FZJ25 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 822

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FZJ25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 822

File number:

MLG 1808 of 2025

Judgment of:

JUDGE LADHAMS

Date of judgment:

30 May 2025

Catchwords:

PRACTICE AND PROCEDURE – application pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) seeking reinstatement of a judicial review application – where the applicant’s application for judicial review was dismissed for non-appearance at a callover – application for reinstatement dismissed.

Legislation:

Migration Act 1958 (Cth) s 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05

Migration Regulations 1994 (Cth) Sch 2 cl 602.215

Cases cited:

FBS18 v Minister for Home Affairs [2019] FCAFC 196

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756

Division:

Division 2 General Federal Law

Number of paragraphs:

52

Date of hearing:

24 April 2025, 29 May 2025

Place:

Perth

Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms K Petrovski

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 1808 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FZJ25

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	30 MAY 2025

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed on 22 March 2025 (reinstatement application) is dismissed.

2.The applicant is to pay the first respondent’s costs of the reinstatement application fixed in the amount of $1,800.

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 LADHAMS:

INTRODUCTION

1. On 14 January 2019 the applicant filed an application in this Court seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 12 December 2018. The Tribunal affirmed a decision made by a delegate of the Minister refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa (medical treatment visa).

2. On 18 April 2024 the Court made an order dismissing the applicant’s judicial review application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) in circumstances where the applicant failed to appear at a callover that was listed before the Court.

3. The application presently before the Court is an application in a proceeding filed on 21 March 2025, by which the applicant seeks reinstatement of his judicial review application (reinstatement application). For the reasons that follow, I have decided to dismiss the reinstatement application.

   RELEVANT FACTUAL BACKGROUND

   Previous immigration history

4. The applicant entered Australia in 2008 as a dependent on his former wife’s student visa. That visa ceased on 11 April 2011 and the applicant remained in the community as an unlawful non-citizen until April 2015.

5. On 9 April 2015 the applicant applied for a protection visa, which was refused by a delegate of the Minister on 10 August 2015. The applicant sought review of this decision by the Tribunal and the Tribunal affirmed the decision on 13 January 2017. A judicial review application in respect of the Tribunal’s decision was dismissed on 3 November 2017.

   Application for the medical treatment visa

6. On 24 November 2017 the applicant applied for the medical treatment visa. The applicant indicated in his visa application that he wished to remain in Australia until 26 January 2018 to undergo medical treatment in relation to chronic depression, anxiety and stress.

7. A delegate of the Minister refused to grant the applicant a medical treatment visa on 4 December 2017.

   Review by the Tribunal

8. On 19 December 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.

9. The applicant attended a hearing convened by the Tribunal on 12 December 2018 to give evidence and present arguments in relation to the issues arising in the review. At the conclusion of that hearing the Tribunal made an oral decision affirming the delegate’s decision. The Tribunal subsequently provided a written statement of its reasons on 15 January 2019.

10. In its written statement, the Tribunal identified that the issue for its consideration was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, namely, for medical treatment, as required by cl 602.215 in Sch 2 to the Migration Regulations 1994 (Cth).

11. In affirming the delegate’s decision, the Tribunal:

    (a)found that the applicant breached condition 8101 of the bridging visa he held at the time of the Tribunal hearing because he undertook some work for which he sometimes received a small amount of money, but place no weight on this consideration;

    (b)considered that, as the applicant had breached the no work condition on his current visa, it was likely he would also breach the no work condition of a medical treatment visa if it were granted to him, but placed no weight on this consideration;

    (c)acknowledged the applicant’s evidence that he had separated from his wife whilst in Australia, that she had returned to India where she resides with their child and that if he were to return to India there would be problems as his family would expect him to have the child come and live with him and his family there;

    (d)noted the medical evidence provided with the medical treatment visa application to the effect that the applicant required treatment for chronic depression, anxiety and stress and that the treatment required was physio, analgesic and anti-depressants;

    (e)further noted the applicant’s oral evidence at the Tribunal hearing that he had only sought medical attention twice in the past year, on one occasion when he was admitted to hospital suffering an infection, and on a second occasion where he attended a doctor who prescribed him some tablets to treat tension;

    (f)noted the applicant’s oral evidence that, in relation to future treatment in Australia, if he felt tension he would take one of the tablets he was prescribed and that he gave no evidence of ongoing physical therapy or any other treatment that he had been undergoing or would undergo in the future;

