JDM25 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1362
•22 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JDM25 v Minister for Immigration and Citizenship[2025] FedCFamC2G 1362
File number(s): SYG 8 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 22 August 2025 Catchwords: MIGRATION – Medical Treatment (Visitor) (Class UB) – judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider all the medical evidence provided by the applicant before the hearing – whether the exercise of the discretion pursuant to s 362B(a) of the Migration Act 1958 (Cth) was unreasonable – whether the Tribunal failed to apply the requirements of cl 602.215 of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in considering the applicant’s immigration history – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359; 360; 360A; 362B; 363(1)(b); 426A; 476(1)
Migration Regulations 1994 (Cth) cl 602.212; 602.215
Cases cited: AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423
BKY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 724
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submissions: 8 August 2025 Date of hearing: 8 August 2025 Place: Brisbane Solicitor for the Applicant: The applicant appeared on his own behalf Solicitor for the First Respondent: Ms Tran, Sparke Helmore, appeared on behalf of the first respondent. Solicitor for the Second Respondent: The second respondent filed a submitting appearance save as to costs. ORDERS
SYG 8 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JDM25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
2.The application for judicial review is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6,500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 11 January 2002 as the holder of a Visitor (subclass 976) visa. He has a long immigration history (Court Book (“CB”) 40-42):
(a)On 18 June 2002, the applicant applied for a Protection visa. That application was refused by a delegate on 30 July 2002. The applicant sought review of the delegate’s decision before the Tribunal. The Tribunal affirmed the delegate’s decision. On 27 February 2003, the applicant unsuccessfully applied for Ministerial Intervention;
(b)The applicant then remained onshore as an unlawful non-citizen until 11 June 2003; again from 13 November 2003 to 24 November 2003; and again, from 9 December 2003 to 26 April 2006 when he departed Australia.
(c)On 4 September 2014, the applicant arrived in Australia for a second time as the holder of a Visitor (subclass 976) visa;
(d)On 20 March 2015, the applicant applied for a Protection visa. That application was refused by a delegate on 27 April 2016. The applicant sought review of the delegate’s decision before the Tribunal. The Tribunal affirmed the delegate’s decision. The applicant unsuccessfully sought judicial review of the Tribunal’s decision with an application for special leave to the High Court being refused on 18 March 2020 (CB 40).
On 15 April 2020, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa (“the visa”) for the purpose of undergoing medical treatment in Australia from 20 April 2020 to 20 April 2021 for his left wrist or forearm (CB 1-15). The Court observes that the medical documents the applicant provided with his visa application in respect of his own proposed medical treatment were a Medical Imaging Request Form for his left wrist dated 9 April 2020; and urine and blood test results dated 24 January 2020. The applicant also provided the following medical documents: letters dated 22 October 2019 and 19 February 2020 from the Children’s Hospital at Westmead, the patient being the son of the applicant; a letter dated 30 March 2020 from the Children’s Hospital at Westmead pertaining to an unidentified patient; and a GP Mental Health Care Plan dated 26 November 2019, the patient being the daughter of the applicant.
On 8 May 2020, the Department invited the applicant to comment, within seven days, on adverse information about his immigration history raising concerns regarding the applicant’s intention to be a genuine temporary entrant (CB 40-42). The applicant did not respond (CB 50).
On 18 May 2020, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment, as required by clause 602.215(1) in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) (“the delegate’s decision”). (CB 48-51).
Application for review to the Administrative Appeals Tribunal
On 8 June 2020, the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant gave [email protected] as his email address for correspondence with the Tribunal (“nominated email address”) (CB 52-53).
On 27 September 2021, the Tribunal wrote to the applicant at his nominated email address, pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) (“s 359 request”), and invited him to provide the following information in writing by 11 October 2021: a Medical Treatment Plan with details of arrangements that have been made to carry out the medical treatment from a Medical Practitioner; evidence of the cost of the treatment and arrangements that have been made for payment of the costs of the medical treatment and all his other expenses during his stay in Australia; evidence of his intention to depart Australia; and evidence from a Medical Officer of the Commonwealth if he was unfit to depart Australia (CB 77-78).
On 11 October 2021, the applicant emailed the Tribunal stating that he needed more time to obtain a Medical Treatment Plan (CB 79).
