El Mir v Minister for Immigration
[2020] FCCA 1416
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL MIR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1416 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – show cause hearing – arguable case of jurisdictional error established. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 Migration Amendment Regulation 2013 (No. 1) Select Legislative Instrument No. 32, 2013 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Sayadi v Minister for Immigration [2015] FCA 1235 |
| Applicant: | EL MIR HALMI EL MIR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1349 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher by telephone |
| Solicitors for the Respondents: | Ms B Rayment of Sparke Helmore by telephone |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the first respondent is to show cause why relief should not be granted in respect of the grounds of review in the application, as explored in these reasons.
The matter is listed for a final hearing at 10.15am on 20 May 2021.
The applicant may file and serve any further submissions on which he wishes to rely not less than 14 days before the hearing date.
The first respondent may file and serve any further submissions on which he wishes to rely not less than 7 days before the hearing date.
The parties have liberty to apply for further orders or directions on 5 days notice.
Costs of the show cause application are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1349 of 2019
| EL MIR HALMI EL MIR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 5 November 2019.
Mr El Mir, a citizen of Lebanon, arrived in Australia on 21 March 2017 as the holder of a medical treatment visa.[1] On 15 June 2017, Mr El Mir applied for another medical treatment visa, which was refused on 12 July 2017.[2] On 3 November 2017, Mr El Mir applied again for a medical treatment visa.[3] On 14 December 2017, the delegate refused the visa on the basis that she was not satisfied Mr El Mir intended to stay temporarily in Australia for the purpose of receiving medical treatment as required by clause 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4]
[1] Court Book (CB) 59
[2] CB 46
[3] CB 1-10
[4] CB 45-48
On 3 January 2018, Mr El Mir applied to the Tribunal for review.[5] On 11 February 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the visa.[6]
[5] CB 51-52
[6] CB 73-80
Tribunal decision
The Tribunal identified that the issue on review was whether Mr El Mir genuinely intended to stay temporarily in Australia for the purpose of medical treatment as required by clause 602.215(1) of Schedule 2 to the Regulations.[7] The Tribunal considered whether Mr El Mir met clause 602.212(6) of Schedule 2 and so was excused from meeting clause 602.215(1) pursuant to clause 602.215(2). The Tribunal found that Mr El Mir was born in May 1969 and so had not yet turned 50 as required by clause 602.212(6)(b) of Schedule 2 to the Regulations.[8] Accordingly, Mr El Mir was required to meet clause 602.215(1).[9]
[7] CB 74, [7]
[8] CB 75, [9]-[10]
[9] CB 75, [13]
The Tribunal accepted that Mr El Mir was involved in a motor vehicle accident in March 2015 while in Australia, he suffered a number of injuries as a result and the accident impacted his mental health.[10] The Tribunal noted that six weeks after the accident, Mr El Mir returned to Lebanon and remained there for almost two years before returning to Australia and that his response to this concern was that he had to leave because he wanted to abide by his visa conditions.[11] The Tribunal acknowledged that Mr El Mir had complied with the conditions of his previous visas and accepted that he had strong family ties and other incentives to return to Lebanon.[12]
[10] CB 77, [30]
[11] CB 76, [21]
[12] CB 77-78, [30]-[31]
The Tribunal accepted that Mr El Mir received treatment as a result of the accident in both Lebanon and Australia. The Tribunal accepted that Mr El Mir took pain relief and anti-inflammatory agents, but considered that he could continue to do so in Lebanon.[13] The Tribunal considered that Mr El Mir had completed ten psychological sessions in Australia as a result of the accident and had previously received psychiatric treatment in Lebanon, but found that no evidence was presented that other arrangements had been made for additional treatment in Australia.[14]
[13] CB 77, [30]
[14] CB 76-77, [23]-[24], [27]
The Tribunal also accepted that Mr El Mir required cataract surgery but found that there was no evidence that this treatment had been arranged.[15] While the Tribunal was prepared to accept that Mr El Mir’s insurance claims had not finalised and that he would prefer to see them through in Australia,[16] it noted that to grant the visa, the Tribunal must be satisfied that Mr El Mir sought to obtain medical treatment and that arrangements had been concluded to carry out the treatment. The Tribunal found that Mr El Mir had not provided evidence that he had arranged cataract surgery in Australia.[17]
[15] CB 77, [30]
[16] CB 78, [31]
[17] CB 78, [32]
The Tribunal found that Mr El Mir did not meet clause 602.215 of Schedule 2 to the Regulations and affirmed the decision on review.[18]
[18] CB 78, [33]-[35]
The present proceedings
These proceedings began with a show cause application filed on 1 July 2019. That application was filed outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act) and Mr El Mir sought an extension of time under s.477(2). There were three unparticularised grounds in that application, which are no longer relevant. The matter came before me for an extension of time hearing on 13 November 2019. At that time Mr El Mir appeared in person with the assistance of an Arabic interpreter and explained difficulties he had had with earlier representatives. Mr El Mir expressed confidence that, if given the opportunity to obtain fresh legal representation, he could establish an arguable case for relief. I granted an extension of time subject to the condition that Mr El Mir file and serve an amended application asserting at least one new ground of jurisdictional error by the Tribunal no later than 13 December 2019. That pre condition was met by an amended application filed on that date. It followed that supplementary orders made by me on 13 November 2019 operated, culminating in the matter coming before me again on 2 June 2020 for a show cause hearing. At that time Mr El Mir was legally represented by counsel.
