DWW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 35
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 35
File number(s): SYG 2011 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 1 February 2022 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a Medical Treatment visa – Tribunal finding that the applicant failed to meet genuine temporary entrant criterion – grounds of judicial review alleging discriminatory effect of the law by reason of his age, asserting “compelling circumstances” and a failure of the Tribunal to consider the situation in Lebanon – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 48, 65, 361, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Court Rules 2011 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567
Yu v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 1 February 2022 The Applicant appeared in person Solicitor for the Respondents: Ms A Wong of Mills Oakley ORDERS
SYG 2011 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWW21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 25 October 2021 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $6,800.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above 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 GIVEN:
By an application to show cause filed with this Court on 25 October 2021 the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 September 2021 which affirmed a decision of the delegate of the Minister (delegate) refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical Treatment visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a male citizen of Lebanon who arrived in Australia on 12 August 2011 as the holder of a Prospective Marriage visa. The applicant subsequently applied for a Partner visa, which was refused, and he unsuccessfully sought merits review of that decision. The applicant also applied for a Protection visa on 30 November 2012, which was refused, and he again unsuccessfully sought merits review and Ministerial Intervention (Court Book (CB) 30).
On 24 September 2015, the applicant applied for a Medical Treatment visa for the first time. That application was refused on 30 September 2015. The applicant unsuccessfully sought merits review and then sought judicial review in the Federal Circuit Court (CB 31).
On 5 June 2017, the applicant applied for a Medical Treatment visa for the second time. On 15 June 2017, his application was determined to be invalid due to non-payment of the application fee (CB 31).
On 23 June 2017, the applicant applied for a Medical Treatment visa for the third time. That application was refused on 29 June 2017. He then unsuccessfully sought merits review and judicial review in the Federal Circuit Court and appealed to the Federal Court of Australia. The appeal was dismissed by the Federal Court on 23 May 2019 (CB 31).
On 24 June 2019, the applicant made a fourth application for a Medical Treatment visa (CB 1-14) (the visa currently under review). In the online application form, the applicant indicated that he sought the visa for the purpose of “regular doctor appointments for monitoring and check ups” and “regular continuous counselling appointments” for the period 25 June 2019 to 25 June 2021.
In support of his application, the applicant also provided a Form 1507 completed by Dr [JR] which indicated the applicant had the following medical conditions: intertrigo (a skin inflammation), reactive depression, testicular pain and dry eyes. Dr JR indicated the applicant would be treated with antibiotics, cream, eye drops and counselling (CB 12). The applicant attached an invoice of $65 for “Level B surgery” from Dr JR dated 11 June 2019 (CB 14).
On 16 July 2019, the delegate refused to grant the visa on the basis that the applicant did not meet cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
In the decision record, the delegate set out the applicant’s immigration history (see bullet points from CB 30 to 31) and found it strongly indicated that the applicant intended to continue to seek a visa pathway to remain in Australia on a permanent basis. The delegate found the applicant was attempting to utilise the Medical Treatment visa as a means of maintaining ongoing residence, and that he did not genuinely intend to remain in Australia on a temporary basis (CB 29-32).
On 31 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision record and notification letter (CB 33-42).
On 26 August 2021, the Tribunal invited the applicant to a hearing (using the Microsoft Teams platform) (CB 58-66). On 24 September 2021, the applicant appeared at a hearing before the Tribunal (CB 75-77). The Tribunal also received oral evidence from the applicant’s brother-in-law, which the Tribunal recorded was “consistent” with the evidence given by the applicant (CB 84, [22]). The applicant gave the following evidence at the hearing:
(a)in answer to the Tribunal’s question about what medical treatment he had received between 25 June 2019 and 25 June 2021, he responded that he had not received any medical treatment and had not been given a chance to receive medical treatment (CB 83 at [19]);
(b)the applicant was not entitled to Medicare benefits and could not afford to pay for medical treatment himself. The applicant lived with his sister, brother-in-law and their four children. They could not afford to pay for his medical treatment (CB 83 at [19]);
(c)when asked what type of treatment he wanted to receive, the applicant responded he was “physically unwell” and could not get married anymore as he could not be “a full husband physically” (CB 83 at [21]); and
(d)he had no funds to return to Lebanon and “nothing to go back for”. He initially came to Australia to marry his cousin, but she had a relationship with another man, ended their relationship and ended her sponsorship for his visa application (CB 83 at [20]).
