Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 700
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 700
File number(s): MLG 20 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 9 August 2023 Catchwords:
MIGRATION – application for judicial review – Medical Treatment (Subclass 602) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant did not satisfy cl 602.215 of sch 2 of the Migration Regulations 1994 – where applicant has lengthy migration history and periods of unlawful stay –applicant afforded opportunity to give evidence to the Tribunal about medical condition and treatment –Tribunal considered applicant’s medical condition and treatment –applicant’s medical history relevant to the question of whether cl 602.215 of sch 2 of the Regulations is met –no jurisdictional error on behalf of the Tribunal – costs awarded.
Legislation: Migration Act 1958 (Cth) ss 474, 476.
Migration Regulations 1994 (Cth) sch 2 cls 602.212, 602.215(2).
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363
SZALW v Minister for Immigration and Multicultural Affairs [2004] FCA 1690
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 27 July 2023 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Mr Daly of Mills Oakley ORDERS
MLG 20 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULBIR KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
9 August 2023
THE COURT ORDERS THAT:
1.The Application filed 9 December 2022 be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5,000.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 9 December 2022 for judicial review of a decision made by the second respondent (Tribunal) on 22 November 2022 affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Subclass 602) visa (Visa). Both the delegate of the Minister and the Tribunal found that the applicant did not meet the requirements in cl 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONTEXT
The applicant is a citizen of India who arrived in Australia on 7 February 2009 on a Student (Subclass 572) visa. The applicant has a lengthy migration history which has included periods of unlawful stay.
On 17 January 2011 the applicant’s student visa was cancelled. On that same day, the applicant applied for a Protection (Subclass 866) visa, which was refused on 19 January 2012.
The applicant sought merits review of the decision to refuse to grant her a Protection visa. On 22 June 2012, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. The applicant unsuccessfully sought Ministerial intervention regarding her immigration status.
On 7 September 2021 the applicant applied for a Medical Treatment (Subclass 602) visa to undertake medical treatment from 8 September 2021 to 30 December 2021. In her Visa application and accompanying Form 1507, the applicant identified “chronic left shoulder pain and injury” and “associated low back pain” as the medical condition requiring treatment.
The relevant statutory requirement for the grant of the Visa is that the applicant satisfy cl 602.215 of Schedule 2 of the Regulations which provides:
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.
For the purposes of clause 602.215(2), subclause 602.212(6) of Schedule 2 of the Regulations provides:
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 evidence by a written statement to that effect from a Medical Officer of the Commonwealth.
On 8 September 2021 the Department of Home Affairs (Department) sent an invitation to the applicant to comment on “unfavourable information that may lead to a decision to refuse your application”. The Department identified the applicant’s migration history gave rise to concerns over her intention to comply with the Visa conditions, whether she was a genuine temporary entrant, and her incentives to depart Australia. The information was identified as follows (without amendment):
Departmental records demonstrate that:
The applicant arrived in Australia on 7 February 2009 as the holder of a Student (Subclass 572) visa. The Student Visa was cancelled on 17 January 2011 and on the day of the refusal the applicant applied for a Protection visa. The Protection Visa was refused on 17 January 2012 and the applicant sought review at the AAT who affirmed the Department’s decision on 22 June 2012. The applicant subsequently sought Ministerial intervention which was not referred. Departmental systems also confirm that the applicant has spent significant period of time in Australia as an unlawful non-citizen. The applicant has now made an applicant for a Medical Treatment (Subclass 988) Visa.
The applicant was given seven days in which to provide a response in writing to this information. The applicant did not provide a response.
On 30 September 2021 a delegate of the first respondent (delegate) refused to grant the visa. After setting out the details of the applicant’s migration history in Australia, the delegate found that the applicant was not a genuine temporary entrant and concluded:
In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future.
Departmental records confirm that the applicant has remained in Australia unlawfully, unsuccessfully applied for a permanent visa onshore and has taken every opportunity to present their case or circumstances for review.
I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.
I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.
I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.
On 7 October 2021, the applicant applied to the Tribunal for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number ‘xxxxx xxx92’.
On 12 October 2022 the Tribunal emailed the applicant enclosing an invitation for her to attend a telephone hearing on 22 November 2022 at 9.30am and with an information sheet attached. The applicant participated in and gave evidence during the hearing with the assistance of an interpreter in the Punjabi and English languages.