Having heard oral argument, I took the unusual step of reserving judgment. This was because the parties’ submissions, both oral and written, took a divergent view on the interpretation of the applicable criteria for the visa sought, which I could not immediately reconcile, and on which I would need to expatiate.
In addition to the court book filed on 19 July 2019, I have before me as evidence the affidavit of Tom Hillyard, made on 13 November 2019. Annexed to that affidavit are documents additional to those appearing in the court book.
A further affidavit by Mr El Mir made on 1 June 2020 and, with its annexures running to 122 pages, was objected to by the Minister’s solicitor at the show cause hearing. Taking into account that the documents annexed to that affidavit include documents which were not before the Tribunal and which are presented in order to help to explain Mr El Mir’s submissions, I accepted the affidavit and its annexures as a submission.
The grounds of review were further amended in written submissions filed on behalf of Mr El Mir on 21 May 2020. As thus amended, those grounds now 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.
Consideration
Ground One – did the Tribunal fail to properly assess the visa application by reference to all of the relevant criteria?
Mr El Mir’s submissions
Mr El Mir’s primary contention under Ground One is that the Tribunal erred in assessing his application solely under the clause 602.212(6) criterion in circumstances where it was open to the Tribunal to assess the visa application under the alternative criteria in clause 602.212(2) or (7) or (8). Mr El Mir proceeds on the basis that it was apparent that he was not eligible for an assessment under the clause 602.212(6) criterion (“Unfit to Depart” category) primarily because he had not applied for a permanent visa in Australia.
The explanatory statement that introduced the migration regulations that govern subclass 602 visa, Migration Amendment Regulation 2013 (No. 1) Select Legislative Instrument No. 32, 2013 (the “Explanatory Statement”) states:
Division 602.2 – Primary Criteria
This Division sets out the primary criteria for the grant of a Subclass 602 visa. The note provides that all applicants must satisfy the primary criteria unless the applicant is a family member of a person who already holds a Medical Treatment visa on the basis of meeting the ‘unfit to depart’ criterion.
New clause 602.212 sets out the requirements specific to each cohort of applicants.
Unfit to depart
Mr El Mir argues that the guidance provided by the Minister’s Department via Schedule 2 Visa 602 - Medical Treatment of the Procedures Advice Manual (“PAM”) states:
“Unfit to depart” category is applicable to visa applicants who are
(i) in Australia;
(ii) 50 or more years of age;
(iii) a person who has applied for a permanent visa and satisfied all criteria for that visa other than health (that is, PIC 4005 or PIC 4007) and
(iv) have been refused a permanent visa on health grounds.
The PAM further states “MTV applicants in this category must have been refused a permanent visa in Australia on health grounds”. Furthermore, in a section titled “What does ‘unfit to depart’ mean”. The PAM states:
Applicants in this category need to establish that they are unfit to depart (leave) Australia - refer to 602.212(6)(f). An applicant is fit to depart if they:
·are able to travel unassisted and unaccompanied on an international flight, and
·require no special health arrangements for the flight, and
·are able to travel without undue discomfort, and are unlikely to suffer significant psychological trauma or distress, for example by being parted from family in Australia.