    (g)noted the applicant’s evidence that he intended to remain permanently in Australia to work, and that he said he did not intend to return to India because he believed if he returned to India problems would occur from his family insisting that he bring his child to live with him;

    (h)noted the applicant’s evidence that he could seek effective treatment for tension in India but he did not want to return there because of the problems that he had identified; and

    (i)found that the applicant did not intend to remain temporarily in Australia for the purposes of seeking medical treatment, because:

    (i)the applicant failed to outline any future treatment which he would be undertaking in Australia short of taking a tablet when he felt tension;

    (ii)the applicant had not been undertaking the treatment which his doctor said that he was required to undertake since he applied for the medical treatment visa; and

    (iii)the applicant admitted he could seek effective treatment for his tension in India and, more significantly, he told the Tribunal he did not intend to remain in Australia temporarily but rather, he intended to remain in Australia permanently and to work.

    THE PROCEEDINGS BEFORE THIS COURT

12. The applicant filed his application for judicial review on 15 January 2019. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act 1958 (Cth).

13. The judicial review application was listed before the Court for callover on 18 April 2024. The parties were notified of the listing by email sent on 20 March 2024. The email was sent to the applicant at the email address recorded in his judicial review application. The applicant did not appear at the callover and the Court dismissed his judicial review application pursuant to r 13.06(1)(c) of the GFL Rules. A copy of the Order made on 18 April 2024 was provided to the parties by email later that day and, again, the email address used to communicate with the applicant was the email address recorded in his application for judicial review.

14. On 22 March 2025 the applicant filed the reinstatement application, together with an affidavit. The reinstatement application recorded a different email address for the applicant to that recorded in his judicial review application.

15. The reinstatement application was listed for hearing before the Court on 24 April 2025. At the hearing, the applicant indicated that he had not received the court book or the Minister’s submissions. Having regard to the affidavit of service of Jack Mangos filed on behalf of the Minister on 22 April 2025, it appeared to the Court that the Minister’s submissions in relation to the reinstatement application had been sent to the email address recorded in the applicant’s judicial review application, rather than the email address recorded in his reinstatement application, which was the most recent address for service provided to the Court at that time. The applicant indicated that the email address in his judicial review application was incorrect. In these circumstances, I relisted the hearing to 29 May 2025 and made orders which, amongst other things, required the Minister to serve on the applicant a further copy of the documents filed by the Minister in this proceeding.

16. The hearing of the reinstatement application proceeded on 29 May 2025 and the applicant confirmed at the hearing that he had received a copy of the documents filed by the Minister. The evidence before the Court for the purposes of the reinstatement application comprises:

    (a)the court book filed on behalf of the Minister on 2 February 2021;

    (b)affidavits of the applicant filed on 15 January 2019 and 22 March 2025; and

    (c)an affidavit of Samantha Liddy filed on behalf of the Minister on 4 April 2025.

    CONSIDERATION OF THE REINSTATEMENT APPLICATION

    Power to reinstate and relevant principles

17. The Court has the power to set aside the order dismissing the judicial review application, thereby reinstating that application, pursuant to r 17.05(2) of the GFL Rules, which relevantly provides:

    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; …

18. The power to set aside the orders made on 18 April 2024 is a discretionary power. In deciding whether or not to exercise that discretion in favour of the applicant, the overriding principle is whether it would be in the interests of justice to set aside orders made in the applicant’s absence: SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756 at [15]. In considering whether to exercise the discretion, the Court will ordinarily have regard to matters such as:

    (a)whether there is a reasonable excuse for the applicant’s failure to attend the call over where his judicial review application was dismissed;

    (b)the existence and nature of any prejudice that might flow to the Minister from the reinstatement of the extension of time application, and how any such prejudice may be alleviated; and

    (c)whether, if reinstated, the extension of time application has reasonable prospects of success: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].

19. These matters are not, however, mandatory relevant considerations: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [52]-[53].

    The applicant’s explanation for non-appearance at the callover

20. In his affidavit filed on 22 March 2025, the applicant relevantly deposed:

    2.I respectfully inform the court that my judicial review case was dismissed on 18th April 2024 during a call-over hearing.

    3.Unfortunately, I was not aware that the hearing was scheduled on that date, as I did not receive any correspondence via email.

    4.It is possible that the notice was sent to my postal address, but due to my lack of knowledge, I had not updated my email with the court.