On 14 October 2021, the applicant emailed the Tribunal referring to his request for an extension and advised that he had a psychologist appointment and would send further documents once he had received them. The applicant attached medical documents, being the first page of a letter dated 13 October 2021 from Blacktown GP Super Clinic referring the applicant to a psychologist for an opinion stating that the applicant has issues with anger management, was stressed with his business and could not sleep well thinking about his business; a letter dated 6 October 2021 from the Kildare Road Medical Centre Blacktown which reported that there were no acute changes to the applicant’s left wrist and all changes were consistent with a past injury; and blood test results dated 6 October 2021 (CB 80-89).
On 18 October 2021, the Tribunal notified the applicant by email to his nominated address that he was granted an extension of time until 2 November 2021 to respond to the s 359 request (CB 90-91).
On 2 November 2021, the applicant emailed the Tribunal informing that he would not be able to provide the information before 2 November 2021 as his appointment [with the psychologist] was scheduled for 11 November 2021 and that the information needed would be obtained “by next week” (CB 92). The applicant did not provide any information by the “next week” [being the week ending 13 November 2021] or after that date.
On 17 November 2021, the Tribunal wrote to the applicant by email to his nominated email address, inviting him to attend a hearing on 2 December 2021 to give evidence and present arguments relating to the issues arising in his case, stating that it had considered the material before it but was unable to make a favourable decision on that information alone (CB 94-101). The invitation also advised the applicant as to the consequences of his non-appearance at the hearing.
On 19 November 2021, the Tribunal wrote to the applicant by email to his nominated email address inviting him to attend a test session on Microsoft Teams on 25 November 2021 (CB 103-104).
On 23 November 2021, the applicant emailed the Tribunal requesting that an interpreter be arranged for both the test session on 25 November 2021 and the hearing scheduled on 2 December 2021 (CB 105). An interpreter was arranged.
On 25 November 2021, the applicant attended the Microsoft Teams video test session with the Tribunal (CB 125).
On 2 December 2021, the Tribunal wrote to the applicant at 10:09am by email to his nominated email address reminding him that the hearing was scheduled to begin at 10:08am and referred to unsuccessful attempts the Tribunal had made to contact the applicant by telephone and asked him to join the hearing as soon as possible (CB 113). The applicant did not respond. The Tribunal proceeded to hear the matter in the absence of the applicant (CB 110-112).
On 10 December 2021, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 119-123). On 13 December 2021, the Tribunal wrote to the applicant at his nominated email address notifying him of its Decision (CB 116).
THE TRIBUNAL’S DECISION
The Tribunal set out the procedural steps leading up to the hearing and the applicant’s engagement with the Tribunal ([4]-[6]) and then stated that it had decided to make a decision on the review as the applicant did not attend the scheduled hearing; had not contacted the Tribunal to explain his non-attendance; did not seek a postponement of the hearing; and had not contacted the Tribunal since the hearing [7].
The Tribunal identified that the purposes for which the applicant sought the medical treatment visa was for the purpose of “awaiting orthopaedic review” (as stated in the visa application) and that he had an appointment to consult a psychologist (as stated in the applicant’s correspondence with the Tribunal) [16]. The Tribunal also stated that the applicant had not provided the Tribunal with a Medical Treatment Plan despite being requested to do so [22].
As to the requirements in clause 602.212 (6), the Tribunal found that the applicant met the requirements of clause 602.212(6)(a), clause 602.212(6)(b) and clause 602.212(6)(c) ([11] – [12]) but did not meet the requirements of clause 602.212(6)(d) ([13]); or clause 602.212(6)(f) [14].
The Tribunal said that it accordingly found that as all of the requirements in clause 602.212(6) were not met, the requirement in clause 602.215 applied [15].
The Tribunal identified that the issue on review was whether the applicant satisfied the requirements of clause 602.215 [9]. The Tribunal stated that clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted [10].
In considering whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal said that it had regard to whether the applicant had complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject. The Tribunal said that there was no evidence to indicate that the applicant had not complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa held by him was subject [17].
The Tribunal said that there was, however, considerable evidence to indicate that the applicant had not complied with previous visas held by him: he remained in Australia as an unlawful non-citizen from 30 May 2003 to 11 June 2003; from 13 November 2003 to 24 November 2003; and from 9 December 2003 to 21 April 2006 when he departed Australia. The Tribunal said that it was of the view that this indicated the applicant has a strong desire to live in Australia even if it means breaching conditions of his visa and living here as an unlawful citizen [18].
