Eei20 v Minister for Immigration
[2020] FCCA 2900
•27 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EEI20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2900 |
| Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – where Tribunal found that the applicant did not intend to stay temporarily – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.375A, 476 Migration Regulations 1994 (Cth), cls.602.212, 602.215 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | EEI20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 270 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 October 2020 |
| Date of Last Submission: | 22 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 27 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms J Tran |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 270 of 2020
| EEI20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of India. By application filed in this Court on 25 June 2020, he seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 16 June 2020.
The applicant has an extensive migration history, summarised in the materials before this Court (Court Book (“CB”) 33-34) as follows:
• On 27 November 2008, the applicant arrived in Australia as the holder of a Student Vocational Education Sector (class TU) (subclass 572) visa.
• On 11 March 2011, the applicant applied and was granted a further Vocational Education Sector (class TU) (subclass 572) visa which was granted on 28 April 2011.
• On 01 September 2011, the applicant applied for a Skilled Graduate (class VC) (subclass 485) visa. This visa was refused on 04 September 2012. The applicant sought a review of the decision at the Migration Review Tribunal (MRT) on 20 September 2012, which was affirmed on 13 February 2013.
• On 25 March 2013, the applicant, under Section 351, applied for Ministerial Intervention. This was determined to be “not considered” on 04 September 2013.
• On 22 October 2013, the applicant applied for a Permanent Protection (class XA) visa. This visa application was refused on 21 October 2015. The applicant sought various avenues of review of this decision, including at the Federal Court of Australia. The applicant withdrew his request for review on 06 December 2018.
• On 27 September 2016, the applicant was nominated for an RSMS (class RN) (subclass 187) visa. That nomination request was withdrawn on 10 October 2016.
• The applicant currently holds a Bridging E (class WE) (subclass 050) visa.
On 21 January 2019, the applicant applied for a Medical Treatment (subclass 602) visa (the “visa”) (CB 1-23). He indicated that he was required to remain in Australia for approximately one year to obtain treatment in the form of a “CBT via psychologist anti-depressant”. He indicated that he suffered from depression and anxiety.
On 5 February 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 28-35). The delegate found that cl.602.215 of the Migration Regulations 1994 (Cth) (the “Regulations”) was not satisfied as the applicant was attempting to utilise the visa as a means to maintain ongoing residence and did not genuinely intend to remain in Australia on a temporary basis.
The applicant sought review of the delegate’s decision at the Tribunal on 23 February 2019 (CB 40-41).
On 6 March 2020, the applicant was invited to attend a hearing before the Tribunal scheduled for 23 April 2020 (CB 52-53). That invitation requested that any additional documents be provided to the Tribunal by 16 April 2020. On 6 April 2020, the Tribunal sent the applicant an updated invitation to attend the hearing. The Tribunal indicated that the hearing would take place by telephone (CB 59-61). The applicant was again reminded that he needed to provide any further documents by 16 April 2020.
On 22 April 2020, the Tribunal emailed the applicant advising that no documents had been received since his application had been lodged on 23 February 2019. The Tribunal asked the applicant to advise whether he would be submitting any documents (CB 66). It appears that a document which indicated that the applicant had an appointment with a doctor on 28 April 2020 and a copy of a clinical psychology questionnaire were provided (CB 67-72).
The applicant attended a hearing before the Tribunal on 23 April 2020 (CB 72-75).
On 23 April 2020, the Tribunal sent the applicant a request for further information (CB 77-78). That letter provided:
The hearing is not as yet concluded; the Tribunal has decided to provide your client with opportunity to provide information and submissions with respect to concerns held by the Tribunal concerning the current state of the evidence. Should your client seek a copy, the audio of the hearing can be promptly provided to assist in responding.