    5.I wish to bring to the court’s attention that I am facing exceptional circumstances which further impacted my ability to respond in time since I came to know that my case dismissed with the invoice received from respondent on my email.

    6.Therefore, I humbly request the court to reopen my case that was dismissed on 18th April 2024.

21. At the hearings before the Court, the applicant indicated that the email address recorded in his judicial review application was incorrect and he suggested that his agent inserted the wrong email. I note that there is no evidence that the applicant had assistance from any person in submitting his judicial review application.

22. It is unclear from the evidence and submissions before the Court whether the email address inserted in the applicant’s judicial review application was correct at the time the application was filed but since changed (which is what would be implied from the applicant’s affidavit suggesting that he had not updated his email address with the Court) or whether the email address was incorrect right from the start (which is what is implied from the applicant’s oral submissions to the Court). In either case, I accept the Minister’s submission that it was the applicant’s responsibility to ensure that his correct contact details were provided to the Court. In circumstances where the Court sent emails to the applicant, at the address for service recorded in his application, putting him on notice of the listing for the callover, the applicant was properly notified of the callover. While I am prepared to accept that the applicant did not, in fact, receive the email advising him of the callover, given that that resulted from the applicant’s own failure to ensure the Court had his correct email address, I do not accept that the applicant has a reasonable explanation for his failure to appear at the callover on 18 April 2024.

23. For completeness, I note that the applicant also said at the hearing that he does not know how he missed a call and that the call had the wrong ID number, and then later in the hearing said that he was avoiding calls from unknown numbers because his former wife used unknown numbers. The significance of this submission was not explained, but I infer it may relate to attempts made by the Court at the callover to contact the applicant by telephone when he failed to appear at the callover. This does not amount to a reasonable explanation for the applicant’s failure to appear at the callover for two reasons. First, any attempt made by the Court to contact the applicant by telephone upon his non-appearance was an additional (and unnecessary) measure by the Court to ensure the applicant had every opportunity to attend the callover. The responsibility of the applicant was to appear at the callover irrespective of whether or not the Court attempted to contact him by telephone. Second, the applicant’s former spouse has no connection to this proceeding at all and any desire by the applicant to avoid his former spouse does not amount to a reasonable explanation for failing to attend the callover.

24. The absence of a reasonable excuse for failing to attend the callover weighs against reinstating the applicant’s judicial review application.

    Prejudice to the Minister

25. The Minister accepted that there would be no prejudice caused to him by reinstatement, other than in relation to the general public interest in the finality of administrative decisions. The Minister submitted that the absence of prejudice did not, however, justify the exercise of the discretion sought by the applicant.

26. I accept the Minister’s submissions in relation to prejudice. I accept that there is no prejudice to the Minister by reinstating the application other than the general public interest in the finality of litigation. I also accept that the absence of prejudice does not, of itself, warrant the reinstatement of the applicant’s judicial review application. I treat the prejudice as a neutral consideration in the exercise of the discretion.

    The merits of the substantive application

27. The applicant in his judicial review application raises the following four grounds:

    1.I … a citizen of India, arrived in Australia on a Student Visa Subclass 572 on … 2008.On 24th November, 2017 I applied for a Medical Treatment Visa, which got refused by the delegate from Department of Home Affairs (DHA) on the 4th December, 2017.

    2.I applied for review to the Administrative Appeals Tribunal on 13th January, 2017, with an expectation that a favourable decision will be made. However, my application for the visa was refused on 12th December, 2018 and the decision was affirmed by the Member for not meeting clause 602.215 in Schedule 2 to the Migration Regulations.

    3.Both the DHA and AAT had not considered that information and made a decision on the application based on assumptions not facts. The tribunal member argued that I was using the Medical Treatment visa program just to maintain residence in Australia and would not depart upon completion of treatment as required by clause 602.215. Both tribunal member and the delegate from DHA had not considered the documents provided in support of the urgency of the treatment validating the clause 602.215 requirement of the visa. I believe that the tribunal fell into Jurisdictional error by ignoring the relevant information and made a decision based on assumptions.

    4.I believe that the tribunal fell into jurisdictional error by acting unreasonably while considering my application for review. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the decision. I believe that relevant factors and information provided by me was not considered carefully in order to establish my circumstances not to cancel my Medical Treatment Visa. I request Federal Circuit Court review and consider my case so to provide me justice.

