Singh v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 213

Federal Circuit and Family Court of Australia

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 213

File number:

SYG 2827 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

22 March 2023

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – single ground of review invite impermissible merits review.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Division:

Division 2 General Federal Law

Number of paragraphs:

35

Date of last submission/s:

16 March 2023

Date of hearing:

16 March 2023

Place:

Parramatta

Counsel for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Ms Roberts

ORDERS

SYG 2827 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SANDEEP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	22 March 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5000.00.

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 HUMPHREYS

Introduction

1. The applicant is a citizen of India. He has a significant migration history. He arrived in Australia in 2009 as the holder of a Student (Subclass 572) visa. He has subsequently applied for and was refused a Subclass 485 Skilled visa, another visa and a Medical Treatment visa.

2. On 18 September 2017, the applicant applied for a further Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (“Medical Treatment visa”). On 4 October 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Medical Treatment visa.

3. The applicant applied for merits review of the delegate’s decision to the Administrative Appeals Tribunal (“the Tribunal”) on 24 October 2017. On 17 September 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant his Medical Treatment visa.

4. The applicant now seeks judicial review of the Tribunal’s decision.

   The administrative appeals tribunal decision

5. Paragraphs 1 to 5 of the Tribunal’s decision record provides background to the applicant’s Medical Treatment visa application.

6. Paragraphs 6 to 10 deal with the question of whether the applicant is unfit to depart from Australia. The Tribunal highlighted cl 602.212(6) of Schedule 2 to the Migration Regulations 10994 (Cth) (“the Regulations”) which relates to the applicant being medically unfit to depart Australia and requires that the applicant:

   a.   Be in Australia;

   b.   Have turned 50 years old;

   c.   Have 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

   d.   Is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

7. The Tribunal found that the applicant was in Australia at the time of the application. Evidence before the Tribunal indicated that the applicant was 31 years of age. This was confirmed by the applicant. Therefore, the applicant did not satisfy cl 602.212(6)(b) of Schedule 2 to the Regulations. As cl 602.212(6) was not met, cl 602.215 applied to the applicant’s visa application.

8. Clause 602.215 of Schedule 2 to the Regulations requires that the applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. At paragraphs 12 and 13, the Tribunal considered the applicant’s background. The applicant sought the Medical Treatment visa for the period of 18 September 2017 to 10 October 2019 for the treatment of depression. A medical certificate from his General Practitioner, dated 16 September 2017, stated that the applicant suffered from anxiety and depression and that he would receive counselling and medication. The estimated costs of treatment were $8,000.00. In a statutory declaration dated 18 September 2017, the applicant referred to his depression. The applicant provided a copy of a letter from a registered psychologist, dated 1 September 2018, that an initial assessment was undertaken on 11 November 2017 and four additional session had been undertaken. The applicant’s symptoms were consistent with adjustment disorder relating to his mother being severely ill. Cognitive Behaviour Therapy was considered the appropriate treatment strategy.

9. At paragraph 14, the Tribunal states that it did not find the applicant to be a credible witness. The Tribunal noted inconsistencies between the written and oral evidence of the applicant in respect of his treatment by his psychologist and in relation to the treatment of his mother’s “claimed kidney condition”.

10. The Tribunal referred to the applicant’s previous visa applications since 2009, including a Graduate visa, another visa, and a previous Medical Treatment visa. Each of these application had been unsuccessful and at various stages the applicant had sought to review the refusal decisions and then appeal the review decisions to the Federal Courts. The applicant also sought Ministerial Intervention which was not successful. The Tribunal noted that the applicant has not been the holder of a substantive visa since 15 March 2011 and instead has held various Bridging visas since 26 February 2013. The Tribunal also noted that the applicant has remained in Australia at times unlawfully.

11. The applicant told the Tribunal that he had previously had problems with a Migration Agent, who had been found to be fraudulent. During various visa application processes, he said that he sometimes worked as a forklift driver. When asked when the last time he worked was he “mumbled in 2015”, but then said he was unable to remember.

