Parmar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1354
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parmar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1354
File number(s): MLG 1543 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 9 December 2024 Catchwords: MIGRATION – application for judicial review – medical treatment visa – review of a decision of the Administrative Appeals Tribunal - whether the Tribunal acted unreasonably in relation to the request for an extension of time – whether the Tribunal’s decision was affected by apprehended bias – no jurisdictional error established - application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 360, 363, 476
Migration Regulations 1994 (Cth) cls 602.212, 602.215
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413,
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 87 ALJR 618; [2013] HCA 18.
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 18 November 2024 Place: Sydney Applicant: The applicant appeared in person Solicitor for the first respondent: Ms E Hilder (Australian Government Solicitors) Second respondent: Submitting appearance, save as to costs ORDERS
MLG 1543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUSHYANT MANILAL PARMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review 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 MCCABE:
The applicant in these proceedings, Mr Dushyant Manilal Parmar, is an Indian citizen who has lived continuously in Australia since 2009. He claims to suffer from a medical condition that requires treatment in this country. To that end, he applied for a Medical Treatment (Visitor) (Class UB) (subclass 602) visa (visa) in May 2018. A delegate (delegate) of the first respondent (minister) refused the visa shortly thereafter. Mr Parmar sought review of that decision in the Administrative Appeals Tribunal (Tribunal). After the application was lodged, the Tribunal issued a hearing invitation that identified additional information it required. But Mr Parmar says he had trouble collecting the information from his treating doctors because their practices were disrupted by COVID shutdowns. Mr Parmar asked for (and was granted) extra time to comply with the request but he failed to provide the information or request a further extension. In the wake of that failure, the Tribunal proceeded to deal with the matter without a hearing. On 16 April 2020, the Tribunal decided to affirm the decision under review.
Mr Parmar has sought judicial review of the Tribunal's decision. He says the Tribunal should not have proceeded to decide his case without affording him the opportunity to participate in a hearing. He says the practical difficulties created by the COVID pandemic meant he should have been given a lengthy of extension of time to obtain the information the Tribunal had requested. He also says the Tribunal was biased against him because it held hearings for other people in the same position as him.
The application for judicial review must be dismissed. I explain my reasons for that conclusion below.
BACKGROUND
The following observations are substantially based on the written submissions filed by the minister and the other documents reproduced in the court book (exhibit one). I understand these matters are uncontroversial.
The applicant first came to Australia in 2005. He has remained in Australia continuously since 2009. After entering the country on a student visa in 2009, he unsuccessfully applied for several different visas. He has been able to remain in this country on bridging visas while he prosecuted his various applications.
The visa application at the heart of this review was lodged with the minister’s department on 7 May 2018. A copy of the application is reproduced in the court book at pp 10ff. I note the applicant provided information in the application form (court book at p 20) about an appointment to see a specialist on 25 June 2018. The form also includes a section completed by Mr Parmar’s treating general practitioner on 4 May 2018. That section describes the medical condition in question as ‘bleeding haemorrhoids’. The form goes on to note the applicant was referred to a named surgeon for ‘follow up and haemorrhoidectomy’.
The minister’s delegate rejected the application for a visa on 28 May 2019. The decision record is reproduced in the court book at pp 33ff. The delegate found the applicant did not satisfy the applicable criteria in cl 602.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
Mr Parmar lodged his application for review in the Tribunal on 15 June 2018. The application form is reproduced in the court book at pp 37ff. As I understand it, the applicant did not provide any further evidence in support of his review application at the time it was lodged.
The Tribunal’s review process
The Tribunal wrote to the applicant on 6 March 2020, enclosing an ‘invitation to provide information’: court book at pp 52ff. The invitation pointed out there was a gap in the information provided to the department at the time of the original application. It explained:
You indicated in your application that you wished to remain in Australia for the purpose of undergoing medical treatment; however, no indication on Form 48ME Question number 15 that how long you intend to remain in Australia. [sic]
The invitation went on to invite the applicant to provide the following information in writing:
1.When did the medical treatment you have undertaken end, or when is it due to end?
