DEU22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 773
Federal Circuit and Family Court of Australia
(DIVISION 2)
DEU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 773
File numbers: MLG 1726 of 2018
MLG 1727 of 2018
MLG 1728 of 2018Judgment of: JUDGE LADHAMS Date of judgment: 16 September 2022 Catchwords: MIGRATION – applications for judicial review of decisions of Administrative Appeals Tribunal affirming refusal to grant Medical Treatment (Visitor) (Class UB) visas – where applicants sought visas as support persons for a family member seeking medical treatment – where claims of jurisdictional error are based on Tribunal decision in related matter – no jurisdictional error in related matter or these matters – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 359A, 476
Migration Regulations 1994 (Cth) cll 602.212, 602.215
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 29 July 2022 Place: Perth Counsel for the Applicants: Ms K Chan Solicitor for the Applicants: 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 1726 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEU22
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).
ORDERS
MLG 1727 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEV22, BY HIS LITIGATION GUARDIAN, 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)
ORDERS
MLG 1728 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEW22, BY HIS LITIGATION GUARDIAN, 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
In each of the matters before the Court, the applicant filed an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). In each of the three matters the Tribunal made a decision on 31 May 2018 affirming an earlier decision of a delegate of the Minister not to grant the respective applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
These three matters were heard together with another matter, MLG 1725 of 2018, in relation to which I have published separate reasons for judgment. The applicants in each of the four matters are family members. The applicant in MLG 1725 of 2018 (wife applicant) is the wife of the applicant in MLG 1726 of 2018 (husband applicant). The applicants in MLG 1727 of 2018 and MLG 1728 of 2018 (child applicants) are the children of the wife applicant and the husband applicant.
Background
The applicants applied for the medical treatment visas on 1 September 2017. The wife applicant sought a medical treatment visa for the purpose of seeking treatment for a number of medical conditions. The husband applicant and the child applicants each sought a medical treatment visa to be a support person for the wife applicant.
One of the criteria that the applicants were required to meet to be entitled to a medical treatment visa as a support person is that set out in cl 602.212(4) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides:
Support person
(4) All of the following requirements are met:
(a)the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i) the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b) the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c) the applicant satisfies public interest criterion 4005.
A delegate of the Minister made a decision not to grant the applicants medical treatment visas on 7 September 2017. The delegate found that the wife applicant did not meet the criteria for a medical treatment visa, and therefore found that the husband applicant and child applicants did not meet the criteria in cl 602.212(4).
The applicants each sought review of the delegate’s decision by the Tribunal. The Tribunal heard the four matters together on 22 February 2018 and 16 April 2018.
The Tribunal affirmed the delegate’s decision in relation to the wife applicant on 14 May 2018. On 17 May 2018 the Tribunal sent a notice under s 359A of the Migration Act to the husband applicant and child applicants, by their representative, advising that it had affirmed the delegate’s decision in relation to the wife applicant and found that she did not meet the requirements of cl 602.215, explaining how that decision was relevant to the review in relation to the husband applicant and child applicants, and inviting them to comment. On 24 May 2018, the applicants by their representative submitted that they did not have any relevant comments to make in response to the notice.
The Tribunal made three separate decisions on 31 May 2018 to affirm the delegate’s decisions in relation to the husband applicant and child applicants respectively.
Tribunal decisions in relation to husband applicant and child applicants
The Tribunal’s reasons for decision in relation to the husband applicant and the child applicants are essentially the same. The Tribunal identified that the issue for its consideration in each matter was whether the applicant met the requirements of cl 602.212(4), as a support person for a person seeking to obtain medical treatment.
The Tribunal noted that a the decision had been made on 14 May 2018 affirming the decision of the delegate in relation to the wife applicant on the basis that she did not meet the requirements of cl 602.215. The Tribunal was not satisfied that the wife applicant held a subclass 602 visa on the basis that the requirements in cl 602.212(2) or (3) were met, a subclass 675 visa on the basis that the requirements described in cl 675.212(2) or (3) were met, or a subclass 685 visa on the basis that the requirements in clause 685.212(2) or (3) were met.
The Tribunal was not satisfied that the applicant in each case sought to give emotional or other support to a person who held the type the visa prescribed in cl 602.212(4)(b), and therefore found that the applicant in each matter did not meet the requirements for the grant of the medical treatment visa.
Judicial review proceedings
The husband applicant and child applicants each filed an application for judicial review on 18 June 2018. The single ground in each application is identical, namely:
The decision of the Tribunal on 14 May 2018 was affected by jurisdictional error for one or more of the grounds articulated in [the wife applicant’s] application for judicial review. That jurisdictional error infected the Tribunal’s decision in respect of the applicant.
The parties accept that the outcome of the judicial review application filed by the husband applicant and the child applicants will turn on the outcome of the judicial review application in relation to the wife applicant.
The applicants submitted that the Tribunal could not lawfully have come to a conclusion that they did not meet the requirements of, relevantly, cl 602.212(4)(a)(i) or (b)(i) because it made no findings of whether the wife applicant met the requirements of, relevantly, cl 602.212(2).
I do not accept this submission. The Tribunal decisions in relation to the husband applicant and child applicants were made on the basis that they did not meet cl 602.212(4)(b) and therefore did not meet cl 602.212(4). The Tribunal made no findings in relation to cl 602.212(4)(a). Subclauses 602.212(4)(a), (b) and (c) are cumulative requirements, so a failure to meet any one of these requirements means that the applicant is unable to meet cl 602.212(4). While it is true that the Tribunal did not make any finding in relation to whether the wife applicant met the criteria in cl 602.212(2), there is no error in the Tribunal’s approach to cl 602.212(4)(b)(i) in relation to the husband applicant and child applicants. This is because cl 602.212(4)(b)(i) required that the wife applicant hold a subclass 602 visa on the basis that subclause 602.212(2) or (3) was met. The Tribunal found that the wife applicant did not meet the criteria for a medical treatment visa because she did not meet the requirements of cl 602.215. Therefore, even though the Tribunal did not consider whether the wife applicant met the criteria in, relevantly, cl 602.212(2), because of a separate finding in relation to a different criteria, she did not hold a subclass 602 medical treatment visa. There is therefore no error in the Tribunal’s finding in relation to cl 602.212(4)(b) in relation to the husband applicant and the child applicants.
The applicants alternatively submitted that the Tribunal decision in respect of the wife applicant was affected by jurisdictional error and as a result, the Tribunal decisions in relation to the husband applicant and child applicants are also affected by jurisdictional error.
In separate reasons for judgment, I have found that there is no jurisdictional error in the Tribunal’s decision relating to the wife applicant. It follows that there is no jurisdictional error on this basis in the Tribunal decisions relating to the husband applicant and child applicants.
Conclusion
The husband applicant and child applicants have not established that the respective decisions of the Tribunal relating to them are affected by jurisdictional error. The applications to this Court are therefore dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 September 2022
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