Ers18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1617
•3 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dudhral v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1613
File number(s): ADG 351 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 3 October 2025 Catchwords: MIGRATION – medical treatment visa – application for reinstatement of application for judicial review – whether reasonable excuse for non-appearance at hearing – whether reasonable excuse for delay in bringing application for reinstatement – whether reasonably arguable grounds of review – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359A, 359AA, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Migration Regulations 1994 (Cth) cl 602.212(6) in Schedule 2
Cases cited: AUJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 355
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Chhabra v Minister for Immigration and Citizenship [2025] FedCFamC2G 1053
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dudhral v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 656
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Kaur v Minister for Immigration and Citizenship [2025] FCA 931
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAHI v Minister for Immigration and Border Protection [2016] FCA 129
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 22 July 2025 Date of hearing: 7 August 2025 Place: Adelaide Applicant: Self-represented Counsel for the First Respondent: Catherine Oppel Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 351 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMARVIR SINGH DUDHRAL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
3 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application for reinstatement of the proceedings in this matter is dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant made an application to this Court for judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (the visa).
The application was set down for a final hearing on 7 May 2025. When the matter was called, the applicant did not appear. The matter was consequently dismissed on 7 May 2025 pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) (Dudhral v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 656) (Dudhral).
The applicant now applies to this Court for reinstatement of the application for judicial review.
BACKGROUND
Mr Dudhral (the applicant) is a citizen of India (Court Book (CB) 11). He first arrived in Australia on 3 July 2009 as the holder of a student visa (CB 36).
On 19 September 2019, the applicant applied for the visa which is the subject of this application (CB 10-21).
On 11 October 2019, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa. Further, the delegate was not satisfied that the applicant had demonstrated he was unfit to depart Australia as required by cl 602.212(6) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 35-38). Subclause 602.212(6) relevantly provides:
(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 relating 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.
On 30 October 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 39-40).
On 1 October 2021, the applicant was invited to attend a hearing scheduled for 19 October 2021 (CB 45-48).
On 19 October 2021, the applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter. His wife and a friend also attended (CB 56-58).
On that same day, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 61-65).
On 18 November 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
The matter was listed for a final hearing on 7 May 2025. However, the applicant did not appear at that hearing and the matter was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules (Dudhral at [1]).
On 7 June 2025, the applicant filed an Application in a Proceeding which seeks reinstatement of his judicial review application. That application was supported by an affidavit which attached an invoice in respect of an admission and subsequent discharge from the emergency department of Modbury Hospital on 7 May 2025.
APPLICATION FOR REINSTATEMENT
The power to reinstate a proceeding dismissed for non-appearance by a party is discretionary. Rule 17.05(2)(a) of the Rules provides:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party…
In exercising this discretion, the Court is ultimately required to consider whether reinstatement is in the interests of justice (FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [18] (CAL15).
While regard should be given to all of the relevant circumstances of a matter, the following matters are usually considered (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]) (MZYEZ):
(a)Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)The existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)Whether the applicant has a reasonably arguable prospect of success on the substantive application.
The explanation for any delay in bringing an application for reinstatement is also ordinarily considered (see, for example, AUJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 355 at [27] (AUJ19)).
Was there a reasonable excuse for non-appearance and delay?
In support of his application for reinstatement, the applicant filed an affidavit affirmed on 4 June 2025 attesting that he was “unable to attend the court hearing on 7 May 2025 due to health issues as I was hospitalized at that time”. The affidavit attached an invoice for attendance at the emergency department of Modbury Hospital on 7 May 2025 with the applicant being discharged on the same day.
The Minister submitted that this was not an adequate reason for the applicant’s failure to attend the hearing as it “fail[ed] to address the ‘critical question’ of whether, and if so, why the medical condition prevented the applicant from participating in a court hearing”. The Minister relied upon MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 at [8] (referencing NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559 at [5]). Those cases, however, considered medical certificates which stated a general unfitness to attend work or a court hearing. In the Court’s view, it is at least arguable that evidence of an admission to hospital on the day of a hearing is qualitatively different from those situations.
At the hearing of the reinstatement application, the applicant clarified that he had a problem with his appendix last year. He said that he suffered from certain symptoms the day before the hearing. He took some medicine which did not alleviate the symptoms and so he went to the emergency department in the morning. He said that he could not have attended the hearing on the day because he was in hospital.