The Tribunal requests that the following information be provided:
1. Documents evidencing consultations with medical and mental health practitioners from 1 July 2018 to the present for any mental health conditions, including anxiety and depression;
2. A credibility issue has arisen in relation to the date and the time that your client made a new appointment to see Doctor Faigenbaum at Mirrabooka Medical Centre on Tuesday 28 April 2020. It is fair to say his evidence upon this was equivocal. The Tribunal notes that a signed letter from Mirrabooka Medical Centre as evidence is not dated and nor is the time that he made the appointment referred to. It would be greatly appreciated if verifiable evidence as to these two aspects be provided to assist the Tribunal;
3. The initial application documents for the visa suggest your client was scheduled to be treated with a form of therapy known as ‘Cognitive Behavioural Therapy’ sometime in early 2019. It would be greatly appreciated if verifiable evidence is provided confirming the therapy provider and the number of sessions that were actually participated in by your client;
4. Your client has provided the Tribunal with documents purporting to be from Hannington Clinical Psychology. These include a client information sheet and a consent form; the form has not been completed. It would be appreciated if verifiable evidence is provided confirming whether as of today (Thursday 23 April 2020) an appointment had been scheduled for your client and, if so, the time and date of the appointment and the treating psychologist; and
5. The Tribunal notes that your client has not, to date, provided any evidence to the Tribunal supporting his application for review of the delegate’s decision. It is noted that other than assertions contained in the initial application for the visa to the Department, your client also provided no evidence to the Department in support of the application for the medical visa. This is of concern to the Tribunal. To this end your client is invited to provide submissions as to why no evidence has been presented.
Further documents provided to the Tribunal include a referral letter from the applicant’s doctor, a prescription, a mental health care plan and an invoice for a psychology appointment (CB 87-93).
The applicant attended a resumed hearing before the Tribunal on
12 May 2020 (CB 95-96).
A further invitation to provide information was sent to the applicant on 12 May 2020 which provided:
1. On 28 April 2020 your doctor, Doctor Faigenbaum, wrote to Hannington Clinical Psychology, seeking an opinion as to your alleged mental health issues. Your next appointment with Hannington Clinical Psychology is on 28 May 2020. It is requested that your psychologist provide a letter to the Tribunal addressing the following matters:
a) what are reasonably anticipated to be arrangements for future treatment;
b) whether payments of costs and expenses for treatment will be a charge on government or upon any public authority in Australia; and
c) whether any Australian citizen or permanent resident may be disadvantaged in obtaining treatment or any consultation if the visa were to be granted.
2. During the hearing held on 12 May 2020 you confirmed to the Tribunal that you had received Cognitive Behavioural Treatment (CBT) by a provider in Scarborough, being The Stirling Centre. It is requested that you provide verifiable documentary evidence confirming that you did participate in the CBT treatments as you claim, including confirmation as to the dates that you attended treatments.
On 8 June 2020, the applicant gave the Tribunal a letter from his psychologist, a letter from his GP’s practice manager and an appointment confirmation with his GP (CB 113-117).
On 16 June 2020, the applicant attended a resumed hearing before the Tribunal. The Tribunal made an oral decision affirming the delegate’s decision at the conclusion of that hearing (CB 118-121).
On 29 June 2020, the Tribunal provided a written statement of reasons for its decision (CB 152-161).
The applicant filed an application for judicial review of the Tribunal’s decision in this Court on 25 June 2020. The application is made pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s oral reasons for decision were provided in a written statement dated 29 June 2020. The decision is 10 pages long and spans 70 paragraphs.
The Tribunal began by setting out the information that the applicant had provided in his visa application (at [3]). It noted that the applicant had not provided any additional information beyond what was in his application (at [5]-[6]). The Tribunal then summarised the delegate’s decision in detail and made a number of observations about matters the delegate had referred to (for example, policy) (at [7]-[10]).
The Tribunal then referred to an adverse inference that the delegate had drawn from the applicant’s migration history (at [11]-[13]).
The Tribunal then detailed the applicant’s migration history and, having done so, noted as follows:
14. Bearing in mind you discontinued your Federal Court appeal on 6 December 2018 the evidence is that you saw Dr Fred Faigenbaum only a few weeks later in December 2018. The purpose being so you could lodge your medical visa application, which I am now dealing with.