2.Noting that you have been in Australia since 17 February 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 letter said the information should be provided by 20 March 2020 but added:
If you cannot provide the information by 20 March 2020, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us before 20 March 2020 and you must state the reason why the extension of time is required. [emphasis added]
The penultimate paragraph of the invitation includes important information about the entitlement to a hearing. It reads:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. [emphasis in original]
Mr Parmar emailed the Tribunal on 19 March 2020 to request an extension of time to comply with the request for information. He referred to the difficulty he was experiencing in obtaining information because so many people were away from their offices as a consequence of COVID. He did not refer specifically to difficulty in contacting his treating medical practitioner: the only person specifically mentioned as a potential contact was his migration agent.
Mr Parmar also called the Tribunal to speak with an officer about his predicament. A Tribunal officer responded to the applicant’s email (and a phone call) on 23 March 2020. After acknowledging the applicant had called, the Tribunal officer said:
The Tribunal note that you have requested for further time to gather documents. It would be appreciated if you could please provide:
1. The detail of what documents you are seeking to gather; and
2. if you are seeking medical advice provide the name of the medical practitioner from whom you have sought information.Please provide the information by 24 March 2020. …
This information was presumably required so the Tribunal could make a decision on the applicant’s request for an extension of time to provide the information requested in the invitation dated 6 March 2020. I note there appears to be a contemporaneous computerised record reproduced at p 56 of the court book that I assume was prepared by the Tribunal officer. The entry dated 23 March 2020 notes the officer spoke with the applicant by phone and outlined the request for information that was subsequently included in the email from the Tribunal officer. It concludes by noting the applicant undertook on the phone to provide the information requested.
From the bar table at the hearing before me, Mr Parmar said he recalled providing at least some of the information sought in connection with the extension of time request during that call – in particular, he recalled mentioning the name of the medical practitioner whom he was endeavouring to contact.
The Tribunal said the applicant did not provide the information requested in the correspondence regarding an extension of time. The Tribunal record I have referred to does not suggest the applicant provided the doctor’s name as he alleges: the record suggests the applicant would provide that information in due course, which is consistent with the Tribunal officer then sending out the email on the same day confirming the applicant would do so.
On 27 March 2020, the Tribunal gave a short extension of time notwithstanding the failure to provide the information. On that date, the Tribunal said the applicant had until 10 April 2020 to provide the information that had been requested on 6 March 2020. The letter went on:
If we do not receive the information by 10 April 2020, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. [Emphasis in original]
Mr Parmar did not provide the information requested by 10 April 2020, and the Tribunal proceeded to make its decision without further reference to the applicant. The Tribunal's decision and reasons are reproduced at pp 66ff of the court book.
The Tribunal decision and reasons
The Tribunal pointed out the invitation to provide information issued to the applicant on 6 March 2020 was a valid notice under s 359(2) of the Migration Act 1958 (Cth) (Act). It noted (at [12]) the applicant had not provided the requested information within the allowed time (as extended). In those circumstances, the Tribunal explained, s 359C of the Act provided “the Tribunal may make a decision on the review without taking any further action to obtain the information”. The Tribunal went on to note that where s 359C of the Act is engaged, s 360(3) says the applicant is not entitled to appear before the Tribunal. Since s 363A says the Tribunal does not have the power to permit someone to do something they are not entitled to do, that meant the Tribunal was not permitted to hold a hearing, even if it would be convenient to do so.
The Tribunal then – correctly – set out the criteria which govern the grant of the visa in this case. The principal criterion is set out in cl 602.215 (found in Part 602 of Schedule 2 to the Regulations) which addresses whether the “applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted” having regard to several factors. The Tribunal addressed a possible exception to the criteria found in cl 602.212(6) of the Regulations – namely, whether the applicant was medically unfit to depart. But the Tribunal concluded the exception did not apply because the applicant was below the minimum age for that exception.
Turning to the medical evidence, the Tribunal noted nothing further had been supplied regarding medical treatment since May 2018 when the form I have already described was lodged for the delegate’s consideration. The Tribunal observed (at [26]-[27]):
26.… Almost two years has passed since that document was provided and the applicant has not given any updates on treatment. In his application the applicant indicated that his medical care would be completed by December 2018 and the Tribunal notes that the date on which care was to have ended was 15 months ago.
27.The applicant has not provided any other evidence which is consistent with an intention to stay temporarily in Australia for the purpose of undergoing medical treatment. In his request for an extension of time to respond to the Tribunal's invitation to provide further information, he stated that he was finding it difficult to access information due to the COVID-19 pandemic situation. However, he failed to provide the name of his medical practitioner or even to give an explanation of the reasons for his application for review or why he needed further time for treatment or related purposes.
