Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1040
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1040
File numbers: SYG 1721 of 2022
SYG 1722 of 2022
SYG 1738 of 2022Judgment of: JUDGE LADHAMS Date of judgment: 17 November 2023 Catchwords: MIGRATION – applications for judicial review of decisions of Administrative Appeals Tribunal affirming decisions not to grant applicants Medical Treatment (Visitor) (Class UB) visas – whether Tribunal failed to apply relevant criteria – whether Tribunal took into account irrelevant considerations – no jurisdictional error – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 359A, 476, 477, 479, 486C
Migration Regulations 1994 (Cth) cll 602.212, 602.215, Sch 2
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 7 November 2023 Place: Perth (via Microsoft Teams) In SYG 1721 of 2022 Applicant: In person Counsel for the First Respondent: Ms D Stone Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers In SYG 1722 of 2022 Applicant: In person Counsel for the First Respondent: Ms D Stone Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers In SYG 1738 of 2022 Applicant: In person, by his litigation guardian Counsel for the First Respondent: Ms D Stone Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 1721 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAXESHKUMAR BHAILALBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application 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).
ORDERS
SYG 1722 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANJANBEN DAXESHKUMAR PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application 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).
ORDERS
SYG 1738 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOKSH PATEL, BY HIS LITIGATION GUARDIAN RANJANBEN DAXESHKUMAR PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application 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 LADHAMS:
INTRODUCTION
There are three applications before the Court, brought by three related applicants. The applicant in SYG 1721 of 2022, Mr Patel, sought a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa) to undergo medical treatment in Australia. The applicant in SYG 1722 of 2022, Mrs Patel, is the wife of Mr Patel and the applicant in SYG 1738 of 2022, Master Patel, is the child of Mr and Mrs Patel. Mrs Patel and Master Patel both sought medical treatment visas as persons who would provide support to a person seeking medical treatment in Australia.
A delegate of the Minister refused to grant medical treatment visas to each of the applicants and the applicants sought review of the delegate’s decisions by the Administrative Appeals Tribunal (Tribunal). In three separate decisions, the Tribunal affirmed the delegate’s decisions not to grant medical treatment visas to the applicants and each of the applicants filed an application for judicial review of the Tribunal decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, I have found that the applicants have not established that the Tribunal decisions are affected by jurisdictional error. I therefore dismiss the applications to this Court.
VISA APPLICATIONS AND ADMINISTRATIVE DECISIONS
Visa application and delegate’s decision
The applicants have resided in Australia since 2015 or 2016. Mr Patel also previously resided in Australia between 2007 and 2011.
On 16 October 2020 Mr Patel applied for a medical treatment visa to undergo two procedures at Westmead Hospital. In the visa application he indicated that he would be under medical care from 17 October 2020 to 16 January 2021. Mrs Patel and Master Patel also applied for medical treatment visas on 16 October 2020 as support persons for Mr Patel.
On 19 March 2021 a delegate of the Minister made three separate decisions, relating to each of the three applicants respectively, refusing to grant the applicants medical treatment visas.
Review proceedings before the Tribunal
On 1 April 2021 each of the applicants applied for review by the Tribunal of the delegate’s decision relating to them.
On 6 September 2022 the Tribunal wrote to Mr Patel and invited him:
(a)pursuant to s 359A of the Migration Act, to comment on or respond to information relating to his migration history, which might suggest that Mr Patel wished to stay permanently in Australia and might cause the Tribunal to affirm the decision under review; and
(b)pursuant to s 359(2) of the Migration Act, to provide additional information relating to why he had not left Australia since his last substantive visa ceased in May 2019, why he had remained in Australia after 16 January 2021 which was the end of the period of his medical treatment as indicated in his application for the visa, and in relation to his medical condition and treatment.
Also on 6 September 2022 the Tribunal wrote to each of the three applicants and invited them to attend a hearing. The hearing in relation to Master Patel was cancelled on 21 September 2022 because, in his response to the hearing invitation, Master Patel indicated that he did not intend to participate in the hearing and consented to the Tribunal making a decision on the papers. The hearing in relation to Mr Patel and Mrs Patel was subsequently rescheduled.