15. I readily acknowledge that you were lawfully entitled to pursue the review and appeal applications as is your legal right. However, in your case there are reasonable inferences open when your migration history is viewed as a whole. You have now spent nearly 12 years in this country without ever holding a substantive visa. You have initiated all avenues open to you to pursue your desire to remain in this country on a permanent basis.
The Tribunal noted that there was nothing before it to indicate that, prior to lodging the application, the applicant had seen a doctor about anxiety and/or depression (at [16]).
The Tribunal also noted that the applicant had not made any claims to be suffering from anxiety or depression at the time that his protection visa was being considered (at [18]-[19]).
The Tribunal then referred to the procedural history of the review application before the Tribunal. It noted that the hearing took place by telephone and that the applicant had not raised any concerns with this approach (at [20]-[21]).
The Tribunal referred to the fact that no documents had been provided in the 13 months between the time the application was lodged at the Tribunal and the hearing on 23 April 2020 and that the Tribunal had written to the applicant to “prompt” him in relation to the requested information (at [22]-[24])
The Tribunal continued:
25. My initial view, and I still hold that view, was that the motivator for you to make the appointment with Dr Faigenbaum was the fact that I had initiated inquiries about your evidence and not your own motivation to seek the evidence.
The Tribunal then discussed the applicant’s evidence at the hearing on 23 April 2020 as follows:
26. The first hearing date was 23 April 2020. You told me about the circumstances about the tribunal protection visa review and why you did not attend. You were unwell. You told me that you withdrew your Federal Court appeal because you had a lot going on in your life. You had not been treated for depression or anxiety prior to seeing Dr Faigenbaum. There was nothing before me to indicate you had even consulted him before then. You assert that you had taken antidepressants for about three months.
27. Significantly to this decision you told me that you had undertaken CBT therapy. You could not remember how many sessions but this was through a psychologist. You could not remember when you finished the therapy but it was some time in 2019. You told me you had learned a lot from that therapy. You said Dr Fred had referred you but you provided no documentary evidence of the referral. You confirmed you had last seen Dr Fred in the first half of 2019 being about 12 months prior to the first hearing. I found this to be surprising considering your claim that you are suffering from depression and anxiety.
28. You told me you were in Royal Perth Hospital in 2019 but you were not sure if it was a mental health problem or some other problem. You were not admitted overnight. You confirmed to me you had never been admitted to a hospital or a facility as a mental health patient.
29. I questioned you about the lack of evidence of a medical condition provided to the Department and you told me you were unaware you had a medical condition but your own family thought you were not normal. This was not withstanding that you are the applicant for the visa. You could not remember when it was you last worked in Australia.
30. I asked you why you had not provided any evidence to the tribunal and you told me that you had been under stress. I pointed out that whilst you seem to have sufficient initiative to go and see Dr Fred to secure the application for the medical visa you appeared not to have initiative to provide anything to support your application. You then told me you had an appointment to see Dr Fred the week after the hearing.
31. I asked you when it was you made that appointment and you confirmed to me it was the day before the hearing. So putting that in context the day before the hearing was the day that I arranged for the email to be sent to your representative. I consider that the only reasonable inference open is that the tribunal email was the prime motivator for you to go out, use a bit of initiative and make another appointment.
The Tribunal explained that it was concerned about the lack of any supporting documentation. It gave weight to the fact that nothing was provided to the Tribunal until the time of the hearing (at [32]).
Having detailed the request for further information sent on 23 April 2020 (at [33]), the Tribunal then referred to the documents that the applicant had provided:
34…The tribunal subsequently received further documents. And that was a copy of an appointment card to see Dr Fred on 19 May at 9 am. This was one week after the 12 May hearing date. There was a tax invoice from Psychological Healthcare dated 7 May 2020 regarding a referral by Dr Fred to a psychologist named Ivanka.