The Tribunal said that it also considered the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and that if any Subclass 602 visa were granted, it would be subject to mandatory conditions 8101 and 8201: condition 8101 requires that the visa holder must not engage in work in Australia; condition 8201 requires that the visa holder must not engage, for more than 3 months, in any studies or training while in Australia. The Tribunal noted that in his application for the Subclass 602 visa, the applicant stated, in response to questions about funding his stay in Australia, that he was working as a Process Worker and was able to pay for his medical expenses. The Tribunal also referred to the referral letter to the psychologist dated 13 October 2021 from the Blacktown GP Super Clinic, in which reference was made to the applicant being stressed with his business and not being able to sleep well because he was thinking about his business. The Tribunal said this indicated that the applicant was running a business. Accordingly, the Tribunal concluded that it was not satisfied that the applicant would comply with condition 8101 if granted a Subclass 602 visa [19] – [20].
The Tribunal said that it also considered other relevant matters, in particular, the applicant’s lengthy immigration history in Australia and summarised that history including the periods in which the applicant had remained in Australia as an unlawful citizen [21] – [22].
The Tribunal concluded that it was of the view that the applicant’s immigration history demonstrated a strong desire to live in Australia permanently and that he lodged the application for the Subclass 602 Medical Treatment visa for the purpose of maintaining ongoing residence in Australia. The Tribunal said that it was not satisfied, on the evidence before it, that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, and that accordingly, clause 602.215 was not met [23].
The Tribunal therefore affirmed the decision under review.
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 31 December 2021. The applicant also filed an affidavit on 31 December 2021. The affidavit recounts some of the history of the matter and annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and required the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court ensured the applicant had these documents with him.
The applicant appeared in person. He was unrepresented. He had the assistance of an interpreter in the Malay and English languages.
CONSIDERATION
For the applicant to be successful, the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
1.The Administrative Appeals Tribunal failed to consider medical documents provided before the hearing and did not wait for further evidence which is crucial for the medical visa and made legal error
2.The Administrative Appeals Tribunal failed to apply the requirement in cl 602.215. Whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant's intention to comply with the conditions to which the Subclass 602 visa would be subject and made legal error.
3.The Tribunal only look at the applicant's immigration history. The Tribunal without consideration of medical evidence come to conclusion and refused visa accordingly made legal mistakes.
Despite the procedural order requiring him to do so, the applicant did not file any written submissions. The applicant was given the opportunity, with the assistance of the interpreter, to make oral submissions in support of his application for judicial review and in reply to the first respondent’s submissions.
Ground One – Failure to consider medical documents and not waiting for further medical evidence
By ground one, the applicant contends the Tribunal made two errors. First, the applicant contends that the Tribunal failed to consider the medical documents he provided before the hearing. Second, the applicant contends that the Tribunal erred in not waiting for him to provide further medical evidence before making its decision.
Failure to consider medical documents provided before the hearing
The Court asked the applicant to identify the medical documents he said that he had provided prior to the Tribunal hearing and which he contends the Tribunal failed to consider. The applicant identified the following documents:
(a)The Form 1507 which was included in the visa application and identified that he had a ‘deformed Lt wrist/forearm’; and was ‘awaiting orthopaedic review’ (CB 15);
(b)The medical imaging request form dated 9 April 2020 included in the visa application for an X-ray of his left wrist (CB 19);
(c)Urine and blood tests dated 24 January 2020 included in the visa application (CB 20-26);
(d)The referral to a psychologist from the Blacktown GP Super Clinic dated 13 October 2021 provided to the Tribunal prior to the hearing (CB 91);
(e)The letter from the Kildare Road Medical Centre dated 6 October 2021 provided to the Tribunal prior to the hearing (CB 82);
(f)Blood test results dated 6 October 2021 provided to the Tribunal prior to the hearing (CB 83-89).
(collectively, “the medical documents”)
The applicant did not provide any other medical documents before the hearing and did not provide the Medical Treatment Plan requested in the s 359 request.
The applicant’s contention that the Tribunal failed to consider the medical documents is not borne out by reference to the Tribunal’s reasons. The Tribunal referred to the medical evidence the applicant had provided with his visa application to the extent that it identified that the applicant stated that he was awaiting orthopaedic review [16] and referred to his correspondence with the Tribunal that he was waiting to consult a psychologist [16]. In that regard, the Tribunal identified the reasons the applicant gave for needing to consult a psychologist making specific reference to the referral from the Blacktown GP Superclinic [20].
