Panchal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 417
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panchal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 417
File number(s): MLG 1278 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 23 May 2023 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision — refusal to grant medical treatment visa – Tribunal not satisfied that applicant genuinely intended to stay temporarily in Australia to receive medical treatment – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 347, 349, 359, 359A, 360
Migration Regulations 1994 (Cth) cll 602.212, 602.215
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
MZAPC v Minister for Immigration and Border Protection (2018) 390 ALR 590; [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 15 May 2023 Date of hearing: 15 May 2023 Place: Melbourne Applicant: In person Solicitor for First Respondent:
Mills Oakley
Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1278 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOMABHAI GOPALBHAI PANCHAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
23 May 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, and Multicultural Affairs”.
2.The application filed on 6 June 2022 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $6,150.
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 SYMONS:
INTRODUCTION
By an application filed on 6 June 2022 the applicant seeks judicial review of a decision made by the second respondent (the Tribunal) on 6 May 2022 affirming a decision made by a delegate of the first respondent (the Minister) not to grant the applicant a Medical Treatment (Class UB) visa (the visa). In both cases, the decision-maker found that the applicant did not meet the requirements in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The Minister opposes the application for the reason that the grounds identified by the applicant do not disclose jurisdictional error. The Tribunal filed a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant arrived in Australia on 8 April 2009 as the holder of a Tourist (Subclass 676) visa. On 28 February 2020 he lodged an application for the visa and identified “major depression and hypertension” as the medical condition requiring treatment (CB 12).
On 19 March 2020 the Department of Home Affairs sent an invitation to the applicant to comment on “unfavourable information that may lead to a decision to refuse your application”. The information was identified as follows (CB 18-19):
-On 08 April 2009, you first arrived in Australia as the holder of a Visitor (subclass 676) visa, and has not departed
-Between 14 May 2009, and 14 April 2014, you applied for two Protection (subclass XA) visas. You have sought avenues of review for one of the refused application, including the High Court, which resulted in Minister Win on 28 April 2020.
-You currently holds a Bridging E (subclass 050) visa.
-During your time in Australia, you have been an unlawful non-citizen for 3 years, 2 months and 13 days
This information may be taken into consideration to assess that you meet the following relevant legal requirements that are specified in the Act and the Regulations:
602.215
1.The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regards 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.
The applicant was given 7 days in which to provide a response in writing to this information. The applicant did not take up this opportunity (CB 28).
On 31 March 2020 a delegate of the Minister made a decision to refuse the applicant’s application for the visa. After setting out the detail of the applicant’s migration history in Australia and identifying deficiencies in the documentation provided in support of his visa application the delegate concluded (CB 28-29):
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 applied for multiple permanent visas onshore and have 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 a 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 16 April 2020, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided documents to the Tribunal that included two tax invoice/receipts from Merbein Family Medical Practice (dated 18 February 2020 and 27 March 2020) (CB 57-58), a prescription issued by D K Prakash Shetty on 27 March 2020 (CB 59) and various pharmacy receipts (CB 60-62).
On 7 March 2022, the Tribunal invited the applicant to attend a hearing on 23 March 2022 and on the same date, sent an invitation to comment on or respond to information and to provide information (CB 93-95).
The particulars of the information were described as:
1. Your migration records indicate that:
(a)You arrived in Australia on 8 April 2009 on a Tourist visa (subclass 676) which ceased on 8 July 2009. You have not departed since your date of arrival.
(b)On 14 May 2009, you lodged a Protection (subclass XA) visa, which was refused on 03 August 2009.
(c)You subsequently sought judicial review including to the High Court, which resulted in a Minister Win on 28 April 2011.
(d)On 26 September 2011, you sought Ministerial Intervention (MI), under s. 417, which was determined, not considered on 29 January 2012.
(e)On 05 January 2015, you lodged a review for a Protection Asylum Seeker (subclass ASA) visa, which was refused on 06 January 2015.
(f)On 07 January 2015, you sought a review, for the Protection Asylum Seeker (subclass ASA) visa, which was refused on 01 June 2015.
(g)On 01 June 2015, you sought further review of the decision at the Tribunal which was affirmed on 28 September 2016.
(h)On 14 April 2014, you lodged a Protection (subclass XA) visa, which was refused on 23 April 2015.
(i)You subsequently sought judicial review including at the Federal Court, which resulted in a Minister win on 10 February 2015.
(j) You currently hold a Bridging visa E (subclass 050) visa.
2.Your migration history indicates that you have maintained an ongoing residence in Australia for approximately 13 years, since your arrival on 8 April 2009 by making multiple visa applications and seeking avenues of review including administrative and judicial.
This information is relevant to the review because your migration history suggests that you wish to stay permanently in Australia.
3.During your time in Australia, you have been an unlawful non-citizen for over three years, one month and 10 days.
