Sharma v Minister for Immigration and Citizenship
[2025] FedCFamC2G 985
•1 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration and Citizenship [2025] FedCFamC2G 985
File number: SYG 1322 of 2021
Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 July 2025 Catchwords: MIGRATION – Medical Treatment (Class UB) Subclass 602 visa – whether the applicant genuinely intended to remain in Australia for the purposes of the visa – allegation of legal unreasonableness, irrationality or illogicality in the decision under review– where the grounds of judicial review do not reveal jurisdictional error – application dismissed with costs Legislation: Migration Regulations 1994 (Cth) Schedule 2 cl 602.212 , 602.215 Cases cited: BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration v Li (2013) 297 ALR 225
SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641
SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362
Taylor v Owners of Strata Plan No. 11564 (2014) 253 CLR 531
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 18 June 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Burnett, Clayton Utz Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1322 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUD KIRTI SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
1 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
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 D HUMPHREYS
INTRODUCTION
This matter was heard contemporaneously with Ram v Minister for Immigration and Citizenship [2025] FedCFamC2G 984 (“Ram”). This is an application for judicial review of the (then) Administrative Appeals Tribunal’s (“the Tribunal”) decision dated 16 June 2021 affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate”) to refuse to grant the applicant, Ms Sharma, a Medical Treatment (Class UB) Subclass 602 visa (“the visa”).
Ram is an application for judicial review of the Tribunal’s decision, also dated 16 June 2021, affirming the decision of the delegate to refuse to grant the applicant’s husband, Mr Ram, a Medical Treatment (Support Person) visa.
The first respondent concedes that if Ms Sharma’s application is successful, then the decision that determines Mr Ram’s application should also be quashed and both matters remitted to the Tribunal for reconsideration. If the application by Ms Sharma fails, then it is submitted that Mr Ram’s application for judicial review must also fail.
For the reasons outlined below, the application should be dismissed.
BACKGROUND
On 18 January 2019, the applicant applied for the visa.
On 4 February 2019, the delegate refused the applicant’s visa application, on the basis that the delegate was not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis, and as such the applicant did not meet the requirements under cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
On 18 February 2019, the applicant lodged a review application with the Tribunal.
On 27 January 2021, the Tribunal invited the applicant to provide further information in writing by 10 February 2021 including:
·when the medical treatment undertaken by the applicant ended or was due to end; and
·evidence indicating that the applicant had a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
On 28 January 2021, the applicant responded to the Tribunals’ invitation to provide further information and provided a letter dated 28 January 2021 and various medical reports and other documents.
On 19 February 2021, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled on 17 March 2021. The applicant agreed to attend a joint hearing with her husband, who had applied for a visa as the applicant’s support person, and who made a separate application for merits review.
On 9 March 2021, the applicant forwarded further medical documents to the Tribunal.
On 17 March 2021, the applicant and her husband appeared before the Tribunal however, the hearing was adjourned, due to the applicant having a medical episode.
On 28 May 2021, the Tribunal invited the applicant and her husband to a resumption of the hearing on 15 June 2021.
The applicant and her husband appeared before the Tribunal on 15 June 2021. The Tribunal also received oral evidence from the applicant’s sister and parents. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
On 16 June 2021, the Tribunal affirmed the decision under review.
On 14 July 2021, the applicant lodged an Application for judicial review.
THE TRIBUNAL’S DECISION
At [7] - [8], the Tribunal set out the evidence given to the Department of Home Affairs and the delegate.
At [10] - [30], the Tribunal set out the evidence given to the Tribunal, which can be summarised as follows:
·The applicant and her husband are from Fiji. They have lived in Australia since March 2014. Neither the applicant nor her husband have returned to Fiji since arrival.
·The applicant’s parents and sister are residing permanently in Australia, and she has no immediate family in Fiji.
·The applicant and her husband do not own property in Fiji, have no other assets or enduring connections in Fiji.
·The applicant was seeking medical treatment for various physical and psychological complaints. Most pressingly she developed a neurological problem and commenced seeing a specialist in 2018.
·The applicant was unable to say when either of these medical conditions will be resolved.
·The applicant’s husband indicated that he wishes to return to Fiji when the applicant is well enough in order to restart their lives there.
·The applicant’s sister indicated that following a recent appointment with the neurologist they are confident that the applicant’s condition can be resolved and indeed she is already showing some signs of improvement. The applicant’s sister further indicated it might take approximately two years to for the applicant’s condition to stabilise.