On 20 September 2022 Mr Patel responded to the invitation to comment and provide additional information.
On 13 October 2022 Mr Patel and Mrs Patel attended a hearing convened by the Tribunal and gave evidence and presented arguments. They were assisted by a representative at the hearing.
Tribunal decision in relation to Mr Patel
On 24 October 2022 the Tribunal affirmed the delegate’s decision not to grant Mr Patel a medical treatment visa.
The Tribunal recognised that Mr Patel would need to meet the criterion in cl 602.215 in Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations), which required that he genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, unless he is medically unfit to depart Australia in the manner described in cl 602.212(6).
The Tribunal identified that cl 602.212(6) requires that an applicant is in Australia, has turned 50 years of age, has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. The Tribunal was not satisfied that Mr Patel met all these requirements. The Tribunal accepted that Mr Patel was residing in Australia and had applied for a permanent visa while in Australia which had been refused. However, the Tribunal found that Mr Patel had not turned 50 and that there was no evidence before it that Mr Patel 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.
In considering whether Mr Patel met the requirements of cl 602.215, the Tribunal:
(a)considered the medical evidence provided by Mr Patel which showed that his surgery was completed in February 2022, he had a future management plan in place and there was no evidence of future medical treatment before the Tribunal;
(b)acknowledged Mr Patel’s evidence at the hearing where he confirmed that his medical treatment was complete, acknowledged that he could manage his diet in India and said that his medical condition was ‘now good’ and did not inhibit him from returning to India;
(c)did not accept that Mr Patel had complied substantially with the conditions to which his bridging visa was subject, finding that Mr Patel’s evidence that he was not working was not credible and that it was implausible that his surgeon would certify him as unfit for work unless Mr Patel had been working and requested a medical certificate;
(d)was not satisfied that Mr Patel would comply with the no work condition attached to the medical treatment visa if it was granted and was not satisfied with Mr Patel’s evidence in relation to his finances and how he and his family have been supported during the few years prior to the Tribunal decision;
(e)acknowledged Mr Patel’s evidence that he wished to remain in Australia to further his son’s education, but noted that this is not the purpose for which the medical treatment visa may be granted and found that this raised doubts that Mr Patel genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted;
(f)placed adverse weight on Mr Patel’s migration history, noting that his conduct in seeking a permanent visa indicated that he seeks to remain permanently or indefinitely in Australia; and
(g)was not satisfied that Mr Patel’s personal and/or economic circumstances were conducive to him returning to India.
The Tribunal found that, overall, the evidence indicated that Mr Patel did not have a genuine intention to stay temporarily in Australia for the purpose of the medical treatment and therefore the requirements of cl 602.215 were not met.
Tribunal decision in relation to Mrs Patel
On 25 October 2022 the Tribunal affirmed the delegate’s decision not to grant Mrs Patel a medical treatment visa.
The Tribunal recognised that Mrs Patel was required to meet one of the seven alternative sub criteria in cl 602.212(2)-(8) in Schedule 2 to the Regulations and that cl 602.212(4) was the most relevant subclause for the purposes of her application. The Tribunal recognised that this subclause requires that the applicant seeks to provide emotional and other support to an applicant who satisfies the requirements of a Subclass 602 Medical Treatment visa and the applicant satisfies Public Interest Criterion 4005 (PIC 4005).
The Tribunal acknowledged Mrs Patel’s evidence that she sought the medical treatment visa to give her husband emotional and other support and that she did this through meal preparation and managing his diet. In circumstances where the Tribunal affirmed the delegate’s decision in relation to Mr Patel and therefore the person that Mrs Patel sought to support did not hold a medical treatment visa, the Tribunal found that Mrs Patel did not meet the requirements of cl 602.612(4).