This information is relevant to the review because your illegal status raises doubts that you have a genuine intention of staying temporarily in Australia and suggests that you wish to stay permanently in Australia.
The applicant was also invited to provide the following information in writing:
1.Immigration records demonstrate that you arrived in Australia on a Tourist visa (subclass 676) on 8 April 2009 which was valid for three months until 8 July 2009. You subsequently made multiple unsuccessful applications for permanent visas, namely a protection visas which were refused. Immigration records disclose that you have remained in Australia since that time. Why did you not depart Australia after this date?
2.In your medical treatment visa application, you claimed that you would like to remain in Australia from 10 March 2020 until 9 June 2020 to seek medical treatment for major depression and hypertension. Immigration records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 9 June 2020?
3.The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:
(a) When you were first diagnosed with those conditions(s);
(b)What your current medical treatment for those condition(s) involves and evidence of current treatment;
(c) The prognosis of your medical condition(s); and
(d)When does the medical treatment you have undertaken end or when is it due to end?
4.Noting that you have been in Australia since 8 April 2009 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The applicant was given until 21 March 2022 to provide any comments or response or information.
On 15 March 2022, the applicant sent an email to the Tribunal in which he requested that the scheduled hearing be postponed for medical reasons which the applicant identified as related to his wife’s eye surgery to treat cataracts and his need to care for her. The applicant attached an Outpatient Appointment New Referral to the Royal Victorian Eye and Ear Hospital and an appointment card for an eye test at Specsavers on 17 March in relation to his wife.
On 16 March 2022 the Tribunal notified the applicant that it had considered the request for postponement but had decided not to postpone the hearing as the request was not supported by the medical evidence submitted.
On 18 March 2022 the applicant sent a second request to the Tribunal to postpone the scheduled hearing. On this occasion the request was accompanied by a referral from Specsavers to the Royal Victorian Eye and Ear Hospital dated 17 March 2022 in relation to the applicant’s wife.
On 18 March 2022, the Tribunal notified the applicant that this postponement request was also refused for the reason that “[t]he document from Specsavers is a referral for assessment only. There is no evidence of any surgery or consultation being conducted by the Royal Victorian Eye and Ear Hospital prior to or on 23 March 2022”. The Tribunal also noted that the applicant had lodged his application for review on 16 April 2020 and therefore had approximately two years to compile and submit medical evidence in support of his application for review which the Tribunal considered to be “ample time”.
On 20 March 2022, the applicant sent to the Tribunal five prescriptions that were said to be “evidence in regards to my regular medication intake last few years”.
The Tribunal hearing took place as scheduled on 23 March 2022 using Microsoft Teams technology. The applicant participated in and gave evidence during the hearing with the assistance of an interpreter in the Gujarati and English languages.
On 6 May 2022 the Tribunal affirmed the decision of the delegate not to grant the applicant the visa and provided a statement of decision and reasons for doing so.
THE DECISION OF THE TRIBUNAL
After setting out the background to and procedural history of the review application, the Tribunal identified the issue as whether the applicant had a genuine intention to stay temporarily in Australia as required by cl 602.215 of Schedule 2 to the Regulations. This was in circumstances where the Tribunal had first considered whether the requirement might not apply, by virtue of cl 602.212(6). The Tribunal noted that the requirements of this sub-clause were not engaged, including because there was no evidence that the applicant was physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth (CB 130 [21]).
The Tribunal noted that in her application for the visa the applicant had identified the purpose of her stay as being to obtain medical treatment for approximately six months from 10 March 2020 to 9 June 2020. The medical treatment was identified as being for “major depression and hypertension” (CB 131 [30]).
As far as medical evidence was concerned, the Tribunal noted that it was limited to a form signed by Kadandalea Prakash Shetty of the Merbein Family Practice on 18 February 2020 that detailed the medical condition requiring treatment as “major depression, hypertension” and identified treatment information as various medications including “Mirtazapine; Coversyl; Norten” and another medication that was indecipherable, and the prescriptions provided to the Tribunal on 20 March 2022 (CB 131 [31]).
The Tribunal summarised the applicant’s evidence given during the hearing. This included:
(a)The applicant was currently residing with his wife in a rental property in Mildura;
(b)The applicant’s wife was currently in Australia on a temporary visa, having applied for a Medical Treatment visa (Subclass 602);
(c)The applicant has no family in Australia (apart from his wife). He has a son and daughter who live in India. Although the son would be getting married in April 2022, the applicant would not be returning to India to attend the wedding due to “their prior bad treatment which was ongoing”;
(d)The applicant receives financial assistance from a broad range of charities and not-for-profit organisations in Australia as well as from friends in the Mildura community;
(e)The applicant was currently suffering from depression, hypertension and high blood pressure and was taking prescription medication for these conditions. If he returned to India, it would exacerbate these conditions;
(f)The treatment the applicant had received was prescription medication and he had no future medical treatment arrangements.