In any event, as the first respondent submits (first respondent’s submissions (“FRS”) [27]), the Tribunal identified that the determinative issue was whether it was satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted. The medical documents were not relevant to that issue and the Court infers that the Tribunal did not consider that any issue in the medical documents was relevant to the determinative issue.
Whether it was legally unreasonable for the Tribunal not to wait for further evidence
The applicant appears to contend that it was legally unreasonable for the Tribunal not to wait for further medical evidence to be provided before making its decision.
Section 363(1)(b) provided:
363 Powers of the Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time.
The Court is of the view that the applicant did not, either expressly or impliedly, request the Tribunal to adjourn the hearing. At best, the applicant can be taken to have requested an extension of time until the week ending 13 November 2021 to provide the information requested in the s 359 request. Thereafter, the applicant did not communicate to the Tribunal regarding any further medical evidence that he wanted to provide.
In any event, the Court agrees with the first respondent’s submissions (FRS [28]-[29]) that it was not legally unreasonable for the Tribunal not to adjourn the hearing scheduled for 2 December 2021 to enable the applicant to provide further medical evidence in circumstances where:
(a)On 27 September 2021, the Tribunal requested the applicant to provide specific types of medical evidence by 11 October 2021 (the s 359 request);
(b)On 11 October 2021, the applicant told the Tribunal that he needed more time to provide the requested evidence but did not give a time frame for doing so;
(c)On 14 October 2021, the applicant provided medical evidence, but which did not satisfy the s 359 request;
(d)On 18 October 2021, the Tribunal granted the applicant an extension of time to 2 November 2021, being an additional period of 3 weeks to respond to the s 359 request;
(e)On 2 November 2021, the applicant said that the information would be obtained by the end of ‘next week’ (being by 13 November 2021) but did not provide any further information by that date or thereafter and as noted above, did not communicate further with the Tribunal about providing further medical evidence;
(f)The Tribunal did not take any further steps until 17 November 2021 when it invited the applicant to the hearing scheduled for 2 December 2021;
(g)By the time of the hearing, the applicant had had nine weeks to provide further evidence to the Tribunal.
Whether it was legally unreasonable for the Tribunal to make a decision on the merits without enabling the applicant to appear
The first respondent also raised in its submissions whether it was legally unreasonable for the Tribunal to exercise its discretion pursuant to s 362B of the Act to proceed to hear the matter in the absence of the applicant having regard to the reasoning in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (“DNK17”).
Section 362B relevantly provided:
Section 362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal;
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(c) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(d) by written statement under 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The hearing invitation (CB 94-96) complied with the statutory requirements imposed by ss 360 and 360A of the Act as it:
(a)gave notice of the day, time and place of the hearing;
(b)was transmitted by email to the applicant’s nominated email address;
(c)complied with the prescribed notice period; and
(d)contained a statement to the effect of s 362B.
The first respondent correctly accepts that the discretion in s 362B is subject to an implied condition requiring the discretion to be exercised in accordance with the principles of legal reasonableness (FRS [33]).
The implied condition of legal reasonableness requires that a discretionary power be exercised according to the rules of reason and that the decision be reached by reasoning which is intelligible and reasonable having regard to the purpose of the power and the relevant statutory context (DNK17 [66], [69]).
In DNK17, Horan J (at [57]-[60]) considered the legislative history to the introduction of the dismissal power in s 426A (which is in the same terms as s 362B) and, referring to the Explanatory Memorandum, identified that the new power to dismiss an application rather than proceed to hear it in the absence of an applicant was intended to increase Tribunal efficiency and allow the Tribunal to focus resources away from matters not being actively pursued by an applicant.
As to the statutory context, it is acknowledged that the discretion in s 362B has different consequences for an applicant (DNK17 [62]). If the Tribunal dismisses the application without any further consideration of the application, the applicant has the option of seeking reinstatement within fourteen days: s 362B(1B). In that event, the applicant will need to satisfy the Tribunal that reinstatement is appropriate in all the circumstances. In addition to being satisfied as to why the applicant failed to appear at the hearing, the Tribunal would likely consider the merits of the applicant’s case having regard to the evidence provided and whether the applicant can provide evidence that addresses the Tribunal’s concerns which prompted the Tribunal to convene the hearing in the first place (BKY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 724 (“BKY19”) [20]). If the Tribunal instead proceeds to hear the matter – bearing in mind the hearing invitation informs the applicant that the Tribunal has convened a hearing because it is not satisfied it has sufficient material before it to make a decision favourable to the applicant – the applicant’s absence means the Tribunal’s concerns are unlikely to be assuaged (AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423 [19]). In that event, the applicant will be limited to seeking judicial review of the Tribunal’s decision and establishing that the Tribunal’s reasons for affirming the delegate’s decision are affected by material jurisdictional error.
