DYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 245
•11 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 245
File number: PEG 231 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 11 November 2021 Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was “irrational” or “illogical” – whether the Tribunal failed to consider medical evidence – whether the Tribunal ignored a relevant consideration – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359C, 360, 363A, 378(1), 476(1)
Migration Regulations 1994 (Cth), Part 602 and cll 600.212, 602.215 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 5 November 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 231 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYY21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
INTRODUCTION
By application filed on 3 May 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 April 2021. That decision affirmed a decision made by a delegate of the first respondent (the “delegate”) refusing to grant the applicant a Medical Treatment (Subclass 602) visa (the “visa”).
This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision.
BACKGROUND
An accurate overview the background to this matter is detailed by the Minister in written submissions before this Court (dated and filed on 20 October 2021). With some additions and minor amendments that background summary provides as follows:
The applicant is a citizen of People’s Republic of China (Court Book (“CB”) 2). He has a lengthy migration history.
The applicant arrived in Australia as the holder of a Student (Subclass 571) visa in January 2006. This visa was the last substantive one held by the applicant. It ceased on 17 August 2008. The applicant has not departed Australia since that date (CB 22).
On 21 January 2010, the applicant applied for a Protection (Subclass 866) visa. This visa was refused by a delegate of the Minister on 3 June 2010. The delegate’s decision was affirmed by the Refugee Review Tribunal on 25 August 2010.
On 6 October 2010, the applicant unsuccessfully applied for Ministerial intervention.
On 3 May 2016, the applicant lodged an application for a Medical Treatment (Subclass 602) visa. That application was refused by a delegate for the Minister on 6 May 2016. That refusal was then affirmed by the then Refugee Review Tribunal (the “RRT”) on 5 December 2016. The applicant subsequently appealed that decision to the Federal Circuit Court but was unsuccessful before the Court.
The applicant then appealed the Federal Circuit Court’s decision to the Federal Court via an extension of time application. That application was ultimately dismissed by the Federal Court on 1 February 2019.
On 30 July 2019, the applicant lodged an application for the medical visa the subject of the proceeding currently before this Court and the subject of this judgment (CB 1-12). In that application the applicant indicated that he wished to remain in Australia until 30 July 2020 to obtain a “specialist assessment” for “[p]ainful [e]yes”. He provided a “Form 1507” in support which confirmed that he was seeking medical treatment in Australia (CB 13).
On 8 August 2019, a delegate of the Minister refused to grant the applicant the visa
(CB 20-23). The delegate was not satisfied that the applicant met the requirements of cl 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate determined that the applicant was attempting to utilise the visa “as a means of maintaining ongoing residence” in Australia and that the applicant did not “genuinely intend to remain in Australia on a temporary basis” (CB 22).
On 27 August 2019, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 24-25. The applicant provided consultation notes and a referral letter from [omitted] (CB 26-28) and emergency medicine summaries from [omitted] (CB 29-30) with his application.
On 26 February 2021, the applicant was invited by the Tribunal to provide “[c]opies of all medical reports, referrals and opinions brought into existence from the date of the Department delegate’s decision (8 August 2019) relating to [his] medical visa application.” The invitation informed the applicant that:
· he was required to provide this information by 12 March 2021;
· he could request an extension of time before then; and,
· if he did not provide the information within the period allowed or as extended, the Tribunal could make a decision on the review without taking any further action to obtain the information and he would lose any entitlement to a hearing (CB 34-36).
The applicant did not respond to the Tribunal’s invitation to provide information by 12 March 2021, or at all.
On that basis, the Tribunal did not invite the applicant to appear at a hearing and proceeded to determine the matter on the basis of the documents and information before it as at time of the decision.
On 8 April 2021, the Tribunal affirmed the decision to refuse to grant the applicant the visa (CB 39-45).
On 9 April 2021, the Tribunal issued a direction under s 378(1) of the Act in relation to the publication of information which might identify the applicant (CB 50).
TRIBUNAL’S DECISION
The Tribunal’s decision is seven pages long and spans 25 paragraphs. Two pages extract in full cl 602.212 of Schedule 2 of the Regulations.
