Dhakal v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 661
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhakal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 661
File number(s): SYG 1371 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 9 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 476
Migration Regulations 1994 (Cth) Sch 2 cl 602.215
Cases cited: AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715
Craig v South Australia (1995) 184 CLR 163
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 1 May 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant via Webex Solicitor for the Respondents: Mr M. Gao of HWL Ebsworth ORDERS
SYG 1371 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAMRATA DHAKAL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,600.
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 CLEARY
INTRODUCTION
This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 August 2022. The Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant the applicants a Subclass 602 Medical Treatment (Visitor) (Class UB) visa (medical treatment visa) under s 65 of the Act.
FACTUAL BACKGROUND
On 16 February 2019, the applicant, a citizen of Nepal, first arrived in Australia on a visitor visa. During her stay, she applied for a student visa, which was refused. The applicant later sought merits review, which was unsuccessful.
On 13 April 2021, the applicant applied for a medical treatment visa on the basis that she suffers from depression, anxiety and stress. The proposed treatment would last from 13 April 2021 to 20 April 2022.
On 13 April 2021, the same day, the delegate of the first respondent (delegate) invited the applicant to comment on adverse information, noting that pursuant to cl 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), she must ‘genuinely intend to stay temporarily in Australia’. The delegate noted their concerns that her previous migration history did not meet this criterion.
On 30 April 2021, the applicant responded, asserting that she was entitled to seek treatment in Australia and that her mental illnesses were genuine.
On 4 May 2021, the delegate refused to grant the applicant a medical treatment visa.
On 19 May 2021, the applicant lodged an application to the Tribunal for review of the delegate’s decision.
On 3 August 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Namuna Dhakal, who is the applicant's sister.
On 5 August 2022, the applicant provided the Tribunal with a “generic letter from North Lyneham Professional Centre on how she could join the Centre”.
On 9 August 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant a medical treatment visa.
TRIBUNAL’S DECISION
The Tribunal set out the relevant background, applicable law, the applicant’s claims, evidence and relevant country information. The Tribunal noted that the primary issue before it is whether the applicant met the genuine temporary entrant criterion under cl 602.215.
While it was accepted by the Tribunal that the applicant had mental health struggles and potentially a lack of resources to receive intensive and ongoing psychological treatment in Australia, there was little evidence provided by the applicant of engaging in treatment of any kind prior to the Tribunal hearing. The Tribunal noted that it only received a letter from North Lyneham Professional Centre two days after the hearing, which was broad in nature. This raised the Tribunal’s scepticism that the applicant genuinely intended to stay in Australia temporarily to seek medical treatment.
The Tribunal noted that the applicant had breached the terms of her Visitor visa, which indicated to the Tribunal that she never had a genuine intention to stay temporarily in Australia given she then went on to apply for a student visa and did not depart Australia. Adverse weight was given to the fact that both the delegate and a differently constituted Tribunal had previously determined that the applicant was not a genuine temporary entrant when denying her student visa application. The Tribunal also found that the applicant might engage in unauthorised work and would likely disregard any no further stay conditions based on her past migration history which indicates she wished to remain in Australia for the longer-term.
The Tribunal further noted both that the applicant had two sisters residing in Australia and that she claimed an intention to obtain a qualification before returning to Nepal. However, the Tribunal found that the applicant’s personal circumstances would not encourage her to return to Nepal at the end of her proposed stay.
Under these circumstances, the Tribunal rejected the applicant’s claims as it was not satisfied that the applicant was genuine in her claim to temporarily stay in Australia. The Tribunal concluded the applicant did not meet the requirements for a medical treatment visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 11 September 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 9 August 2022. The application contains two grounds of review. They are as follows:
1.Cl 602.215 doesn’t apply
2.Genuinely wants treatment in Australia
On 25 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
On 2 April 2025, the proceedings were docketed to me, and set down for hearing before me on 1 May 2025.
Hearing on 1 May 2025
At the hearing on 1 May 2025 before this Court the applicant was unrepresented. She appeared by audio visual link (AVL). Mr Max Gao of HWL Ebsworth Lawyers appeared on behalf of the first respondent, in Court.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the Court Book and the first respondent’s outline of submissions. She told the Court she had access to those documents on her phone.
At the commencement of the hearing, I explained to the parties that the Court’s role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed the Court Book, and the applicant’s affidavit in support of her application to be admitted as evidence.
The Court then invited the parties to make final oral submissions. I asked the applicant to tell the Court why she considered that Tribunal’s decision to be wrong. The applicant made brief oral submissions, essentially challenging some of the factual findings of the Tribunal and disputing the Tribunal’s finding that she was not a genuine temporary entrant. Mr Gao made brief oral submissions in reply both to the applicant’s oral submissions, and on each of the two grounds of review.
CONSIDERATION
The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [7].
In undertaking its role in judicial review applications, it is not the role of the Court to review the merits or factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
Ground 1
Ground 1 of the application is vague but appears to contend that cl 602.215 of Schedule 2 did not apply to the applicant’s case in the Tribunal.
The applicant’s argument is misconceived. As the first respondent correctly submits, cl 602.215 is one of the primary criteria that applicants must satisfy in order for the grant of a Subclass 602 medical treatment visa: cl 602.2. Pursuant to cl 602.215(2), cl 602.215(1) would not have applied if the applicant met the criteria in cl 602.212(6).
However, cl 602.215(1) applied to the applicant because the applicant did not meet the criteria in cl 602.212(6), as the applicant was born on 14 November 1997 and had not yet turned 50 years old: cl 602.212(6)(b).
Ultimately, the Tribunal was not satisfied the applicant met the requirements in cl 602.215(1), and the Tribunal affirmed the delegate’s decision to refuse to grant her a medical treatment visa.
Ground 1 does not identify any material jurisdictional error.
Ground 2
Ground 2 is a vague and unparticularised. The applicant did not articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], per Gilmour J, and in this Court, AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715 at [26].
The Court also accepts the first respondent’s submission that this ground, which on its face appears only to cavil with the finding made by the Tribunal that the applicant did not meet the genuine temporary entrant criterion, is merely an attempt to invite the Court to undertake impermissible merits review: Wu Shang Liang at 272.
Ground 2 does not identify any material jurisdictional error and must be rejected.
At the hearing on 1 May 2025, the applicant made some short oral submissions in support of her application. She said that she wanted to stay here on a temporary basis so that she could continue to get proper mental health treatment, and she disagreed with the Tribunal’s decision. She also told the Court she was currently undergoing mental health treatment. The Court agrees with the first respondent’s submissions that nothing the applicant submitted orally on 1 May 2025 properly identifies an arguable jurisdictional error. The Court agrees with the first respondent that the applicant is in essence seeking merits review of the Tribunal decision, which was impermissible on judicial review applications to this Court under s 476 of the Act.
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by a jurisdictional error, and no other jurisdictional error is apparent on the Court’s review of the Tribunal decision.
The application is dismissed.
COSTS
The first respondent sought an order that the applicant pay the first respondent’s costs in the amount of $5,600. I am satisfied that this amount is fair and reasonable given the nature of these types of matters. I will make an order for costs in the amount sought.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 9 May 2025
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