ENB20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 204
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENB20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 204
File number(s): SYG 2386 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 19 February 2025 Catchwords: MIGRATION – judicial review – Medical Treatment visa – whether Tribunal erred in finding that arrangements have not been concluded to carry out the treatment – fresh evidence – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 2 Pt 602 cl 602.212
Cases cited: Atta v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 205
Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Northern Territory v Sangare (2019) 265 CLR 164
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: [5 February 2025] Date of hearing: 12 February 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Mr T Patterson of Mills Oakley ORDERS
SYG 2386 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENB20
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 14 October 2020 be dismissed.
4.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 September 2020. The Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) made on 9 July 2018 to refuse to grant the applicant a Subclass 602 Medical Treatment (Visitor) (Class UB) visa (Subclass 602 visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
This application was heard in conjunction with the matter of Atta v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 205 (Atta). The applicant in the present matter is the wife of the applicant in Atta. In his Subclass 602 visa application, the applicant in Atta indicated that he was his wife’s support person and thereby entitled to the grant of a Subclass 602 visa on the basis of having met subcl 602.212(4) in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
For the following reasons, the application is dismissed.
BACKGROUND
The background of the matter was outlined within the Minister’s written submissions, which I largely adopt.
The applicant is a female national of Egypt who arrived in Australia as the holder of a Subclass 995 Diplomatic (Temporary) visa.[1] She subsequently made a number of visa applications, including a permanent visa application, that were refused by a delegate of the Minister. Following the final determination of a student visa application, judicial review was sought but unsuccessful. An unsuccessful request for Ministerial intervention was also made.[2]
[1] Court Book (CB) 134.
[2] CB 134.
On 12 June 2018, the applicant applied for the Subclass 602 visa under review.[3]
[3] CB 18.
On 9 July 2018, the delegate refused to grant the Subclass 602 visa as the applicant did not satisfy cl 602.215.
Proceedings before the Tribunal
On 31 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision. Having paid 50% of the prescribed review application fee, the applicant applied to the Tribunal for a fee reduction.[4]
[4] CB 23-34.
The fee reduction request was refused on 7 August 2018.[5] By way of letter, the Tribunal requested the applicant pay the remainder of the fee by 21 August 2018 and put the applicant on notice that if it were not paid by that date then the application would be allocated to a Member to determine whether a valid review application had been made.
[5] CB 49-50.
On 16 August 2018, the Tribunal was informed by the applicant’s daughter that the applicant was ‘incapable’ of paying the remainder of the fee.[6]
[6] CB 51.
On 23 August 2018, the Tribunal found it did not have jurisdiction in the matter as the prescribed fee had not been paid within the prescribed period and a determination of financial hardship had not been made.[7]
[7] CB 57.
Proceedings were brought before the Federal Circuit Court in which judicial review was sought in relation to this decision. On 10 December 2019, the applicant was successful before the Court and writs were issued.[8]
[8] CB 61.
Following remittal of the matter to the Tribunal, the Tribunal reconsidered the fee reduction request. On 11 March 2020, having considered further evidentiary material relating to financial hardship, the fee reduction was granted.[9]
[9] CB 86-87.
On 7 August 2020, the Tribunal requested the applicant provide current medical evidence from her treating doctors and any specialist she was consulting. It was specifically requested that such evidence outline the applicant’s current diagnoses, prognosis and any treatment she was receiving or will receive in the foreseeable future.[10] The applicant did not respond to this request. Instead, the applicant’s daughter provided medical evidence of why she had been unable to inform the applicant of the Tribunal’s request and sought further time to respond to that request.[11]
[10] CB 90.
[11] CB 91 - 100.
On 17 August 2020, the Tribunal invited the applicant to a hearing to be conducted via telephone on 8 September 2020 at 9.30 am.[12] In response to the hearing invitation, the applicant provided:
(a)an undated letter from the applicant’s doctor, in which it was stated that the applicant had been his patient since July 2017 and that she suffered from a range of health conditions, attached to which was list of the applicant’s medications; and
(b)a letter signed by the applicant, in which she:
(i)specified two medications she was taking to help with her anxiety (both of which were not specified in the list provided by her doctor); and
(ii)stated that she was taking these medications until such time as she would commence ‘propper (sic) therapy with a professional’.[13]
[12] CB 102 - 110.