The Tribunal began by setting out the type of visa for which the application for review related (at [1]).
The Tribunal then explained that, at the time of application, Class UB contained only subclass 602 (being for Medical Treatment) and that the criteria for the grant of that visa were set out in Part 602 of Schedule 2 of the Regulations (at [2]).
The Tribunal noted that a delegate had refused the visa on the basis that the applicant had not met what are known as the “genuine temporary entrant” requirements set out in cl 602.215 of Schedule 2 of the Regulations (at [3]).
The Tribunal outlined the background to the delegate’s decision to refuse the application for the visa (including the applicant’s migration and visa history for the period from January 2006 to July 2019), noting that, as at 6 May 2016, “the applicant had accumulated 2118 days as an unlawful non-citizen” (at [4]-[7]).
The Tribunal noted that the applicant had applied for the visa the subject of the review on 30 July 2019 (at [7]) and applied to the Tribunal for review on 27 August 2019 (at [8]).
The Tribunal confirmed that it had written to the applicant inviting him to provide copies of all medical reports, referrals and opinions brought into existence from the date of the Department delegate's decision (8 August 2019) relating to his medical visa application (at [8]):
The Tribunal then noted:
9.The letter advised that the information should be received by 12 March 2021, and if unable to be provided by that date, the applicant may ask for extension of time to provide the information. The letter indicated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. It also specified that the applicant would lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. No response was received. As a consequence, the Tribunal has not invited the applicant to appear at a hearing and has proceeded to determine the matter on the basis of the documents and information before it as at time of decision.
The Tribunal continued:
11.The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether, at time of decision, the applicant meets clause 602.215 in Schedule 2 of the Migration Regulations at time of decision, being whether the applicant genuinely intends to remain in Australia on a temporary basis.
In relation to the applicant’s claimed medical condition, the Tribunal then noted:
12.On 30 July 2019, the applicant lodged the current application for a Medical Treatment visa. It was claimed that the applicant would like to remain in Australia until 30 July 2020 to seek medical treatment for painful eyes. A form 1507 (dated 24 July 2019) was provided in support of the application and a medical practitioner confirmed that the applicant is seeking medical treatment in Australia. The documentation provided in support of the application did not state that the applicant was gravely ill or receiving intensive or critical care and nor did it state that he must remain in Australia for ongoing consultation.
The Tribunal also noted that the applicant had provided no additional material or evidence to the Department in support of his application (at [13]).
The Tribunal then confirmed that the following documentation had been provided to the Tribunal by the applicant in support of the application for review (at [14]):
a.Consultation notes by a Doctor [omitted] of [omitted] confirming she had examined the applicant on [omitted] which resulted in referral to the emergency department at [omitted] for a suspected eye injury;
b.Emergency Medicine Summary from [omitted] dated [omitted] indicating applicant had attended for an eye injury arising from a welding accident on [omitted]. Treatment was provided by a nurse who removed a small foreign object from the applicant's eye; he was prescribed ointment for use at home and discharged;
c.Emergency Medicine Summary from [omitted] dated [omitted] indicating applicant had been examined by Ophthalmology for eye injury from foreign body. No information was provided concerning further treatments;
d.Consultation notes by Doctor [omitted] of [omitted] confirming he had examined the applicant on [omitted] for eye discomfort. The notes stated ‘both eyes still irritating and poor vision in right. Needs medical form completed for immigration. Not ready to see specialist yet. Suggest to let me know when he is ready’.
The Tribunal noted that no evidence had been provided since 24 July 2019 and that, at the time of the decision, there was no evidence that the applicant was “currently suffering from a medical condition which require[d] treatment in Australia”. Further, there was no evidence regarding “whether the eye injury was successfully treated or resolved” (at [15]).
When considering whether the applicant was “unfit to depart Australia”, the Tribunal identified that the applicant was required to meet one of the seven sub criteria outlined in cl 602.212(2)-(8) of Schedule to of the Regulations. These sub criteria relate to “the basis for which the stay in Australia is required” (at [16]).
