Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1135
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1135
File number(s): MLG 7 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for judicial review – Medical Treatment (Subclass 602) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant did not satisfy cl 602.215 of sch 2 of the Migration Regulations 1994 (Cth) – where certain grounds raised by applicant seek impermissible merits review – where certain grounds raised by applicant entirely unparticularised – whether Tribunal failed to consider the adverse impact of its decision on the applicant – found Tribunal had regard to relevant information and circumstances – found no jurisdictional error on behalf of the Administrative Appeals Tribunal. Legislation: Migration Act 1958 (Cth) ss 359A, 360(1), 360A, 474, 476.
Migration Regulations 1994 (Cth) sch 2, cl 602.212, 602.215.
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Ethnic Affairs v Wu Shang Laing (1996) CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2106] FCA 760
Yaacoub v Minister for Immigration & Anor [2019] FCCA 3185
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 28 August 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Daly of Mills Oakley ORDERS
MLG 7 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HIRDEPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 22 December 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,100.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 22 December 2022 for judicial review of a decision made by the second respondent (Tribunal) on 22 November 2022 affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Subclass 602) visa (Visa).
CONTEXT
The applicant is a citizen of India who arrived in Australia on 19 June 2014 on a Student (Subclass 573) visa.
After the applicant entered Australia, he applied for a further Student (Subclass 500) visa which was refused on 2 November 2017. The applicant sought review of that decision and the Tribunal affirmed the decision on 26 April 2019. On 23 May 2019 the applicant sought judicial review of the Tribunal’s decision, however withdrew his application on 20 September 2021.
On 18 October 2021 the applicant applied for a Medical Treatment (Subclass 602) visa to undertake medical treatment. In his Visa application and accompanying Form 1507, the applicant identified a “need to have COVID vaccine before he travel[s] back to India” as the medical condition requiring treatment.
The relevant statutory requirement for the grant of the Visa is that the applicant satisfy clause 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) which 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.
For the purposes of clause 602.215(2), subclause 602.212(6) of Schedule 2 of the Regulations provides:
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 evidence by a written statement to that effect from a Medical Officer of the Commonwealth.
On 19 October 2021 the Department of Home Affairs (Department) sent an invitation to the applicant to comment on “unfavourable information that may lead to a decision to refuse your application”. The Department identified that the amount of time the applicant had already spent in Australia gave rise to concerns over his intention to be a genuine temporary entrant and his incentive to return to his home country. The information was identified as follows (without amendment):
Department Records demonstrate that:
The applicant initially entered Australia on 19 June 2014 as the holder of a Student (Subclass 573) Visa. Since entering Australia the applicant has only departed for a period of 37 days.
After the applicant entered Australia he applied for a Student (Subclass 500) Visa which was refused on 02 November 2017. The applicant sought review of the Department’s decision and the AAT affirmed the decision on 26 April 2019.
The applicant then sought judicial review which was commenced on 23 May 2019 however the applicant withdrew on 20 September 2021. The applicant now makes an application for a Medical Treatment Visa.
The applicant was given seven days in which to provide a response in writing to this information. The applicant responded to the invitation with a short written statement which outlined the only reason he applied for the Visa was “to get my both COVID vaccinations so that it is safe for me to travel”.
On 2 November 2021 a delegate of the first respondent (delegate) refused to grant the Visa. After setting out the applicant’s migration history in Australia, the delegate found that the applicant was not a genuine temporary entrant and concluded:
In their medical Treatment visa applicant, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future.
Departmental records confirm that the applicant has unsuccessfully applied for a further visa onshore and has taken every opportunity to present their case or circumstances for review. I find that their migration history along with the amount of time spent in Australia strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.
I have considered the claims made. In the absence of additional evidence as requested, I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintain ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.
I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.
Further, the delegate found the applicant did not satisfy subclause 602.212(6) as he had not demonstrated that he was unfit to depart Australia.
