El Mir v MICMSMA.
[2021] FCCA 1093
•21 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
El Mir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1093
File number(s): SYG 1349 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 21 June 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – Tribunal finding the applicant failed to meet a particular criterion – whether the applicant should have been assessed against alternative criteria considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 65, 359
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
El Mir v Minister for Immigration & Anor [2020] FCCA 1416
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 515
Number of paragraphs: 30 Date of hearing: 20 May 2021 Place: Sydney Counsel for the Applicant: Ms U Okereke-Fisher Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 1349 of 2019 BETWEEN: EL MIR HALMI EL MIR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
21 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 11 February 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr El Mir, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 February 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr El Mir a medical treatment visa.
I dealt with the background to this matter in an interlocutory judgment delivered on 19 June 2020.[1]
[1] El Mir v Minister for Immigration & Anor [2020] FCCA 1416 at [3]-[9]
THE CURRENT PROCEEDINGS
In my interlocutory judgment at [10]-[14] I dealt with the procedural history of the matter, various iterations of the grounds of review and the material before me. I found that the grounds of review advanced at that time were fairly arguable and made an order under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) requiring the Minister to show cause why relief should not be granted in respect of those grounds.
The grounds of review are:
Ground One
The Tribunal failed to assess the Applicant’s application in accordance with law in that the Tribunal proceeded on the erroneous assumption that the Applicant was required to satisfy the requirement of cl 602.212(6) solely, in circumstances where it was open to the Tribunal to assess the Applicant under the other criteria under cl 602.212 including cl 602.212(2) and thereafter, cl 602.215.
Particulars
a)The Tribunal stated “Relevantly to this matter, cl. 602.212(6) relates to an applicant being medically unfit to depart Australia. [Paragraph 8, CB74]
b) Ultimately, the [Tribunal] found that the Applicant did not meet the requirements of cl.602.212 (6)(b) and as such he was unable to meet the requirements of cl.602.212(6) in its entirety. [Paragraph 10, CB74]
c) It found that no any other alternative sub criteria was relevant and therefore the requirement at cl.602.215 applied. [Paragraph 11, CB74]
Ground Two
The Tribunal made findings that were not supported by factual evidence and proceeded on an erroneous assumption that availability of treatment in the Applicant’s home country was a relevant reason to affirm the delegate’s decision leading to jurisdictional error.
Particulars
a) The Tribunal noted, “No evidence was submitted to the Tribunal as to why the applicant cannot continue with this treatment in Lebanon. [Paragraph 27, CB77]
b) The Tribunal accepted that the Applicant takes pain relief and anti-inflammatory agents and is of the view that he can continue doing so in Lebanon. [Paragraph 27, CB77]
c) Section 4.4 of Sch 2 Visa 602 - Medical Treatment of the Department’s Procedural Advice Manual (PAM) states:
Availability of treatment overseas
Visa applicants may occasionally seek an MTV for treatment in Australia when similar treatment is available in their home country or another convenient country. There is no requirement that the treatment must not be available in another country, so an MTV application cannot be refused solely on that basis.
If, however, it is relevant to the circumstances of the case, the availability, cost and convenience of treatment in other countries may be considered in the context of assessing the genuine visitor requirement (602.215) – refer to Must be a genuine visitor.
For the purposes of the final hearing of this matter on 20 May 2021, I have before me the same material as was before me in the interlocutory proceeding. I also received a further affidavit by Mr El Mir filed on 18 May 2021 for the limited purpose of any potential question of futility and to bring up to date the medical history of Mr El Mir.
CONSIDERATION
Ground 1 – did the Tribunal err in identifying the relevant criterion in clause 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)?
I dealt with the arguments in relation to this ground at some length in my interlocutory judgment at [15]-[40].
For the purposes of the final hearing, counsel for Mr El Mir essentially put the following propositions:
(a)clause 602.212(6) did not apply to Mr El Mir;
(b)the Tribunal failed to assess Mr El Mir against other applicable alternative criteria in clause 602.212(2), (7) or (8);
(c)the Tribunal’s failure to assess Mr El Mir under clause 602.212(2) undermined its later finding in relation to clause 602.215; and
(d)the error goes to jurisdiction.
The Minister relevantly argues as follows.
Section 65 of the Migration Act 1958 (Cth) provides for the matters about which the Minister (or his delegate, but which also extends to the Tribunal on review) must be satisfied in order to grant a visa. One of the relevant matters is that “the other criteria for it prescribed by this Act or the regulations have been satisfied”.[2] Clause 602 of Schedule 2 to the Regulations sets out the criteria to be satisfied for the grant of the medical treatment visa. Clause 602.2 itself provides that (subject to an inapplicable exception) “All applicants must satisfy the primary criteria” and that “All criteria must be satisfied at the time a decision is made on the application”.