The Tribunal gave reasons for exercising its discretion to proceed to hear the matter in the applicant’s absence. Those reasons provide the focus for the required analysis of legal reasonableness (DNK17 at [86]). The Tribunal’s reasons did not explain why the member decided to proceed to hear the matter rather than dismiss the application. To be clear, however, there is no obligation on the Tribunal to do so (DNK17 at [102]) and the omission of the explanation of choice to dismiss the matter or proceed to hear the matter does not invite an inference that the Tribunal did not consider its options (AMU19 at [66]). Provided there are rational reasons for the exercise of the discretion to proceed to hear the matter, that will be sufficient to sustain the decision even if a different decision maker might have reached a different conclusion (BKY19 at [23]) and instead dismissed the matter leaving the applicant with the option of applying for reinstatement.
The Tribunal set out the procedural history in some detail [4]-[6]. That history included the applicant’s engagement with the Tribunal (set out earlier in these reasons) and his failure to respond to the s 359 request by, inter alia, providing a medical treatment plan. It can be inferred from that recitation of the history of the matter and the applicant’s engagement with the Tribunal that the Tribunal had decided to bring the proceedings to finality rather than dismissing the application leaving open the possibility of reinstatement. It is also relevant to consider the Tribunal’s reasons as a whole in assessing whether the decision to proceed was legally reasonable. The determinative issue did not turn on the medical evidence or any testing of that evidence but on whether the applicant was a genuine temporary entrant. The determination of that issue turned on the applicant’s compliance with previous visas, that the applicant had remained in Australia as an unlawful non-citizen and the applicant’s immigration history upon which the Tribunal concluded that this indicated the applicant wanted to stay permanently in Australia.
Accordingly, the Court is of the view that the Tribunal’s reasons provide an intelligible justification for deciding to proceed to hear the matter and, by inference, not to dismiss the matter.
No jurisdictional error is established on ground one.
Ground Two – Failure to apply clauses 602.215(1)(a) and (b)
By ground two, the applicant contends that the Tribunal failed to apply the requirements of clause 602.215 and whether the applicant had complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions of the Subclass 602 visa.
As to the contention that the Tribunal failed to consider whether the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, this is not borne out by reference to the Tribunal’s reasons. The Tribunal in fact found in favour of the applicant in this regard ([17]).
As to the contention that the Tribunal failed to apply the requirement with respect to the applicant’s intention to comply with the conditions of the subclass 602 visa, the applicant could not articulate any basis for this contention. The Tribunal dealt with this at [19]-[20]. There is nothing in that reasoning on the evidence before the Tribunal that discloses error on the part of the Tribunal.
No jurisdictional error is established on ground two.
Ground Three – Failure to consider the applicant’s medical evidence and consideration of the applicant’s immigration history
By ground three, the applicant contends the Tribunal considered only his immigration history and failed to consider his medical evidence.
The Court has already considered in its consideration of ground one the applicant’s contention that the Tribunal failed to consider the medical evidence. The Court concluded that the Tribunal did in fact consider the applicant’s medical evidence and that, in any event, it was not relevant to the determinative issue.
As to the Tribunal’s consideration of the applicant’s immigration history, the Tribunal was required to consider the applicant’s immigration history in determining whether the applicant was a genuine temporary entrant pursuant to clause 602.215. The Tribunal considered that there was considerable evidence that the applicant had not complied with his previous visas (having spent periods in Australia as an unlawful non-citizen) and on that basis concluded that this indicated the applicant had a strong desire to live in Australia even if it meant breaching the conditions of his visa and living in Australia as a non-lawful citizen ([18]) and that his lengthy immigration history (recounted at [21]-[22]) demonstrated a strong desire to live in Australia permanently and that he had lodged the visa application for the purpose of maintaining ongoing residence in Australia [23]. There is nothing in the Tribunal’s consideration of the applicant’s immigration history, which was relevant to the determinative issue, which discloses jurisdictional error.
No jurisdictional error is established on ground three.
CONCLUSION
For the reasons given above, no jurisdictional error is established. Accordingly, the application for judicial review is dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 August 2025
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