The Tribunal continued:
17.Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:
• is in Australia - clearly this is satisfied;
•has turned 50 - the Tribunal notes that the applicant is aged about 33 years of age at time of decision. This sub-criterion is not satisfied by the applicant;
•has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa. The Tribunal is aware from the decision record that the applicant has previously unsuccessfully applied for a protection visa (see paragraphs 5 and 6 above); he has not satisfied the criteria for this visa, and as such, he does not satisfy this sub-criterion; and
•is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. The Tribunal notes there is no evidence or information before it to indicate this criterion has been satisfied.
On the basis of the above, the Tribunal determined the applicant did not meet the requirements of cl 602.212(6) of Schedule 2 of the Regulations and, as such, he was “not medically unfit to depart Australia” (at [18]).
The Tribunal then turned its attention to whether the applicant had “a genuine intention to stay temporarily for the visa purpose”.
While the Tribunal accepted that the applicant had suffered an eye injury in November 2018 and was in some discomfort until July 2019, the Tribunal noted that there was no evidence that the applicant continued to suffer from a medical condition at the time of the decision (a requisite condition for a medical visa) (at [19]).
The Tribunal then determined as follows:
20.The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The applicant has a significant history of being an unlawful non-citizen in Australia as outlined above, amounting to 2118 days as at time of delegate's decision. Further, it is apparent to the Tribunal that the applicant has taken all possible opportunities to seek Tribunal review, judicial review or to seek ministerial intervention to such an extent that there is a reasonable inference open to the Tribunal that he has no intention to depart Australia. The applicant has provided no information upon which the Tribunal could find any other reasonable inference.
The Tribunal ultimately determined that cl 602.215 of Schedule 2 of the Regulations was not met (at [23]).
As the applicant did not meet the requirements for the grant of the visa (at [24]), the Tribunal affirmed the decision not to grant the applicant the visa (at [25]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 3 May 2021 provides three “grounds of review” as follows:
1I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.
2AAT refused my visa simply because my poor immigration history and ignored my strong medical evidence and genuine intention for continue medical treatments in Australia.
3I don’t think I have been fairly treated by AAT and immigration in regards to my 602 visa application especially the member ignored the fact that Australian boarder has been closed and COVID-19 outbreak has been the compelling and compassionate grounds for me not to depart from Australia for medical treatment.
The applicant filed an affidavit in support of his application for judicial review. That affidavit relevantly provided:
I am unable to accept Department of Home Affairs and AAT’s decisions as it is unfair and inconsiderable to be accepted.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 3 May 2021, the Court Book numbering 46 pages (marked as Exhibit 1) and written submissions filed by the Minister on 20 October 2021.
The applicant appeared before the Court without legal representation. He was assisted by an interpreter in the Mandarin and English languages. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review and to outline any other concerns he might have with the Tribunal’s decision. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
When asked by the Court if he wished to outline any further concerns he had with the Tribunal’s decision, the applicant said, simply, “no”. The applicant was again asked, following the Minister’s detailed oral submissions, if there was anything he wished to say in response to what counsel for the Minister had said or if there was anything more broadly he wanted to raise in relation to Tribunal’s decision. Again, the applicant simply responded: “no”.
In the circumstances (and noting that the applicant was unrepresented before this Court), the Court has interpreted the applicant’s grounds of review as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised. The Court has also considered for itself whether any error arises in the Tribunal’s decision: as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”)).
LEGISLATION
Before considering the applicant’s grounds of review, it is useful to set out the relevant legislative provisions in full.
Here, the Tribunal found that the applicant did not meet cll 602.212(6) and 602.215(1)(a) to (c) of Schedule 2 of the Regulations.
To be granted the visa, the applicant was required to satisfy one of the seven sub categories outlined in Clause 602.212(2)-(8) of Schedule 2 of the Regulations. Relevantly, in this matter, the Tribunal considered Clause 602.212(6) of Schedule 2 of the Regulations relating to an applicant being medically unfit to depart Australia as being relevant. Those provisions are outlined in the Regulations as follows:
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.