35. It appears you received an initial consultation with her on 7 May. There was a letter from Dr Fred himself which arose from your appointment with him. And I noted this was to Hannington Clinical Psychology, not to Psychological Healthcare being where Ivanka operates from. Dr Fred recommenced you on Zoloft and completed a mental health plan. This was the first substantive treatment that you had received from him based upon the evidence currently before me.
The Tribunal then referred to the resumed hearing on 12 May 2020 as follows:
36. We spoke again at a resumed hearing on 12 May. You told me that you were not sure when you made the 24 April consultation with Dr Fred but you did make it before the 23 April hearing. You told me there was no relationship at all between the 23 April hearing and you booking in to see Dr Fred. I do not accept that as there is a strong inference it was as a direct consequence of the tribunal email the day before that you arranged to reconnect with Dr Fred.
37. I indicated to you that this evidence of your undergoing CBT was of relevance and this is why it had been requested to be produced. I asked you what efforts you had made to find this evidence and you told me that you had been trying to contact the call centre. I inquired as to what call centre you were talking about and you said to me it was at Scarborough Beach about a 25 minute drive away. You called at the Stirling Centre. You said your mind was not helping you out on the day of the hearing. You said you had received psychologist sessions recently but these had not been face to face due to the COVID restrictions.
38. I point out that as of today the date of hearing you have still not provided any evidence at all confirming that you received cognitive behavioural therapy. The question maybe does it matter. It does matter because it goes to your credibility and it goes to the issue as to whether you genuinely have a medical condition or perhaps whether you are perhaps overstating your situation or even whether you do have depression or anxiety. I will have more to say about that.
39. I asked you when you had first started suffering from depression and anxiety. You told me you do not remember but you did say to me that you did not suffer from anxiety and depression when the Federal Court was dealing with your protection visa appeal. I suggested to you that you were determined to stay in Australia and you said to me that it was not the bigger plan for you. You said you had last been in India in about 2011. You said you were not sure if you could obtain treatment for your mental health issues in India. I raised with you a short time ago in this hearing before the decision that open source searches indicate that there are many, many health professionals who provide cognitive behavioural therapy in your home area in the Punjab.
40. You said nothing to me to indicate that that was not a fair assessment of the situation and I am satisfied if and when you return to your home area CBT will be available for you should you require it.
The Tribunal then referred to the invitation to provide information sent on 12 May 2020. It noted that the information that had been requested had been requested several times by this stage (at [41]).
The Tribunal summarised the letter from the applicant’s psychologist and noted that there was no “firm evidence” that the applicant had received treatment in the previous few years (at [42]). It was noted that the letter also outlined future treatment and stated that the applicant had attended at his own cost (at [43]).
The Tribunal accepted that psychological and psychiatric conditions can, in appropriate cases, amount to medical conditions. It was satisfied that the applicant was seeking medical treatment for anxiety and depression (at [44]).
The Tribunal was reasonably satisfied that arrangements for the medial treatment had concluded (at [45]-[46]). The Tribunal was also satisfied that organ transplantation was not relevant to the applicant’s circumstances and that he was free of a disease or a condition that may be a threat to public health or a danger to the Australian community (at [47]).
While noting that the evidence was “quite light”, the Tribunal nonetheless accepted that arrangements for payments of all costs and expenses associated with the applicant’s treatments and stay had concluded (at [48]) and that the payments of costs and expenses would not be a charge on a government or public authority in Australia (at [49]).
Overall, the Tribunal was satisfied that the applicant met cl.602.212(2)(a)-(f) of the Regulations (at [50]).
The Tribunal then found that the applicant was fit to depart Australia as per cl.602.212(6) (at [51]-[52]).
The Tribunal was satisfied that no Australian citizen or permanent resident would be disadvantaged in relation to obtaining medical treatment or consultation if the visa was granted. As such, cl.602.214 of the Regulations was met (at [53]).
The Tribunal was also satisfied that the applicant had adequate means of support in Australia (at [54]).