On 22 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision. In the application for review, the applicant authorised a registered migration agent as their representative and nominated the email address <[email protected]> (migration agent’s email address) for correspondence and provided the mobile number ‘04xx xxx xxx’.
In correspondence from the Tribunal dated 24 November 2021 confirming receipt of his application, the applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 12 October 2022 the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to attend a telephone hearing on 22 November 2022 at 12.30pm and with an information sheet attached. The applicant participated in and gave evidence during the hearing without his representative and without the assistance of an interpreter.
On 22 November 2022 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa. On the same day, the Tribunal sent a copy of its decision and reasons to the migration agent’s email address.
THE TRIBUNAL’S DECISION
After setting out the procedural history of the review application, the applicant’s immigration history and the applicant’s oral evidence at hearing, the Tribunal set out the requirements in clause 602.215 and clause 602.212 of Schedule 2 to the Regulations.
Clause 602.212 – unfit to depart Australia
As to clause 602.212(6), the applicant did not provide a copy of the written statement that complied with clause 602.212(6)(f). The Tribunal found clause 602.212(6)(f) of the Regulations did not apply because there was “insufficient evidence” to make a finding that the applicant was 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”.
The tribunal also found that the applicant was born on 2 August 1994 and therefore clause 602.212(6)(b) did not apply because the applicant was under the age of 50.
Clause 602.215 – genuinely intends to stay temporarily
The Tribunal noted the applicant had been in Australia for approximately eight years and had only returned home on one occasion for approximately one month. The Tribunal found this gave weight to the contention that the applicant was seeking to maintain residence in Australia and is not a genuine temporary entrant.
The Tribunal noted the applicant stated he was consulting with his doctor in India, and found the applicant submitted no evidence that he had been receiving any medical treatment in Australia for a lengthy period of time or had plans to seek medical treatment.
The Tribunal found that there was no evidence before it that the applicant had plans to leave Australia.
The Tribunal found there was no additional documentation or information before it that was not before the delegate. The Tribunal considered the documents submitted to the delegate and found no evidence supporting that the applicant was gravely ill or receiving intensive or critical care, or that the applicant needed to remain in Australia for ongoing consultation. Moreover, the Tribunal found no evidence that the applicant had a current consultation or plans for future consultation.
Lastly, the Tribunal found the applicant submitted no information that the treatment the applicant was seeking was unavailable outside of Australia or in the applicant’s home country.
The Tribunal concluded that the applicant was attempting to utilise the Medical Treatment visa pathway as a means to maintain ongoing residence, and that the applicant did not genuinely intend to remain in Australia on a temporary basis and therefore had not satisfied clause 602.215 of Schedule 2 of the Regulations.
Accordingly, the Tribunal affirmed the decision not to grant the applicant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 22 December 2022.
The Application contains the following 7 grounds for judicial review (without amendment):
1.The applicant seeks judicial review of the decision of Administrative Appeal Tribunal in this matter on the grounds that the Tribunal erred jurisdictionally in determining the application adversely and failed to find that applicant satisfied the relevant provisions of the Migration Act 1958 and Migration Regulations 1994.
2.That as an applicant I felt my application has not been dealt rationally and decided unfairly and has affirmed the refusal under cl 602.215 of Subclass 602 of Medical Visa
3.That cl 602.215 deals with the Genuine Temporary Entrant Criteria
4.That the Tribunal has not reviewed file properly and has not given fair chance to represent my application in order to justify the Genuine Temporary Entrant criteria.
5.That Tribunal has made an error and did not consider genuine intention and has not given any weightage to my personal ties back home.
6.That Tribunal has failed to consider that affirmation of Department of Home Affair’s decision has adversely affected me both financially and in context of loss time which has not only hampered my career progression but my mental health too.
7.That I submit that the Tribunal has failed to consider a potential explanation and provision of Visitor 600 refusal. That the tribunal decision is made contrary to the Natural justice by not giving me due chance to present my case and evidence in support of application. Also, by not considering my previous and current circumstances.
