Enc19 v Minister for Immigration

[2019] FCCA 3297

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENC19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3297

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: ENC19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1025 of 2019

Judgment of: Judge Driver

Hearing date: 15 November 2019

Delivered at: Sydney

Delivered on: 15 November 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Zinn of Mills Oakley

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to s.91X of the Migration Act 1958 (Cth), the applicant is allocated the pseudonym “ENC19”.

3. The name of the applicant is not to appear on the transcript of today’s proceeding.

4. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

5. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1025 of 2019

ENC19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 April 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a medical treatment visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 November 2019. 

3. The applicant is a female citizen of Ghana who first arrived in Australia as the holder of a temporary special program (subclass 416) visa on 5 August 2006.  She applied for a religious worker (subclass 428) visa on 24 August 2007 and lodged a protection visa application on 21 October 2010.[1]  Both applications were refused by delegates of the Minister and those refusals affirmed by the Tribunal.  She lodged a second protection visa application on 12 May 2014, which was also refused by a delegate of the Minister and that refusal affirmed by the Tribunal.[2]

   [1] It was for that reason that I required the applicant be allocated a pseudonym

   [2] Court Book (CB) 33

4. On 30 November 2017, the applicant lodged a medical treatment (subclass 602) visa.[3]  The applicant applied for the visa on the basis that she was suffering from abdominal and gynaecological problems.[4]  The visa application was accompanied by a completed Form 1507,[5] medical report,[6] a discharge referral report,[7] a referral letter from Liverpool Hospital informing that she was awaiting a gynaecological review of her condition[8] and appointment slips.[9]

   [3] CB 1-12

   [4] CB 13

   [5] CB 12

   [6] CB 13

   [7] CB 16-20

   [8] CB 21

   [9] CB 22

5. It was a requirement for the grant of the medical treatment visa that the applicant satisfy the primary criteria, including clause 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

6. Clause 602.215 relevantly stated:

   602.215

   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.

   (2)However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

7. On 6 December 2017, the delegate refused the visa application.[10] The delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted and therefore found the applicant did not meet the requirements of clause 602.215 in Schedule 2 to the Regulations.

   [10] CB 27-38

The Tribunal

1. On 19 December 2017, the applicant lodged an application with the Tribunal to review the delegate’s decision[11] and provided a copy of the delegate’s notification of refusal and decision record,[12] a request for fee reduction[13] and supporting documents.[14]

   [11] CB 40-65

   [12] CB 50

   [13] CB 51-59

   [14] CB 60-65

2. On 11 January 2018, the Tribunal granted the applicant a 50% fee reduction of the $1,731 filing fee.[15]

   [15] CB 73-74

3. On 10 December 2018, the applicant was invited to a hearing before the Tribunal scheduled for 11 February 2019.[16]

   [16] CB 75-81

4. On 11 January 2019, the applicant provided a competed response to hearing invitation[17] and further documents in support of her review application.[18]

   [17] CB 82-85

   [18] CB 86-89

5. On 11 February 2019, the applicant attended the Tribunal hearing accompanied by her friend.[19]

   [19] CB 95-97

6. In a decision dated 2 April 2019, the Tribunal affirmed the delegate’s decision.[20]

   [20] CB 100-110

7. The Tribunal identified that the issue on the review was whether the applicant satisfied one of the seven sub-criteria in clause 602.212(2)-(8) of the Regulations.  The Tribunal found clause 602.212(6) was relevant and required consideration of whether the applicant was medically unfit to depart Australia[21] and that there was nothing to suggest that the applicant met any of the other alternative sub-criteria.[22]

   [21] CB 103, [10]

   [22] CB 103, [11]

8. The Tribunal found as the applicant was born on 27 February 1971 and was only 48 years old, she was unable to satisfy the requirements of clause 602.212(6)(b) and therefore was unable to meet the requirements of clause 602.212(6). [23]  The Tribunal was satisfied she did not meet clause 602.212(6).[24]

   [23] The Tribunal incorrectly recorded that the applicant did not meet the requirements of clause 212(6) which is plainly a typographical error and is of no material significant given the Tribunal’s findings at [13]; CB 103, [12]

   [24] CB 103, [13]

9. The Tribunal also considered whether the applicant genuinely intended on staying in Australia temporarily having regard to whether she complied with the conditions of the last held visa and any subsequent bridging visa.[25]  The Tribunal accepted that this requirement would not apply if she was medically unfit to depart Australia.[26]

   [25] Clause 602.215(2)

   [26] Clause 602.212(6); CB 103, [14]

10. The Tribunal expressly considered the applicant’s evidence and found that at the time of the application, she wished to remain in Australia from September 2017 to September 2018 to obtain medical treatment from Dr Ng, a specialist gastroenterologist for her gastroenterology issues.  The Tribunal accepted that the Form 1507 accompanying her visa application was completed by Dr Ng in which he indicated he would see the applicant for “further investigations”.  The Tribunal also had regard to the Liverpool Hospital discharge summary which indicated she had been in hospital from 16 June 2017 to 20 June 2017 with abdominal pain, nausea and diarrhoea.  The Tribunal further found that the applicant indicated she would be financially supported by her friend during the further stay.[27]