The PAM further states:
Form 1148 (Assessment of Medical Condition (Referred Health Assessment)), which is available only on LEGEND, is used for the “fitness to depart” test. In practice, this medical assessment will be done by a doctor at an office of the MMSP, and reviewed by a MOC.
In the Tribunal’s decision record at [8],[19] the Tribunal states “Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia”. Subsequently, the Tribunal concluded, “there is no suggestion that any other alternative sub criteria are relevant in this case”.[20]
[19] CB 74
[20] CB 75. [11]
Based on the foregoing, Mr El Mir argues that the facts of his application and circumstance did not lend to a suggestion that the “unfit to depart” category was the applicable category or the sole category relevant to his circumstance for the purpose of determining his eligibility under clause 602.212. Relevantly, Mr El Mir had neither applied for a permanent visa nor had he been refused a permanent visa on health grounds whilst in Australia. The Explanatory Statement states:
602.212(6) sets out the requirements to be met for the “Unfit to Depart” category of applicants who are medically unfit to depart due to a permanent and deteriorating disease or condition. The criteria ensure that eligibility for the visa does not arise in situations where the applicant’s disease or health condition is temporary in nature.
This statement is said to explicitly support Mr El Mir’s stance that the “unfit to depart” criterion was neither the accurate nor sole criterion applicable to his case. Mr El Mir was seeking to renew his visa to facilitate ongoing medical treatment. He did not present as an applicant who was medically unfit to depart due to a permanent disease or condition.
Other applicable criteria
Secondly, Mr El Mir argues that having found that he did not satisfy the requirements of the “unfit to depart” criterion, it was open to the Tribunal to assess his clause 602.212 criterion eligibility against the other applicable criteria namely clause 602.212(2), (7) or (8). Mr El Mir submits that there is no mechanism in the legislation which precludes the Tribunal from assessing an onshore application against clause 602.212(2). The facts of Mr El Mir’s case were such that he was more likely to satisfy the clause 602.212(2) category than the “unfit to depart” category.
The PAM states, “All MTV applicants must be seeking to visit, or remain in Australia temporarily for the purposes of ‘medical treatment or related purposes’ (602.211)”. Likewise it states, “Under 602.212(2)(b), applicants seeking to arrive or remain in Australia temporarily for medical treatment must have concluded arrangements to carry out the proposed treatment”. This suggests that the assessment of a visa application where the applicant is onshore is not restricted to the “unfit to depart” criterion. Mr El Mir submits that the legislation contemplates that an onshore applicant’s eligibility for the purpose of clause 602.212 can be assessed under the “Medical Treatment” criterion, that criterion is not limited to offshore applicants.
The Explanatory Statement in respect of the “Medical Treatment” category states “Cl 602.212(2) sets out the requirements to be met for the ‘Medical Treatment’ category of applicants who seek medical treatment or consultation, other than treatment for the purposes of surrogate motherhood”. The PAM states:
“Medical treatment” (refer to clause 602.212(2)) can include all medical procedures (for example, tests, surgery and/or consultations), whether:
a)minor or major;
b)life-saving or cosmetic;
c)consultation or surgery or;
d)available in the home country or not.
Mr El Mir submits that the nature of ongoing medical treatment required for his medical condition falls into this definition.
Mr El Mir accepts that medical treatment visas are not appropriate for persons wishing to stay in Australia for periods beyond one year. However, the question of whether Mr El Mir genuinely requires ongoing medical treatment or genuinely intends to stay temporarily for the visa purpose is relevant to criterion clause 602.215. In the event that the grant of the visa would result in a total stay of more than 12 months, Mr El Mir would need to demonstrate compelling personal reasons or exceptional circumstances pursuant to clause 602.219B.
Under a section titled “Ongoing Treatment”, the PAM states:
Some persons request lengthy or “rolling” MTVs on the basis that they will require ongoing and regular medical treatment for a prolonged period. Although they are medically capable of departing Australia, they would prefer to remain in Australia indefinitely in order to continue medical treatment. Unless exceptional circumstances apply, it would be expected that applicants in this situation would not ordinarily meet the genuine visit requirement.
