Rai v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 691
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rai v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 691
File number(s): SYG 1420 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 16 May 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Tribunal affirming a decision not to grant the first applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal ignored the first applicant’s medical condition and failed to recognise the first applicant as a person who needed medical treatment – whether the Tribunal failed to understand the first applicant’s serious depression – whether the Tribunal misunderstood the first applicant’s plan and reason why the first applicant did not wish to return to Nepal – whether the Tribunal was correct in finding that it did not have jurisdiction with respect to the second applicant – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 347(b)(i), 476
Migration Regulations 1994 (Cth), cll 602.211, 602.212, 602.215(1)(c)
Cases cited: Hamod v New South Wales [2011] NSWCA 375
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445
Division: General Federal Law Number of paragraphs: 38 Date of hearing: 30 April 2025 Place: Sydney Solicitor for the First Applicant: In person Solicitor for the Second Applicant: In person Solicitor for the First Respondent: Mr E Inches of the Australian Government Solicitor ORDERS
SYG 1420 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KABITA SUBBA RAI
First Applicant
APEKSHYA RAI
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
16 MAY 2025
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 KAUR-BAINS
The first and second applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 24 June 2021. The Tribunal affirmed an earlier decision made by the delegate of the Minister not to grant the first applicant a Medical Treatment (Visitor) (Class UB) visa (visa). In relation to the second applicant, the Tribunal found it did not have jurisdiction on the basis that it only had jurisdiction to review a matter where a decision had been made by a delegate of the Minister.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
The first and second applicants raise four grounds for judicial review which are set out at [18] of this judgment. For the reasons that follow, I find the grounds do not disclose jurisdictional error.
BACKGROUND
The applicants are citizens of Nepal. The first applicant is the mother of the second applicant.
Medical treatment visa
On 8 March 2019, the first applicant applied for a medical treatment visa (Court Book (CB) 10 to 20). The first applicant stated that the medical treatment she had arranged in Australia was as follows: “Depression: currently undergoing depression and seeking professional treatment.” The first applicant named Dr Hung Ma as the doctor who would be providing the medical treatment.
On 8 March 2019, the second applicant applied for a medical treatment visa (CB 21 to 31). The second applicant at question 16 of the visa application form noted she was to be a support person to a person who would be undergoing medical treatment.
Department’s decision in relation to the first applicant
On 8 April 2019, a delegate of the Minister refused the first applicant’s application for a medical treatment visa on the basis that the delegate found the first applicant was attempting to utilise the medical treatment visa as a means to maintain ongoing residence. The delegate found the first applicant did not genuinely intend to remain in Australia on a temporary basis given the following migration history (CB 55):
(a)On 13 April 2006, the first applicant arrived in Australia as the holder of a Sponsored Family Visitor (subclass 679) visa. Between 16 May 2006 and 26 May 2010, the first applicant applied for five permanent visas. The first applicant unsuccessfully sought various avenues of review for these refused visa applications, including to the Full Federal Court.
(b)Between 7 November 2008 and 2 November 2018, the first applicant unsuccessfully sought Ministerial Intervention on five occasions.
(c)The first applicant currently holds a Bridging (subclass 050) visa.
The first applicant was notified in writing of the delegate’s decision by letter dated 8 April 2019 (CB 50).
Department’s decision in relation to the second applicant
The Court Book did not contain a copy of the decision in relation to the second applicant. However, the Department’s records showed that a decision had been made in relation to the second applicant’s application as a support person (CB 70). However, the Minister before me accepts that the second applicant was not sent a notification of the decision.
Application for review
On 23 April 2019, the first applicant lodged with the Tribunal an application for review of the decision dated 8 April 2019, in relation to the Department’s file number BCC2019/1212412, which was the delegate’s decision in relation to the first applicant only. The second applicant was named in the application for review under paragraph 7, as person 2, the daughter of the first applicant (CB 58).
The Tribunal’s case notes at CB 79 disclosed that on 26 April 2019, the Tribunal contacted the first applicant with the assistance of a Nepali interpreter and advised the first applicant that the second applicant had to file her own application for review before the Tribunal and provide a copy of the delegate’s decision. The Tribunal’s case notes recorded that the second applicant and her father attended the Tribunal’s registry and filled out an application form and said that they had not received notification of a refusal of the daughter’s application. The Tribunal officer told the second applicant and her father that the Tribunal needed a decision to be made by the delegate, but that the second applicant could submit the application for review. The father decided that he would check with the Department before lodging an application for review for the second applicant. The second applicant did not lodge any further application for review.
