Ramjali v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 402
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramjali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 402
File number(s): SYG 2974 of 2018 Judgment of: JUDGE VASTA Date of judgment: 13 April 2023 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth): cl 602.215, cl 602.212
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 13 April 2023 Date of hearing: 13 April 2023 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf with the assistance of an interpreter Counsel for the First Respondent: Ms Harradine, Solicitor Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 2974 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJ KUMAR RAMJALI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
13 APRIL 2023
THE COURT ORDERS THAT:
1.The application filed on 23 October 2018 as amended on 20 March 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,500.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
NOTATION:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
On 3 October 2018, the Administrative Appeals Tribunal (“AAT/Tribunal”) affirmed a decision not to grant the applicant, Raj Kumar Ramjali, a medical treatment visa. On 23 October 2018, the applicant asked this Court to review the decision.
It would seem that having filed the application in October 2018, the matter came before the Registrar in November 2018. The Registrar made the usual orders as to filing of material and the matter was listed to proceed before Judge Manousaridis at a time and date to be fixed. On 20 March 2020, the applicant filed an amended originating application.
The matter seems to have then become part of the National Migration docket. On 6 February 2023, the Registrar ordered that the matter be heard and determined by me today, 13 April 2023.
This means it has been nearly four and a half years since the applicant filed his application until the Court could actually determine it. On behalf of the Court, I apologise to the applicant for the inordinate delay in this Court finalising his matter. It is that circumstance that forms part of the reason that I am giving my judgment today ex tempore.
The background to the matter is that the applicant is a citizen of a Nepal. The applicant arrived in Australia on 17 July 2009 as the holder of a student visa.
On 24 December 2010, so about 18 months later, the student visa was cancelled.
On 29 June 2012, the applicant applied for a temporary work visa.
That visa was refused on 27 November 2014.
The applicant then sought a merits review by the Migration Review Tribunal. The Migration Review Tribunal affirmed the decision. The applicant asked this Court to review that decision of the Migration Review Tribunal. This Court dismissed the application for review.
The applicant appealed that decision to the Federal Court. On 20 March 2017, the Full Federal Court dismissed that appeal.
The applicant then sought special leave to the High Court, and the High Court dismissed the special leave application on 15 August 2017.
About three weeks later, the applicant lodged an application for a medical treatment visa, which is the subject of these proceedings.
The visa was sought on the basis that the applicant would be receiving medical care for depression and anxiety from 1 September 2017 to 1 September 2019. To successfully apply for a medical treatment visa, the applicant must satisfy a number of criteria. Clause 602.215 of the Migration Regulations 1994 (Cth) says that the applicant must genuinely intend to stay temporarily in Australia for that purpose.
The regulation says that regard must be had to whether the applicant has complied substantially with the conditions to which the last substantive visa, or bridging visa, was subject. Regard has to be had as to whether the applicant intends to comply with the conditions to which the visa would be subject.
But those matters, in that clause, do not apply if all the requirements in cl 602.212(6) are met. There are six requirements. The second of the requirements must be that the applicant has turned 50 years of age. The evidence is that the applicant is nowhere near 50 years of age. The applicant was born in June 1987. He will not turn 50 until June 2037. This means that the requirements of cl 602.212(6) cannot be satisfied. This means that the legislation deems that the applicant is not medically unfit to depart Australia.
The Tribunal then had to look at whether the applicant was, in fact, a person who had a genuine intention to stay temporarily, solely for the purpose of being treated medically.
Whilst the Tribunal saw that there was a report, from a doctor, that said that the applicant was suffering depression and anxiety and that he required counselling, there was no evidence of any treatment for this depression and anxiety. The applicant told the Tribunal that he was taking medication and seeing a doctor on a regular basis. He said that he had a report from his doctor but he did not bring it with him because he did not realise it was needed. He said that his doctor told him it was not a major problem and was being addressed through medication.
When he was asked why he could not take the medication in Nepal, the applicant replied that the treatment and medicine in Australia was better. The Tribunal asked him what he was doing about the proposed counselling that was recommended in the report. The applicant said that he could not get an appointment, even though he had tried to get one for a “mental health doctor”. The applicant said that his doctor had given him medication for his depression and he thought that the medication would cure him.
The Tribunal asked the applicant if he had any other evidence of his medical problems. He said that he had medical scans but did not have a copy of his report of his liver diagnosis.
The Tribunal explained to the applicant, that the quality of care and medication available in his home country was not a relevant consideration for them and that the visa was for obtaining medical treatment. So any evidence that simply indicated a condition, in itself, was insufficient.
The Tribunal looked at the immigration history of the applicant. It noted that he had two periods in which he was unlawfully in Australia. This was between 24 December 2010, when his student visa was cancelled, until 29 June 2012, when he applied for the work visa and was given a bridging visa. The Tribunal said that the applicant also did not have a bridging visa from 13 February 2015 until 7 September 2017, when he applied for the visa the subject of these proceedings.
The applicant explained to the Tribunal that he came here dependent upon his wife’s student visa and his wife then left him. He said that he did not know that his visa had been cancelled until he applied for the work visa.
The Tribunal asked why the applicant did not leave after the High Court had dismissed the application for special leave. He said that he was suffering depression and became more depressed. He said that he is not allowed to work in Australia and he said that friends help him with accommodation, and his parents provide him with money and clothes.