Counsel for the Minister observed at the hearing that there was an absence of corroborative medical evidence which might be expected to be provided in respect of the applicant’s hospital attendance. However, as might be expected from a model litigant, the Minister did not press the point in respect of the explanation for the non-attendance given the applicant had provided some evidence and provided an explanation to the Court.
In any event, the Court accepts that the applicant has provided an adequate explanation for his failure to appear at the hearing. There is evidence that the applicant attended the emergency department of a hospital and, in fact, that he paid the not insignificant sum of $583.00 in respect of this attendance. In the Court’s view, this is sufficient to distinguish it from those matters where only a medical certificate excusing a person from work is proffered.
The matter is less clear in respect of the delay in applying for reinstatement. The applicant did not seek reinstatement until 7 June 2025, which was one month after the matter had been dismissed for non-appearance. On one view, the applicant might have been expected to have sought reinstatement promptly, if not immediately, or at least to make enquiries with the Court or the Minister in respect of that. The applicant told the Court that he did not have a lawyer and that he was not aware that he could seek reinstatement. In this respect, the Court observes that the concluding paragraph of Dudhral states that the applicant could apply to have his application reinstated. Nevertheless, having regard to all of the circumstances, the Court does not view the delay in seeking reinstatement as having an adverse bearing on making such an order. Whilst the applicant could have acted more expeditiously, particularly given he had a reasonable explanation, he did not inordinately delay making such an application. In the context of a self-represented litigant who had recently required attendance at a hospital, a delay of one month to grapple with the consequences of the dismissal of their application in their absence is perhaps at the forgivable end of the spectrum.
Are there reasonable prospects?
Notwithstanding the above, the Court will not exercise its discretion to reinstate the application if the underlying substantive application has no reasonable prospects of success. Quite clearly, there would be no point in reinstating an application which does not enjoy a chance of succeeding (MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18] as cited in MZYEZ at [7]). As observed by Mortimer J (as the Chief Justice then was) in CAL15 at [4]:
[I]f there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
The Court approaches its assessment of the merits of the substantive application for judicial review at an impressionistic or threshold level which is the approach taken in applications for an extension of time (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [19]). The principles governing the assessment of the merits of a case in extension of time cases also apply in applications concerning reinstatement (Chhabra v Minister for Immigration and Citizenship [2025] FedCFamC2G 1053 at [20], citing AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3]-[5]; see also AUJ19 at [43]).
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of the reinstatement application, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28] and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
Against this background, the applicant told the Court that, from his perspective, the Tribunal did not consider what he was going through and that he was emotionally burnt out.
In his substantive application, the applicant advanced three grounds of review which broadly allege:
(a)A denial of procedural fairness;
(b)A failure to consider the documents the applicant had provided;
(c)Unreasonableness in failing to consider the applicant’s reasons for breaching his visa condition, and his future plans to settle with his family in India;
(d)A failure to consider his spouse and child’s condition.
The Tribunal’s Reasons
Before turning to consider the above grounds of review, it is useful to set out the Tribunal’s reasons for its decision. In this respect, the Court gratefully draws upon the helpful summary of those reasons contained within the Minister’s outline of submissions.
After setting out the procedural history of the matter, the Tribunal identified that the visa sought by the applicant was intended to be granted to persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Accordingly, the Tribunal identified the relevant issue before it was whether the applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa had been granted (at [6]).
In considering whether the applicant had a genuine intention to stay temporarily for the visa purpose, the Tribunal:
(a)found that the applicant had substantially complied with the conditions placed upon his previous visas and gave this aspect some weight (at [10]-[14]);
(b)accepted, having regard to the applicant’s circumstances, that he would comply with the conditions which might be placed upon the visa he had applied for and gave this aspect some weight (at [15]-[16]); and
(c)set out in some detail the applicant’s evidence in respect of the treatment he had received, which included several attendances upon a psychologist, prescribed medication, referral to a psychiatrist, and consultations in respect of panic attacks (at [17]-[22]).
The Tribunal expressed concern about aspects of the applicant’s evidence including the implausibility of his claim that he had been prescribed medication from a psychologist and the “seemingly sclerotic nature of his treatment” (at [23]).
The Tribunal then continued (at [24]):
This is the crux of the matter. Even if the Tribunal is to accept that the applicant has been receiving treatment for genuine conditions – which it does, however, sporadic that treatment may be – the weight it would give to this aspect as an indicator of his intention to stay temporarily is far outweighed by other aspects including, in this case, the presence of family members in Australia.