TRIBUNAL’S DECISION
The first and second applicants both appeared before the Tribunal, assisted by an interpreter.
First applicant
The Tribunal identified that the issue before it was whether the first applicant intended to stay temporarily in Australia for the purpose for which the visa is granted or whether that requirement does not apply because the first applicant is medically unfit to depart Australia.
The Tribunal was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purposes of the medical treatment visa for the following three reasons:
(a)First, the first applicant’s immigration history, which showed that the first applicant had resided in Australia for 16 years and had made several applications for temporary and permanent visas. All applications were rejected by the Department. The first applicant applied for review of these decisions with the Tribunal and Courts, most unsuccessfully. The first applicant had requested Ministerial Interventions five times (at [21] of the reasons).
(b)Second, the first applicant said to the Tribunal that she did not intend to return to Nepal, and has no family and does not feel safe in Nepal (at [22] of the reasons).
(c)Third, the first applicant’s oral evidence about the medical treatment plans in Australia were “vague” and “ill defined”. The first applicant said she wished to be treated for depression but had stopped treatment at the end of 2019, without indicating any specific plans to resume or include a timeframe (at [23] of the reasons).
Second applicant
In relation to the second applicant, the Tribunal at [6] noted that it did not have a copy of the delegate’s decision in relation to the second applicant and the second applicant said she was not aware a decision had been made in her case. The Tribunal noted it could only review a matter where there had been a decision made by the delegate. Therefore, it did not have jurisdiction in relation to the second applicant.
RELEVANT LEGISLATION
The following clauses in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) are relevant to the grounds for judicial review:
602.211
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
602.212
(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
……
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.
……
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.
…
602.215
(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.
CONSIDERATION
The first and second applicants appeared at the hearing before me as litigants in person, assisted by a Nepali interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the first and second applicants the role of the Court in undertaking judicial review. I ensured the first and second applicants were in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant lodged on 23 July 2021 and the Minister’s written submissions lodged on 14 April 2025. The first and second applicants did not provide any written submissions.
The following grounds for judicial review are raised (as in original):
l. The Administrative Appeals Tribunal was aware of my depression and that I was seeing Psychologist and that I am over 50 years of age.
2. The Tribunal relied on previous applications but at the time I was not sick or under medical treatment but I submitted my application with form 1507 meaning that I need medical treatment and the Tribunal ignored my medical condition and failed to recognise me as a person who needs medical treatment.
3. The Tribunal said that I was vague talking about medical treatment, that means the Tribunal failed to understand my serious depression.
4. I do not accept the decision of the Tribunal and I do feel that the Tribunal misunderstood my plan and the reason why I do not wish to return to Nepal now with my daughter, especially under my current psychological trauma.
At the hearing before me, when invited to expand on the grounds for review, the second applicant submits the following:
(a)The first applicant is seeking medical help from a therapist in Parramatta.
(b)The first applicant went to the therapist multiple times, during which the second applicant interpreted for the first applicant.
(c)The first applicant did not keep up with the meetings with the therapist because the applicants did not know, until a couple of months later, that the first applicant needed evidence that she was seeing the therapist. The second applicant’s aunt was handling everything with the immigration case.
I note the oral submissions made by the second applicant do not relate to any of the four grounds of review or give rise to a potential ground for judicial review of the Tribunal’s decision under consideration. I turn now to consider each of the grounds for review.
Ground 1
Ground 1 alleges that the Tribunal was aware of the first applicant’s depression and that she was seeing a psychologist and was over 50 years old.
The Tribunal was aware of the claims the first applicant had raised. The Tribunal noted at [8] of its reasons that the applicant is a 52-year-old Nepalese national, who had applied for a medical treatment visa for the treatment of depression in the form of being ‘referred to a psychologist’. The Tribunal at [11] of the reasons also noted the first applicant at the hearing said that when she applied for the medical treatment visa, she was depressed and saw a psychologist three or four times from March 2019 to the end of 2019. The Tribunal noted the second applicant said the first applicant had stopped seeing a psychologist because it was not affordable, but the first applicant had plans to undertake further treatment for her depression. Those paragraphs of the Tribunal’s reasons disclose that the Tribunal was aware of the matters that the first applicant alleged, being that she was depressed and had been seeing a psychologist.