The Tribunal then noted that, in light of the above, the final issue for consideration was whether the applicant had a genuine intention to stay temporarily for the visa purpose (at [55]).
The Tribunal was satisfied that the applicant would not work and there was nothing to indicate that he would study (at [56]). The Tribunal found that the key issue before it was in relation to one condition that was attached to the visa – i.e., that the applicant was subject to a “no further stay” requirement (at [57]).
The Tribunal continued:
58. Several aspects of your application and evidence have greatly concerned me in this matter. You have now been in this country for nearly 12 years without holding a substantive visa. When you have unsuccessfully applied for substantive visas you have either pursued them through review to the previous Migration Review Tribunal or this tribunal or to the Federal Court. You pursued your application to the Federal Court for some period of time before deciding to withdraw from it. You also withdrew a different application.
59.You did not, based upon my understanding of the protection visa proceedings before the tribunal, apply yourself with any great deal of application or vigour to that proceeding. You did not attend hearings on several occasions. The consequence of which was a differently constituted tribunal dismissed the matter as you had failed to attend on a further occasion.
60. Notwithstanding the dismissal for your failure to attend you appealed that decision. You did not follow through with that and as I have said you withdrew the appeal to the Federal Court on 6 December 2018. Notably it was only a few weeks after that that you sought out Dr Fred and you then put the medical visa application into motion.
61. On your own evidence you had not been suffering depression or anxiety during the period that you were before the Federal Court, in effect admitting that your depressive or anxiety conditions must have become apparent post-withdrawal.
62.In my view a reasonable inference is open that you have sought out the medical visa for the primary purpose of extending your stay, your now long term stay in Australia. You have demonstrated a determination to remain in this country. That in itself is not determinative of this decision but it certainly bears significant weight.
63. You have not returned to your home country since about 2011. I accept you have family here that would provide an incentive to stay here. But it is clear to me that you no longer have any particular affinity to your home country of India otherwise you would have made efforts post-2011 to return.
64. You produced no evidence supporting your medical conditions to either the Department or to this tribunal prior to the tribunal hearings. It was only when I alerted you to this lack of evidence the day before the first hearing on 23 April that you used some initiative to seek out Dr Fred again and to put into place appointments with him to seek a referral to a psychologist. I read into that that you realised that if you were to succeed in your application before the tribunal you needed something to back up what you claim.
65. A reasonable inference is open to me that your lack of due diligence in pursuing your own treatment and your own application is that you did not prioritise it in your own life. You did nothing for treatment from early 2019 until interfacing with this tribunal process. You told me you had undergone a treatment program in cognitive behavioural therapy in 2019. I have seen no evidence of that and notwithstanding that I have provided you with several opportunities through written letters and by identifying this as an issue that this was an issue for me.
66. In my view you told me that in an effort to reassure me that you were genuine in your claims. You provided the name of the provider and the general location of the provider in Scarborough. As I have said, notwithstanding letters seeking proof by you, you have just never produced any evidence. I do not accept that you were truthful in this claim.
67. You have not provided any information as to the non-availability of the treatment you seek in your home area in India. As I have said open source research indicates there are many providers of CBT in your home area. I note that you are paying for your treatment now in Australia. One would anticipate that you would also be able to pay for similar treatments in India.
68. I accept that you do to some extent, like many tens of millions worldwide, suffer from anxiety and depression. I note that there are no indications that you have ever been suicidal, that you have ever considered self-harm or harm to others. So up until seeking out Ivanka through Dr Fred very recently you have not required significant psychological intervention. You received antidepressants for only a few short months in early 2019. I am assuming you took yourself off them. You were able to cope without them until recently when you were placed back on them by Dr Fred. On the available evidence to me as of time of decision your condition is not an acute one. I note that you are not seeing a psychiatrist.
Having regard to all of the matters individually and cumulatively, the Tribunal was not satisfied that the applicant “genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted”. The Tribunal’s view was that the applicant’s visa history indicated that he had sought, and was continuing to seek, every available option to remain in Australia (at [69]).