[13] CB 111 - 118.
A hearing was conducted via telephone with the applicant and her husband, and with the assistance of an interpreter in the Arabic and English languages.[14] At the applicant’s request, the Tribunal also took evidence from a social worker, who explained she was a friend of the applicant’s daughter and was giving evidence in a personal context.[15] At the applicant’s request, the Tribunal attempted to contact a friend of the applicant but the call was not answered. The applicant indicated to the Tribunal that it was unnecessary to contact this friend.[16]
[14] CB 112 - 128.
[15] CB 133 at [4] and 135 at [24].
[16] CB 135 at [25].
Tribunal decision
On 9 September 2020, the Tribunal affirmed the delegate’s decision not to grant a Subclass 602 visa to the applicant.[17] In its decision, the Tribunal:
[17] CB 132.
(a)identified that the issue arising on the review was whether the applicant met the criteria set out in cl 602.212,[18] despite the fact that the delegate had refused the application as cl 602.215 had not been met as the delegate was not satisfied that she genuinely intended to stay temporarily in Australia.[19]
(b)recorded the oral and documentary evidence before it, including that provided by the applicant’s doctor,[20] and specifically noted that:
(i)the applicant had applied to remain in Australia for the treatment of anxiety and depression until June 2020, but found at the time of the hearing in September 2020 the applicant had not undertaken any psychiatric treatment for such since the making of the visa application.[21]
(ii)the documents provided did not record any arrangements for treatment by a psychiatrist had been concluded.[22]
(c)acknowledged the applicant’s evidence that she did not wish to initiate treatment until the uncertainty of her visa status is resolved,[23] and noted the discussion with the applicant at hearing about the requirement for the arrangements for treatment to have been concluded, and the applicant’s confirmation that there was no definite plan for treatment and that no arrangements had been made for her to consult a particular psychiatrist.[24]
(d)found arrangements had not been concluded to carry out the treatment and thereby concluded that the applicant did not meet subcl 602.212(2)(b). On that basis, the Tribunal determined that it was not necessary to examine whether the applicant could satisfy the other requirements in cl 602.212(2).
(e)proceeded to examine whether the applicant met any of the alternative criteria in cl 602.212 and found that she did not. In relation to cl 602.212(6), the Tribunal concluded that she did not meet subcl 602.212(6)(d) as she had previously been refused a permanent visa on a basis other than for having not met public interest criteria related to health.[25]
(f)considered the applicant’s claims that she could not return to Egypt due to the coronavirus pandemic but found that this circumstance, on its own, did not give rise to the applicant meeting any of the criteria in cl 602.212.[26]
[18] CB 135 – 136 at [26].
[19] CB 133 at [7].
[20] CB 133 at [9].
[21] CB 136 at [28].
[22] CB 136 at [29].
[23] CB 136 at [28].
[24] CB 136 at [31].
[25] CB 137 at [34].
[26] CB 137 at [36].
RELEVANT LEGISLATION
Clause 602.212(2) in Part 602 of Schedule 2 of the Regulations provides:
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.
Clause 602.212(6) in Part 602 of Schedule 2 of the Regulations provides:
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.
PROCEEDINGS BEFORE THIS COURT
By way of an amended application, filed on 27 January 2021, the applicant seeks judicial review of the Tribunal decision and raised the following unparticularised grounds (reproduced without alteration):
1.The Tribunal acted contrary to the evidence provided and contrary to the medical condition illustrated before them.
2.The Tribunal accepted that I am above 50 years of age and are aware of the difficulties and seriousness of returning to Egypt at present due to the COVID 19 global pandemic.
3.The Tribunal did not consider my medical circumstances including medical consultations and the need to undergo medical treatment/therapy.