The Application was supported by an affidavit dated 22 December 2022 which annexed the Tribunal’s decision.
The Minister filed a Response on 31 January 2023 and submissions on 10 August 2023 on which it relies.
The hearing
The hearing took place on 28 August 2023. The applicant was self-represented.
At the hearing of this matter, the applicant was invited to elaborate on the grounds for judicial review and sought to add the following matters for consideration of the Court:
(a)in relation to ground 1, the applicant submitted that he required a COVID-19 vaccination to travel to India and further submitted that the Tribunal erred in affirming the decision to refuse the Visa;
(b)in relation to ground 6, the applicant submitted that he was studying and required some further time to complete his studies; and
(c)in relation to ground 7, the applicant submitted that he would be grateful for additional time to complete his studies.
These submissions do not advance the applicant’s case and invite the Court to embark on impermissible merits review. As I endeavoured to explain to the applicant at the hearing, the Court is unable to re-make the factual findings that were made by the Tribunal. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang).
The applicant was unable to otherwise particularise the grounds of the Application, nor articulate the errors, failures or unfairness asserted in the grounds for judicial review.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
By ground 1 the applicant asserts that the Tribunal erred by determining his application adversely and failing to find that he satisfied the requirements for the grant of the Visa. Ground 1 simply expresses disagreement with the Tribunal’s decision. Ground 1 therefore does not assert any jurisdictional error by the Tribunal but rather, seeks that this Court undertake impermissible merits review: Liang at [272].
Accordingly, ground 1 discloses no jurisdiction error on behalf of the Tribunal.
Ground 2
By ground 2 the applicant asserts that the Tribunal did not deal with his application rationally or fairly. This ground is entirely unparticularised and the applicant was unable to provide any further articulation of this ground at the hearing. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16). Further, by this ground the applicant appears to simply express disagreement with the Tribunal’s decision and seek impermissible merits review: Liang at [272]. Additionally, the procedure adopted by the Tribunal was fair. On 12 October 2022 the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to attend a telephone hearing on 22 November 2022 at 12.30pm. The applicant participated in and gave evidence during the hearing.
Ground 2 discloses no jurisdictional error by the Tribunal.
Ground 3
Ground 3 merely states that clause 602.215 deals with genuine temporary entrant criteria. It does not allege any jurisdictional error by the Tribunal.
Ground 4
By ground 4 the applicant asserts that the Tribunal did not review the “file properly” or provide him with a “fair chance to represent my application.” This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW; BDE16. Further, the applicant was unable to provide any further articulation of this ground at the hearing, nor identify what information the Tribunal had not reviewed or how he was not provided with a fair opportunity to prosecute his application. Additionally, the Tribunal’s decision indicates that the Tribunal did, in fact, review the applicant’s file and, as already set out, the procedure adopted by the Tribunal was fair.
Ground 4 also discloses no jurisdictional error by the Tribunal.
Ground 5
As to ground 5, it is unclear what error the Tribunal is asserted to have made and the applicant was unable to provide any articulation or particularisation of the asserted error at the hearing. As to the assertion that the Tribunal did not consider the applicant’s genuine intention and did not give any weight to the applicant’s personal ties to India, that submission is rejected. The Court accepts that the Tribunal does not expressly refer to the applicant’s personal ties to India. However, I accept the submission of the Minister that it is to be inferred from paragraphs [13], [25], [27] and [29] of its decision that the Tribunal was aware the applicant had family overseas but was not satisfied that this was sufficient to overcome its concerns regarding the applicant’s migration history and lack of any evidence that the applicant had engaged in any medical treatment since his Visa application was lodged.