The Tribunal then referred to the applicant's migration history as required under cl 602.215(1)(a) and (b) of the Regulations. It found the applicant had always been compliant with the conditions of his various visas, and it was satisfied there was no evidence suggesting the applicant would fail to comply with the conditions of this visa were it to be granted. But the Tribunal was also entitled to consider “any other relevant matter” when deciding whether it was satisfied the applicant was a genuine temporary entrant. Those other matters were decisive in this case. The Tribunal explained (at [32]):
Notwithstanding, the applicant has not departed Australia, despite claiming an intention to stay temporarily for the purpose of medical treatment which was to have ended in December 2018. Further his actions in seeking permanent visas and vigorously pursuing merits and judicial review indicates that he seeks to remain permanently or indefinitely in Australia. He has not provided any medical or other evidence consistent with a genuine intention to stay in Australia temporarily. Overall the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
In those circumstances, the Tribunal concluded it was not satisfied the applicant satisfied cl 602.215 of the Regulations notwithstanding his history and expectation of visa compliance.
The grounds of review
The application for judicial review was filed in the Court on 12 May 2020. In a further amended application dated 30 October 2024, the applicant identified six grounds of review as follows:
1.I never got a justice, they treated me unfairly forget about natural justice, when I lodged my application at that time I submitted all documents with the application and next day the officer also called me and she said to me that I will sent you to panel doctor but she did not send me any request and few days later they sent me refusal without meaningful reason.
2.AAT did not invited me for interview but they ask me for documents but the documents was already there. AAT have not seen my case properly they just ask me for documents but if they invited me I clarify all their doubts but they made preconceived notion against me which is their habit.
3.The rules are same for all and there should be no partiality no discrimination or no favouring of any kind.
4.However, I feel that I treated unfairly, but those who had applied this visa, for them they kept aside all the rules and grant them visa. I am asking to the Honourable. Court that if the rules are same for everyone then why they did injustice to me.
5.The decision given to me by AAT and Delegates is arbitrary and full of bias. The reason for this is that they have given the visa to others by bypassing all the rules.
6.The biggest irony is that, I never got justice and there is no hope.
The grounds of review are problematic. It would be instructive to point out why at this juncture. The Court's jurisdiction is set out in s 476 of the Act. It is not at liberty to second guess the minister’s delegate or the Tribunal; as executive decision-makers, they are responsible under the Act for deciding to accept or reject applications for a visa. As a practical matter, the Court is limited to identifying instances of material jurisdictional error in the decision or decision-making process. I explained the concept of jurisdictional error to the applicant at the outset of the hearing. Examples of material jurisdictional error were discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152. In that case, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagott JJ explained (at [3]):
Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
I then invited the applicant to explain his criticism of the Tribunal's decision and decision-making process in his own words. As he did so, it became apparent he had two substantive complaints. First, he was upset that he had been denied a hearing. He said he would have been able to explain the difficulty in collecting supporting information if he had been given the opportunity to do so at a hearing. He was particularly troubled by what he took to be the unfairness of the Tribunal holding hearings for other visa applicants in the same position as him who were known to him. I take his complaint to be, in substance, that there was a breach of the rules of procedural fairness in that he was not afforded an opportunity to present his case before an unbiased decision-maker. Second, he was upset that he had not been given a longer extension of time to collect the information. He said he should have been given at least several months because of the disruption caused by COVID. He said, in effect, the Tribunal acted unreasonably in failing to give him an adequate extension of time.
The first substantive complaint contains, in effect, two components: a complaint about a failure to afford a hearing, and an allegation of apprehended bias. I will deal with the second component first.
The respondent pointed out in written submissions that claims of apprehended bias must be clearly articulated. As the High Court explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, the party alleging apprehended bias must first identify “what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits” before going on to articulate “the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: at [8] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. Mr Parmar has not done this: unparticularised claims that others were treated differently are not capable of sustaining a claim of bias. There is nothing to this criticism.
