Lal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 527
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 527
File number: ADG 180 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 6 June 2023 Catchwords: MIGRATION LAW – application for review of a decision of the AAT to refuse the applicant a medical treatment visa – where the applicant provided evidence from a GP – where the evidence suggested his treatment should have concluded before the AAT hearing – where the applicant failed to provide information about the status of his medical treatment – where there is no evidence of jurisdictional error – the application is dismissed. Legislation: Migration Regulations 1994 (Cth) Schedule 2 Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 6 June 2023 Place: Darwin Solicitor for the Applicant: Self-Represented Litigant Counsel for the Respondent: Ms Pappas Counsel for the Respondent: Australian Government Solicitor ORDERS
ADG 180 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MADAN LAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
1.The Application filed 22 July 2022 is dismissed.
2.The Applicant pay the costs of the First Respondent fixed in the sum of $4,000.
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).
EX TEMPOORE REASONS FOR JUDGMENT
Judge Young:
This is an application for judicial review of a decision of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister made on 23 October 2022 to refuse the applicant a medical treatment visa. The particular visa that was sought was a subclass 602 medical treatment visa which is for the purpose of persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The general structure of clause 602 is for medical treatment and there are various kinds of medical treatment referred to, being an organ donor and so on, and for medical treatment other than for the treatment for the purposes of surrogate motherhood in Australia.
Mr Lal, according to the reasons of the Tribunal, applied for such a visa on 12 October 2020. He provided evidence from a General Practitioner, Dr Govindasamy, which said that the medical treatment for which Mr Lal was requiring treatment was severe adjustment disorder with anxious and depressed mood and the treatment for that was GP counselling, a psychologist referral, temazepam and amitriptyline. The evidence stated that the applicant would be under medical care from 12 October 2020 to 18 September 2021.
As noted, the delegate refused the application because the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment. On 10 November 2020, the applicant lodged an application for review before the Administrative Appeals Tribunal. A hearing before the Tribunal was conducted on 7 July 2022, and evidence was taken from the applicant and he was given the opportunity to present arguments. The decision was made by the Tribunal member that day. The Tribunal was not satisfied, having regard to the material put forward by the applicant, and his failure to provide any current evidence about the status of his medical condition and whether his treatment had been completed or was ongoing, that he was genuinely intending to stay temporarily in Australia.
It can be noted that the evidence from Dr Govindasamy that the applicant required treatment from 2020 to 18 September 2021 would have permitted time for the conclusion of that treatment well before the hearing before the Tribunal on 7 July 2022. In those circumstances, the failure of the applicant to provide any evidence about the status of his medical condition, whether the treatment had been completed or was ongoing and why he needed to remain in Australia was telling, in my view.
The exception to the requirement that an applicant for a medical treatment visa generally intend to stay temporarily for the purpose of the treatment is subject to an exception. That is, the exception in clause 602.212, subclause (6), which provides that requirement need not be met if all of the following requirements are met: the applicant is in Australia, the applicant has turned 50, the applicant has applied for a permanent visa while in Australia, the applicant appears to have met all of the criteria for that visa other than the criteria relating to health, the applicant has been refused a visa and the applicant is medically unfit to depart from Australia due to a medical or health condition. In this case the Tribunal focused on the requirement that the applicant had turned 50.
Mr Lal, at the time of the hearing, was 46 years old, having been born on 20 May 1976. He therefore did not satisfy one of the requirements and therefore the exception did not apply to him. Therefore he was required to satisfy the criteria that he genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. In the absence of any relevant, up-to-date information, the Tribunal was not so satisfied.
Mr Lal in his application for review provided two grounds of review. The first is, and I quote:
The decision of the tribunal is affected by jurisdiction error because the tribunal failed to take into account a relevant consideration.
I asked Mr Lal, having explained as best I could, what jurisdictional error might consist, what error was made by the Tribunal or what relevant consideration it failed to take into account. He said that the Tribunal failed to take into account the fact that he was still having medical treatment and refused him the opportunity to provide more information. He said he asked the Tribunal for another week to provide further information. There is no evidence, for example a transcript of the hearing, that that is the case. There is no evidence before me about whether that was requested or refused.
However, the obligation on an applicant for a visa, either at the time of a decision by the delegate or at the time of review by the AAT, is to put all relevant material forward. In circumstances where the evidence from Dr Govindasamy was that the medical treatment would be completed by 18 September 2021, it ought to have been reasonably obvious that in a hearing on 7 July 2022, an obvious question would be whether or not the treatment was continuing. It seems to me the applicant’s failure to address that at the time was something that ought to have been obvious to him, and in my view even if what he says is correct, and I do not know whether it is correct or not, the Tribunal was not obliged by way of procedural fairness or any other requirement relating to the discharge of its statutory duty to provide further time to the applicant.
I am not satisfied that that ground is made out. Ground 2 is a criticism of the Tribunal’s approach to its consideration of clause 602.212, (6), that is, the unfit to depart clause. He said the Tribunal should have considered his poor health in deciding whether or not that applied. Bearing in mind that the terms of the clause require satisfaction of each of the factors listed and Mr Lal did not satisfy one of them, any other consideration would have lacked any utility and was not necessary for the Tribunal to consider any other matter. This ground fails as well. The application is dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young. Associate:
Dated: 21 June 2023
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