On 22 November 2022 the Tribunal affirmed the decision of the delegate not to grant the applicant the visa. On 23 November 2022 the Tribunal sent a copy of their decision and reasons to the applicant’s email address.
THE TRIBUNAL’S DECISION
After setting out the procedural history of the review application, the applicant’s immigration history and the applicant’s oral evidence at hearing, the Tribunal set out the requirements in cl 602.215 and cl 602.212 of Schedule 2 to the Regulations.
Clause 602.212 – unfit to depart Australia
As to cl 602.212(6), the applicant did not provide a copy of the written statement that complied with cl 602.212(6)(f). Tribunal found cl 602.212(6)(f) of the Regulations did not apply because there was “insufficient evidence” to make a finding that the applicant was 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”.
The Tribunal also found that the applicant was born on 15 September 1986 and therefore cl 602.212(b) did not apply because the applicant was under the age of 50.
Clause 602.215 – genuinely intends to stay temporarily
The Tribunal noted the applicant had been in Australia for almost 13 years on various visas and had never returned to India. The Tribunal found this gave weight to the contention that the applicant was seeking to maintain residence in Australia and is not a genuine temporary entrant.
The Tribunal found the applicant submitted “no medical evidence of any kind”, nor any evidence that she had been receiving any medical treatment in Australia for a lengthy period of time or had any plans to seek medical treatment.
The Tribunal found that there was no evidence before it that the applicant has plans to leave Australia.
The Tribunal found there was no additional documentation or information before it that was not before the delegate. The Tribunal considered the documents submitted to the delegate and found no evidence supporting that the applicant was gravely ill or receiving intensive or critical care, or that the applicant needed to remain in Australia for ongoing consultation.
The Tribunal concluded that the applicant was attempting to utilise the Medical Treatment visa pathway as a means to maintain ongoing residence, and that the applicant did not genuinely intend on remaining in Australia on a temporary basis and therefore had not satisfied cl 602.215 of Schedule 2 of the Regulations.
Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 9 December 2022.
The Application contains the following 15 grounds for judicial review (without amendment):
1.I Kulbir Kaur, am the primary applicant of a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.I applied for the visa on 7 September 2021 to seek medical treatment, however, the delegate refused to grant me the visa on 30 September 2021, as according to them I did not satisfy the criteria set out in the relevant Migration Regulations.
3.I appeared before the Tribunal by telephone hearing on 22 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
4.I informed the Tribunal that I first arrived in Australia on 7 February 2009 holding a student visa which was cancelled on 17 January 2011 and on the day of that refusal I applied for a protection visa. I also told that I do not work and has no money, and that I am here by myself and rents with my friends. I also informed that I rely on my friends for financial support.
5.I told the Tribunal that I have a sore back and I have been having problems with my shoulder too. I have been receiving treatment from a physiotherapist but that I have not necessarily been receiving regular treatment as the consultations cost $280 and that I can’t afford it. I also informed that that once my back and shoulder are better, I will return home.
6.The Tribunal told me that as I did not provide a copy of a written statement that complied cl 602.212(6)(f), thus, clause 602.212(6) does not apply in my case. Thus, the Tribunal concluded that I do not meet the criteria set out in cl 602.212(6).
7.The Tribunal told me that there is no medical evidence of any kind was submitted by me. Accordingly, there is no evidence before the Tribunal that I have been receiving any medical treatment in Australia for a lengthy period of time. There is also no evidence according to the Tribunal, that I have current plans to seek medical treatment.
8.The Tribunal stated that it has considered the claims and supporting evidence that I have provided with the application. However, according to the Tribunal, I do not meet cl 602.215. Thus, based on the evidence before the Tribunal, it concluded that I do not meet the requirements for the grant of the visa.
9.The Tribunal affirmed the decision not to grant me a Medical Treatment (Visitor) (Class UB) visa.
10.The grounds of the application for my case to be re-considered by Federal Circuit Court as I was not provided enough time to provide more evidence.
11.The department failed to consider the other relevant matter in support of our case and previous immigration history and compliance with the visa condition was not considered.
12.I believe that I was not provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I do not meet the criteria for a Medical Treatment (Visitor) (Class UB) visa. However, I did mention these points in my Hearing statement and also provided all the relevant and necessary evidence in the hearing.
13.Tribunal misconstrued condition 602.215 that the requirements set by the subclass 602 visa were not met by me. The clauses were wrongly assessed. My genuine intentions to apply a Medical Treatment (Visitor) (Class UB) visa were denied by the tribunal.
