Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 851
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 851
File number(s): LNG 30 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 22 September 2023 Catchwords: MIGRATION – medical treatment visa – whether the Tribunal properly considered the evidence before it – whether the Tribunal considered the impact of the applicant’s student visa application on his need for ongoing medical treatment in Australia – finding that the Tribunal constructively failed to perform its function on review – jurisdictional error established – application for review allowed Legislation: Migration Regulations 1994 (Cth) cls 602.2, 602.215 of Schedule 2 Cases cited: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 11 September 2023 Place: Hobart ORDERS
LNG 30 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MILAN GHIMIRE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2.A writ of certiorari issue quashing the decision of the second respondent dated 11 May 2022.
3.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
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 Taglieri
By Application filed on 14 June 2022, the Applicant seeks review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made 11 May 2022. By that decision, the Tribunal affirmed the First Respondent’s decision to refuse a medical treatment visa to the Applicant.
The Court received into evidence, by consent, the Court Book filed by the First Respondent on 13 September 2022.[1]
[1] As Exhibit A-1.
The application consists of two grounds. The first is expressed as follows:
602.215 doesn’t apply as I was genuinely staying in Australia.
Based on the Applicant’s submissions during the hearing before the Court, this ground can be understood to relate to an argument that the main cause of his depression for which he required treatment related to having done everything necessary to secure a student visa according to what he was directed to do, and that he had not done anything wrong when he remained in the country after December 2020, at the expiration of his bridging visa. He said that during this time he could not get answers from the First Respondent about the progress and determination of the student visa application.
The arguments can be understood to more properly relate to Ground 2 rather than relating to a separate ground in its own right. Namely, the arguments at [4] of these reasons were put to demonstrate the contention that the Tribunal had overlooked his psychological condition.
If I am mistaken about the way the Applicant put his case, Ground 1 as it is expressed clearly must fail because cl 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) does apply as it stipulates part of the statutory pre-requisites to eligibility for a medical treatment visa as set out in cl 602.2 of Schedule 2 of the Regulations.
Ground 2 of the Application for Review is expressed as follows:
Psychological condition was overlooked.
From the oral submissions made by the Applicant during the hearing, it can be understood that this ground relates to the allegation that the Tribunal did not properly take into account the inter-relationship and causal nexus between the Applicant’s psychological condition and the lack of processing of his student visa application and ongoing treatment in Australia.
There were a number of documents put before the Tribunal that tend to demonstrate that the Applicant had made a student visa application and was seeking clarification about extension of the bridging visa until the student visa was determined.[2] Those documents suggest that there appear to have been problems with the student visa application being received and/or processed.
[2] Court Book at pages 84 to 94.
It is evident that the Tribunal was aware of the documents referred to at [9] of these reasons and even acknowledged the problems and difficulties with processing the student visa application, noting that which it stated at [13] of its reasons. It said:
Whilst I empathise with the applicant, I am only concerned with the medical treatment Visa and whether I am satisfied that the requirements are met.
As the Applicant made his submissions before the Court, it became evident that he relied on the problems with or lack of processing of the student visa application aggravating or worsening his psychological state and causing him to need ongoing treatment in Australia.
The Tribunal seems to have appreciated this argument as at [17] of its written reasons it stated:
I find that overall the cause of the applicant's depressed state is due to his inability to complete his studies and return to Nepal having completed his degree.
The First Respondent’s legal practitioner properly conceded that, before the Tribunal, the Applicant was portraying an aggravation of a pre-existing psychological condition due to the issues with his student visa. The depression initially occurred as a result of the breakup with his previous partner, which the Tribunal had referred to [10] of its written reasons.
The First Respondent sought an adjournment to permit further evidence to be adduced in relation to what had become of the student visa application apparently lodged by the Applicant.
After hearing submissions about the adjournment request, I refused the adjournment and gave oral reasons for doing so. I noted that, in the face of the Applicant’s opposition to adjournment, the First Respondent had had since the filing of the application in this Court to investigate and adduce evidence about what had happened to the student visa and its processing. Further, the evidence sought to be provided was not necessary information to determine the review given the limited ambit of the Court’s function, being to determine if the Tribunal fell into jurisdictional error.
The First Respondent’s practitioner made oral submissions as to Ground 2 and also relied on the written outline of submissions filed 5 September 2023, which I have read and considered.
The First Respondent relies on the Tribunal’s reasoning at [17] to [20] as demonstrative that the Tribunal did not overlook the Applicant’s psychological condition, and placed considerable emphasis on the fact that the Applicant had only sought mental health treatment on three occasions since 2018.[3]
[3] The First Respondent’s written outline of submissions at [27] to [29].
The First Respondent contends that, in effect, the limited evidence about treatment simply did not satisfy the Tribunal that the Applicant intended to genuinely stay temporarily in Australia for the purpose for which the visa was granted, namely medical treatment.
The First Respondent submitted that it was open for the Tribunal to find that the Applicant was seeking the visa for another purpose, namely to complete his studies. Therefore the Tribunal decision was not affected by jurisdictional error.
The order sought by the First Respondent was that the application for review be dismissed.
EVALUATION AND CONCLUSION
It is uncontentious that the Applicant applied for the medical treatment visa in February 2021.[4] His application was refused by the First Respondent’s delegate on 2 March 2021.[5]
[4] Court Book at page 23 – Medical Treatment Visa Application.
[5] Court Book at page 39.
The Tribunal conducted its hearing relating to the review of the First Respondent’s decision on 3 May 2022.[6] It then delivered its decision on 13 May 2022.
[6] Court Book at pages 76.