28. The grounds in many ways read like a narrative and a recitation of background facts. Grounds 1 and 2 in particular refer only to factual matters and do not assert any jurisdictional error in the Tribunal decision. From grounds 3 and 4, it is possible to discern the following allegations of jurisdictional error:

    (a)the Tribunal ignored relevant information;

    (b)the Tribunal made a decision based on assumptions rather than fact; and

    (c)the Tribunal acted unreasonably in its consideration of the application for review.

29. None of these grounds are explained in the judicial review application in sufficient detail for the Court to understand precisely what error the applicant is asserting.

1. The applicant was given an opportunity at the hearing on 29 May 2025 to further explain the grounds and to raise any other matter that he considered would amount to a jurisdictional error in the Tribunal decision.

2. The submissions that the applicant made at first related to a question the Tribunal asked the applicant at the hearing about how he would support himself, and the applicant’s answer to that question, which does not appear to be inconsistent with the answer recorded in the Tribunal decision. The applicant also made a submission that he was married in an inter-caste marriage and his in laws have threatened him so he has a fear to go to India.

3. When I invited the applicant to explain why he believes the Tribunal made a jurisdictional error (having previously given examples to the applicant of the types of matters that may amount to jurisdictional error in migration decisions), the applicant initially said that he could not say anything about this. Given the likely importance of the prospects of the judicial review application to the exercise of the Court’s discretion relating to reinstatement, I asked the applicant basic questions about each of the assertions of error that the Court was able to elicit from the grounds of the judicial review application.

4. When asked what relevant information the Tribunal ignored, the applicant submitted that he had depression and that he said he could not go to India because he had a fear to go there.

5. When asked why he says the Tribunal decision is based on assumptions and not facts, the applicant said that he thinks he told everything and he cannot go to India because he was not safe there and he was on medication.

6. When asked why he considered the Tribunal had acted unreasonably, the applicant said that the Tribunal should have considered the applicant’s depression situation.

7. None of the matters raised by the applicant have any reasonable prospects of establishing jurisdictional error in the Tribunal decision.

8. The dispositive issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily for the purposes of seeking medical treatment.

9. Contrary to the applicant’s submission, the Tribunal did consider the evidence relating to his depression. The Tribunal identified at [17] of its reasons that the applicant indicated in his medical treatment visa application form that he required medical care between December 2017 and January 2018 to treat chronic depression, anxiety and stress. At [16], the Tribunal identified that a Dr Jay completed a form 1507 which indicated that the applicant required treatment for chronic depression, anxiety and stress, with the treatment required being physio, analgesic and antidepressants. The Tribunal considered this in conjunction with the applicant’s oral evidence at the hearing before the Tribunal, namely, that he had only sought medical attention twice in the past year, once for an infection and the other time seeing Dr Jay who prescribed him tablets to treat depression, and that, in the future, if the applicant felt tension, he would take one of the tablets Dr Jay prescribed, but otherwise gave no evidence of ongoing physical therapy or other treatment that he had been undergoing or will undergo. The Tribunal also noted the applicant’s evidence that he could seek effective treatment for tension in India. The Tribunal, in finding that the applicant did not intend to remain temporarily in Australia, took into account the applicant’s failure to outline any future treatment in Australia, short of taking a tablet when he felt tension, his failure to undertake the treatment his doctor said was required and that he could seek effective treatment in India.

10. I have also reviewed the evidence in the court book to ascertain whether there is further evidence relating to the applicant’s depression that is not referred to in the Tribunal’s reasons. The only additional medical evidence that is not expressly referred to in the Tribunal’s reasons comprises a receipt for a ‘Surgery consultation, Level C’ from Logan Central Family Clinic and a pathology referral for which the clinical notes record ‘depression before commencing SSRI’, both dated 20 November 2017. Neither of these documents add any meaningful detail to the information expressly referred to in the Tribunal’s reasons, and the reasonable inference to be drawn is that the Tribunal considered these documents but did not consider them to be significant enough to refer to in its reasons. 

11. There are no reasonable prospects of the applicant being able to establish that the Tribunal overlooked his depression or the evidence relating to it.

12. In relation to the applicant’s family in India, the Tribunal said at [15] and [20] of its reasons:

    15.The visa applicant gave evidence that he had separated from his wife while he has been in Australia. He said that she has returned to India where she resides with their child and that if he were to return to India there would be problems as his family would expect him to have the child come and live with him and his family there.