The Tribunal recorded that it had asked the applicant why he was unable to receive medical treatment in India. The applicant responded that he could not return due to fearing for his life and there being no organisations to provide him with financial assistance such as paying for his healthcare. He told the Tribunal that he had made no arrangements to return to India because his life was at risk. The applicant also cited the COVID-19 situation as a reason why he could not return to India. The applicant told the Tribunal that he wanted to stay in Australia until the situation improved in India.
The Tribunal recorded the following findings:
First, the applicant’s purpose of seeking the visa – being for the purpose of obtaining medical treatment for depression, hypertension and blood pressure – was a purpose for which the visa may be granted (CB 133 [42]). The Tribunal accepted that the applicant had received various prescription medication and he suffered from depression, high blood pressure and hypertension (CB 134 [44]).
Second, there was no evidence before the Tribunal that there had been non-compliance with the conditions of the applicant’s last substantive visa or any bridging visas held. Furthermore, there was no evidence suggesting that the applicant did not intend to comply with conditions which may attach to the visa (CB 133 [43]).
Third, the applicant did not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment (CB 135 [53]).
This last finding which was dispositive and had the result that the applicant was unable to satisfy cl 602.215 of Schedule 2 to the Regulations was informed by the following considerations.
The Tribunal placed adverse weight on the “significant period of time” the applicant had spent continuously onshore and the “multiple periods” of being an unlawful non-citizen. The Tribunal had serious concerns that the applicant wished to continue to remain in Australia and that he would continue to do so, even if this meant he would become unlawful (CB 134 [(45]).
The Tribunal found that there was no evidence that the applicant could not receive medical treatment in his home country. It noted that there was no evidence that the applicant was not able to purchase medication such as anti-depressants in India (CB 134 [49]).
The Tribunal was also concerned that the applicant’s personal circumstances in India and in Australia did not align with a genuine intention to stay temporarily in Australia. In this context the Tribunal identified that the applicant’s wife (who had also applied to remain onshore) was currently residing with him in Australia, the decision of the applicant not to return to India to attend his son’s wedding or his mother’s funeral, the applicant entering into a long term lease in early March 2022 and that the applicant had obtained a drivers learners permit in Australia (CB 134-135 [50]).
The Tribunal also had regard to the applicant’s evidence that he was financially supported by a broad range of not-for-profit organisations and the Mildura community, who paid for his rent, food and medical services. This position could be contrasted with the lack of financial support in India. The Tribunal also noted that having spent a good part of his adult life in Australia, starting over in India would present challenges to the applicant which would not be helped by the conditions in India as revealed by the general country information put earlier to the applicant or the applicant’s own evidence that he had been “jobless for 13 years”, had “no savings to go back to in India” and would be unable to get “any medical assistance”. The Tribunal found that conditions in Australia were such that they might encourage the applicant to remain here (CB135 [51]-[52]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 6 June 2022 contains the following (unparticularised) grounds.
1.The Tribunal fell into jurisdiction error by misinforming itself as to the nature of the Applicant’s evidence and thereby incorrectly dealt with the review application.
2.The Tribunal exceeded its jurisdiction in making its decision to affirm the first respondent’s decision.
3.The Tribunal denied us procedural fairness.
The application for review was supported by an affidavit dated 6 June 2022 in which the applicant made the further claim that the Tribunal decision was affected by jurisdictional error in that the Tribunal failed to correctly apply the test in cl 602.215.
On 5 September 2022, a Registrar of this Court made orders to progress the matter to final hearing. These orders included that the applicant, 28 days before the hearing, file and serve written submissions, any amended application with proper particulars of the grounds of the application, and any additional evidence upon which the applicant sought to rely. The applicant did not file any material responsive to these orders but confirmed that he had received from the Minister a copy of the court book prepared for the application and a copy of the Minister’s written submissions.
The matter came before me for final hearing on 15 May 2023. The hearing had originally been set down to proceed with the parties appearing in-person. However, it was converted to an online hearing (using Microsoft Teams technology) to accommodate a request made by the applicant that he not be required to travel to Melbourne for the hearing. The applicant participated in the hearing with the assistance of an interpreter in the Gujarati and English languages.
I invited the applicant to tell the Court what it was he would like to say, in support of his application, to the effect that the Tribunal was wrong in its decision to affirm the decision of the delegate to refuse him the visa.
The applicant told the Court that the Tribunal had failed to consider that the real reason that he sought the visa was for the treatment of his depression. Instead, the Tribunal had found that he sought the visa to prolong his stay in Australia.
When directed to his application and the claim that the Tribunal had misinformed itself about or misunderstood his evidence, the applicant referred again to his depression, high pulse rate and that he could not sleep.