14.My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
15.Substantial justice was not provided and that’s the reason I was to apply in Federal Circuit Court of Australia.
The application for review was supported by an affidavit dated 9 December 2022 which annexed the Tribunal’s decision.
The hearing
The hearing took place on 27 July 2023. The applicant was self-represented and had the assistance of a Punjabi interpreter.
At the hearing of this matter, the applicant was invited to elaborate on the grounds for judicial review and, in summary form, sought to add the following matters for consideration of the Court:
(a)The Tribunal hearing was too short and lasted only for 15 minutes;
(b)The Tribunal did not provide the applicant with an adequate opportunity to present her evidence fully;
(c)The Tribunal focussed on the applicant’s prior immigration history and did not ask her questions about or focus on her current medical condition;
(d)The Tribunal did not listen to her properly; and
(e)The interpreter did not explain her position fully because she spoke at length and the interpreter spoke in English for short periods of time.
In addition, the applicant said that she had been living in Australia since 2009 following arriving on a student visa, she was not educated and had limited English, her divorce from her husband had impacted on her visa status and that she had subsequently applied for a number of visas, all of which were rejected. The Court does not consider these latter matters to be relevant to the current Application before it.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Grounds 1-5
Grounds 1-5 simply identify the applicant and summarise the background to the current proceedings. They mirror paragraphs [3]-[5] and [15]-[16] of the Tribunal’s decision but make no allegation of error. Accordingly, grounds 1-5 assert no jurisdictional error on behalf of the Tribunal.
Grounds 6-9
Similarly, grounds 6-9 repeat paragraphs [21]-[25], [29], [32]-[35] and [36] of the Tribunal’s decision but make no allegation of error. Accordingly, grounds 6-9 also assert no jurisdictional error on behalf of the Tribunal.
Ground 10
As to ground 10, the applicant alleges she was not provided with enough time to submit further evidence to the Tribunal. Before the Court, the applicant submitted that the Tribunal did not ask her questions about her medical condition and focussed on her immigration history. She said that the further evidence she would have submitted were x-rays.
Firstly, the applicant had over 12 months while the review application was on foot to provide any further material to the Tribunal that she wished to rely upon and some 6 weeks’ notice of the date and time of the hearing before the Tribunal. There is no evidence before the Court to establish that the applicant requested any additional time to submit further material to the Tribunal. As to the further evidence that the applicant says that she would have submitted, specifically x-rays, it is not apparent why this evidence could not have been provided to the Tribunal prior to the hearing.
Secondly, the hearing invitation sent to the applicant included the following statement:
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 15 November 2022.
Thirdly, it was for the applicant to advance her case before the Tribunal and the Tribunal was under no obligation to afford every opportunity to the applicant to present her best possible case or improve upon the evidence: Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41].
As to the assertion that the Tribunal did not ask the applicant questions about her medical condition and treatment and focussed on her prior immigration history; firstly, the transcript of the hearing before the Tribunal is not in evidence before the Court and there is therefore no evidence in support of this assertion before the Court. Secondly, paragraph [16] of the Tribunal’s decision summarises the applicant’s oral evidence regarding her medical condition and treatment as follows:
She stated that she has a sore back and shoulder and that she has been receiving treatment from a physiotherapist but that she hasn’t necessarily been receiving regular treatment because the consultations cost $280 and that she can’t afford it. In regard to her medical treatment, she stated that she could not recall what her condition is called but that she is having problems with her shoulder and back. She stated that once her shoulder is better, she will return home.
The applicant therefore was afforded an opportunity to give evidence to the Tribunal about her medical condition and, indeed, did so.
Ground 10 discloses no jurisdictional error on behalf of the Tribunal.
Ground 11
By ground 11, the applicant contends that the “department” failed to consider relevant matters in her case, including her previous migration history and compliance with visa conditions. Before the Court, in contradistinction to her written grounds, submitted that the Tribunal failed to consider her medical condition and treatment and focussed on her prior immigration history.
The delegate’s decision cannot be judicially reviewed by this Court as it was a “primary decision” within the meaning of s 476(4)(a) of the Act, in that it is a privative clause decision reviewable under Part 5 of the Act: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363 at [20].