The Tribunal in its decision:
(a)at paragraph [13] refers to the applicant’s evidence regarding his arrival in Australia, his studies, his length of stay in Australia and the fact that he has only returned to India once in the eight years he has been here;
(b)at paragraph [25] refers to these matters once again, noting that the applicant has been in Australia for approximately eight years and has only returned home once, finding that these factors, in conjunction with the applicant’s visa history, lend weight to the contention that the applicant is not a genuine temporary entrant;
(c)at paragraph [27] notes that there is no documentation before it that was not before the delegate; and
(d)at paragraph [29] states that it has considered the claims and supporting evidence that the applicant has provided.
In addition, at paragraphs [26] and [27] of its decision the Tribunal addresses the applicant’s medical treatment and notes that the applicant is not receiving any medical treatment in Australia but is, in fact, consulting his doctor in India. It also notes that there is no evidence that the applicant plans to seek medical treatment in Australia, is gravely ill or receiving critical care or must remain in Australia for ongoing consultation. It also notes at paragraph [26] that there is no evidence that the applicant has plans to leave Australia.
In light of the above, the Tribunal concluded at paragraph [30] that the applicant is attempting to use the Visa as a means to maintain ongoing residence and does not intend to genuinely stay in Australia on a temporary basis.
Accordingly, the Tribunal considered the applicant’s ties to India and the other matters set out above and concluded that the applicant does not intend to genuinely stay in Australia on a temporary basis. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
Ground 5 therefore discloses no jurisdictional error on behalf of the Tribunal.
Ground 6
As to ground 6 the applicant contends that the Tribunal failed to consider the adverse impact of its decision on the applicant. At the hearing the applicant submitted that he has missed some units of study.
Having determined that the applicant did not meet the criteria in clause 620.212(6) of Schedule 2 of the Regulations, the Tribunal was required to determine whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the Visa is granted, having regard to the criteria in clause 602.215(1) of Schedule 2 of the Regulations. The Tribunal correctly applied the criteria under clause 602.215(1). The Tribunal had regard to the applicant’s information and circumstances at the time and the evidence and material before it. There is no error in the approach taken by the Tribunal. As to the submission that the applicant has missed some units of study, this material was not before the Tribunal at the time it made its decision and is therefore irrelevant: Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at [29]. Further, the Court cannot grant the applicant the Visa he seeks on compassionate or discretionary grounds: Yaacoub v Minister for Immigration & Anor [2019] FCCA 3185 at [34].
Ground 7
As to ground 7, at the hearing the applicant was unable to articulate what “potential explanation” the Tribunal had failed to consider or particularise how the Tribunal denied the applicant an opportunity to present his case and evidence or what circumstances the Tribunal failed to consider. This alone is a sufficient basis upon which to dismiss this ground: WZAVW; BDE16. Further, as already set out, the procedure adopted by the Tribunal was fair. On 12 October 2022 the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to attend a telephone hearing on 22 November 2022 at 12.30pm. The Tribunal therefore complied with its obligations under s 360(1) and s 360A of the Act. Additionally, the applicant participated in and gave evidence during the hearing. There was also no information before the Tribunal that enlivened its obligations under s 359A of the Act, noting that whilst the applicant’s immigration history may have undermined his claim to meet the genuine temporary entrant criterion, that information fell within the exception in s 359A(4)(b) as it was set out in the delegate’s decision which the applicant provided to the Tribunal for the purpose of his application for review: Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [74] (citing with approval Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, [26]). Finally, in its decision at paragraphs [6] – [14] the Tribunal sets out the applicant’s claims and evidence, and after having determined that the applicant did not meet the criterion of clause 602.212(6) of Schedule 2 of the Regulations, applied those matters to the criterion in clause 602.215(1) in an entirely orthodox manner.
Accordingly, Ground 7 discloses no jurisdictional error on behalf of the Tribunal.
It follows that none of the grounds advanced by the applicant disclose any jurisdictional error on the Tribunal behalf.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
The Minister seeks that the applicant pay its costs and at delivery of this judgment sought costs in the amount of $6,100. This amount is below the scale amount for such proceedings. Accordingly, I shall order the Minister’s costs fixed in the amount of $6,100 be paid by the applicant.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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