This statement supports the view that the legislation contemplates that in some instances certain applicants who are not “unfit to depart” may require ongoing medical treatment in Australia. The question whether a visa should be granted in those circumstances would depend on the factual matrix of the case and the assessment of “genuine intention” pursuant to clause 602.215.
Minister’s submissions
Ground One of the amended application is said to be misconceived and to be premised upon a fundamental misunderstanding of the applicable legislation. The particulars in support of this contention and Mr El Mir’s submissions do not meaningfully advance the contention made by this ground.
As the Tribunal identified, the issue on review was whether Mr El Mir genuinely intended to stay temporarily in Australia for the purpose of medical treatment as required by clause 602.215(1) of Schedule 2 to the Regulations.[21] Although Mr El Mir was required to meet one of the seven alternative sub-criteria in clause 602.212(2)-(8), he was required to meet the sub-criterion in clause 602.212(6) in order to be excused from meeting the requirement in clause 602.215.[22]
[21] CB 74, [7]
[22] see clause 602.215(2) (CB 74, [8])
In this regard, the Tribunal identified that clause 602.212(6) was the sub-criterion relevant to Mr El Mir, which itself required him to meet all the requirements of clause 602.212(6)(a)-(f).[23] There can be no dispute that the Tribunal was correct to find that Mr El Mir did not meet clause 602.212(6)(b), which required him to have turned 50 years of age.[24] Mr El Mir’s submissions fail to grapple with the applicable requirements in clause 602.212(6) and that in circumstances where an applicant has not turned 50, it is rendered “unnecessary to consider any of the other requirements of this subclause”.[25]
[23] CB 74, [8]
[24] CB 75, [10]
[25] Sayadi v Minister for Immigration [2015] FCA 1235 per Perranm J at [14]
In any event, and contrary to Mr El Mir’s submissions, there was otherwise no suggestion that Mr El Mir satisfied any of the other subclauses in clause 602.212.[26] Further, the Tribunal identified (correctly) that the evidence before it did not indicate that he had made arrangements for the treatment he claimed to require.[27]
[26] CB 75, [11]
[27] CB 77, [30]
Once the Tribunal found that clause 602.212(6) was not met, it is said to have been plainly correct to go on to consider whether Mr El Mir met clause 602.215 (which he needed to satisfy even if he had shown he met clause 602.212(2)). This much is apparently conceded by Mr El Mir in addressing the second ground. That concession is said to make Mr El Mir’s other complaints in relation to Ground One untenable.
Resolution
Clause 602.212 is in the following terms:
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a) the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i) the donor of the relevant organ is accompanying the applicant to Australia; or
(ii) all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d) the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e) arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3) All of the following requirements are met:
(a) the applicant seeks to donate an organ for transplant in Australia;
(b) if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c) the applicant satisfies public interest criterion 4005;
(d) arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant;
(e) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4) All of the following requirements are met:
(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i) the requirements described in subclause (2) or (3) are met; or
(ii) the requirements described in subclause 675.212(2) or (3) are met; or
(iii) the requirements described in subclause 685.212(2) or (3) are met;
(b) the person to whom the applicant is to provide support holds:
(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c) the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5) All of the following requirements are met:
(a) the applicant is a citizen of Papua New Guinea;
(b) the applicant resides in the Western Province of Papua New Guinea;
(c) the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
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.
Financial hardship
(7) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant holds:
(i) a Subclass 602 visa; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d) the applicant is suffering financial hardship as a result of changes in the applicant's circumstances after entering Australia;
(e) the applicant, or a member of the applicant's immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f) the applicant, or a member of the applicant's immediate family, cannot leave Australia for reasons beyond his or her control;
(g) the applicant has compelling personal reasons to work in Australia;
(h) the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant has compelling personal reasons for the grant of the visa;
(d) the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).
It is apparent that subclauses (2)-(8) of clause 602.212 are alternative pathways to the satisfaction of the criteria for a medical treatment visa. Subclauses (2), (7) and (8) are all potentially relevant. Subclauses (3), (4) and (5) are all plainly inapplicable. It is not at all clear to me why the Tribunal chose to consider subclause (6) and not subclauses (2), (7) or (8). While the Minister is correct in submitting that the issue before the Tribunal was whether Mr El Mir could satisfy the genuine intention criteria under clause 602.215 once he had failed to satisfy clause 602.212(6), it is unclear why the Tribunal considered the criteria in subclause (6) to be the relevant criteria.