The Tribunal also found that Mrs Patel did not meet the criteria in the other paragraphs of cl 602.215, noting that:
(a)Mrs Patel did not claim to be seeking medical treatment herself and did not provide any medical evidence in relation to herself and therefore did not meet the requirements of cl 602.212(2);
(b)Mrs Patel did not claim that she sought to donate an organ for transplant in Australia and therefore did not meet the requirements of cl 602.212(3);
(c)Mrs Patel did not claim that she was a citizen of Papua New Guinea or resident of the Western Province of Papa New Guinea and there was no evidence before the Tribunal that a relevant Queensland government department had approved the medical evacuation of Mrs Patel to, or treatment of Mrs Patel in, a hospital of Queensland and therefore cl 602.212(5) was not satisfied;
(d)while Mrs Patel was in Australia and had applied for a permanent visa which had been refused, she had not turned 50 years of age and there was no evidence before the Tribunal, from a Medical Officer of the Commonwealth, that she was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, and therefore she did not meet the requirements of cl 602.212(6);
(e)Mrs Patel did not submit any evidence of financial hardship, she was not the holder of a subclass 602 visa, a subclass 675 visa or a subclass 685 visa (which are all different types of medical treatment visas) and the Tribunal did not have evidence before it that she or a member of her immediate family was likely to become a charge of the Commonwealth, a State, or Territory or a public authority in Australia and therefore she did not meet the requirements of cl 602.212(7); and
(f)while the Tribunal appreciated that Mrs Patel’s opportunities for work and to achieve a higher standard of living in Australia might be greater than those she would face in India, the Tribunal was not satisfied that such reasons of themselves constitute compelling personal reasons and was therefore not satisfied the requirements of cl 602.212(8) were met.
Tribunal decision in relation to Master Patel
On 24 October 2022 the Tribunal affirmed the delegate’s decision not to grant Master Patel a medical treatment visa.
As with the decision in relation to Mrs Patel, the Tribunal recognised that Master Patel was required to meet one of the seven alternative sub criteria in cl 602.212(2)-(8) in Schedule 2 to the Regulations and that cl 602.212(4) was the most relevant subclause for the purposes of his application. The Tribunal again found that the person he sought to support was Mr Patel, and as Mr Patel did not hold a medical treatment visa, Master Patel could not meet the requirements of cl 602.212(4).
In relation to the other criteria in cl 602.212, the Tribunal made findings that were similar to those summarised in relation to Mrs Patel’s application at [20] above, albeit that in considering cl 602.212(8), the Tribunal also acknowledged that Master Patel might have greater education opportunities in Australia, but still was not satisfied that there were compelling personal reasons for the grant of the visa.
JUDICIAL REVIEW APPLICATION
Each of the applicants filed an application for judicial review on 22 November 2022, which is within 35 days of the date of the respective Tribunal decisions, as required by s 477(1) of the Migration Act.
In his judicial review application, Mr Patel raises the following grounds:
1.The Administrative Appeals Tribunal failed to apply criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and made legal error.
2.The Tribunal heavily relied on immigration history. The Tribunal without consideration of visa requirement “applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa;” refused my medical treatment visa and made legal mistakes.
3.That the Administrative Appeal Tribunal overlooked primary criteria for medical treatment visa and focused on work rights, family in India, expenses and made mistakes.,
In her judicial review application, Mrs Patel raises the following grounds:
1.The Administrative Appeals Tribunal failed to apply criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and made legal error.
2.The Tribunal heavily relied on immigration history of my partner. The Tribunal without consideration of visa requirement “applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa;” refused my medical treatment visa and made legal mistakes.
3.That the Administrative Appeal Tribunal overlooked primary criteria for medical treatment visa and focused on work rights, family in India expenses and made mistakes.
4.The Administrative Appeals Tribunal at paragraph - 17: “The applicant gave evidence that she sought the Medical Treatment visa pursuant to clause 602.212(4) to give her husband emotional and other support. The Tribunal Member asked the applicant what care she was proposing to give to her husband that he could not provide for himself. She claimed meal preparation and managing his diet. She stated the primary applicant ‘doesn't know how to cook ... and he can’t make a cup of tea’. The Tribunal Member put to the applicant that they had great difficulty accepting her oral evidence, as her husband was tertiary educated with the capacity to read and follow ‘can eat’ and ‘cannot eat ‘food lists prescribed by his medical practitioner. The Tribunal notes the primary applicant did not require the assistance of an interpreter and presented as well educated at the hearing” made irrelevant consideration.