[2] section 65(1)(a)(ii)
The Tribunal in the present case concluded, by reference to one of a number of separate and independent criteria for the grant of the visa (relevantly appearing in clause 602 of the Regulations), that Mr El Mir did not meet the requirements of clause 602.215. Shortly stated, that criterion required the Tribunal to consider whether Mr El Mir genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal was not required to address each and every criteria in clause 602 in order to determine which of those criteria Mr El Mir met. The Tribunal was entitled to identify a criterion that it considered Mr El Mir might not meet, and to consider and address the relevant considerations under that criterion, and to make its decision accordingly. It was open to the Tribunal to find, for the reasons it gave, that Mr El Mir did not meet the requirements of clause 602.215. Mr El Mir’s sole basis of challenge to the Tribunal’s determination with respect to clause 602.215 is the argument advanced in the second ground (addressed below).
The Minister submits, with respect to a concern that arose before the Court at the show cause hearing as to the reason why the Tribunal considered clause 602.212(6) to be the “relevant criteria”,[3] that is because clause 602.215 did not apply if, and only if, clause 602.212(6) was met. That is, the Tribunal was required by clause 602.215(2) to first consider whether Mr El Mir met clause 602.212(6), and if he did not (and there could be no argument in this case that he did not) then the Tribunal was required to consider whether Mr El Mir genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted. Having found that clause 602.212(6) was not met, the Tribunal did not need to consider whether the other criteria in clause 602.212 were met. Thus it is said to be misleading to suggest that the Tribunal selected or focussed upon clause 602.212(6) as the “relevant criteria”. It considered that criterion in order to determine whether it needed to consider clause 602.215.
[3] see the interlocutory judgment at [37]
The Minister contends that, ultimately, even if clauses 602.212(2), (7) or (8) could have been met by Mr El Mir (which the Minister does not concede), the Tribunal would have been required to consider clause 602.215 because he did not meet clause 602.212(6). As such, any error in the Tribunal’s assessment of clause 602.212 (which is also not conceded) is said to have been immaterial as the Tribunal’s consideration of clause 602.215 was a separate and independent basis for the decision, and the determinative issue on the review.
Resolution
The Tribunal correctly stated at [7][4] that the issue to resolve in this case was whether Mr El Mir genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. On my reading, the Tribunal only explored the application of clause 602.212 in order to determine whether that question could be avoided through the operation of clause 602.212(6).[5]
[4] CB 74
[5] see clause 602.215(2)
In my view, the Tribunal took the wrong approach. It was wrong for two reasons. The first is that it was obvious that Mr El Mir could not satisfy clause 602.212(6) because he had not attained the age of 50 years. The subclause was hence irrelevant to his circumstances.
Secondly, the criterion that was most relevant to Mr El Mir’s circumstances was clause 602.212(2). That was not considered by the Tribunal, apparently on the basis that it was not suggested that Mr El Mir satisfied it. On the facts that he presented, however, in my view it was the only criterion in clause 602.212 that Mr El Mir could have satisfied. In that regard, I accept that he could have faced difficulties because of the lack of clarity in relation to arrangements to carry out the treatment for which he was in Australia and arrangements for the payment of all costs related to the treatment.
Mr El Mir, in his latest affidavit, provides information that suggests he might have a better chance of satisfying those criteria now, but that is not the point. Further, it is not for the Court to indulge in merits review.
Based upon my reasoning at [14] and [15] above, I find that the Tribunal did fall into error in dealing with clause 602.212. The error, however, would not go to jurisdiction unless it impacted upon the Tribunal’s consideration of 602.215. That is because the latter clause needed to be satisfied unless clause 602.212(6) applied, which it did not.
If the Tribunal had considered the application of clause 602.212(2), it would have been better informed for the purposes of its consideration of clause 602.215. In my view, it is more than possible that if the Tribunal had undertaken the analysis required by clause 602.212(2) it might have come to a different conclusion under clause 602.215. I accordingly find that the error made by the Tribunal does go to jurisdiction and Ground 1 is hence made out.
Ground 2 – did the Tribunal make findings unsupported by evidence or based on erroneous assumptions?
I dealt with the issues in relation to this ground in my interlocutory judgment at [41]-[61]. For the purposes of the final hearing, counsel for Mr El Mir accepted that it was open to the Tribunal to consider whether his ongoing medical condition, the subject matter of the proposed visa, could be treated in Lebanon. To that extent, the consideration was not irrelevant. It is argued on behalf of Mr El Mir, however, that the availability of medical treatment in Lebanon was not on its own a reason to conclude an absence of a genuine intention. Mr El Mir contends that the Tribunal fell into error at [30] of its reasons.[6]
[6] CB 77
Given that Ground 1 has been established, it is not strictly necessary to consider the second ground and I only do so in case I am wrong about the first ground. I prefer the Minister’s submissions in relation to the second ground.
In relation to the second ground, as I stated at [56] of my earlier judgment, the point advanced by Mr El Mir essentially is that the Tribunal erred in considering clause 602.215 because there was no evidence before it to demonstrate the availability, cost and convenience of treatment in Lebanon for Mr El Mir’s claimed injuries.