The curiosity of the Tribunal’s approach is especially apparent when one bears in mind that Mr El Mir returned to Australia following the motor vehicle accident on a medical treatment visa and was presumably fit to travel for that purpose. He was also plainly under the age of 50 years and thus could not satisfy subclause (6).
The Minister contends that there was a dearth of material supporting any claim under any of the other criteria. That might be answered by stating that there was a dearth of material preventing the application of the other criteria, while there was plenty of material to ensure that Mr El Mir could not satisfy the criteria that were applied.
It is thus arguable that the Tribunal fell into error in the manner alleged in the first ground.
Ground Two – did the Tribunal make findings unsupported by evidence or based on erroneous assumptions?
Mr El Mir’s submissions
In Ground Two, Mr El Mir contends that the Tribunal erred by making conclusive findings in circumstances where such findings were not supported by any material or evidence before the Tribunal.
Mr El Mir acknowledges that visa applicants who are seeking a medical treatment visa for an ongoing medical condition would need to satisfy the genuine intention criterion pursuant to clause 602.215 unless they satisfy the “unfit to depart” category. Clause 602.215 requires Mr El Mir to demonstrate that he intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he has previously complied with any previous conditions imposed or he intends to comply with conditions of the medical treatment visa.
The PAM states “a genuine visitor” is not defined in the Migration Act. However, under policy “visit” refers to both the nature and duration of the proposed visit and the applicant’s genuine intention to leave Australia at the end of the medical treatment plan, irrespective of the outcome of the medical treatment or the prognosis of the medical condition. This does not prevent a further medical treatment visa from being granted if the applicant continues to receive ongoing treatment, but the objective of the visit should remain to leave Australia at the completion of the treatment. In general, therefore, medical treatment visas should not be granted to applicants who intend to:
a)remain in Australia for a longer period, that is, maintain ongoing residence in Australia;
b)make protection claims in Australia;
c)circumvent Australian migration laws;
d)work illegally in Australia;
e)study for longer than three months; or
f)not abide by the conditions of their visa.
Delegates are encouraged to take a fair and reasonable approach to the genuine visitor requirement, particularly if the applicant has a partner relationship with an Australian citizen or permanent resident and/or there are children involved.
The Tribunal dealt with the genuine intention criterion [14]-[34] of its decision.[28] The Tribunal accepted that Mr El Mir:
a)had complied with the conditions of his previous visas;
b)had been involved in an accident in March 2015 and had received treatment both in Lebanon and Australia;
c)takes pain relief and inflammatory agents and was of the view that he can continue to do so in Lebanon;
d)requires cataract surgery but no evidence was presented that this treatment had been arranged;
e)has strong family ties and he has other incentives to return to Lebanon.
[28] CB 75-78
In essence, Mr El Mir accepts that it was open to the Tribunal to consider whether the ongoing medical condition, the subject matter of the proposed visa, could be treated in his home country. To this extent, the consideration was not irrelevant. However, as cited in the particulars, PAM guidance cited below supports the proposition that the availability of medical treatment in Lebanon is not on its own, a reason to conclude the absence of genuine intention.
Availability of treatment overseas
Visa applicants may occasionally seek a medical treatment visa 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 a medical treatment visa 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) –(must be a genuine visitor).
If this is a factor in a negative genuineness assessment, it is expected that the assessment be supported by additional evidence, unrelated to the availability of treatment in another country.
Mr El Mir contends that the Tribunal’s finding was erroneous because there was no evidence or material before the Tribunal to demonstrate the availability, cost and convenience of treatment in Lebanon relative to Australia for the purpose of accurately assessing the genuine intention requirement in respect of him. Consequently, Mr El Mir submits that the Tribunal’s “erroneous finding” was operative in the ultimate conclusion that clause 602.215 was not met.[29]
[29] CB 78, [33]
It is said to have been an error of law to make a finding for which there is no evidence.[30] In this case that error of law was made in the course of assessing Mr El Mir’s satisfaction of clause 602.215. The erroneous finding is said to have been instrumental to the Tribunal’s conclusion that Mr El Mir did not meet the requirement of clause 602.215.