I asked the applicant to comment on why the decision of the Tribunal was procedurally unfair. The applicant said that the Tribunal had not understand what he (the applicant) wanted to say because the Tribunal had already made up its mind. The Tribunal failed as a consequence to appreciate that the real reason the applicant sought the visa was because of his depression. The applicant also told the Court that he had a medical appointment scheduled for 14 July 2023.
When asked to explain how the Tribunal had made a mistake in its application of cl 602.215, the applicant again stated that the Tribunal should have considered the “real reason” of depression but that the Tribunal had already made up its mind.
The Minister made the overriding submission that the grounds identified by the applicant did not disclose jurisdictional error.
As far as ground one was concerned, the Minister submitted that contrary to what the applicant had alleged, the Tribunal had given careful consideration to evidence of the applicant’s medical conditions and had found that the applicant did suffer from depression.
The Minister submitted in relation to ground two that the applicant had made an application to the Tribunal under s 347 of the Migration Act 1958 (Cth) (the Act) for review of the delegate’s decision and the Tribunal had the power to affirm the decision under review under s 349(2)(a). It could not be said in those circumstances that the Tribunal had exceeded its jurisdiction.
As far as the applicant’s complaint about a denial of procedural fairness was concerned, the Minister made the submission that the applicant’s suggestion that the Tribunal had “already made up its mind” might be understood as an allegation that the decision of the Tribunal was affected by bias (actual or apprehended). The Minister objected to the late raising of this “new ground” but made the further submission that there was no substance to the allegation in any case. This was because the Tribunal had invited the applicant to comment on a variety of information, including the applicant’s migration history and his history of medical treatment and had invited the applicant to attend a hearing. The Tribunal had accepted that the applicant suffered from a number of medical conditions but was ultimately not satisfied, having regard to a range of other factors, that the applicant was able to satisfy cl 602.215. According to the Minister, there was nothing in the Tribunal decision or in the way that the Tribunal approached the review, which supported a finding or an inference that it had approached its task with an unalterable view as to the merits of the applicant’s case.
In relation to ground four, the Minister submitted that the applicant had not explained how the Tribunal erred in its application of cl 602.215. The Tribunal had found correctly that cl 602.212(6) was not applicable to the applicant with the result that cl 602.215 applied. The Tribunal’s finding that the applicant did not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment was one reasonably open to it on the evidence before it and for the reasons that the Tribunal identified.
CONSIDERATION
In order to be entitled to relief from this Court, the applicant must establish that the Tribunal has made a jurisdictional error. The Tribunal will have made a jurisdictional error if it “exceeded the limits of the decision-making authority conferred by the statute in making the decision” (MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29]).
One way in which this might occur is where the conduct of the Tribunal, as decision-maker, gives rise to an apprehension of bias. Where an allegation of apprehended bias is made the inquiry it provokes is whether the conduct of the Tribunal is such that a fair-minded lay observer properly informed as to the nature of the procedure for which Part 5 of the Act provides might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the factual and legal questions that arise for consideration in the conduct of a review (CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17]).
In this case the applicant connects the Tribunal’s alleged close-mindedness to its failure to accept the applicant’s “real reason” for seeking the visa, being that he wished to remain in Australia for the purpose of obtaining treatment for depression. The first thing to note however is that the Tribunal’s decision did not involve it finding that the applicant did not genuinely seek the visa or that the applicant was not genuinely in need of and sought to obtain medical treatment. Instead, the decision of the Tribunal turned on its finding that the applicant did not have a genuine intention to stay temporarily in Australia for that purpose. Resolution of that question involved different considerations that the Tribunal was obliged to bring to the attention of the applicant pursuant to statutory procedural fairness provisions.
While an apprehension of bias might arise, for example, in circumstances where a decision-maker has, from an early stage of the review, communicated an attitude of disbelief to the claims made and evidence provided by a review applicant, this was not the case here. The Tribunal largely accepted the applicant’s evidence. Its finding that the applicant did not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment largely reflected statements made by the applicant during the hearing to the effect that he could not return to India, including for reasons that might be characterised as indefinite in nature.
There is otherwise nothing in the material before me to indicate that the Tribunal was not open to persuasion. In this regard, while a transcript of the Tribunal hearing was not before the Court, to the extent that the Tribunal’s written statement made reference to the hearing, those references indicate that the Tribunal went to some lengths to identify for the applicant the dispositive issues in his review and to invite his comment on them. I can discern nothing unfair in the process adopted by the Tribunal.
Likewise I am unable to discern any error in the Tribunal’s understanding and application of cl 602.215 of Schedule to the Regulations.
DISMISSAL
In these circumstance I am satisfied that the decision of the Tribunal is not affected by jurisdictional error and the application for judicial review filed on 6 June 2022 should be dismissed with costs, fixed in the amount of $6,150.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 23 May 2023
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