    …

    20.… He said that he did not intend on returning to India as he said that if he returned to India problems would occur from his family insisting that he bring his child to live with them in India. The applicant admitted that he could seek effective treatment for tension in India but that he simply did not want to return there because of the problems I have mentioned.

13. The applicant’s submissions to the Court focused on a fear of returning to India due to his inter-caste marriage and threats from his in-laws. This appears to be slightly different from the way in which he described his family concerns to the Tribunal. There is no evidence before the Court to suggest that the applicant raised concerns about returning to India that were more detailed than, or different from, the matters summarised in the Tribunal’s reasons. In any event, the critical issue for the Tribunal, insofar as it related to the applicant’s willingness to return to India, was that he had no wish to return and intended to remain in Australia and work. This was clearly relevant to any assessment of whether the applicant genuinely intended to remain in Australia for the purposes of seeking medical treatment and it was open to the Tribunal to rely on the applicant’s evidence in a way that was adverse to the applicant.

14. The applicant has not shown that he would have reasonable prospects of being able to establish that the Tribunal made a jurisdictional error based on his concerns about returning to India.

15. Having regard to the evidence before the Tribunal, the Tribunal made findings of fact and reached a conclusion that was clearly open to it on the evidence before it. There is no reasonable prospect of the applicant being able to establish that the Tribunal acted unreasonably, or that the Tribunal made assumptions which somehow led to jurisdictional error.

16. I have otherwise considered the Tribunal decision independently, and I have also had regard to submissions advanced by the Minister that explain why the Tribunal complied with its procedural fairness obligations. I do not identify any reasonably arguable assertion of jurisdictional error in the Tribunal decision.

17. The applicant has no reasonable prospects of success in relation to his judicial review application. This factor weighs very heavily against the Court exercising its discretion to reinstate his judicial review application. There is no purpose in reinstating an application that does not have reasonable prospects of success: MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18].

    Other considerations

18. There are two other matters raised in the Minister’s submissions that I address briefly. There were no further matters raised by the applicant as matters that were relevant to the consideration of the reinstatement application.

19. The first additional matter raised by the Minister is the timing of the reinstatement application. The Minister submitted that there is no explanation as to why almost one year has passed before the applicant sought reinstatement of his application. I accept this submission, whilst also noting that, if [5] of the applicant’s affidavit filed on 22 March 2025 is intended to address this, it lacks any sufficient clarity or detail to amount to a meaningful explanation as to the delay in filing the reinstatement application. While this consideration could appear to weigh against reinstating the judicial review application, I do not place any material weight on it. The lack of any reasonable prospects of success in the judicial review application is a sufficient reason of itself to refuse to reinstate the judicial review application.

20. The second matter raised by the Minister is a plea for the Court to refuse relief on discretionary grounds even if the Court considers that there may be a jurisdictional error in the Tribunal decision. In this regard, the Minister submitted that the applicant applied for the visa for the period of 24 November 2017 to 26 January 2018 and therefore the time sought by the applicant to seek medical treatment expired over seven years ago. In the light of this and the applicant’s immigration history, the Minister submitted that it was arguable these proceedings have been brought for an ulterior purpose, namely, to extend the applicant’s residence in Australia for reasons unrelated to the purpose for which he sought the medical treatment visa. The Minister submitted that the Court should infer that the applicant is challenging the Tribunal’s decision for an ulterior purpose and therefore the Court should refuse relief on discretionary grounds if the Court finds that there is a jurisdictional error.

21. Given that I have found that the judicial review application has no reasonable prospects of success, it is unnecessary to address the submission advanced by the Minister.

    CONCLUSION

22. Having regard to the matters identified above, I do not consider that it is in the interests of justice to set aside the orders I made on 18 April 2024 and reinstate the applicant’s judicial review application. There are no factors identified that weigh in favour of reinstating the application. The absence of any reasonable excuse for the applicant’s failure to appear at the callover on 18 April 2024 weighs against the reinstatement of his application. More significantly, the lack of any reasonable prospects of success on the judicial review application weighs heavily against the reinstatement of that application. I therefore dismiss the reinstatement application.

23. The Minister seeks an order that the applicant pay the Minister’s costs of the reinstatement application fixed in the amount of $1,800. Having regard to the work performed by the Minister in relation to the reinstatement application, including preparing affidavits, preparing written submissions and preparing for and appearing at two hearings, I am satisfied that it is appropriate that costs follow the event and that the quantum of costs sought by the Minister is appropriate in the circumstances.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       30 May 2025