visa is granted, and it is also relevant to the Tribunal’s assessment of the applicant’s general credibility.
The Minister acknowledged the existence of the appointment card, but submitted that this merely confirmed that the applicant had a scheduled appointment. The Minister submitted that there was no documentary evidence before the Tribunal to indicate whether the appointment went ahead, whether the specialist recommended further surgery, whether there was any indication from the specialist prior to the appointment that surgery was likely, or what, if any, future treatment was required. The Minister submitted that, when having regard to the Tribunal’s finding that there was a ‘lack of definition of the treatment for which the visa is sought’, the Court should infer that the Tribunal did consider the appointment card and made findings that were open to it. Alternatively, the Minister submitted that, if the Court finds that the Tribunal did not consider the appointment card, that failure was not material.
It is difficult to ascertain with certainty whether or not the Tribunal had regard to the appointment card. When one takes into account that the appointment card does not contain a doctor’s name, a surgery name or any information whatsoever to show who the appointment was with, it was not inaccurate for the Tribunal to observe that there was no medical report to confirm that the applicant had an appointment scheduled with her specialist. However, I accept on the balance of probabilities that the Tribunal overlooked the appointment card. Given the comment made at [37] about the lack of report to confirm the medical appointment, it seems more likely than not that the Tribunal would have referred to the appointment card confirming the appointment had it been aware of it.
However, in the circumstances of this case, any failure by the Tribunal to have regard to the appointment card does not amount to jurisdictional error.
An error made by the Tribunal will only be a jurisdictional error if it was material in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [3], [45].
In the present matter, for the following reasons, there is no realistic possibility that the Tribunal could have reached a different conclusion if it had considered the appointment card.
First, the Tribunal had before it oral evidence given by the applicant about the upcoming appointment with a specialist. Indeed, the applicant’s oral evidence on this issue was more detailed than the appointment card. The Tribunal took into account the applicant’s oral evidence and there is nothing in its reasons to suggest that it rejected the applicant’s oral evidence of her appointment with the specialist.
Second, the Tribunal’s concerns relevantly related to the lack of definition and detail in the medical treatment proposed for the applicant. The appointment card contained no detail save for a date and time of an appointment. There is no realistic possibility that the appointment card could have addressed the Tribunal’s concerns about the lack of definition and detail in any proposed treatment and led to a different outcome. Further, and importantly, by the time of the Tribunal decision, the date of the scheduled appointment had passed. The appointment was not a future medical treatment for which the medical treatment visa could have been granted. The applicant submitted that the medical appointment was important to the statutory criteria because that appointment would have informed the scope of the further treatment and the estimated length of the applicant’s stay. However, the appointment card, which is the focus of this ground, did not itself contain any of this information. The applicant did not provide any evidence to the Tribunal about the outcome of the appointment and the proposed next steps in her treatment.
Third, the Tribunal did not rely on its belief that there was no report confirming the appointment to make any adverse credibility assessments against the applicant. The only evidence given by the applicant that was not accepted by the Tribunal related to financial issues, and evidence relating to her upcoming appointment was not relevant to the Tribunal’s consideration of financial issues and was not considered in this regard.
Accordingly, the Tribunal’s failure to have regard to the appointment card was not material and does not give rise to jurisdictional error. Ground 3 is not established.
Conclusion
In circumstances where I have found that the applicant has not established jurisdictional error in the Tribunal decision, the application to this Court must be dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 September 2022
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