Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1015
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1015
File number(s): SYG 1879 of 2022 Judgment of: JUDGE KAUR-BAINS Date of judgment: 3 July 2025 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant the applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal incorrectly dealt with the evidence – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 476 and 477
Migration Regulations 1994 (Cth), cll 602.212(6), 602.215, 602.215(1), 602.215(1)(a), 602.215(1)(b) and 602.215(1)(c) of Schedule 2
Cases cited: Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137
BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Hamod v New South Wales [2011] NSWCA 375
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
Division: General Federal Law Number of paragraphs: 38 Date of hearing: 20 May 2025 Place: Sydney Applicant: In person Solicitor for the First Respondent: Mr J Pinder of Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1879 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPREET KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.
2.The application 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 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 KAUR-BAINS
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 November 2022. The issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the Medical Treatment (Visitor) (Class UB) visa (medical treatment visa) was granted. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a medical treatment visa. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
The applicant raised three grounds for judicial review which are set out at [15] of this judgment, alleging that the Tribunal’s decision was legally unreasonable, the Tribunal incorrectly dealt with the evidence and denied the applicant procedural fairness. For the reasons that follow, I find the said grounds do not disclose jurisdictional error.
BACKGROUND
The applicant is a citizen of India. On 13 June 2009, the applicant first arrived in Australia as the holder of a Tourist (subclass 676) visa (tourist visa).
Medical treatment visa
On 19 November 2021, the applicant lodged an application for the medical treatment visa (Court Book (CB) 1 to 14). The applicant provided Form 1507 (Evidence of intended medical treatment) signed 9 November 2021 by Dr Rahul Kalon of the Leeton Family Clinic (CB 13). The form stated that the applicant required medical treatment for depression and the treatment information stated “Amitriptylint”, an anti-depressant drug. The applicant stated in her application form that she wished to remain in Australia for the purpose of medical treatment for the period 29 November 2021 to 1 February 2022 ([4] of the Tribunal reasons).
On 22 November 2021, the Department wrote to the applicant to invite her to comment on the information for the visa, being that since her arrival in Australia in 2009, she had not departed Australia; had unsuccessfully applied for protection visas in 2009 and 2013; and had multiple outstanding debts to the Commonwealth, but failed to declare them (CB 19 to 22). The letter stated that the information was relevant to whether the applicant met the criteria in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), that she genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa was granted.
Department’s decision in relation to the applicant
On 2 December 2021, a delegate of the Minister refused the applicant’s application for the visa on the basis that it was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa was granted (CB 24 to 27).
Application for review
On 20 December 2021, the applicant lodged with the Tribunal an application for review of the decision dated 2 December 2021 (CB 32 to 45).
TRIBUNAL’S DECISION
On 16 November 2022, the applicant appeared before the Tribunal by video, assisted by an interpreter in the Punjabi and English languages ([9] of the Tribunal’s reasons). The applicant’s husband also gave oral evidence at the hearing before the Tribunal.
The Tribunal referred to cl 602.215 of the Regulations, the requirement for the grant of the medical treatment visa and that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa was granted ([17] of its reasons). Further, the Tribunal noted that, in considering the question of whether the applicant genuinely intended to stay temporarily in Australia, it had to have regard to whether the applicant had substantially complied 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 any other relevant matter.
The Tribunal was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the medical treatment visa was granted. At [25] of its reasons, the Tribunal summarised its reasons as follows:
(a)the absence of evidence about an end point to her medical treatment;
(b)her failure to depart at the end of the period originally sought for medical treatment, which was that she would be under medical treatment from 29 November 2021 to 1 February 2022 ([19] and [25] of its reasons);
(c)the length of time she had been in Australia, being 12 years (24] to [25] of its reasons);
(d)her previous two unsuccessful applications for permanent protection visas in 2009 and 2013 ([24] of its reasons); and
(e)the applicant’s evidence and that of her husband’s at the hearing, that her family wished to remain in Australia, and the applicant’s evidence that she did not have anything left in India and wished to remain permanently in Australia ([24] and [25] of its reasons).