    [27] CB 103, [16]

11. The Tribunal had regard to the applicant’s evidence that she had been unable to explore all treatment options because of a lack of finances.  The applicant informed the Tribunal she had an appointment in November 2018 that she had forgotten to attend and had not had any follow-up appointments since February 2018 because her friend did not have the finances to support her and had gone overseas.[28]

    [28] CB 104, [17]

12. The Tribunal had regard to the applicant’s oral evidence that she was booked in for a specialist appointment at Liverpool Gastroenterology and Hepatology Clinic on 14 February 2019.  The Tribunal informed the applicant it would give her 14 days to provide medical evidence following that appointment, however no further evidence was provided at the date of the Tribunal decision, almost two months after the hearing.[29]

    [29] CB 104, [18]

13. The Tribunal found that the applicant had not provided any medical evidence indicating that she required ongoing medical treatment in the future or evidence suggesting that a long flight would be injurious to her health.  The Tribunal had regard to her oral evidence that she was continually in pain, stressed by her visa status and financial circumstances, was unable to work and had to rely on her friend.[30]

    [30] CB 104, [19]

14. The Tribunal was not satisfied there was any evidence of ongoing medical treatment that would necessitate her staying in Australia and while it accepted that medical access would be of a higher standard in Australia when compared to Ghana, there was nothing to indicate that treatment such as ongoing monitoring of her gastroenterology issues was not available there.[31]

    [31] CB 104, [20]

15. The Tribunal recorded that it raised her immigration history with her at the hearing, noting that it was concerned she had lived in Australia as an unlawful non-citizen on several occasions which tended to indicate she had applied for medical treatment in Australia to extend her stay in Australia not because she intended on seeking medical treatment in Australia.  The applicant said she understood the concerns of the Tribunal.[32]

    [32] CB 104, [21]

16. Having regard to the materials before it and the oral evidence given at the hearing, the Tribunal was not satisfied the applicant met the requirements for the visa as there was no information or evidence to suggest that she sought to remain in Australia temporarily for the purposes of medical treatment or related purposes.[33]  The Tribunal therefore found she did not meet the requirements for a grant of visa and affirmed the decision on review.[34]

    [33] CB 104, [22]

    [34] CB 104, [23]

The present proceedings

1. These proceedings began with a show cause application filed on 29 April 2019.  The applicant continues to rely upon that application.  There are three particularised grounds in it: 

   1.The Second Respondent does not consider all evidence provided by the applicant.

   Particulars

   The applicant provides oral evidence at the Tribunal hearing which is not consider. The First Respondent and Second Respondent have both been provided with medical reports from the applicant's doctor which provide that the applicant does require further investigation and treatment for the health conditions. The applicant explains to the Tribunal that due to the lack of finances means available to her, she was unable at the time to continue treatment.

   In the Second Respondents decision at paragraph 20, it is mentioned by the decision maker that "There is no evidence of any ongoing medical treatment that would necessitate her staying in Australia" . In this, the Second Respondent fails to consider the information provided by the applicant, where further medical treatment that will be ongoing is required.

   2.The Second Respondent failed to assess and consider clause 602.212(8) of the Migration Regulations in the application.

   Particulars

   The applicant provided information to the Department and the Tribunal about her medical conditions. The applicant explained the lack of financial means available to her to undergo medical treatment and is unfit to work to cover the costs of her required Medical Treatment.

   The Second Respondent failed to consider that the applicant has compelling personal circumstances, which has does not allow the applicant to seek medical treatment in any other country, including her country of origin.

   3.The Second Respondent failed to provide any reasoning for their finding that the applicant does not satisfy clause 602.215 of the Migration Regulations in the application

   Particulars

   The Second Responde[nt] states in their decision that the applicants immigration history tended to indicate that she applied for a Medical Treatment visa to extend her stay in Australia and not because she intended on seeking medical treatment. The applicant provided evidence of her genuine attempts to seek treatment and her intention to extend her stay in Australia is for this purpose. The Second Respondent failed to provide any specific reasons for their decision to assess her against clause 602.215.

   (errors in original)

2. The application is supported by a short affidavit by the applicant filed with it.  I also have before me as evidence the court book filed on 18 July 2019.  In addition, during the course of oral argument, I received a copy of a letter dated 14 February 2019 from Dr Ng, at the Liverpool Hospital to the applicant’s treating doctor, Dr Maheswaran, concerning a consultation on 14 February 2019.  That is exhibit A1.  

3. Only the Minister made written submissions in advance of today’s hearing.  I invited oral submissions from the applicant, who was assisted by a McKenzie friend, Ms Esther Smith.  The applicant referred to her current medical status and her recent medical consultations.  She referred to having many health problems for which she needs treatment.  A difficulty which has been confronting her, both before the Tribunal decision and now, is that she lacks funds for any substantial medical treatment and does not have a Medicare card. 