The Tribunal’s approach and the contentions by the First Respondent, in my view, demonstrate jurisdictional error concerning Ground 2. For the reasons that follow, the Tribunal did not properly consider the evidence before it about the Applicant’s psychological condition and how that related to ongoing treatment the Applicant was having and intended to have in Australia.
It is self-evident from the findings at [17] of the Tribunal reasons that it accepted, at very least in part, the difficulties with the Applicant’s student visa application which had impacted on the Applicant’s mental health. Having made a finding of some causal nexus between the Applicant’s depression and inability to complete studies and return to Nepal with his degree, it was incumbent on the Tribunal to consider the question of whether the Applicant satisfied the requirements for grant of a medical treatment visa in light of all relevant evidence before.
At [18] of the Tribunal’s reasons, the Tribunal accepted that the mental health services in Nepal were poor and not widely available to the Applicant. However, the Tribunal did not then engage in consideration of what treatment the Applicant was accessing and had planned to access pursuant to a treatment plan in Australia for the aggravation or worsening of his mental health due to the student visa issues in the latter part of 2020 and into 2021.
The Tribunal found that the Applicant had only attended twice with a psychologist and once with the psychiatrist over a four year period.[7] However, the evidence before the Tribunal went beyond this. The reports provided to the Tribunal by the Applicant and noted at [15] of the Tribunal’s reasons evidenced the following:
[7] At [18] of its reasons.
·In October 2020, the Applicant was suffering extreme depression and stress due to the problems with visa issues, and although required to leave Australia he was not able to do so because of Covid-19. He received an extension of his bridging visa to December 2020;[8]
·The Applicant was unable to focus on study and was anxious about upcoming exams;[9]
·The Applicant was experiencing financial difficulty. He had paid $620 for his student visa application, which his migration agent had stated he could lodge in paper form, but he has not been able to get answers from the Home Office about the progress of that visa application;[10]
·The Applicant experienced extreme stress and extreme depression according to the standard Depression/Anxiety/Stress Scale, and also experienced trouble sleeping and weight loss;[11]
·The Applicant was diagnosed by Dr Tarnawski with Major Depression on 27 January 2021;[12]
·The Applicant was referred by Dr Tarnawski to a psychiatrist, Dr Hyde, on 27 January 2021 to sort antidepressant medication, and he consulted with Dr Hyde in April 2021 at a cost $450 for one visit;[13]
·The Applicant was referred back to Dr Hyde on 21 April 2022 by a General Practitioner, and he benefits from taking Prozac;[14]
·There is a short medical report stating that in April 2022 the Applicant was referred back to Dr Hyde for continuation of his review and was at that time on a wait list for a further appointment with Dr Hyde;[15] and
·There appears to be evidence of the Applicant following up as to when a further appointment with Dr Hyde may be allocated to him.[16]
[8] Psychologist’s report of Stephen Sutton dated 26 October 2020.
[9] Psychologist’s report of Stephen Sutton dated 26 October 2020.
[10] Psychologist’s report of Stephen Sutton dated 26 October 2020.
[11] Psychologist’s report of Stephen Sutton dated 26 October 2020.
[12] Court Book at page 24.
[13] Court Book at page 24; and tax invoice at Court Book at page 74.
[14] Court Book at page 75.
[15] Dr Chua’s report at Court Book at page 81.
[16] Court Book at page 82.
The Tribunal’s reasons at [18] demonstrate that it confined its evaluation of whether the Applicant was undertaking a course of medical treatment to only some of the evidence before it, and it evaluated the genuineness of the Applicant’s intention for seeking the medical treatment visa to the number of visits the Applicant had had with a psychologist or psychiatrist.
As the Applicant was taking Prozac, which the Tribunal noted, it appears not to have regard to a need for general practitioner consultations for the purpose of prescriptions.
In addition, the Applicant was due to be reviewed by Dr Hyde at the very time of the Tribunal hearing, indicating an ongoing plan for his depression and anxiety was in progress.
Although the Applicant did not provide particular evidence of past and estimated future treatment pursuant to advice initiated by Dr Hyde and/or Dr Tarnawski, he had provided evidence of some past costs. This evidence included that a single visit with Dr Hyde costs $450.
The Tribunal appears to have misunderstood the underlying premise of the Applicant’s claim to a medical treatment visa[17] or alternatively improperly confined its evaluation and consideration of relevant issues and evidence.[18] In the former case, the Tribunal treated the purpose of applying for a student visa and the purpose of applying for a medical treatment visa to be the same. In the latter, the Tribunal failed to adequately consider the Applicant’s worsened psychological condition and relevant evidence about need for treatment in Australia. As such, it did not properly turn its mind to the requirements of cl 602.2 of Schedule 2 of the Regulations in my view.
[17] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.
[18] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [26] onwards and [67] to [74].
The fact that the Applicant’s need for medical, psychological and psychiatric treatment was related in part to problems in resolving his student visa since 2021 meant that the Tribunal was obliged to consider all of the evidence before it in the light that the Applicant sought a student visa to enable his studies to be completed but that the problems encountered had worsened his psychological condition. By failing to do so, the Tribunal constructively failed to perform its function on review.[19] The fact that the Applicant had applied for a student visa did not automatically exclude his eligibility for the medical treatment visa. The fact that the Applicant’s primary or earlier visa application had been for a student visa did not necessarily exclusively inform whether the Applicant was genuinely intending to remain in Australia temporarily for the purpose of medical treatment.
[19] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [44].
Ground 2 of the Application for review succeeds and there will be orders made to remit the application for rehearing by the Tribunal.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 September 2023
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