The Tribunal found that the applicant did not satisfy cl 602.212(6) of Schedule 2 of the Regulations because, the Tribunal determined, he was “not medically unfit to depart Australia” (at [18]).
The Tribunal was also required to assess whether the applicant met the requirements of cll 602.215(1)(a) to (c) of Schedule 2 of the Regulations. Those provision require that, at the time of the Tribunal’s decision, the applicant is able to satisfy the Tribunal that:
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.
Where the Tribunal is not satisfied that the provisions of cl 602.215(1) of Schedule 2 of the Regulations are met, the applicant cannot be granted the visa. The Tribunal is not able to waive this condition.
The Tribunal in this matter found that the applicant did not genuinely intend to stay in Australia temporarily for the purpose for which the visa would be granted.
CONSIDERATION
Ground 1
For ease of reference, ground 1 provides:
1I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.
In relation to ground 1, the Court notes the Minister’s written submissions dated 20 October 2021, as follows:
24Ground one does not allege any error in the Tribunal’s decision and appears to misunderstand the purpose of the visa, which was to remain in Australia temporarily for medical treatment or related purposes and not to provide the applicant with protection based on a well-founded fear of persecution in his home country. As the Tribunal recorded, the applicant had previously applied for and been refused a protection visa, and that refusal was affirmed by the Refugee Review Tribunal on 25 August 2010: CB 40, [5].
The Court agrees with the Minister in this regard.
The focus in ground 1 appears to be on the applicant’s previously rejected protection claims – claims that are not the subject of review here. The applicant lodged an application for a protection visa in January 2010. That application was refused by a delegate and affirmed by the RRT in August of 2010. There is no evidence before this Court to suggest that the applicant ever sought judicial review of that decision and it is certainly not an issue before this Court for the purposes of the current proceeding.
Further, in relation to the applicant’s claim that he has “a genuine intention for subclass 602”, it is at least arguable that the applicant here is indicating that he disagrees with the Tribunal’s determination that that it was not satisfied that the provisions of cl 602.215(1) of Schedule 2 of the Regulations were met, or, he is saying that that finding was not open to the Tribunal.
To the extent that the applicant is simply saying that he disagrees with the Tribunal’s findings, the applicant seeks no more than that the Court review the Tribunal’s decision and the materials before it and, in effect, “come to a different conclusion”. This invites the Court to engage in an impermissible merits review of the Tribunal’s decision: Wu Shan Liang.
If the applicant is saying that the Tribunal’s decision was “not open to it because it” and is “irrational or illogical”, the Court disagrees.
The test for irrationality or illogicality has been summarised in SZMDS, (per Crennan and Bell JJ) as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
As highlighted by the Minister in summarising the Tribunal’s analysis of the evidence before it in this matter, the Tribunal determined as follows:
18With respect to cl 602.215 and whether the applicant had a genuine intention to stay temporarily for the visa purpose, the Tribunal accepted that the applicant had suffered an eye injury in November 2018 which caused him discomfort up to July 2019. However, it recorded that there was no evidence to support a finding that he continued to suffer from a medical condition as at time of decision: CB 42, [19].
19In considering whether the applicant had substantially complied with the conditions of his last substantive visa or any subsequent bridging visa, the Tribunal recorded that the applicant had a significant history of being an unlawful non-citizen in Australia, amounting to 2,118 days at the date of the delegate’s decision. It also recorded that he had “taken all possible opportunities to seek Tribunal review, judicial review or to seek ministerial intervention to such an extent that there is a reasonable inference open to the Tribunal that he has no intention to depart Australia. The applicant has provided no information upon which the Tribunal could find any other reasonable inference”: CB 43, [20].
On the basis of the evidence before it the Tribunal found that the applicant did not “genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted” as per the requirements of cl 602.215 of Schedule 2 of the Regulation.
It cannot be said here that this finding was irrational or illogical. Rather, the conclusion drawn, based on the evidence before it, was entirely sound. While this Court might have come to a different conclusion, that is not the relevant test on review. Here, there is a logical connection between the evidence before the Tribunal and the inferences or conclusions drawn by it. The conclusion is thus sound.