Further, to the extent that this ground could be construed beneficially to challenge the Tribunal’s decision on the basis that it failed to consider the applicant’s previous migration history and compliance with visa conditions, it cannot be made out. The Tribunal expressly set out the applicant’s migration history at paragraphs [8]-[11] and [27] of the its decision and there was no evidence before the Tribunal of the applicant’s compliance with previous visa conditions. Further, the Tribunal’s decision at paragraph [11] states that “… the applicant has spent significant periods of time in Australia as an unlawful noncitizen and has then made an application for a medical treatment visa.” Additionally, I accept the Minister’s oral submission that the applicant’s immigration history is clearly relevant to the question of whether the applicant genuinely intends to stay temporarily in Australia.
As to the applicant’s contradictory oral submission before the Court that the Tribunal focussed on her prior immigration history and failed to consider the applicant’s medical condition and treatment, as already set out, the applicant’s evidence regarding her medical condition and treatment are set out in paragraph [11] of the Tribunal’s decision. Further, at paragraphs [18]-[25] of the Tribunal’s decision, the Tribunal expressly considers whether the applicant is medically unfit to depart Australia pursuant to cl 602.212(6) and again considers the applicant’s medical condition and treatment at paragraphs [28]-[31] in the context of clause 602.215(1).
Accordingly, ground 11 discloses no jurisdictional error on behalf of the Tribunal.
Ground 12
As to ground 12, before the Court the applicant submitted that the length of the hearing before the Tribunal did not allow her to give her evidence fully and that the Tribunal did not ask her about her medical condition or treatment. Both of these assertions have been already been addressed in paragraphs [33]-[38] above, and the Court refers to and repeats those comments. There is nothing before this Court to suggest that the applicant was denied a real and meaningful opportunity to give evidence and present arguments to the Tribunal. Further, the applicant was provided with an opportunity to submit evidence to the Tribunal before the hearing, was invited to do so by 15 November 2022 and was assisted by an interpreter at the hearing.
Accordingly, ground 12 discloses no jurisdictional error on behalf of the Tribunal.
Ground 13
By ground 13, the applicant asserts, without particularisation, that the Tribunal misconstrued cl 602.215 of Schedule 2 of the Regulations. Before this Court, the applicant said that the Tribunal misconstrued clause 602.215 because it focussed on her prior immigration history. At paragraphs [18] and [19] of its decision, the Tribunal sets out cl 602.215(1) and (2) and clause 602.212(6). It then addresses the relevant criteria under each clause in the remainder of the decision. The Court is unable to identify anything in the Tribunal’s decision which could support an assertion that the Tribunal misconstrued cl 602.215. Further, the applicant’s previous migration history is clearly relevant to whether the requirements of cl 602.215 of Schedule 2 the Regulations is met.
It follows that ground 13 also discloses no jurisdictional error on behalf of the Tribunal.
Ground 14
Ground 14 does not disclose any jurisdictional error on behalf of the Tribunal.
The Tribunal properly considered whether the applicant, pursuant to the provisions of cl 602.215, genuinely intends to stay temporarily in Australia for the purpose for which the Visa was granted. The Tribunal addressed the relevant matters in clause 602.215 and set out its reasons for finding that this criterion was not met. Further, even if it be the case that the decision is “short”, as asserted, brevity alone is insufficient to establish jurisdictional error: SZALW v Minister for Immigration and Multicultural Affairs [2004] FCA 1690 at [29].
As to the assertion that the Tribunal’s decision was “void”, before the Court the applicant submitted that the Tribunal’s decision was void because the Tribunal focussed on her prior immigration history and not on her present medical condition and treatment. These assertions have already been addressed in paragraphs [47]-[48] above and the Court refers to and repeats those comments.
Ground 15
The assertion in ground 15 that “substantial justice was not provided” is entirely unparticularised. Before this Court, the applicant said that substantial justice had not been provided because the Tribunal focussed on her prior immigration history and not on her current medical condition and treatment. These assertions have already been addressed in paragraphs [33]-[38], [43], and [47]-[48] above and the Court, once again, refers to and repeats those comments.
Ground 15 discloses no jurisdictional error on behalf of the Tribunal.
Other matters
As already set out, the transcript of the Tribunal hearing is not before this Court. There is therefore no evidence before the Court that the Tribunal “did not listen” to the applicant as she asserts or that the interpreter did not explain her position fully to the Tribunal.
It follows that none of the grounds advanced by the applicant raise any jurisdictional error on behalf of the Tribunal.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister in the amount of $5,000. This amount is less than the relevant scale amount and I shall order accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 9 August 2023
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