As cl.602.215 was not met, the Tribunal affirmed the decision not to grant the applicant the visa (at [69]).
Proceedings in this Court
In the application for judicial review filed on 25 June 2020, the applicant raised three grounds of review as follows:
1. The AAT made a mistake in my review.
2. The AAT did not properly consider my medical treatment.
3. The AAT made a mistake by saying I’m not a genuine temporary entrant.
The applicant filed an affidavit affirmed 25 June 2020 which provided as follows:
1. The AAT made a mistake in my review.
2. The AAT did not properly consider my medical treatment.
3. I had a doctor plan for my medical treatment, and it was genuine for my mental health issues.
4. The AAT made a mistake by saying I’m not a genuine temporary entrant.
5. After my medical treatment and my mental health is fixed I can go back to India and face my family.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of submissions. No further materials were filed.
The materials before the Court thus include the applicant’s application for judicial review dated 25 June 2020, the applicant’s affidavit affirmed 25 June 2020, a Court Book numbering 161 pages (marked as Exhibit 1), an affidavit of Marie Therese Azar sworn 2 October 2020 and an outline of submissions filed by the Minister on 10 September 2020.
The matter first came before the Court on 17 September 2020. On that occasion the Court queried the significance of what appeared to be a certificate issued pursuant to s.375A of the Act. The Minister indicated that inquiries would need to be made and asked that the matter be adjourned. The Court granted the adjournment to enable the Minister to seek clarification.
The Court reconvened on 22 October 2020. At the applicant’s request, he appeared via telephone. The Court confirmed with the applicant that he had received a copy of the Court Book, the Minister’s written submissions and Ms Azar’s affidavit. The applicant indicated that he had these with him during the hearing.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is now 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 at [131] (“SZMDS”); 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 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 at 272.
Against this background, the applicant, in effect, emphasised the concerns raised in his grounds of review. He explained that his depression was “serious” and had been “building up inside of him for some time”. He was not, he stressed, “making things up”.
Unfortunately, as will be explained below in relation to the applicant’s grounds of review, what the applicant seeks is a merits review of evidence before the Tribunal. The Tribunal accepted that the applicant suffered from depression and anxiety (at [44]). The Court also does not doubt that the applicant has mental health issues and accepts that in many cases mental health issues are not properly identified until someone sees a doctor. However, the applicant’s submissions do not identify any jurisdictional error. They simply express disagreement with the Tribunal’s finding that the applicant did not meet cl.602.215. This is discussed further below.
Legislation
Here, the Tribunal found that the applicant did not satisfy cl.602.212(6) of the relevant Regulations because the Tribunal determined that he was “fit to depart Australia”.
The applicant does not dispute this finding.
Having so determined, the Tribunal was then required to assess whether the applicant met the requirements of cl.602.215(1) of the Regulations. That provision requires that, at the time of the Tribunal’s decision, the applicant is able to satisfy the Tribunal that:
(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.
If the Tribunal is not satisfied that cl.602.215(1) is satisfied, the applicant cannot be granted the visa. The Tribunal cannot waive this criterion.
Consideration
Ground 1
Ground 1 of the judicial review application is repeated in the first paragraph of the applicant’s affidavit. Broadly, the applicant refers to a “mistake” having been made.
The Court, in its duty to the self-represented litigant, has remained astute and alert to the possibility of any legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
For reasons that will be explained below, the Court cannot identify any error in the Tribunal’s decision.
Ground 2
Ground 2 of the judicial review application and the second paragraph of the applicant’s affidavit state that the Tribunal did not “properly” consider the applicant’s medical treatment. The third paragraph of the applicant’s affidavit appears to particularise ground 2 by stating that the applicant had a plan for his treatment and that it was for “genuine mental health issues”.