The Tribunal noted that the applicant had a pregnant wife and a child in Australia and put to the applicant that those were circumstances which pointed to him wishing to remain in Australia permanently. The Tribunal recorded the applicant’s reply that “there is nothing like permanent” and that he was not saying anything “illegally” or “fake” (at [25]). The Tribunal also accepted the applicant’s evidence that his wife was on a three-year work visa which could lead to permanent residency (at [26]).
The Tribunal found that the applicant’s family situation, particularly the fact that his pregnant wife and child were in Australia, provided a major inducement for him to remain here beyond the cessation of any period imposed on the visa. The Tribunal also found that since his health conditions had been linked to the threat of his departure from Australia, there was a strong possibility that these conditions would continue even if granted the visa, given it is a temporary visa which would still require him to depart Australia. The Tribunal assigned decisive weight to these aspects (at [27]).
The Tribunal accepted that the applicant may have a genuine intention to seek treatment for medical conditions, that he had complied with conditions of his bridging visas, and that he intends to comply with conditions placed upon the visa. Nevertheless, it found that the evidence pertaining to his family circumstances points to him seeking to remain in Australia indefinitely or at least for the period of his wife’s visa. As such, the Tribunal concluded that the applicant is using the visa application as a means by which to maintain continued residency in Australia (at [28]).
The Tribunal therefore found that the applicant did not meet the requirements for the grant of the visa (at [29]-[31]).
Was there a denial of procedural fairness?
The applicant has not identified, either in his application or in his submissions to the Court, in what way he was said to have been denied procedural fairness. Certainly, the Tribunal extended to the applicant all of the usual mechanisms by which the Tribunal affords procedural fairness to applicants in migration matters before it.
In particular, the applicant was invited to attend a hearing and was invited to provide any supporting material that the applicant wished the Tribunal to have regard to. The Court accepts the Minister’s contention that the hearing was a real and meaningful opportunity for the applicant to present his case. The hearing took place for a period of approximately two hours. The applicant was aided by an interpreter. The applicant requested that his wife and a friend provide evidence to the Tribunal, which the Tribunal facilitated. The Tribunal also gave the applicant an opportunity to place any documentary evidence before it but the applicant did not avail himself of that opportunity. The Court also accepts that there were no adverse matters which the Tribunal was required to put to the applicant in accordance with ss 359A or 359AA.
Given the above circumstances, the Court is satisfied that there was no denial of procedural fairness in this matter.
Did the Tribunal fail to consider claims or evidence?
The applicant has said, throughout his grounds, that there were a number of matters that the Tribunal failed to consider. The Tribunal’s consideration of this material is set out in the summary above. The Court accepts that it is clear from the Tribunal’s decision that it did consider all of the documentary evidence which was before it.
Insofar as the applicant asserts that the Tribunal failed to consider the reasons for his breach of visa conditions, the Court accepts the Minister’s submission that this is misconceived. As correctly observed by the Minister, this was a matter which the Tribunal expressly found weighed in the applicant’s favour. The Tribunal found that the applicant had complied with his visa conditions and accepted that the applicant intended to comply with any conditions which may be placed upon the visa he sought.
The Minister contended that there was no evidence before the Court that the applicant ever raised with the Tribunal that his plan was to settle with his family in India. In any event, the Minister argued, the Tribunal did consider the evidence which was before it in respect of his family. In particular, the Tribunal had regard to his wife and children being in Australia and his wife holding a skilled visa which could lead to her permanent residency. That was a factor which was important in the Tribunal’s ultimate determination that the applicant’s plans were not to stay temporarily in Australia.
The Court does not accept that the Tribunal failed to consider any of the claims or evidence before it.
Unreasonableness
In the Court’s view, there is nothing unreasonable about the Tribunal’s decision. The Court accepts the Minister’s submission that the Tribunal’s findings were open to it on the material before it. Ultimately, the Tribunal properly considered the applicant’s circumstances as a whole in reaching a conclusion that, despite genuinely intending to seek medical treatment, his family circumstances were such that the Tribunal was not satisfied that he intended to stay temporarily. In circumstances where his family was established in Australia and his wife held a visa which could lead to her own permanent residency, there was a rational and cogent basis to the Tribunal’s finding.
The Court also asked counsel for the Minister at the hearing of this matter whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention. There were none.
It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even extending as much latitude to the applicant as the authorities suggest is appropriate, no jurisdictional error is apparent even at an impressionistic or threshold level.
The Court is therefore not satisfied that the applicant has a reasonably arguable prospect of success with respect to his substantive application for judicial review.
CONCLUSION
For the reasons set out above, the application for reinstatement is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 3 October 2025
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