Lolohea (by litigation guardian) v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 595
•27 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lolohea (by their litigation guardian Lolohea) v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 595
File number(s): SYG 1537 of 2021 Judgment of: JUDGE STREET Date of judgment: 27 June 2024 Catchwords: MIGRATION – Medical Treatment visa- child intention of parents attributed to child applicant- applicant does not genuinely intend to stay temporarily in Australia -application for review dismissed Legislation: Migration Regulations 1994 (Cth) Cases cited: Lee v The Minister of Immigration and Citizenship [2011] 199 FCR 336
Luo v The Minister for Home Affairs [2019] FCCA 272
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 27 June 2024 Place: Sydney For the Applicant: Applicant appeared by his litigation guardian through audio-link Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 1537 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANASE LONGANI MOTE MAUHELOTU JR LOLOHEA
By his litigation guardian
RICHARD BRIAN DAVIS LOLOHEA
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 11.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the rules”), the Court appoints Richard Brian Davis Lolohea as the litigation guardian for the applicant and the Court otherwise dispenses with all other requirements under the rules.
2.The first respondent’s name is amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs.
3.The Application dated 11 August 2021 is dismissed.
4.The litigation guardian is to pay the first respondent’s costs fixed in the amount of $7,300.
5.The time for appeal from these orders is not to commenced until the applicant, through the litigation guardian, is sent a copy of the settled oral published reasons.
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 TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is an application for a constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 July 2021 affirming the decision of the delegate not to grant a Medical Treatment (Visitor) (Class UB) visa (“visa”) to the applicant, who is a Tongan citizen and was born on 22 May 2015.
At the commencement of the hearing today, the Court appointed the applicant's father the litigation guardian for the applicant in these proceedings. The applicant's mother and father are both Tongan and have a long history in relation to their immigration status in Australia. The applicant’s father has resided in Australia since 1990 and has not held a substantive visa for 27 years. The applicant’s mother last arrived in Australia in May 2011, and that visa was cancelled in August 2011.
The delegate identified that the applicant’s parents had sought permanent residence in Australia and applied for many visas’ unsuccessfully and had failed to comply with immigration requirements. The delegate also found that the applicant’s parents had provided evidence of their intention to remain in Australia and not depart.
On 27 March 2018, the delegate found the applicant failed to meet the criteria in relation to clause 602.215 of schedule 2 to the Migration Regulations 1994 (Cth) (“clause 602.215”), which is as follows:
(1)The applicant genuinely intents 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.
The delegate found the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
On 16 April 2018, an application for review was lodged before the Tribunal. The Tribunal wrote to the applicant on 16 September 2019, requesting further information, and some further information was provided on 17 July 2020. There was a further request for information on 11 December 2020 and, again, further information was provided on 16 December 2020. On 19 March 2021, the Tribunal invited the applicant to attend a hearing to be held on 8 April 2021. That hearing took place and the applicant appeared with both of his parents. Following that hearing, there was a further request for information by the Tribunal on 12 April 2021, and a further response was provided on 10 May 2021.
The Tribunal, in its decision dated 7 July 2021, identified the nature of the application for review in respect of the visa and the requirements of clause 602.215. The Tribunal identified the then age of the applicant, that he had been living on bridging visas, and the history in relation to both his father and mother. The Tribunal made express reference to the applicant's father's evidence that he had no intention of returning to Tonga with his wife and the applicant, and that he believed his son to be an Australian. The Tribunal turned to consider whether or not the requirements of clause 602.215 were met, relevantly, whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal identified that there was no evidence of non-compliance with the regime visa by the applicant, and there is no evidence that the applicant's parents would not abide by any particular conditions imposed on the visa if it were granted. The Tribunal then turned to the medical matters as other relevant matters and identified that the applicant had already undergone the medical treatment for which the visa was granted and found that the applicant does not need any further treatment other a final review. The Tribunal then turned to the issue of the intention of the applicant for the purpose of the visa and found that the evidence indicated that the applicant lives with his parents and follows their wishes and instructions on all important matters. It was in those circumstances, the Tribunal considered that the intention of the applicant's parents should be taken as the intention of the applicant.
The Tribunal referred to the applicants fathers evidence, that he intended the applicant to live and grow up in Australia and that he had no intention of living in Tonga with his wife and the applicant. It was in those circumstances, the Tribunal concluded that there was no evidence to suggest the applicant has an intention of returning to Tonga once his medical treatment is concluded. The Tribunal found the applicant does not intend, generally, to stay temporarily in Australia for the purpose for which the visa is granted and, accordingly, found that the criteria under clause 602.215 is not met and affirmed the decision of the delegate.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court. When invited to put submissions, the applicant identified that he thought that it was unfair, given that the last doctor that they met with told them that there would be a need for further surgery when their son turned 10. The applicant put no other oral submissions. The latest evidence that was before the Tribunal at the time of the decision, was a report by Doctor Angus dated 4 May 2021, that identified that the applicant had undergone a series of repairs for proximal hypospadias with significant chordee. Doctor Angus referred to the first stage and the last repair of a fistula and glansplasty on 28 July 2020, and identified that there needed to be a follow-up, after which it was hoped that there would be no further follow-up or treatment.
There was no evidence before the Tribunal at the time of the hearing or at the time of the decision, that there was a requirement for further surgery when the applicant turned 10. The applicant's oral submissions are, in substance, an invitation for the Court to determine the matter on compassionate or discretionary grounds. This Court has no power to determine the matter on discretionary grounds or compassionate grounds. The Court admitted into evidence a number of recent documents provided by the applicant that post-dated the Tribunal's decision. Those documents were admitted subject to relevance, and are not, in the present case, capable of being treated as matters that the Tribunal should have taken into account and are not capable of demonstrating any error in the Tribunal's decision or the exercise of its statutory powers.
The Court finds that the documents in exhibit B are not relevant but does not revoke the order that admitted them into evidence subject to relevance. Those documents simply do not advance any case of relevant error by the Tribunal because they were not before the Tribunal. Accordingly, the documents in exhibit B and the applicant's oral submissions do not identify any relevant error by the Tribunal. The ground in the application is as follows:
(1)The Respondent made an error of law by attributing the intentions of the parents to the intentions of the applicant.
The Tribunal identified the need in the present case to find an intention of the applicant, and correctly identified that the applicant’s intention, given his young age, should be inferred from the intention of his parents. The Tribunal reasoned referable to, the father's intention of remaining in Australia and his strong belief that his son, having been born in Australia, is Australian.
There was no factual or legal error in the Tribunal's reasoning, and it was an orthodox approach to ascertain the applicant's intention as a child. Further, the respondent has drawn the Court's attention to the approach of the learned Foster J in Lee v The Minister of Immigration and Citizenship [2011] 199 FCR 336 at 153 where it was said:
To the extent that any subjective intentions to be attributed to the applicant for the purpose of assessing where the applicant was ordinarily resident in the first 10 years of his life, it is the intention of his parents that must be considered. The applicant did not have capacity in that period to give effect to any decision of his own as to where he would live.
A similar approach was adopted by the learned Kelly J in Luo v The Minister for Home Affairs [2019] FCCA 272 at [40]. The Court accepts the respondent's submission that no jurisdictional error is made out.
It is for these reasons the Court makes the above orders.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Settled Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 16 July 2024
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