The Tribunal also found the applicant did not meet the waiver in cl 602.212(6) of the Regulations for being medically unfit to depart Australia, as the applicant had not turned 50 years old ([15] of its reasons).
RELEVANT LEGISLATION
The following clauses in Schedule 2 to the Regulations deal with the criteria for the grant of a medical treatment visa:
602.211
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a)the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
…
Unfit to depart
(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 related 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.
…
602.215
(1)The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c) any other relevant matter.
(2)However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing before me as a litigant in person, assisted by a Punjabi interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application filed on 16 December 2022, supporting affidavit of the applicant filed on 16 December 2022 and the Minister’s written submissions filed on 15 May 2025. The applicant did not provide written submissions.
GROUNDS FOR JUDICIAL REVIEW
The following grounds for judicial review were raised in the application filed on 16 December 2022 (as in original):
1. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with provisions of the Migration Act.
2. The Tribunal fell into jurisdictional error misinforming itself as to the true nature of my evidence and thereby incorrectly dealt with the evidence.
3. The Tribunal denied procedural fairness.
Applicant’s submissions
The applicant relied on her affidavit filed on 16 December 2022 as submissions, which were as follows (as per original):
1. I applied for the subclass 602 visa on 19 November 2021. The delegate of the Minister refused my visa despite I met the criteria of the relevent Migration Regulations.
2. I applied for review in Tribunal of a decision made by the delegate of the Minister for Home Affairs on 2 December 2021 to refuse to grant my application for Sbubclass 602. The Tribunal member affirmed the delegate decision on 16 November 2022 despite I met the criteria of the visa.
3. I respectfully entreat you to accepet my application for judicial review. I appeal to equity and your sense of justice.Herewith, I attached AA T decision copy.
At the hearing before me, when invited to expand on the grounds for review, the applicant submitted the following:
(a)The applicant said she had been taking regular medication and provided all the documents to the Tribunal. She said she gave the medical report to the Tribunal from Dr Rahul Kalon. The Tribunal looked at her daily medication for depression, for which the applicant gave the Tribunal the names of the medication. The applicant contended that the Tribunal did read the medical report, but was “not satisfied” with the said report.
(b)The applicant said she told the Tribunal she had been taking regular medication but did not know how long she needed before she could discontinue the medication. The applicant said she did not know whether “the Tribunal looked at this issue properly”.
(c)The applicant submitted that the Tribunal denied her procedural fairness as it told her that she could go to India. The applicant contended that she could not go to India alone, as her family and children are in Australia.
Minister’s submissions
The Minister relied on his written submissions filed on 15 May 2025, as well as oral submissions made at the hearing before me.
GROUND 1
Ground 1 raised the issue of whether the Tribunal arrived at a state of reasonable satisfaction in making its decision.
Relevant legal principles as to legal unreasonableness
Before considering ground 1, it is helpful to identify the relevant legal principles as to legal unreasonableness.
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson, Mortimer JJ (as her Honour then was)), in considering legal unreasonableness, referred to the High Court decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [44], and noted that legal unreasonableness may arise in two different contexts as follows:
(a)First, the identification of an underlying jurisdictional error in the decision-making process.
(b)Second, the outcome (ultimate conclusion) of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Jurisdictional error in decision-making process
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [49], Wigney J elaborated on the first context in which legal unreasonableness may arise, being where “a tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction .”
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Crennan and Bell JJ stated the following as to the correct approach when analysing the reasons subject to judicial review:
[132] … It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
[133]However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
Further, if an error is identified in the decision-making process (that is on the way to the ultimate conclusion), then as Wigney J said in SZUXN, at [55]:
[55]… the overarching question is whether the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.
Consideration
In relation to ground 1, the applicant submitted that she had in fact told the Tribunal she had been taking regular medication and had given all the documents to the Tribunal, but the Tribunal was not satisfied and that was unreasonable.
I note that clause 602.215(1)(c) of the Regulations, specifically permits the Tribunal to consider “any other relevant matter”, for the purposes of considering whether the applicant genuinely intended to stay temporarily in Australia for which the visa was granted. The Tribunal looked at the matters referred to at [10] of this judgment in determining the question of whether the applicant genuinely intended to stay temporarily in Australia. I will now turn to consider each of those matters.