In his judicial review application, Master Patel raises the following grounds:
1.The Administrative Appeals Tribunal failed to apply criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and made legal error.
2.The Tribunal heavily relied on immigration history of my parents. The Tribunal without consideration of visa requirement “applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa;” and refused my parents medical treatment visa.
3.That the Administrative Appeal Tribunal overlooked primary criteria for medical treatment visa and focused on work rights, family in India, expenses and made mistakes.,
As can be seen from these grounds, grounds 1-3 in each of the applications are similar in their terms. Grounds 2 and 3 in all applications focus on the reasons provided by the Tribunal in relation to Mr Patel’s case. Mrs Patel also raises an additional ground, asserting that the Tribunal took into account an irrelevant consideration.
The applicants did not file any amended applications or written submissions before the hearings, despite being afforded an opportunity to do so. The Minister filed written submissions ahead of the hearings in accordance with Court orders.
The three judicial review applications were heard consecutively, with Mr Patel’s application heard first, then Mrs Patel’s application and then Master Patel’s application. The Court acknowledged that there was some overlap in the grounds and indicated to the parties that it would take into account submissions made in one matter in considering the overlapping grounds in the other matters.
When Mr Patel was afforded an opportunity to make submissions, he initially indicated that he did not have anything further to say than what is set out in his application. The Court then referred to each of his three grounds and invited him to further explain the error that he asserted in the grounds. Mr Patel then submitted that he had to undergo an emergency operation at a time when he did not have a visa. He had applied for a visa, but the visa was not granted and that is why he made the application. His health issues arose after he applied for a permanent visa. When he had work rights, he had an income and had some savings for a house. The Tribunal asked him about those matters and not about his medical issues.
Mrs Patel, when invited to make submissions in her own matter and as litigation guardian in Master Patel’s matter, did not add anything to the submissions that had already been advanced in Mr Patel’s matter.
Counsel for the Minister submitted that the submissions advanced by Mr Patel from the bar table amounted to an invitation for the Court to engage in impermissible merits review. Counsel for the Minister otherwise relied on her written submissions in all three matters and made oral submissions that were consistent with her written submissions in Mr Patel and Mrs Patel’s matters. These submissions are discussed further below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Tribunal’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decisions are affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
RELEVANT LEGISLATIVE FRAMEWORK
As the applicants have asserted that the Tribunal did not apply the correct statutory criteria, it is convenient, before considering the applicants’ grounds, to identify the relevant legislative criteria.
The criteria for a medical treatment visa are set out in Schedule 2 to the Regulations.
The Tribunal decided that Mr Patel did not meet the requirements of cl 602.215 in Schedule 2 to the Regulations. That clause 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.
The Tribunal also considered whether Mr Patel met the requirements of cl 602.212(6) and relevantly considered whether Mrs Patel and Master Patel met the requirements of any of the paragraphs of cl 602.212. Clause 602.212 provides:
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a)the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)arrangements have been concluded to carry out the treatment;
(c)if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3) All of the following requirements are met:
(a)the applicant seeks to donate an organ for transplant in Australia;
(b)if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)the applicant satisfies public interest criterion 4005;
(d)arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4) All of the following requirements are met:
(a)the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c) the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5) All of the following requirements are met:
(a)the applicant is a citizen of Papua New Guinea;
(b)the applicant resides in the Western Province of Papua New Guinea;
(c)the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
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 evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Financial hardship
(7) All of the following requirements are met:
(a) one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant holds:
(i) a Subclass 602 visa; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)the applicant has compelling personal reasons to work in Australia;
(h)the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8) All of the following requirements are met:
(a) one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)the applicant is in Australia;
(c)the applicant has compelling personal reasons for the grant of the visa;
(d)the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).