It is not entirely clear why the applicant believes an error was made when assessing (or not assessing) his medical condition or medical treatment plan. The Tribunal did, in fact, accept that the applicant suffered from anxiety and depression and that this was a medical condition (at [44]). Further, the Tribunal did refer to evidence relevant to the treatment of the applicant’s medical issues (noting, in particular, [42]-[43] in the Tribunal’s decision). Indeed, the Tribunal expressly noted what “future treatment” would be received in the next “three to six months”.
There is nothing in the materials before the Court to suggest that the Tribunal did not properly consider any evidence about the medical treatment that the applicant was going to receive. The Tribunal expressly acknowledged the applicant’s medication requirement (at [68]) and referred to a letter from the applicant’s psychologist (which detailed future treatment) (at [42]-[43]).
The Tribunal considered and engaged with all of the evidence available to it in relation to the applicant’s medical treatment. The Tribunal accepted that the applicant had a treatment plan (at [46]). It did not overlook any aspect of that evidence. Nor did it make any finding that the applicant did not have a medical condition or a plan aimed at addressing that condition.
Ground 2 is dismissed.
Ground 3
Ground 3 is in the same terms as the fourth paragraph of the applicant’s affidavit. Again, the Court reads the fifth paragraph of the applicant’s affidavit as particularising ground 3.
In effect, the applicant appears to contend that the Tribunal erred in finding that the applicant was not a genuine temporary entrant as he “will go back to India when his treatment is finished”.
Determining whether an applicant is a genuine temporary entrant for stay for a particular purpose is an evaluative assessment inherently specific to the particular facts and evidence of the case and reactive to the way the case was put to the Tribunal: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [6]-[7].
Here, it is apparent that the Tribunal had regard to each of the matters in cl.602.215(a)-(c). The Tribunal referred to and considered:
a)whether the applicant had complied substantially with the conditions attached to the last substantive visa, or any subsequent bridging visa, held by the applicant (at [55]). The Tribunal noted that it did not place significant weight on the fact that the applicant had been “unlawful” for a period of 17 days;
b)whether the applicant intended to comply with the conditions attached to the visa. The Tribunal stated that it was satisfied that the applicant would comply with one condition (i.e., that he would not work), that he had no intention to engage in a second condition (being to study) and expressed significant concern about whether the applicant would comply with the third condition (a “no further stay” requirement) (at [56]-[57] and [63]); and
c)other relevant matters, including the applicant’s migration history, his diligence in obtaining and participating in treatment and the availability of similar medical treatment in India (at [58]-[68]).
The Tribunal demonstrated significant engagement with the applicant’s evidence when considering all of these factors.
The Court has also considered whether the Tribunal’s finding that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of receiving medical treatment was illogical.
In SZMDS it was explained that:
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.
It cannot be said here that the Tribunal’s conclusion is illogical or irrational. The inferences drawn by the Tribunal were entirely open to it and were not inferences that no reasonable decision-maker could not have come to: SZMDS at [135].
The Tribunal’s “lack of satisfaction” was based on:
a)the fact that the applicant had remained in Australia for 12 years without holding a substantive visa and had been refused a number of other visas during that period. This, the Tribunal determined, demonstrated a “determination” to remain in Australia;
b)concerns about “when” the applicant lodged his visa application (i.e., shortly after withdrawing a previous application);
c)the fact that the applicant had not returned to India since 2011 and there was a lack of incentive to return to India (noting that he had family in Australia);
d)the fact that the applicant only produced evidence in support of his application when prompted to do so by the Tribunal;
e)the fact that the applicant had provided no evidence of having attended any treatment during the period when the matter was being processed by the Tribunal (which, the Tribunal determined, demonstrated a lack of due diligence in relation to the applicant’s own health);
f)the fact that the treatment that the applicant was obtaining in Australia was available in India and there did not appear to be any impediment to the applicant obtaining that treatment in India; and
g)the fact that the applicant had not previously required psychological intervention, he had stopped taking his medication in early 2019 and had “coped without that medication” until the matter came before the Tribunal.