The other component of this complaint is the supposed failure to afford a hearing. This criticism is also misconceived. The Tribunal issued a valid invitation to provide information pursuant to s 359 of the Act. It correctly noted that, having issued the invitation, the applicant was obliged to provide the information that was sought (subject to any extension of time being granted). Having failed to provide the information within that time frame, the applicant effectively forfeited the right to a hearing. The Tribunal was able to proceed to make its decision on the limited record before it without further reference to the applicant. Indeed, as the Tribunal itself noted in its reasons, it was not permitted to invite the applicant to attend a hearing even if it were convenient to do so. In Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413, the Full Court confirmed there was no discretion to invite the applicant to participate in a hearing after he failed to comply with a valid invitation issued under s 359 of the Act: at [25]-[29] per Jacobson, Gilmour and Foster JJ.
The applicant did suggest from the bar table that he provided some of the information which had been requested by the Tribunal in support of the request for an extension of time. In particular, the applicant recalled he gave the name of his treating doctor to the Tribunal officer over the phone. The officer’s contemporaneous record of that conversation is not consistent with that claim but it makes no difference in any event: the treating doctor's name, if it were provided, was provided in connection with the request for an extension of time. It was not provided in answer to the invitation to provide information. Moreover, the information about the doctor was provided orally whereas the invitation dated 6 March 2020 expressly required that the information be supplied in writing.
The applicant undoubtedly believes he is the victim of an inflexible approach but - even if that were true – it is a consequence of the rules. He did not provide the information he was asked to provide in the invitation in a timely way (or, indeed, at all), and he was unable to persuade the Tribunal to provide a further extension of time for providing that information. Subject to what I will say about the reasonableness of that extension of time, he effectively forfeited his right to a hearing and the Tribunal was able to proceed as it did. The Tribunal's decision is free of error in this respect.
I turn then to the second substantive criticism that I understood the applicant to make - namely, that the Tribunal acted unreasonably in relation to the request for an extension of time. The applicant says, in effect, the disruption wrought by COVID was a matter of common knowledge and it was unreasonable to expect him to provide the information requested quickly.
I have some sympathy for the applicant: there was a good deal of disruption and many businesses – including medical practices – were either shut down or operating at reduced capacity during this period. The applicant made that complaint clear in his email dated 19 March 2020 requesting an extension. Yet the Tribunal's response on 23 March 2020 which followed up on a phone call was constructive: the Tribunal officer asked the applicant to describe what information he was seeking and the identity of the medical practitioner in question. The record suggests the applicant never responded to that request. Even then, the Tribunal did provide an extension of time until 10 April 2020 for the applicant to comply with the original invitation to provide information. The applicant did nothing at this point to assist himself: he did not provide the information nor make further representations about the difficulties he was experiencing.
The request for information about the applicant's challenges in getting information went unanswered. In the face of that silence from the applicant, the Tribunal's exercise of the discretion not to further extend the time for the applicant to comply with the invitation issued pursuant to s 359 of the Act was not unreasonable in the sense that expression is used in cases like Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. While no doubt it was generally aware that applicants might experience difficulty in obtaining information, the Tribunal did not act inflexibly and unreasonably (as it was found to have done in Li) in peremptorily insisting on proceeding. Rather, the Tribunal asked for more information to assist it in understanding whether to exercise the discretion to extend time in the circumstances of the particular case. When that further information was not forthcoming and there was no request for a further extension of time, the Tribunal was entitled to proceed as it did.
There is one further matter that I should address. It was not raised by the applicant but I discussed it with Ms Hilder, the minister's representative. I have already noted the Tribunal considered the applicant's history of making applications for visas and prosecuting appeals as an ‘other relevant matter’ under cl 602.215(1)(c) of the Regulations. One must carefully scrutinise any suggestion that an applicant will be disadvantaged in a subsequent decision-making process because they have previously availed themselves of their rights under Australia's comprehensive system of administrative law and review. A visa applicant should not be penalised for pursuing their rights. Having raised this concern, I am satisfied the Tribunal's analysis in this case did not stray into that dangerous territory. The Tribunal highlighted the fact the applicant had applied for several different visa types in the past; the fact he had pursued those applications to their limit in the review process was incidental to the observation about the applicant applying for different visa types with one end in mind: to secure any visa that would permit the applicant to stay in Australia. I accept that pattern of behaviour is a relevant consideration and provides a reasonable foundation for the conclusion the Tribunal reached.
Conclusion
The application for judicial review is dismissed. I will hear the parties with respect to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 9 December 2024
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