On the same day, the Tribunal affirmed the decision under review on the same basis as the delegate (CB 74-84).
Tribunal decision
At the time that the applicant applied for the visa it had only one subclass, subclass 602, the criteria for which are set out in Part 602 of Schedule 2 to the Regulations. Clause 602.212(6) and 602.215 provide:
602.212
…
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.
In reaching its decision the Tribunal set out the relevant legislation and identified the issue before it as being whether the applicant satisfied the requirements of cl 602.215.
In that regard because cl 602.212, if satisfied, had the effect of rendering cl 602.215 inapplicable, the Tribunal turned to those requirements first. The Tribunal found that the applicant was in Australia at the time that the visa application had been made, had remained in Australia since and therefore he met subclause 602.212(6)(a).
The undisputed evidence before the Tribunal is that the applicant was born in 1986, was 35 years old at the time of the Tribunal’s decision and therefore did not meet subclause 602.212(6)(b), which required that he had turned 50 years of age.
In relation to subclause 602.212(6)(c) which required that the applicant had applied for a permanent visa, all of the criteria he otherwise met, but for the health criteria. The Tribunal had regard to the delegate’s decision which, as noted above, set out the applicant’s considerable migration history. In particular, the Tribunal observed that the applicant had lodged an application for a Partner Combined visa in 2011 which was not successful given the partner withdrew her sponsorship. The applicant subsequently sought a protection visa in 2012 which was also refused, and the Tribunal noted that the applicant had not provided any material in relation to why that protection visa was refused.
The Tribunal was not satisfied that the applicant met the requirements of subclause 602.212(6)(c) in the absence of evidence to demonstrate that he had successful met all but the health criteria affect these or any other permanent visas. Similarly, the applicant had advanced no material to demonstrate that he was medically unfit to depart Australia and he told the Tribunal that he had not been assessed by a medical officer of the Commonwealth. Accordingly, the Tribunal was not satisfied that the applicant fulfilled the requirements of cl 602.212(6)(d).
Having only satisfied one of the requirements of subclause 602.212(6) by being onshore (and the applicant being required to satisfy all four criteria) the Tribunal found that he did not meet cl 602.212 and accordingly cl 602.215 applied. The Tribunal therefore turned itself to an assessment of whether the applicant genuinely intended to stay temporarily in Australia.
In doing so, the Tribunal had regard to the applicant’s visa history as recounted in the delegate’s decision which the applicant had placed before the Tribunal for the purposes of the review. The Tribunal noted that the applicant had been unlawful for 107 days during his time in Australia and it was therefore not satisfied that the applicant was a person who had complied substantially with the conditions to which his last substantive or bridging visa had been subject.
The Tribunal observed that the visa the subject of the present view was the applicant’s fourth medical treatment visa. At hearing, the Tribunal sought to explore the basis for the visa application. The applicant was asked why he had not returned to Lebanon and his answers pertained to the general socio-economic conditions in Lebanon, albeit he did mention a lack of healthcare.
In relation to his reasons for seeking the visa, the applicant told the Tribunal that he wished to “restore his condition to what it was when he came to Australia” (CB 83 [21]).
The medical treatments the applicant said he wished to receive for his claimed conditions were reasonably vague. In his visa application he said that he wished to have regular doctor appointments or monitoring, and check-ups and regular continuous counselling. When asked by the Tribunal what medical treatments he had received in the period 25 June 2019 to 25 June 2021 the applicant replied none. The applicant stated that he was not entitled to Medicare, he could not afford treatments and nor could the relatives with whom he lives. The Tribunal asked the applicant from whom he would seek medical treatment, and he stated that he wished to have the visa for at least a year so that he could obtain Medicare benefits and permission to work in Australia. The applicant made a similar submission before me this morning.