End point to medical treatment
I note the following comments made by Judge Manousaridis in Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137 (Adhikari):
[23]…Clause 602.215 of Schedule 2 requires two things. The first is that an applicant must have a genuine intention to stay temporarily in Australia. The second is that an applicant’s intention to stay temporarily in Australia must be for a particular purpose, namely the purpose for which the Medical visa is granted. Where, as the Tribunal found in the applicant’s case, there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intends to stay temporarily in Australia. Stated another way, if the evidence reveals an applicant will undertake medical treatment indefinitely, and the applicant’s intention is to stay in Australia to receive such treatment, it is impossible to find that the applicant has a genuine intention to stay temporarily in Australia. An applicant’s intention would be to stay in Australia indefinitely, which is not what cl 602.215 requires.
[24]For these reasons, even though the Tribunal accepted the applicant’s evidence about his medical condition, and the medical treatment he was receiving, it was open to the Tribunal not to accept the applicant intends to stay temporarily in Australia for the purpose for which he applied for the Medical visa….
Thus, I find it was reasonable for the Tribunal to consider the absence of evidence about an end point to the applicant’s medical treatment in considering the question of whether the applicant had a genuine intention to stay temporarily in Australia. This is because, as said by His Honour Manousaridis J in Adhikari, where there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intended to stay temporarily in Australia. Further, His Honour said in Adhikari, if the evidence reveals an applicant will undertake medical treatment indefinitely, it will be impossible to find that the applicant has a genuine intention to stay temporarily in Australia.
Other matters considered
Further, I find that it was reasonable for the Tribunal to consider the applicant’s failure to depart at the end of the period originally sought for the medical treatment; the 12 years she had been in Australia; that she had made previous applications for permanent protection visas; and she and her family’s evidence was that they wished to remain permanently in Australia, when considering the applicant’s genuine intention to stay temporarily in Australia. I find they were clearly matters that the Tribunal reasonably took into account in answering the statutory question of whether the applicant genuinely intended to stay in Australia. This is because they were factors which suggested the applicant wished to remain in Australia permanently or indefinitely.
Accordingly, I find that no jurisdictional error is disclosed by ground 1.
GROUND 2
In relation to ground 2, the applicant contended that the Tribunal misinformed itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the evidence. The applicant at the hearing submitted that the Tribunal had asked her about her medication and asked if she took it regularly, to which she replied she did. The applicant also submitted that the Tribunal asked how long the applicant would still need to take the medication, and she said she did not know. The applicant said she could not add anything further to ground 2.
I note the Tribunal at [20] of its reasons, in relation to the applicant’s medical conditions, said the following:
[20]Asked at hearing about the status of her medical treatment, the applicant told the Tribunal that she was still taking daily medication for which the doctor gave her repeat prescriptions every two weeks and was told to walk in the park. She said she variously that she did not know how long the treatment would take, that it was long term treatment and that she did not expect her condition to get better.
The applicant agreed that what she told the Tribunal as to her medication was as set out at [20] of its reasons. Given this, I am unable to identify that the Tribunal incorrectly dealt with the applicant’s evidence. Rather, the applicant seemed to be contending that the Tribunal ought to have accepted her medical evidence and granted her the medical treatment visa, which cavils with the merits of the Tribunal’s decision. I have no power to engage in impermissible merits review. It is not the role of this Court to review the merits or factual findings of the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6).
Accordingly, I find that no jurisdictional error is disclosed by ground 2.
GROUND 3
In relation to ground 3, the applicant argued that she was denied procedural fairness. When asked at the hearing what the denial of procedural fairness was, the applicant said the Tribunal’s decision was that she had to go back to India and she stated she could not go to India alone when her husband and children are in Australia. I note those matters do not give rise to matters of procedural fairness in terms of being a jurisdictional error.
Accordingly, I find that there is no jurisdictional error disclosed by ground 3.
SELF-EVIDENT JURISDICTIONAL ERROR
Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error (BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]). I have not identified any such jurisdictional error.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 3 July 2025
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