No error arises in relation to ground 1.
Ground 2
For ease of reference, ground 2 provides:
2AAT refused my visa simply because my poor immigration history and ignored my strong medical evidence and genuine intention for continue medical treatments in Australia.
This ground fails on a factual level.
Contrary to the applicant’s claims, the Tribunal did not affirm the decision under review solely on the basis of the applicant’s “poor immigration history”. That was but one of the factors the Tribunal was required to consider in relation to cl 602.215 of Schedule 2 of the Regulations.
As outlined above, cl 602.215 of Schedule 2 of the Regulations requires that the applicant genuinely intends to stay in Australia on a temporary basis for the purpose for which the visa would be granted. Relevantly, the provisions of cl 602.215 of Schedule 2 of the Regulations require the Tribunal to assess whether the applicant has complied with the conditions of previous visas and whether the applicant would likely comply with conditions to which the visa would be subject to.
The relevant legislative provisions thus required the Tribunal to consider the applicant’s previous immigration history. The Tribunal did so and its analysis and findings in this regard were sound and open to it on the evidence before it. No error arises in this regard.
In relation to the alleged “failure to consider medical evidence”, it is clear from the Tribunal’s written reasons that it considered the limited medical evidence before it relating to the applicant’s claimed medical condition and treatment. Specifically, the Tribunal referenced the “original claims as to medical conditions” as outlined in the applicant’s visa application as follows:
12.On 30 July 2019, the applicant lodged the current application for a Medical Treatment visa. It was claimed that the applicant would like to remain in Australia until 30 July 2020 to seek medical treatment for painful eyes. A form 1507 (dated 24 July 2019) was provided in support of the application and a medical practitioner confirmed that the applicant is seeking medical treatment in Australia. The documentation provided in support of the application did not state that the applicant was gravely ill or receiving intensive or critical care and nor did it state that he must remain in Australia for ongoing consultation.
13.The Tribunal notes that other than the mentioned form 1507 and a copy of their passport, the applicant provided no material documents or information whatsoever to the department in support of the application.
Here, the Tribunal specifically mentions the information provided in the application and form 1507 provided to the Department and the distinct lack of any other supporting evidence.
The Tribunal also outlined the documentation provided to the Tribunal in support of the application lodged with the Tribunal, as follows (at [14]):
a.Consultation notes by a Doctor [omitted] of [omitted] confirming she had examined the applicant on [omitted] which resulted in referral to the emergency department at [omitted] for a suspected eye injury;
b.Emergency Medicine Summary from [omitted] dated [omitted] indicating applicant had attended for an eye injury arising from a welding accident on [omitted]. Treatment was provided by a nurse who removed a small foreign object from the applicant's eye; he was prescribed ointment for use at home and discharged;
c.Emergency Medicine Summary from [omitted] dated [omitted] indicating applicant had been examined by Ophthalmology for eye injury from foreign body. No information was provided concerning further treatments;
d.Consultation notes by Doctor [omitted] of [omitted] confirming he had examined the applicant on [omitted] for eye discomfort. The notes stated ‘both eyes still irritating and poor vision in right. Needs medical form completed for immigration. Not ready to see specialist yet. Suggest to let me know when he is ready’.
The Tribunal then, again, references the lack of further evidence in relation to the applicant’s condition or ongoing treatment, as follows:
15.No further evidence concerning the injury or treatment has been lodged by the applicant to the Tribunal since 24 July 2019 when he saw Doctor [omitted]. As at time of this decision there is no evidence or information indicative of the applicant currently suffering from a medical condition which requires treatment in Australia, including, but not limited to, the claimed eye injury. There is nothing before the Tribunal as to whether the eye injury was successfully treated or resolved.
Further, the Tribunal wrote to the applicant on 26 February 2021 inviting him to provide the “following information in writing” (CB 35):
Copies of all medical reports, referrals and opinions brought into existence from the date of the Department delegate's decision (8 August 2019) relating to your medical visa application.
The applicant did not respond and did not provide the Tribunal with any further material in relation to his medical condition and treatment.