The Tribunal was asked by the applicant to take evidence from his brother-in-law in his Response to Hearing Invitation, and the Tribunal exercised its discretion under s 361(3) of the Act and acceded to that request. The Tribunal considered the evidence given to it by the applicant’s brother-in-law at hearing, which it noted was consistent with the applicant’s own evidence. The Tribunal concluded from the applicant’s migration history and his evidence to it that he had “no intention of returning to Lebanon” but rather that he wished to live in Australia permanently and have access to the same benefits as a permanent resident in Australia.
The Tribunal concluded that the applicant had used various medical visa applications (given that they are not subject to the s 48 bar under the Act) as a way of maintaining his ongoing residence in Australia. The Tribunal was not satisfied that the applicant genuinely intended to temporarily stay in Australia and, therefore, found that he did not meet the requirements of cl 602.215 of Schedule 2 to the Regulations.
APPLICATION TO THIS COURT
The applicant seeks review of the Tribunal’s decision under s 476 of the Act and raises the following three grounds:
1.Firstly I am a victim of the law because I am under 50 years of age.
2.The Tribunal recognised the situation in Lebanon and failed to act on it and allow me to remain here.
3.I accept my immigration history but my circumstances are compelling and Lebanon is not safe for me to return to as per social media and Smartraveller recognised by Australia.
The applicant appeared before me today via the Microsoft Teams platform (due to ongoing COVID-19 restrictions) and with the assistance of an Arabic interpreter. When the hearing was connected, I could see and hear the applicant. The connection was clear except for freezing on several occasions, albeit there was no audio lost and on the one time that it dropped out at the applicant’s end, I adjourned the Court temporarily to enable the applicant to reconnect, which he did.
Each of the grounds of review was read to the applicant so that they could be interpreted to him and the applicant was given an opportunity to make submissions in respect of all three grounds.
Ground 1
Ground 1 of the application for review alleges some sort of discrimination against the applicant by reason of the fact that he did not meet the requirements of cl 602.212(6)(b) of Schedule 2 to the Regulations.
The fact that a criterion is prescribed and the applicant objectively can not meet it does not, in and of itself, give rise to a jurisdictional error. It is not in dispute before me that the applicant is not 50 years old yet. Accordingly, the fact that the applicant is unhappy with the criterion does not give rise to any error on the part of the Tribunal, which correctly found that he did not satisfy it.
When asked to make submissions about this ground, the applicant made various general statements despite my attempts to focus him on the subject matter of his own ground. The applicant said that no one has treated him or looked after him, and that the Tribunal asked him whether he had received treatment and he had said no. The applicant asked, rhetorically, “How is it my fault in Lebanon there is no treatment or medication?”, and said he cannot work and does not have any money.
The applicant additionally said that he wishes to go back to Lebanon, but only once “they give me treatment”. The applicant told me that in Lebanon he does not have anything at all. In reality these statements go only to the merits of the applicant’s visa application and, even then, not very relevantly to those.
At its highest, this ground could be seen to be taking issue with the visa criterion itself. It is accepted that delegated legislation can be declared to be invalid on the ground of unreasonableness if it leads to capricious or unjust results: see Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567 at [43] per Jacobson J.
Unreasonableness in the context to such a challenge requires that the delegated legislation be so oppressive or capricious that no reasonable mind could justify it: see Yu v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126 at [42] per Kiefel J (as her Honour then was). There is no basis advanced by the applicant as to why cl 602.212(6)(b) is so oppressive or capricious such that no reasonable mind could justify it.
In the context of the particular visa sought, it does not appear that the clause applies in a way that would have capricious or unjust results. That is particularly so in circumstances where the purpose of the clause is to establish criteria for a person who is medically unfit to depart Australia such that they are exempted from, or taken already to satisfy, the requirements for cl 602.215.
In the event that someone does not satisfy that definition, then they must, in turn, satisfy the decision-maker that they do genuinely intend to stay in Australia only temporarily. Given that medical unfitness to depart could include a broader array of subjective reasons pertaining to that unfitness, it is not unreasonable in the context of such a visa to include a criterion which pertains to age. That the applicant did not meet that bar (by some considerable margin) does not make the requirement inherently unreasonable.