After the hearing, the applicant gave the Tribunal a medical certificate in which a doctor said that he saw the applicant on 2 September and 21 September 2018 and that the applicant suffers anxiety and depression and needs to see a psychologist.
A second medical certificate was also provided, which stated that the applicant had a blood test in May 2017. It said that that blood test showed a mid-rise of his liver enzymes which was not specific.
The Tribunal said that they accepted that the applicant suffered from anxiety and depression and that he needs to see a psychologist, and that he had a mild rise in liver enzymes in 2017. But the applicant did not provide any corroborating evidence that he was undertaking, or would be undertaking, treatment for either of those issues. With respect to his immigration history, the Tribunal noted that the applicant had two periods in which he was unlawful. The Tribunal was not satisfied that the applicant was planning to return to Nepal on completion of any treatment he might obtain. I do note that the Tribunal mistakenly referred to the applicant’s home country as Malaysia in making this conclusion.
The Tribunal noted that there was an absence of evidence regarding financial support that the applicant claims he receives from family and friends. The Tribunal was not satisfied that the applicant would comply with the condition that he must not engage in work.
Given those findings, the Tribunal found that cl 602.215 was not met. The Tribunal then affirmed the decision not to grant the applicant the medical treatment visa.
In the amended application, the applicant referred to five grounds. I will read the five grounds into the record:
(1)The Tribunal had medical evidence that I suffer depression and anxiety as well as liver problem and that I will genuinely stay in Australia temporarily for the purpose for which the visa is granted.
(2) The Tribunal had evidence that I had a blood test in May 2017 showing a mid-rise of my liver enzymes which is non specific. A copy of the blood test was given to the Tribunal and the Tribunal accepted that I provided medical evidence. The Tribunal was not satisfied that I am planning to return to Nepal (the Tribunal wrongly stated Malaysia) on completion of any treatment that I may obtain.
(3) The Tribunal was aware that I did not have permission to work and that I have been financially supported by friends. While my application was for medical treatment visa the Tribunal stated that I will not comply with the condition 8010 (must not engage in work).
(4) The Tribunal decision is infected by error of law by saying that it is not satisfied that the requirements of the visa are met. The Tribunal in its decision, stated that evidence indicating a condition in itself, is insufficient therefore the Tribunal misunderstood my request for a medical treatment visa and misunderstood to apply and recognise my illness.
(5) The Tribunal decision is a denial of natural justice and fairness because I provided my medical condition and the tribunal failed to act as per information provided.
As can be seen from these five grounds of appeal, there is a misconception as to what the Tribunal had said. The Tribunal had to be satisfied that the applicant would be a genuine temporary entrant to the country for the purposes for which the visa would be granted. The Tribunal looked at the purposes for which the visa would be given; that is, treatment for a medical issue.
The first medical issue was depression and anxiety. The report said, to treat this, the applicant needed to have counselling. There was simply no evidence that the applicant had done anything to engage in any counselling. As to the liver problem, there was a mid-rise which was non-specific. The reports did not mention any treatment that needed to be undertaken.
The visa must be given for the purpose of treatment, yet there was no evidence that there was any treatment being undertaken.
The Tribunal, also, then had to be convinced that the applicant would also comply with the other conditions of the visa, which were, that he must not engage in work. The Tribunal was concerned that the applicant had no visible means of support. The applicant said that he was being supported by his family overseas and his friends in Australia, but he put no evidence before the Tribunal to corroborate or support this claim.
Finally, the Tribunal had to be satisfied that once the treatment had been given, that the applicant would leave Australia. Given that the last two applications for visas, one for a student visa, and one for a work visa were unsuccessful, the applicant should have left the country once those visas had finished, but he did not. The Tribunal said that it gave them very little confidence that the applicant would leave Australia once the treatment ceased.
So while it is that the Tribunal had all of the things that the applicant has spoken of in his five grounds, it was open for the Tribunal to come to all of the conclusions that it did.
The Tribunal’s decision was not infected by any error. The Tribunal did not misunderstand the request for the medical visa.
The Tribunal did not misunderstand or fail to recognise the illness that the applicant claimed to have.
There was no denial of natural justice or fairness by the Tribunal.
All these grounds really illustrate is that the applicant does not agree with the decision of the Tribunal. That does not mean that there has been any jurisdictional error at all by the Tribunal.
The applicant, who appeared unrepresented but with the aid of an interpreter, said to me that on 6 April, he received paperwork. He said that this paperwork says that he cannot leave Australia because of his health issues.
I have no idea what this actually means, but it is irrelevant to my determination of this issue. As I explained to the applicant, I am reviewing the decision of the Tribunal, and therefore, can only look at what material was before the Tribunal.
The applicant reiterated to me that he was going through depression. He said that there is no good health treatment available in Nepal. He said that he just wanted the opportunity to be treated in Australia. But, just as the Tribunal told the applicant, none of that is what needs to be considered in looking at whether he should have been given this visa. And certainly, none of that could ever amount to a jurisdictional error.
I have looked through this decision of the AAT and I cannot find any jurisdictional error.
I dismiss the application with costs fixed in the sum of $5500, and I will change the name of the Minister.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 13 April 2023
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