4.The Tribunal has failed to see my genuine intention in waiting to be granted a Medical Treatment visa that enables me to take all reasonable steps towards my temporary treatment as Medical professionals see fit.
5.Post my disappointment and deteriorating mental state after the Tribunal’s decision, I have started psychological therapy despite the unstable conditions I would not have preferred to undergo my treatment in. In support of my medical condition, I submit and attach clinical report from Dr. Jacquelin Youssef, Mental Health Specialist and a Senior Social Worker.
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicant at hearing where she was afforded an opportunity to particularise her grounds and raise any further matters which indicated that the Tribunal had erred in making its decision.
During the hearing before this Court, the applicant’s submissions largely comprised information relating to the deterioration in her health since the Tribunal made its decision in September 2020. These submissions, at their highest, went no further than a request for impermissible merits review by the Court.
CONSIDERATION
I now turn to consider each of the applicant’s grounds.
Ground 1
The Minister submits that the applicant’s claim that the Tribunal acted ‘contrary’ to the evidence appears to allege, at its highest degree, that the decision was illogical. The test for irrationality or illogicality is stringent, and involves assessing whether the decision was one in which ‘no rational or logical decision maker could arrive on the same evidence’: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ.
I agree with the Minister’s submissions that the conclusion the Tribunal reached with regard to the applicant’s arrangements for treatment was plainly open to it, particularly given the applicant’s own evidence before the Tribunal in this regard.[27] The Tribunal clearly understood the question before it and the requirements for the visa.[28] The Tribunal engaged with the applicant’s own evidence, which confirmed that she had not concluded the arrangements for treatment.[29] As such, there was no error in the Tribunal’s conclusion that the applicant could not satisfy the requirement of subcl 602.212(2)(b).
[27] CB 136 at [30].
[28] CB 135-136 at [26]-[27].
[29] CB 136 at [30].
Accordingly, this ground must fail.
Ground 2
Ground two states that the Tribunal accepted the applicant was above 50 years of age, and was aware of the ‘difficulties and seriousness’ of her returning to Egypt during the coronavirus pandemic. The applicant was unable to further particularise this ground at hearing in any meaningful way.
In my view, this ground does not disclose any error on the Tribunal’s part. The Tribunal’s reasons clearly indicate that the Tribunal understood the applicant’s claims that she could not return to Egypt due to the coronavirus pandemic but nevertheless concluded that this circumstance, on its own, did not give rise to the applicant meeting any of the criteria in cl 602.212. There is nothing in this aspect of the Tribunal’s reasoning or its conclusion in this regard which discloses error on its part.
Furthermore, the applicant’s own evidence before the Tribunal was such that she did not meet one of the conjunctive requirements in cl 602.212(6), that being subcl 602.212(6)(d) because she had not been refused a permanent visa on the basis that she could not satisfy the health requirements. As such, the Tribunal did not err when it determined that the applicant failed to meet cl 602.212(6).
Accordingly, this ground must fail.
Ground 3
By way of ground three, the applicant contends that the Tribunal failed to consider the medical circumstances and the applicant’s requirement for treatment. When asked at hearing to particularise this ground further, the applicant raised a series of complaints including that the Tribunal had failed to consider her health, her pain, an ‘explosion’ in her brain and other injuries including a broken arm. When pressed to identify where such matters had been raised with the Tribunal either by way of documentary or oral evidence, the applicant could not do so.
Having reviewed the material, I agree with the Minister’s submissions that the Tribunal clearly engaged with the applicant’s own evidence including:
(a)the letter from her doctor, which did not record any arrangements for treatment by a psychiatrist having been concluded;[30]
(b)her desire to obtain the visa before she arranged or began treatment;[31]
(c)her evidence that she would be unable to receive treatment for anxiety and depression in Egypt;[32]
(d)her evidence that, aside from issues relating to COVID-19 in Egypt, she was fit to depart Australia;[33]
(e)the availability of medications in Egypt and the effectiveness of medications which were available;[34] and
(f)that she had not yet concluded her arrangements for treatment.[35]
[30] CB 136 at [29].