CONSIDERATION OF GROUNDS RAISED BY APPLICANTS
Ground 1
By the first ground, each of the applicants asserts that the Tribunal failed to apply the criteria for the grant of the visa and made a legal error. The manner in which the applicants say that the Tribunal did not apply the correct criteria and the nature of the legal error that they assert the Tribunal made is not clear from the ground itself. When asked about this at the hearing, Mr Patel simply referred to the reasons why he applied for the visa. This submission addresses the factual merit of the Tribunal decisions and does not assert any jurisdictional error in the Tribunal decisions.
Mr Patel’s case
In Mr Patel’s case, the Tribunal correctly recognised that he would need to satisfy cl 602.215 unless cl 602.212(6) applied.
In first considering whether cl 602.212(6) applied, the Tribunal correctly identified the cumulative requirements of that subclause at [14] of its reasons and made findings in relation to each of those requirements at [15] of its reasons. The findings that the Tribunal made in relation to the requirements of cl 602.212(6) were open to it on the evidence before it.
Having found that the requirements of cl 602.212(6) were not met, the Tribunal proceeded to consider whether Mr Patel met the requirements of cl 602.215, which it set out at [15] of its reasons. The Tribunal expressed its conclusion that Mr Patel did not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment at [39] of its reasons. In reaching this conclusion, the Tribunal had regard to whether Mr Patel had complied substantially with the conditions attached to his last substantive visa or any subsequent bridging visa that he held and whether he intended to comply with the conditions on which the medical treatment visa would be subject, as required by cl 602.215(1)(a) and (b). The Tribunal reasons in this regard focused primarily on whether Mr Patel had worked and would work notwithstanding the no work condition that attached to his bridging visa and which would attach to the medical treatment visa. The Tribunal did not accept Mr Patel’s evidence that he had not been working and provided a plausible justification for its findings in this regard.
Clause 602.215(1)(c) allowed the Tribunal to have regard to ‘any other relevant matter’ in deciding whether Mr Patel genuinely intended to stay temporarily in Australia for the purpose of receiving medical treatment. The Tribunal had regard to Mr Patel’s evidence that he had no further medical treatment scheduled and that his medical condition was ‘now good’, that he would be able to manage his diet from India, Mr Patel’s migration history, his commencement of a long-term lease in March 2022 after his surgery was complete, his wishes to remain in Australia for his son’s education, the length of time he had spent in Australia and that his personal and/or economic circumstances were not conducive to him returning to India. It was open to the Tribunal to have regard to all of these matters, as ‘other relevant matters’ in finding that Mr Patel did not genuinely intend to stay temporarily in Australia for the purposes of receiving medical treatment.
Having found that Mr Patel did not satisfy the requirements of cll 602.215 or 602.212(6), he was unable to meet all necessary criteria for the grant of a medical treatment visa and it was therefore unnecessary for the Tribunal to address whether he met any of the further requirements for the grant of the medical treatment visa.
I do not accept that the Tribunal failed to apply the relevant criteria for a medical treatment visa or that it made any legal error in the application of those criteria in conducting the review of the decision not to grant Mr Patel a medical treatment visa.
Mrs Patel and Master Patel’s cases
In Mrs Patel and Master Patel’s cases, the Tribunal correctly recognised that they were required to meet one of the criteria in cl 602.215(2)-(8), and that they sought to meet the criterion in cl 602.215(4). The Tribunal correctly identified that the seven criteria in cl 602.215(2)-(8) were alternative criteria and it considered each of these criteria in turn.
The Tribunal particularly focused on whether Mrs Patel and Master Patel met the criterion in cl 602.212(4) and accurately identified that this provision requires that the visa applicant seeks to provide emotional and other support to, relevantly, a person who satisfies the requirements of a subclass 602 visa, and that the applicant satisfies PIC 4005. The Tribunal acknowledged that it had affirmed the delegate’s decision refusing Mr Patel’s application for a medical treatment visa and found that as Mr Patel, being the person who Mrs Patel and Master Patel sought to support, did not hold a medical treatment visa, Mrs Patel and Master Patel did not meet the requirements of subclause (4).