Further, the applicant also failed to meet two of the remaining three requirements of cl 602.212(6). Accordingly, his failure to satisfy cl 602.212(6)(b) by reason of his age would still have meant that he failed to meet the requirements for being medically unfit to travel, such that the genuine temporary-stay requirements would still have needed to be met. In my view, there is no jurisdictional error as alleged by ground 1 and it must fail.
Grounds 2 and 3
In respect of grounds 2 and 3 it is convenient to group these grounds together as they have a common theme and underlying premise. By ground 2 the applicant alleges that the Tribunal recognised the situation in Lebanon but failed to act on it and allow him to remain in Australia. By ground 3 the applicant says that while he takes responsibility for his immigration history, he asserts that his circumstances are compelling and that Lebanon is not safe for him.
The ground also made a reference to social media which was not entirely clear to me, and so I asked the applicant what he meant by this. The applicant said that from what he could see, (I infer on social media), “there is nothing at all and it is a disaster there”. The applicant went on to say that his brother is a soldier in Lebanon and even so his wages are not even enough to pay for transport.
In relation to ground 2, when asked what he wished to say in respect of this ground, the applicant said “I do not know. Nothing”. It appeared to me from the general nature of the applicant’s submissions throughout today’s hearing that whatever situation he was referring to by ground 2, it was related to the socio-economic factors that he raised with the Tribunal at hearing.
In submissions in reply today, the applicant said that the solicitor for the Minister was saying that he wished to stay here in Australia and that if this was so, then:
Well, they can give me money. I have been here for 11 years and wasted my life here, and they haven’t done anything for me.
Socio-economic factors were largely immaterial to the matters which the Tribunal had to address. While it is true that one of the aspects raised by the applicant at the Tribunal hearing was access to healthcare, even if this is one of the factors to which the applicant is referring, while broadly intersecting with the concept of medical treatment it is not specifically relevant to the visa criteria.
The Medical Treatment visa is not satisfied simply because healthcare or medical treatment is preferable or better in Australia than in an applicant’s home country. The criteria for the visa are specific. The Tribunal found that the applicant did not satisfy them, and for this reason it affirmed the delegate’s decision.
The Tribunal did not have a discretion on humanitarian or compassionate grounds (such as the lack of healthcare in Lebanon), nor did it have a general discretion to grant the visa because it found itself confronted with compelling circumstances. To the extent that by grounds 2 or 3 the applicant suggests the contrary, this misconstrues the role of the Tribunal and the nature of the visa and does not give rise to a jurisdictional error.
To the extent that the applicant says that the Tribunal failed to act on his circumstances, but simultaneously he said that he takes responsibility for or accepts his immigration history, I agree with the submission of the first respondent that based on that history and the applicant’s own evidence to the Tribunal, it was open to find that the applicant had no intention of returning to Lebanon and he wanted to live in Australia permanently.
The first respondent says that the applicant’s contentions in grounds 2 and 3 are self-defeating and only go to demonstrate that the Tribunal’s finding was plainly open. There is significant merit to this proposition and, in my view, neither grounds 2 nor 3 demonstrate a jurisdictional error on the part of the Tribunal.
For the foregoing reasons I am satisfied that there is no jurisdictional error in the Tribunal’s decision, and the application should be dismissed and I so order.
In doing so, I explained to the applicant both prior to commencing my reasons and again at the conclusion of the hearing that I would make an order which prevented time running for any appeal from my judgment and orders, until such time as the applicant has received the published reasons for judgment.
In consequence of the dismissal of the application, the Minister seeks an order that the applicant pay the Minister’s costs, fixed in the sum of $6,800. The applicant made submissions to me to the effect that he is already paying $100 instalments in relation to another debt, and that he cannot meet the costs order. As I noted to the applicant, he is able to discuss a further payment arrangement in relation to any order that I make today. I am satisfied that, in this case, costs should follow the event, and I am also satisfied that the amount sought is reasonable.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 February 2022
1