Noting the reasoning in the delegate’s decision, it is clear that the applicant was put on notice that insufficient documentation had provided in support of his application (CB 22). The applicant did not respond to an invitation from the Tribunal to provide further medical information and there was limited material before the Tribunal in relation to the applicant’s medical and past treatment history. There was also no evidence relevant to the applicant’s future medical needs. The applicant had ample opportunity to provide any additional medical evidence to the Tribunal but chose not to do so.
In those circumstances, the Tribunal could only make its assessment based on the limited medical information before it. It did so. No error arises in this regard.
Ground 2 has not identified any jurisdictional error.
Ground 3
Ground 3 provides:
3I don’t think I have been fairly treated by AAT and immigration in regards to my 602 visa application especially the member ignored the fact that Australian boarder has been closed and COVID-19 outbreak has been the compelling and compassionate grounds for me not to depart from Australia for medical treatment.
Ground 3 references “immigration”. The Court assumes by this reference that the applicant is alleging a failure on the part of the Department. This Court does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision would be “cure” by the Tribunal decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
In relation to the Tribunal’s “conduct”, ground 3 alleges that the Tribunal “ignored” the border closures and the impact of COVID-19. This, the applicant says, is a compelling and compassionate ground for the applicant to remain in Australia.
It is unclear what the applicant is suggesting in ground 3. There is no evidence before the Court that the issue of “COVID-19 border closures” was raised before the Tribunal as something the Tribunal needed to address or as something that was, in any way, relevant to the applicant’s case or the relevant legislative principles.
The applicant provided little information to the Tribunal with his application, failed to respond to an invitation to provide information to the Tribunal (and thus lost his entitlement to a hearing) and did nothing to engage in the Tribunal process following the lodgement of his application.
No error can arise on the part of the Tribunal for failing to consider information which was not before it in circumstances where the applicant was given ample opportunity to present that evidence.
Ground 3 is, accordingly, dismissed.
Applicant’s affidavit
The applicant’s affidavit affirmed on 1 May 2021 and filed on 3 May 2021 provides:
I am unable to accept Department of Home Affairs and AAT’s decisions as it is unfair and inconsiderable to be accepted.
Read broadly, this statement arguably alleges a failure on the part of the Tribunal to afford procedural fairness.
For the reasons that follow, the Court is satisfied that the applicant was afforded procedural fairness by the Tribunal.
The Tribunal’s invitation to provide information dated 26 February 2021 complied with the relevant requirements in ss 359 and 359B of the Act. Relevantly, the invitation letter:
(a)specified that the information was to be given in writing (s 359B(1) of the Act);
(b)was given to the applicant by one of the methods specified in s 379A of the Act, namely by email to the applicant's email address provided in the review application (s 379A(5)(b) of the Act); and
(c)specified the period of time in which the applicant was required to provide the information requested being the prescribed period of fourteen days from when the invitation was received (s 359B(2) of the Act; r 4.17(4) of the Regulations).
The applicant did not respond. Nor did he request an extension of time within which to do so. Indeed, as outlined above, the applicant had not engaged with the Tribunal since filing his application.
As explained by the Minister in written submissions dated 20 October 2021 (at [31]), when s 359C(1) of the Act applies, s 360(2)(c) of the Act relieves the Tribunal of the obligation to invite the applicant to appear before it under s 360(1) of the Act. Section 360(3) of the Act then has the effect that the applicant loses any entitlement to appear before the Tribunal.
Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear. Section 363A of the Act states:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person
The operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant not providing requested information in response to the s 359 invitation.
The applicant was not invited to attend a hearing before the Tribunal as he was no longer entitled to attend a hearing. The Tribunal had no power to allow the applicant to attend a hearing and, had the Tribunal invited the applicant to attend a hearing before it, it would have exceeded its jurisdiction.
The Tribunal proceeded to determine the matter on the basis of the material and information before it. The Court does not find any error in the Tribunal doing so. No issues arise in relation to procedural fairness.
The applicant’s affidavit does not identify any error.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant in this Court on 3 May 2021 fail to identify jurisdictional error. The Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 November 2021
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