The Tribunal had significant concerns about the applicant’s credibility. Ultimately, this led the Tribunal to find that he “had sought out” the visa as just another “available option” to remain in Australia.
Ultimately, the Tribunal concluded that the applicant did not genuinely intend to stay temporarily in Australia for the purpose of obtaining medical treatment. Rather, the Tribunal determined, the applicant intended to remain in Australia because, in effect, he simply wanted to stay in Australia. The visa was but one way of ensuring that he was able to do so.
No error arises on the basis of the Tribunal’s finding above. They flow logically from the evidence before the Tribunal and are reasonable within the context of the evidence provided.
To the extent that the applicant states in his affidavit that he will return to his family in India after his treatment, there is no evidence that this was ever put to the Tribunal. The Tribunal can only consider matters that were put to it. In any event, in circumstances where the Tribunal noted that the applicant had not returned to India since 2011 and that he had no “particular affinity” to leave (and was using the visa for the purpose of remaining in Australia), the Court is satisfied that these findings subsumed any suggestion that the applicant may have offered that he would return, in fact, to India.
Here, the Tribunal definitively found that the applicant’s intention in applying for the visa was not for the purpose which the visa was granted. Those findings were open to the Tribunal.
No error arises in this regard. Accordingly, ground 3 is dismissed.
Otherwise
As noted above, when this matter first came before the Court (on 17 September 2020), the Court queried the effect of a Departmental “note” that appears in the Court Book (CB 36).
That note, dated 7 February 2019, states:
ATTN: Non Disclosure certificate required for pp 15 of CLD2019/ 4911693
Under 375A
Reason: reveals Departmental processes not for disclosure to review applicant for the AAT only.
No s.375A certificate is included in the materials in the Court Book. There is also no indication in the Tribunal’s decision that the applicant was ever alerted to the fact that there was a s.375A certificate.
A failure to disclose the existence of a certificate will amount to a denial of procedural fairness: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3. However, such failure will only amount to jurisdictional error if it realistically deprived the applicant of a successful outcome.
On 2 September 2020, the Minister filed an affidavit relevant to this issue. Ms Azars’s affidavit provides:
3. On 2 October 2020, AGS received confirmation from an officer of the Department of Home Affairs (Department) that:
a. the reference in the Departmental notes ‘ATTN: Non Disclosure certificate required for pp 15 of CLD 2019/4911693’ is a reference to page 15 of the visa application. This being the visa application that was the subject of the Tribunal's decision which is now on review before the Federal Circuit Court; and
b. on 2 October 2020, a search was conducted of the Department’s records and the officer was unable to locate any non-disclosure certificates on the applicant’s file.
Ms Azar’s affidavit annexed the complete file identified as CLD2019/4911693. Page 15 references an email dated 22 January 2019 which provided:
Good morning,
The abovementioned client lodged Medical Treatment Visa application on 21/01/2019.
Would you please consider granting a BVE in association with the MTV application?
Thank you for your assistance.
Also annexed to Ms Azar’s affidavit was a Departmental Checklist that is cross checked when the Tribunal requests files. This checklist indicates that there were no certificates of any nature referred to the Tribunal.
It is unclear why a reference is made to a s.375A certificate in the Departmental file. Ms Azar’s affidavit confirms that no s.375A certificate was ever provided to the Tribunal.
In circumstances where there was no certificate, there can be no error in the Tribunal failing to disclose one.
In any event, the email which the Departmental Note states was the subject of the s.375A certificate does not contain adverse information about the applicant. It is entirely irrelevant to the applicant’s visa application. It relates to a bridging visa. In those circumstances, even if there was a failure to disclose a certificate (which there was not), it was not material to the outcome and could not have realistically deprived the applicant of a successful outcome: SZMTA. As such, no jurisdictional error arises in this regard.
The Court has otherwise reviewed the Tribunal’s decision for any error. It is unable to identify any error of the sort this Court can address on review.
Conclusion
The applicant’s application for judicial review and affidavit fail to identify any jurisdictional error. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 27 October 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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