At [31], the Tribunal outlined the issues in the present case as “whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”.
At [32], the Tribunal noted that cl 602.212 of the Regulations requires the applicant to meet one of the seven alternative sub criteria in clauses 602.212(2) – (8) in order for a person to visit or remain in Australia temporarily for medical treatment or related purposes. The Tribunal noted that relevant to this matter was cl 602.212(6), which relates to an applicant being medically unfit to depart Australia. The Tribunal summarised the requirements of clause 602.212(6) of the Regulations as requiring the applicant to:
• [currently be] in Australia
• [have] turned 50
• [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, and
• [be] medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.
At [34], the Tribunal noted that there was no suggestion of any of the other alternative sub criteria contained in clauses 602.212(2) – (8) to be relevant in the applicant’s case.
At [34], the Tribunal noted that the available evidence indicated that the applicant was born on 19 January 1986. Thus, the applicant is 35 years of age, and therefore the applicant can not meet the requirements of cl 602.212(6) of the Regulations.
The Tribunal noted at [35] – [36] that as it found that the applicant was not medically unfit to depart Australia, as per cl 602.212(6) of the Regulations, therefore the requirement under cl 602.215 applies. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal noted that it must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter.
At [37], the Tribunal accepted that the applicant was undergoing medical treatment in Australia, however based on the available medical evidence before it, there was no clear indication as to when either her psychological or neurological treatment will conclude. Nor was there information before the Tribunal to support that the applicant could not access similar treatment in Fiji. Of particular concern to the Tribunal was that the applicant indicated during the Tribunal hearing that she will only return to Fiji when all her problems are resolved.
At [39], the Tribunal concluded that the applicant’s intention to return to Fiji did not persuade the Tribunal’s concerns regarding the applicant’s apparent strong motivation and incentives to remain in Australia long term.
The Tribunal noted at [40], that given the medical information before it and the applicant’s frail presentation, the Tribunal formed the impression that the applicant was a physically and emotionally vulnerable person in apparent need of a high level of emotional support. The Tribunal was not persuaded on the available evidence that the applicant would receive the same level of support from in Fiji as she currently receives from her own family in Australia. This resulted in the Tribunal forming the view that the applicant remained highly motivated to remain in Australia and that her stated intentions of returning to Fiji were not genuine.
At [41], after carefully considering the available information and having regard to the applicant’s vulnerabilities, the Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly, the Tribunal found that the applicant does not meet the requirements of cl 602.215 of the Regulations.
At [43], The Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances three grounds of judicial review contained in an Originating Application filed on 14 July 2021. They are as follows:
• The Administrative Appeals Tribunal relied on extensive medical report yet failed to recognise me as a person who needs medical treatment visa.
• The Tribunal failed to accept that after completing my treatment in Australia I will depart Australia and that I have a genuine intention to honour my medical treatment plan then to depart Australia.
• The Tribunal decision is not reasonable and it is a denial of natural justice and fairness.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. She was assisted by an interpreter. The applicant’s sister assisted in interpreting, with the leave of the Court. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and that the first respondent’s written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she wish to do so.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case, prior to the hearing. At the hearing, the Court was provided with a written letter from the applicant’s sister. The Court accepted this as submissions. However, to the extent that it raised fresh material, this was ignored.
The Court was informed that that applicant has now been diagnosed with multiple sclerosis and requires specialised medical attention, including medication, that is not available in Fiji.
The Court was asked if it could grant the applicant some sympathy and allow her to stay in Australian with her immediate family, and receive the benefit of medical treatment not available in Fiji.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground One
The first respondent submits that if by ground one, the applicant contends the Tribunal did not correctly consider the requirements for the visa, then ground one misconstrues those requirements. The Tribunal’s written reasons reveal that it correctly identified the requirements to be satisfied and the relevant considerations for the grant of the visa. Further, in essence, ground one appears to be a complaint about the ultimate conclusion of the Tribunal and is not demonstrative of jurisdictional error.
The task the Tribunal set itself was first to determine whether the applicant satisfied the criteria in subclauses 602.212(2) - (8) of the Regulations; and second, to determine whether the applicant had a genuine intention to stay temporarily for the purpose of the visa as set out in clause 602.215 of the Regulations.
It is trite that the meaning of legislative provisions depends upon the text of the provisions in their context: BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97 at [53] (Mortimer and Wigney JJ) referring to Taylor v Owners of Strata Plan No. 11564 (2014) 253 CLR 531 at [65]–[66].
In SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ said (at [14]):
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the … purpose, that meaning must be rejected.
In the present case, when clauses 602.215 and 602.212 of the Regulations are read together, it is clear that if the applicant could not satisfy cl 602.215(1), then the only way the applicant could satisfy the criteria for the visa was if the applicant satisfied cl 602.212(6). This is because, by reason of cl 602.215(2), only that subclause was a recognised exception to the temporary entrant criterion in cl 602.215(1).
Clause 602.215 of the Regulations provides that:
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 medical records of the applicant were not the only evidence considered by the Tribunal, nor the only evidence relevant to whether the applicant may satisfy cl 602.215 of the Regulations. Whilst acknowledging the applicant's medical condition and evidence in support of her medical treatment, the Tribunal referred to additional evidence given by the applicant relevant to the requirements of cl 602.215. Having regard to that evidence, the Tribunal was not satisfied that the applicant "genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted".
The Tribunal’s ultimate finding that the applicant did not have a genuine intention to stay temporarily was clearly open on the evidence before it, including the applicant's oral evidence and that of the applicant’s husband, and as such, no error is disclosed in the Tribunal's reasoning.
Ground Two
The first respondent submits that by ground two, the applicant cavils with the Tribunals findings and seeks an impermissible merits review: SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641 at [18]. Ground two raises no jurisdictional error.
Ground Three
It was submitted that in ground three, the applicant contends that the Tribunals decision was legally unreasonable. The Tribunal’s conclusion that it was not satisfied that the applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”, was logically open to it based on the evidence before it, particularly the Applicant's visa history [7], her family ties to Australia and her oral evidence before the Tribunal [18]-[19]. The characterisation of a decision as legally unreasonable is not easily made and no such error is disclosed by the Tribunal's reasoning and findings in the present case: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]-[35].
The applicant further contended that she was denied procedural fairness, however no such legal error is demonstrated. The Tribunal invited the applicant to provide further information in regard to two issues of concern it raised with her and the applicant did so, she was given prior notice of the hearing date (both the first hearing and the adjourned hearing), attended the hearings and provided information/evidence and submissions to the Tribunal.
CONSIDERATION
In Djokovic at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
Ground One
Ground one is a claim that the Tribunal relied upon extensive medical reports but failed to recognise the applicant as a person who needs medical treatment. The Tribunal set out at [10] – [20] the various medical evidence that was before it. At [37] the Tribunal found that, while the applicant is undergoing medical treatment in Australia there was first, no indication when that treatment would resolve, and second no evidence that the treatment she required was not available in Fiji.
The Tribunal concluded however that it was satisfied the applicant had a strong motivation to remain in Australia, given half her immediate family reside here and the superior medical treatment available to the applicant in Australia.
Having found that the applicant did not intend to genuinely remain in Australia for the purposes of medical treatment, the Tribunal was correct to conclude the applicant did not meet the requirements of cl 602.215 of the Regulations. This is a finding that was open to the Tribunal based on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational or legally unreasonable in this finding. Ground one has no merit.
Ground Two
Ground two simply expresses vehement disagreement with the factual findings of the Tribunal. It does not allege any jurisdictional error. Ground two has no merit.
Ground Three
Ground three is an allegation of unreasonableness and a denial of natural justice. As to the latter part of that ground, no particulars are provided as to how it is that the applicant was denied natural justice, or procedural fairness.
If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The Court has perused the Tribunal decision record and the relevant Court Book. There is nothing to indicate there was any breach of the procedural fairness rules by the Tribunal. The Court notes that due to the applicant collapsing at an initial Tribunal hearing, the matter was adjourned to another date to allow the applicant to appear before the Tribunal. That aspect of ground three has no merit.
The last aspect of ground three is a bare assertion of unreasonableness. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (Li) (2013) 297 ALR 225 (“Li” at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76].
The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Having read the decision as a whole, along with the supporting evidence the Court is satisfied there is nothing legally unreasonable, irrational or illogical in the conclusion arrived at by the Tribunal. It was open to the Tribunal on the evidence before it and for the reasons it gave. Ground three has no merit
The Court has some personal sympathy for the applicant given her young age and her unfortunate diagnosis of multiple sclerosis. However, as explained to the applicant during the hearing, the Court must put aside feelings of sympathy and apply the law. In this case, that means the application must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 1 July 2025
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