[31] CB 135 at [19]-[20].
[32] CB 135 at [21].
[33] CB 135 at [22].
[34] CB 135 at [23].
[35] CB 136 at [30].
On the evidence before it, the Tribunal was not satisfied the applicant had concluded her arrangements for treatment. The applicant has not identified any evidence that was put before the Tribunal which the Tribunal failed to consider. By contrast, in the applicant’s own oral evidence before the Tribunal she indicated that she had not concluded such arrangements at the time of the Tribunal hearing.
Accordingly, this ground cannot succeed.
Ground 4
By way of ground four, the applicant alleges the Tribunal failed to take her intentions into account when considering her evidence that she intended to seek treatment once the visa had been granted.
At hearing before me, the Minister relied upon his written submissions and repeated that this is an irrelevant consideration when determining whether the arrangements for treatment had been concluded. The Minister further submits that the Tribunal nevertheless considered the applicant’s explanation for not commencing treatment but found that, as there was no evidence of the applicant having been referred to a mental health practitioner for a course of treatment, it was open to the Tribunal to determine that the arrangements for treatment had not been concluded.
By way of oral submissions, the applicant explained that she had been receiving ‘treatment’ at the time from a social worker, Jenni, which the Tribunal ignored. A review of the material before the Court, including the Tribunal’s reasons, reveals that this particular assertion is misguided and misconceived. In its reasons, the Tribunal recorded that it took evidence from Ms Jenni Mackay, a social worker, at hearing, and that this social worker provided support to the applicant in a ‘personal context’ and personally understood that the applicant had anxiety and mental illness and needed to remain in Australia for therapy before returning to Egypt.[36]
[36] CB 135 at [24].
There is nothing in this ground, as pressed by the applicant, which reveals error on the Tribunal’s part. The Tribunal clearly understood the evidence before it in relation to the applicant’s intentions to obtain medical treatment in the future but nevertheless found that such intentions, on their own or in conjunction with other evidence, gave no basis for it to find that arrangements for the applicant’s treatment had been concluded.
Accordingly, this ground must also fail.
Ground 5
Having the benefit of reviewing the Minister’s written submissions prior to the hearing, and the opportunity to explore the applicant’s grounds by way of her further oral submissions at hearing, I agree with the Minister that ground five cannot be construed or properly understood as a ground of review as it does not articulate jurisdictional error. The applicant’s claims in relation to her having commenced psychological therapy since the Tribunal’s decision was made are not relevant for the purposes of judicial review as that claim was not before the Tribunal. At most, the claim amounts to an invitation for the Court to undertake impermissible merits review with regard to her current circumstances.
On 29 January 2025, the applicant filed an affidavit outlining her current health issues, annexed to which was a range of documents including a further affidavit from her daughter outlining her research about the availability of the applicant’s medications in Egypt. Discussions with the applicant at hearing revealed that this material was filed in an attempt to provide evidence in support of the applicant’s contentions within ground five. The Minister opposes the affidavit being admitted into evidence on the basis that it, and the material annexed thereto, was not before the Tribunal. I agree with the Minister and do not accept it into evidence on that basis. In so doing, I rely upon MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 where Nicholson J found at [8] that it is not open for an appellant to ask the Court to admit fresh evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.
Finally, during the hearing before me, the applicant offered to provide the Court with evidence of the treatment she has undertaken for her mental health issues since 2021. The Minister opposed the admission of such evidence on the basis that it was not before the Tribunal. For the foregoing reasons, I also reject the admission of such evidence.
Accordingly, this ground must also fail.
CONCLUSION
For the above reasons, the application is dismissed.
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $6,100. I find that costs should follow the event and that this amount to be reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions and appearance at the hearing.
Whilst I acknowledge the applicant’s submission that she may have difficulty paying such an amount, the applicant’s financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare [2019] HCA 25 at [35]; (2019) 265 CLR 164 at 176-177 (Sangare) per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ, as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $6,100.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 19 February 2025
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