Payal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 56
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Payal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 56
File number(s): SYG 3263 of 2019 Judgment of: JUDGE LAING Date of judgment: 1 February 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) Visa – whether the Tribunal failed to “properly consider” evidence – whether the Tribunal’s decision was open on the material before it – application dismissed Legislation: Migration Regulations 1994 (Cth) Schedule 2 cll 602.212, 602.214, 602.215 Cases cited: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 24 January 2024 Place: Sydney Applicant: In person Solicitor for the First Respondent: Ms A Wilford of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3263 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAYAL PAYAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be 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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
BACKGROUND
The applicant is a citizen of India. On 2 March 2018, she applied for the medical treatment visa that is the subject of these proceedings.
On 11 May 2018, the Delegate refused the application upon finding that the applicant did not meet the requirements of cl 602.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 31 May 2018, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 14 November 2019.
On 15 November 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 602.215 of Schedule 2 to the Regulations which provided:
602.215
(1)The applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa was 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.
Clause 602.212(6) relevantly required the applicant to have turned 50 in order to apply.
THE TRIBUNAL’S DECISION
The Tribunal summarised the relevant criteria and the background to the matter at [7]-[16] of its decision. At [9]-[10], the Tribunal stated:
9.The issue identified by the delegate was whether an Australia citizen or permanent resident would be disadvantaged in obtaining medical treatment if the visa was granted.
10.However, as discussed with the applicant during the Tribunal hearing, the issue for the Tribunal is whether the applicant meets cl.602.215 of the Regulations.
The Tribunal found that the applicant did not meet cl 602.212(6) on the basis that she was not 50 years of age or over (at [18]).
The Tribunal found at [22] that there was no evidence to support either that the applicant failed to comply with the conditions of any previous visas or that she did not intend to comply with the conditions of the medical treatment visa.
The Tribunal considered that these considerations were outweighed by other evidence indicating that the applicant did not have an intention to stay temporarily in Australia for medical treatment (at [23]). The Tribunal reasoned as follows (at [24]-[29]):
24.The Form 1507 completed by [a named doctor] on 26 February 2018 listed the medical condition requiring treatment as “Pregnancy – high risk needs additional care”. The treatment proposed is “midwife care. Obstetrician reviews and GP reviews”
25.At the Tribunal hearing the applicant stated she had been pregnant but had miscarried in 2018. The Tribunal put it to her that in these circumstances it appeared her medical treatment had ended. She stated she needed further medical investigation as to the reason for her history of miscarriages. However, she stated she had not yet had any treatment or investigation as she did not have medical insurance.
26.The Tribunal put it to her that she could seek further investigation or treatment if she returned to India. She stated she could not do that as her partner was in Australia and he was not well enough to go to India. When it was put to her that she stated her marriage had broken down she stated they see each other from time to time. She stated she had no intention of leaving Australia and wanted to remain in Australia.
27. The Tribunal explained the purpose of the medical treatment visa. It also explained why it appeared that she did not meet the requirements because she did not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
28. The Tribunal considers the applicant's evidence indicated that she did not have an intention to stay temporarily in Australia and was seeking to stay in Australia permanently or indefinitely.
29. Given the above findings, cl.602.215 is not met
The Tribunal then considered cl 602.214 and noted that it was not necessary to make any findings on this criterion given it had found that the applicant did not meet cl 602.215 (at [31]). The Tribunal observed that if it were required to have considered this criterion, it had no evidence before it indicating that an Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa were granted (at [32]).
Having regard to its findings regarding cl 602.215, however, the Tribunal affirmed the Delegate’s decision (at [33]-[34]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 11 December 2019 relying upon the following grounds for review:
1.SATISFYING THE CLAUSE 602.215 OF MIGRATION REGULATIONS 1994.
2.SATISFYING THE PART 602 OF SET TO MIGRATION REGULATIONS 1994.
3.COMPELLING REASON EXISTS MEET THE 602 MEDICAL CRITERIA OF MIGRATION ACT 1958.
4.THE ACT MEET THE SUBSECTION OF ACT.
(As per the original)
At the hearing, it was observed that a box on the application form seeking mandamus appeared to have been inadvertently not selected. It was explained why this may be an issue: see Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 at [26]-[35] per Judge Given and the cases cited therein. A consent order was made rectifying this at the commencement of the hearing before the Court.
At the hearing before the Court, I also endeavoured to explain the role of the Court and how it differed from the role of the Tribunal. The applicant was invited to expand upon her grounds of review and to explain why she considered that the Tribunal’s decision was not lawfully open to it on the material that was before it. Two matters were raised by the applicant:
(a)Firstly, that the Tribunal had not properly considered her medical evidence. Specifically, the evidence that the Tribunal was said to have not properly considered was the Form 1507 located at page 12 of the Court Book.
(b)Secondly, that it was not reasonably open to the Tribunal to have found that she did not meet the criteria for the visa. This was in circumstances where the applicant stated that she had needed time to go to the doctors.
The Form 1507 was a one-page form that contained limited information. It was signed by a doctor who declared on 26 February 2018 that the applicant required treatment for a high-risk pregnancy in the form of “midwife care”, “obstetrician reviews” and “GP reviews”. I accept the Minister’s submission that this was considered by the Tribunal at [24] of its decision. The Tribunal further considered the applicant’s evidence that the treatment that she was seeking had moved on by the time of the Tribunal hearing. The applicant had given evidence that she required further medical investigation, however, that she had not undertaken such investigation as she did not have medical insurance (at [25]). The Tribunal observed at [26] that it had raised with the applicant the question of why such investigation could not be undertaken after her return to India. The applicant had responded that her former partner, whom she saw from time to time, could not travel to India. The applicant is also recorded as having stated that “she had no intention of leaving Australia and wanted to remain in Australia” (at [26]).
Having regard to the above, I accept the Minister’s submission that the Tribunal did consider and engage with the evidence and submissions provided by the applicant. I also accept that the Tribunal reasoned in a manner that was reasonably open to it.
Specifically, I accept the Minister’s submission that it was open to the Tribunal to have found that the applicant was unable to meet 602.215. This was a mandatory criterion for the grant of the visa, even if the applicant had been able to meet other medical criteria. Clause 602.215 did not require determination of whether there were “compelling reasons”. Rather, it required the Tribunal to determine whether the applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa was granted, having regard to past and intended compliance with visa conditions, and any other relevant matter.
The Tribunal accepted that there was no evidence that the applicant had not complied with previous visa conditions or that she did not intend to comply with any conditions of the visa sought. However, the Tribunal did not accept that the applicant genuinely intended to remain temporarily in Australia for the purposes of the visa. This was in circumstances where although the applicant had informed the Tribunal that she wished to undertake further investigation or treatment, she had also informed the Tribunal that she had not done so as she did not have medical insurance. She had additionally informed the Tribunal that “she had no intention of leaving Australia and wanted to remain in Australia” (at [26]).
It has not been demonstrated that this reasoning was relevantly closed to the Tribunal.
No legally relevant error has been identified by the applicant, including after the applicant was given the opportunity to expand upon her grounds at hearing. Noting that the applicant is unrepresented, I have also reviewed the materials before me in endeavouring to remain nonetheless “astute and alert to the possibility of legal error”: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [100] per Mortimer J (as her Honour then was). No such error is apparent upon my own review of the materials.
In these circumstances, the application before the Court is unable to succeed. There is accordingly no need to determine the Minister’s alternative argument that relief should be refused on the basis that these proceedings are an abuse of process.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 February 2024
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