The Tribunal correctly identified the relevant criteria for the grant of the visa and no legal error is evident in the application of those criteria.
Ground 1 is not established in relation to any of the three applications.
Ground 2
By ground 2, the applicants assert that the Tribunal relied heavily on Mr Patel’s immigration history and refused his application in relation to his medical treatment visa without considering the requirement that he ‘applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused a visa’.
Mr Patel’s case
Insofar as ground 2 asserts that the Tribunal erred by relying heavily on Mr Patel’s immigration history, I accept the Minister’s submission that it is relevant for the Tribunal to have regard to Mr Patel’s immigration history as this plainly fell within the scope of ‘any other relevant matter’ for the purposes of cl 602.215(1)(c). Mr Patel’s immigration history, including the length of time he has spent in Australia and the visas that he has held or applied for, was plainly relevant to whether Mr Patel wished to remain in Australia permanently or indefinitely. I further accept the Minister’s submission that, having identified Mr Patel’s immigration history as relevant, the weight given to this evidence was a matter for the Tribunal as part of its fact-finding function: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]. The Tribunal’s consideration of, or reliance on, Mr Patel’s immigration history in finding that he did not genuinely intend to remain in Australia temporarily for the purposes of receiving medical treatment does not demonstrate jurisdictional error.
Mr Patel’s assertion that the Tribunal did not consider the requirement that he had ‘applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa’ does not establish jurisdictional error. The Tribunal recognised that this was one of the four requirements of cl 602.212(6). The Tribunal expressly found that Mr Patel had applied for a permanent visa while in Australia which had been refused. I acknowledge, as did the Minister in his submissions, that the Tribunal did not expressly make any findings about whether Mr Patel met all the criteria for the permanent visa other than the health criteria. However, in the context of this matter, this was not a jurisdictional error. The four requirements of cl 602.212(6) were cumulative requirements, meaning that Mr Patel was required to meet all four of those requirements in order to satisfy this subclause: see, for example, Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [14]. The Tribunal clearly found that Mr Patel had not turned 50 years old and further noted that there was no evidence that he was medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. The Tribunal was therefore correct to find that he did not meet the requirements of cl 602.212(6).
Mrs Patel and Master Patel’s cases
The Minister submitted that grounds 2 and 3 of Mrs Patel and Master Patel’s applications take issue with the Tribunal decision in relation to Mr Patel’s application and Mrs Patel and Master Patel do not have standing to launch a collateral challenge to that decision: ss 479 and 486C(2) of the Migration Act. This submission is legally correct.
However, as I indicated to the parties at the hearing, I have also interpreted grounds 2 and 3 as assertions that if those jurisdictional errors are established in relation to the Tribunal’s decision in Mr Patel’s case, that will also vitiate the Tribunal decisions in Mrs Patel and Master Patel’s cases. This is because the outcome of the Tribunal reviews of the decisions relating to Mrs Patel and Master Patel, and in particular whether they met the requirements of cl 602.212(4), turned on the outcome of the Tribunal review of the decision relating to Mr Patel. Therefore, Mrs Patel and Master Patel’s applications to the Tribunal were inextricably linked to Mr Patel’s application. A jurisdictional error in relation to the Tribunal’s decision in Mr Patel’s case could therefore vitiate the Tribunal decisions in Mrs Patel and Master Patel’s cases: see Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55], albeit in the context of a different type of visa. Given that I found no jurisdictional error in the Tribunal decision in Mr Patel’s case, it follows that there is also no jurisdictional error in the Tribunal decisions relating to Mrs Patel and Master Patel’s cases arising from the grounds being understood in this way.
I otherwise accept the Minister’s submission that grounds 2 and 3 in Mrs Patel’s application and Master Patel’s application do not sensibly relate to the issues before the Tribunal in relation to those matters. They therefore cannot establish jurisdictional error in the Tribunal decisions.