It is to be recalled, however, that it was Mr El Mir himself who gave evidence to the Tribunal that, rather than just being treated with painkillers, as he had in Australia following his motorbike accident that required hospitalisation and prior to his departing for Lebanon thereafter, in Lebanon Mr El Mir had received treatment in the nature of “medication, injections and x-rays”.[7] When questioned as to why he returned to Australia if he was being treated in Lebanon, Mr El Mir responded that it was to undergo cataract surgery. There was a delay in this surgery connected apparently to the delay in an insurance claim, because (Mr El Mir told the Tribunal) “the doctor is trying to claim the cataract surgery as part of the accident”.[8]
[7] CB 76 [22]
[8] [22]
It has been said that the “no evidence” rule is not met in circumstances where there is at least some (or a “skerrick”) of evidence for the finding.[9] As Mr El Mir himself gave evidence to the Tribunal that he had received treatment for his conditions that resulted from the motorbike accident, his “no evidence” argument cannot succeed. It was unnecessary for the Tribunal to investigate the matter further, or to exercise its discretion under s 359 to get more information about the range and extent of medical treatment available to him in Lebanon.
[9] Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356
The Tribunal’s findings must be considered in their proper context. The Tribunal had before it an application for review of a delegate’s decision to refuse Mr El Mir a medical treatment visa that he had applied for in connection (he said) with treatment he required as a consequence of a motorbike accident that occurred in March 2015. Mr El Mir departed Australia six weeks after the accident, returning to Lebanon. He remained in Lebanon for approximately two years before applying for a medical treatment visa which was granted to him offshore, precipitating his return to Australia in March 2017. When that medical treatment visa ceased three months later, Mr El Mir made another application for a medical treatment visa, which was refused.[10] His eye surgery in Australia was not arranged, and it appeared would not be arranged unless and until an insurance claim had been settled. There was scant information before the Tribunal about the insurance claim, or its progress, save that the latest advice Mr El Mir had received (from whom it is not known) was that “it may be another three to four months”. In other words, on the evidence before the Tribunal, the only identified purpose Mr El Mir had at the time of the Tribunal decision for his temporary stay in Australia was to await the outcome of an unspecified insurance claim that might lead, at some point in the indeterminate future, to him receiving eye surgery.
[10] see delegate’s decision at CB 46 and my interlocutory judgment at [3]; Tribunal’s decision at [15]-[16] and [21]
It was by reference to the above matters, described in the Tribunal’s decision record, that the Tribunal reasoned that Mr El Mir was not a genuine temporary applicant. The Tribunal did not find that he was disingenuous, or that he had given false evidence, or that he had failed to comply with visa conditions in the past, or that he did not have real medical needs. To the contrary, the Tribunal made findings in these matters in Mr El Mir’s favour. However, the Tribunal was considering whether Mr El Mir was genuinely in Australia for a temporary purpose in connection with the receipt of medical treatment. It was open to the Tribunal on the material before it, and including by reference to the fact that Mr El Mir had received and in the future could continue to receive treatment in the nature of receiving pain relief and anti-inflammatory agents in Lebanon, to find that Mr El Mir was not a genuine temporary entrant.
To the extent Mr El Mir submits that the Tribunal erred in relying solely on the fact of his past and future medical treatment in Lebanon, properly read, that was not the Tribunal’s reasoning. It was not just due to the fact that Mr El Mir could obtain treatment in Lebanon that the Tribunal reasoned at [30] that he was not a genuine temporary entrant. Rather, it was the fact that there was no evidence that his treatment for cataracts had been arranged.
The Tribunal may take into account for the purposes of considering whether an applicant intends to stay temporarily in Australia matters that are not expressly prescribed in the regulation. It may have regard to “any relevant matter”. As this Court stated in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[11] at [30], “the words ‘any other relevant matter’ in clause 602.215 (1)(c) were so wide in scope as to allow the Tribunal to have regard to other matters of a personal nature which legitimately might have been able to have been taken into account.” It was open to the Tribunal in this case to have regard to Mr El Mir’s present and intended medication and treatment circumstances for the purposes of considering whether he was in Australia genuinely for a temporary reason. Mr El Mir takes no issue in these proceedings that such matters are relevant considerations. As noted above, the Tribunal did not fall into error in determining the question of his genuineness as a temporary entrant solely by reference to this issue. To the contrary, the issue of concern for the Tribunal, which was a valid concern having regard to the regulatory scheme and the purpose for which medical treatment visas are granted, was that Mr El Mir was in Australia for an indefinite (or at least indeterminate) period of time in order to undergo cataract surgery.
[11] [2021] FCCA 515
To that extent it was a matter for the Tribunal (and not for this Court) to determine whether on the evidence before it (and on a proper understanding of the law) Mr El Mir met the requirements of clause 602.215.
CONCLUSION
I conclude that Mr El Mir has established that the Tribunal decision is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 21 June 2021
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