Ground 1, other than stating that the Tribunal was aware of certain matters, does not set out what jurisdictional error is said to have been committed by the Tribunal. I find no jurisdictional error is disclosed by ground 1.
Ground 2
Ground 2 contends the Tribunal erred by having regard to the first applicant’s immigration history and ignored the first applicant’s medical condition and failed to recognise that she was a person who needed medical treatment.
At [21] of the reasons, I find the Tribunal correctly had regard to the first applicant’s immigration history for the purposes of applying clause 602.215(1)(c) of the Regulations (set out at [16] of this Judgment), which permits the decision maker to have regard to “any other relevant matter”, in assessing whether the first applicant intends to remain in Australia temporarily for the purposes of medical treatment. I find it was open to the Tribunal to find the first applicant’s immigration history was relevant, as the history might reveal a pattern of behaviour, relevant to whether the first applicant did not intend to remain in Australia on a temporary basis for the purpose of medical treatment.
Further, I find the Tribunal did not ignore the first applicant’s medical condition, as the Tribunal noted the first applicant’s claim to be suffering from depression and needing treatment as set out at [8], [11] and [23] of the Tribunal’s reasons.
Accordingly, ground 2 does not disclose jurisdictional error.
Ground 3
In relation to ground 3, the first applicant submits the Tribunal said she was vague when talking about medical treatment and failed to understand the serious depression the first applicant suffered.
The Tribunal expressly considered the first applicant’s evidence of her depression, which was limited to what was said in the first applicant’s application for a medical treatment visa at CB 12, which said “depression: currently undergoing depression and seeking professional treatment” and Form 1507 at CB 32, which said “Depression” and “Will be referred to psychologist”. No further evidence was provided by the first applicant. In those circumstances, I find it was open to the Tribunal to find at [23] of its reasons that “the applicant’s oral evidence about plans to undertake medical treatment in Australia were vague and ill-defined.”
No jurisdictional error is disclosed by ground 3.
Ground 4
Ground 4 contends the first applicant does not accept the decision of the Tribunal and feels that the Tribunal misunderstood the first applicant’s plan and reason not to return to Nepal. In respect to ground 4, the first applicant is expressing disagreement with the Tribunal’s decision. I find the Tribunal correctly identified the issue it needed to consider at [13] and [17] of its reasons and proceeded to determine the issue at [17] to [24] of its reasons. The Tribunal was not satisfied the first applicant genuinely intended to stay temporarily in Australia, which state of satisfaction was open to the Tribunal to determine.
No jurisdictional error is disclosed by ground 4.
First applicant
At the conclusion of the hearing, the second applicant contends the first applicant was in a car accident two months ago, resulting in fractured ribs and was seeking medical treatment for that injury. The Minister submits that any medical condition currently alleged to be suffered by the first applicant is not relevant to the decision under review. I agree, as I explained to the applicants at the outset, the Court’s powers are limited to reviewing the decision of the Tribunal made on 21 June 2021 in relation to the medical treatment visa made by the first applicant, which was in relation to the treatment of the alleged depression. The first applicant’s current alleged injuries are not relevant to the medical treatment visa.
Second applicant
Turning to the second applicant, the Minister said the delegate had made a decision in relation to the second applicant but conceded the second applicant had not been notified of the delegate’s decision.
Section 347(1)(b)(i) of the Act provides that an applicant is required to make an application seeking review of a delegate’s decision in relation to a Part 5 – reviewable decision, 28 days after the notification of the decision. Of course, there is nothing stopping an applicant from making an application even if not notified of a decision, as long as a decision by the delegate has in fact been made. In this case, the Minister’s position, which I accept, is that the second applicant did not lodge in the Tribunal an application for review of the delegate’s decision. Therefore, I find the Tribunal was correct in determining that no application for review was made by the second applicant in relation to the delegate’s decision of her application for a medical treatment visa as a support person. Accordingly, the Tribunal did not have jurisdiction in relation to the second applicant.
I do note that it is open to the second applicant to request the Department to notify her of the decision in relation to her medical visa application and it would be open to the second applicant to seek merits review before the Tribunal, if she wishes to do so.
CONCLUSION
In the circumstances, I find the first and second applicants have not established jurisdictional error in the Tribunal’s decision and the application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 16 May 2025
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