4. The applicant handed up a bundle of documents which were various medical invoices and receipts over a period of approximately two years.  These were not before the Tribunal, but were not inconsistent with the material which was before the Tribunal.  The documents demonstrate that the applicant has been regularly consulting health professionals, but has not undergone any significant medical procedures and none are planned, either because of a lack of finances, or because her conditions have not been adequately diagnosed to this point.

5. The applicant sought an adjournment of today’s show cause hearing for the purposes of obtaining legal advice and assistance.  I refused that application on the basis that the applicant had had since April 2019 to obtain whatever advice or assistance she wished, and in the absence of an arguable case of jurisdictional error by the Tribunal apparent on the material, no useful purpose would be served by an adjournment. 

6. On refusing the request for an adjournment, I invited the solicitor for the Minister to present the Minister’s submissions first, so that the applicant could better understand them and respond.  That occurred.  The applicant then referred, again, to her medical ailments, and on consulting her mobile phone, she identified the letter which became exhibit A1.  The letter was emailed to my Associate who provided hard copies to the parties and me.  The applicant contends that this letter was sent to the Tribunal, but there is no record of receipt by it by the Tribunal.  Neither could the applicant locate any evidence of the letter being emailed to the Tribunal as she claimed. 

7. It appears from [18] of the Tribunal’s reasons that the letter was not sent to the Tribunal.  Even if it had been sent and was not considered by the Tribunal, any error, in my view, was not material, notwithstanding [19] of the Tribunal’s reasons.  The letter describes the then current status of the applicant’s medical conditions on examination, and confirms that further monitoring or investigation would be useful, but that no substantive procedure to deal with a clear diagnosis was planned.  This is consistent with the Tribunal’s finding that the applicant was not able to point to any particular medical treatment warranting the grant of the visa sought. 

8. The applicant was not able to advance the grounds in her application any further.  Those grounds are addressed in the Minister’s submissions, with which I agree. 

Ground 1

1. Ground 1 contends that the Tribunal failed to consider all the evidence provided by the applicant including her oral evidence and the medical reports which indicated she required “further investigation and treatment of the health conditions”.  The applicant also takes issue with the Tribunal’s findings at [20] that there was no evidence of any ongoing medical treatment that would necessitate her staying in Australia.

2. The Tribunal expressly considered the evidence submitted in support of her visa application[35] and review application[36] and her oral evidence[37] and was not satisfied she met clause 602.212(6).[38]  The medical evidence was deficient in satisfying the Tribunal that she required ongoing medical treatment in Australia, given that she had not provided any medical evidence that a long haul flight would be injurious to her health.[39]  Further, there was no evidence of any ongoing medical treatment that would necessitate the applicant staying Australia.  While the Tribunal acknowledged the applicant’s submission that she would like to access treatment available in Australia as it is of a higher standard than in Ghana, there was nothing before it to indicate that treatment such as ongoing monitoring of her gastroenterology issues was not available there.[40]  As the Tribunal considered the evidence provided by the applicant, this ground must fail.

   [35] CB 102, [7]

   [36] CB 102, [8]

   [37] CB 104, [17]-[18]

   [38] CB 103, [12]

   [39] CB 104, [19]

   [40] CB 104, [20]

Ground 2

1. Ground 2 asserts that the Tribunal failed to assess and consider clause 602.212(8) and the applicant’s “compelling personal circumstances”.  Clause 602.212(8) applies only if the requirements in one of the alternative sub-criteria in clause 602.212(2)-(6) are satisfied.[41]  As the Tribunal found that clause 602.212(6) was not met[42] and none of the other alternative sub-criteria were relevant,[43] the Tribunal was therefore not required to consider clause 602.212(8).

   [41] Clause 602.212(8)(a)

   [42] [13]

   [43] CB 103, [11]

2. It was open for the Tribunal to find that there were no other relevant sub-criteria applicable in the case.[44]  The applicant plainly did not meet the requirements in clause 602.212(3)-(8).  Although there was evidence before the Tribunal indicating that the applicant had been in hospital and that she had made an appointment to see a specialist in Gastroenterology and Hepatology for 14 February 2019,[45] this was not evidence of arrangements having been made for the applicant to obtain medical treatment,[46] or that arrangements had concluded for the payment of all costs related to the treatment.[47]  Instead, it was evidence of an appointment for an initial consultation.

   [44] CB 103, [11]

   [45] CB 104 [18]

   [46] Clause 602.212(2)(b)

   [47] Clause 602.212(2)(e)

Ground 3

1. Ground 3 takes issue with the Tribunal’s finding that the applicant’s immigration history indicated she applied for the medical treatment visa to extend her stay and contends that the Tribunal failed to identify any “specific reasons” for its findings under clause 602.215. It was reasonably open to the Tribunal to consider the applicant’s protracted immigration history[48] and give weight to the fact she had remained in Australia as an unlawful non-citizen, as this was plainly relevant to its assessment on whether she genuinely intended on staying in Australia temporarily.[49]  This ground is an expression of disagreement with the Tribunal decision and seeks impermissible merits review.[50]

   [48] CB 102, [6]

   [49] Clause 602.215(1)(c)

   [50] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant referred to her impecuniosity, but that is not a reason for the Court to refrain from making a costs order. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:         18 November 2019