[30] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [90]-[91]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356
Minister’s submissions
Mr El Mir’s complaint by this ground is said to be baseless. First, the Tribunal did not affirm the delegate’s decision solely on the basis that treatment was available in Mr El Mir’s home country; rather it considered this element in concluding that Mr El Mir was not a genuine temporary entrant as required by clause 602.215.[31] Mr El Mir concedes that the question of whether he could obtain treatment in his home country was relevant to the Tribunal’s assessment of clause 602.215.
[31] CB 77, [27], [30]
Secondly, to the extent Mr El Mir asserts that the Tribunal’s finding that he could continue to take pain relief and anti-inflammatory medication was erroneous and made without evidence, that assertion does not raise an arguable jurisdictional error. Mr El Mir gave evidence himself that he had been treated with medication, injections and x-rays in Lebanon.[32] He did not otherwise provide any evidence to explain why he could not continue this treatment in Lebanon.[33] Mr El Mir’s contention in this regard essentially makes a claim about why he could not receive treatment in Lebanon which was not advanced before the Tribunal and in this regard is said to seek impermissible merits review.
[32] CB 76, [22]
[33] CB 77, [27]
Thirdly, these complaints are said to overlook Mr El Mir’s claim that the treatment he needed to remain in Australia to receive was cataract surgery which “had no relationship to his injuries from his motorbike accident” and which, despite having been in Australia since 21 March 2017 he had not at the time of the Tribunal’s hearing or decision provided any evidence of having arranged. Mr El Mir’s submissions are said to ignore these other findings made by the Tribunal in reaching the conclusion that he did not meet clause 602.215.
As identified by the Tribunal, Mr El Mir sought the visa for the period 3 November 2017 until 31 January 2018.[34] By the time of the Tribunal’s hearing and decision, the period for which the visa was initially sought would have ended more than a year earlier. Despite the length of time that had passed, Mr El Mir failed to provide any evidence to demonstrate that he had arranged the cataract surgery for which he claimed to require the grant of the visa. In those circumstances, it is said to have been plainly open to the Tribunal to find that clause 602.215 was not met.[35]
[34] CB 75, [15]
[35] CB 78, [32]-[35]
Resolution
By Ground Two, Mr El Mir contends, in essence, that the Tribunal erred in concluding that he did not meet clause 602.215 because there was no evidence before it to demonstrate the availability, cost and convenience of treatment in Lebanon for his claimed injuries. The particulars in support of this ground refer to the guidance in the PAM that:
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.
The solicitor for the Minister accepted in oral argument that, contrary to what had been put in the Minister’s written submissions, there was evidence that Mr El Mir’s cataract ailment was a consequence of trauma due to the traffic accident.[36] The Tribunal therefore needed to consider both the pain and inflammation treatment and the cataract surgery.
[36] CB 21
It should also be noted, at the outset, that the second ground only comes into play if Mr El Mir fails on the first ground. That is because the genuine intention to stay temporarily criterion arises from a failure to satisfy clause 602.212(6).
For the purposes of the genuine temporary stay criterion, the Tribunal accepted that Mr El Mir was involved in a motor vehicle accident but was concerned that no evidence was presented that any treatment for his cataract surgery had been arranged. Mr El Mir had, however, pointed out that the surgery was dependent upon the success of his insurance claim which had not then been resolved.[37] The Minister contends that it was nevertheless incumbent upon Mr El Mir to make arrangements for the surgery prior to the Tribunal’s decision, whether or not he had the means to pay for it.
[37] It still apparently has not been resolved
There is, in my view, no limitation on the matters the Tribunal can take into account in considering the genuine temporary stay criterion. In the present case, it was relevant that Mr El Mir had most recently come to Australia on a medical treatment visa and was now seeking a further visa for the same treatment. It was also relevant that he had made an insurance claim for the purposes of the treatment. It was, to my mind, far from determinative that the treatment might be available in Lebanon and that arrangements for the treatment in Australia (in relation to cataract surgery) had not yet been made.
In my view, the second ground is also arguable, when framed in the context of these reasons.
Conclusion
As the grounds in the application are arguable, the case should proceed to a final hearing. I will make the necessary procedural orders for that hearing.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 June 2020
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