Ground 3
By ground 3, the applicants assert that the Tribunal erred by overlooking the ‘primary criteria’ for a medical treatment visa and instead focusing on work rights, family in India and expenses.
Mr Patel’s case
In Mr Patel’s case, the Tribunal affirmed the delegate’s decision because he did not meet the criteria in cl 602.215, including because cl 602.212(6) did not apply. These are primary criteria, so it is not accurate to say that the Tribunal overlooked the primary criteria for a medical treatment visa.
To the extent that the Tribunal focused on work rights, this was clearly relevant to whether Mr Patel met the criteria in cl 602.215 because cl 602.215(1)(a) and (b) required the Tribunal to consider, in assessing whether Mr Patel genuinely intended to stay in Australia temporarily for the purpose of seeking medical treatment, whether Mr Patel had complied with the conditions attached to his last substantive visa and any bridging visa he held and whether he would comply with the conditions attached to the medical treatment visa if granted. The Tribunal identified that Mr Patel’s bridging visa and the medical treatment visa both had a no work condition attached to them. It was therefore appropriate for the Tribunal to address work rights in making its decision in this matter. The Tribunal’s consideration of Mr Patel’s expenses was also related to its consideration of whether he had complied, and would comply, with the no work condition. The Tribunal had regard to his and his family’s expenses and claimed sources of income, amongst other things, in considering whether or not Mr Patel had been working. It was open to the Tribunal to have regard to this.
The Tribunal’s consideration of Mr Patel’s family in India was in the context of considering whether Mr Patel’s personal and economic circumstances would encourage him to return to India at the end of his proposed stay. This was something that the Tribunal was permitted to take into account pursuant to cl 602.215(1)(c), which allows the Tribunal to have regard to ‘any other relevant matter’.
Ground 3 of Mr Patel’s application does not establish jurisdictional error in the Tribunal decision.
Mrs Patel and Master Patel’s cases
The consideration of this ground as it appears in Mrs Patel’s application and Master Patel’s application raises the same issues as ground 2 in those applications and has been addressed at [54] to [56] above.
Ground 4 in Mrs Patel’s application
Ground 4 of Mrs Patel’s application refers to [17] of the Tribunal’s reasons. In that paragraph, the Tribunal said:
The applicant gave evidence that she sought the Medical Treatment visa pursuant to clause 602.212(4) to give her husband emotional and other support. The Tribunal Member asked the applicant what care she was proposing to give to her husband that he could not provide for himself. She claimed meal preparation and managing his diet. She stated the primary applicant ‘doesn’t know how to cook …and he can’t make a cup of tea’. The Tribunal Member put to the applicant that they had great difficulty accepting her oral evidence, as her husband was tertiary educated with the capacity to read and follow ‘can eat’ and ‘cannot eat’ food lists prescribed by his medical practitioner. The Tribunal notes the primary applicant did not require the assistance of an interpreter and presented as well educated at the hearing.
Mrs Patel declined the opportunity to further explain this ground at the hearing, so it is unclear precisely what part of the material relied on by the Tribunal at [17] of its reasons is said to be irrelevant and why.
In circumstances where Mrs Patel gave evidence that she sought the medical treatment visa to provide emotional and other support to Mr Patel, it was relevant for the Tribunal to consider the nature of the support that she intended to provide and whether Mr Patel required that support. That is what the Tribunal did at [17] of its reasons and I accept the Minister’s submission that the matters that the Tribunal considered at [17] were therefore relevant to determining whether Mrs Patel met the requirements of cl 602.212(4).
I further accept the Minister’s submission that the evidence referred to at [17] of the Tribunal’s reasons was not determinative in any event, because the primary reason that the Tribunal found that Mrs Patel did not meet the requirements of cl 602.212(4) was because Mr Patel had not been granted a medical treatment visa.
Ground 4 of Mrs Patel’s application does not establish jurisdictional error.
CONCLUSION
The applicants have not established that the Tribunal decisions are affected by jurisdictional error. Their applications to this Court are therefore dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 November 2023
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