12. The applicant told the Tribunal that his mother provides money for him from time to time. The applicant said that his mother gives rupees to friends when they visit India and when they return to Australia they give the applicant Australia dollars. When asked how much his mother given him, the applicant said that it was inconsistent. He also stated that his brother supports him financially and pays his rent.

13. Written evidence before the Tribunal indicated that the applicant’s mother had kidney issues and that she was going through dialysis. When asked about her condition, the applicant said that she suffered from high blood pressure and had a kidney infection. The applicant told the Tribunal that the doctors are trying to control his mother’s kidney issues with medication and that she may need dialysis, but that the treatment is only available in a city 400km away. When questioned about the inconsistency in the written evidence and the applicant’s oral evidence, the applicant said that she was having dialysis and that the main issue was that she was sick.

14. When the Tribunal raised its concerns with applicant regarding the inconsistencies in his evidence, he told the Tribunal that he recognised that he gave inconsistent evidence but the reality was that his mother was sick.

15. When asked why the applicant had not returned to India, he stated that it was because he got sick. The Tribunal asked the applicant when he was diagnosed with anxiety and depression but he responded that he did not remember. The applicant told the Tribunal that he had been seeing a psychologist every month, or “at least nine or ten times so far”. When asked about why the written evidence suggested that he had only attended five times, he stated that he had been prescribed some session and that he was very stressed.

16. At paragraph 23, the Tribunal considered the applicant’s statutory declaration of 18 September 2017 which stated the applicant would need to attend weekly appointments with a psychologist. The Tribunal noted this raised further doubts as to the applicant’s credibility when compared with the psychologist’s notes that stated he had only attended five times over a period of time.

17. At paragraph 24, the Tribunal noted that part of assessing whether the applicant genuinely intends to stay temporarily in Australia requires consideration of whether he has complied with visa conditions. The Tribunal noted that the applicant remained in Australia unlawfully for a few weeks in 2011 and for a few days in 2013.

18. The applicant told the Tribunal that all he wants to do is get better and look after his mother. He has land in India and can get involved in farming. The applicant stated that he was uncertain who could look after him if he returned to India in his current condition. He also mentioned that his age was increasing and his mother wanted him to return to India to settle down and that this was another reason why he would return home.

19. At paragraph 30, the Tribunal accepted that the applicant’s mother suffered from high blood pressure and had a kidney infection, however it was not satisfied that her condition was an incentive for the applicant to return to India. The Tribunal accepted that the applicant has property in India and that his mother would like for him to marry, but it was not convinced that these factors supported claims that he would return to India after his visa ceases. The Tribunal noted that the ownership of the land has not previously been an incentive for him to return and no claims were made concerning the arrangements for any marriage.

20. As the Tribunal was not satisfied that the applicant planned to return to India upon the completion of his Medical Treatment visa, it was not satisfied that he would comply with condition 8503 and cl 602.215 was not met.

    Grounds of judicial review

21. The applicant was given leave to file an amended application through orders made on 29 October 2018. However, the applicant has not filed any amended application. The applicant’s single ground of judicial review is contained within his initial application filed on 5 October 2018. The ground is as follows as it appears in the application:

    1.   The Tribunal Member misunderstood my case and attacked my credibility and failed to consider the seriousness of my illness and that I have a genuine intention to stay temporarily in Australia for medical treatment reasons.

    The applicant’s submissions

22. The applicant appeared before the Court unrepresented. The applicant was assisted at times by an Interpreter.

23. At the beginning of the hearing, the Court confirmed that the applicant had received the relevant Court Book and a copy of the first respondent’s written submissions. The Court explained to the applicant that it was undertaking judicial review and not merits review, and the difference between the two.

24. Despite Court orders requiring the filing of written submissions before the hearing, the applicant did not provide any written submissions. At the hearing the applicant sought leave to hand up a two page document which the Court accepted as submissions. No objection was taken to this by the legal representative for the first respondent.

25. The first paragraph of the document merely repeated the assertion contained within the single ground of judicial review. The second paragraph asserted the reason he had not attended the additional psychological sessions was that he did not have permission to work and as a result was unable to continue his counselling. The third paragraph asserted the Tribunal failed to give his case proper and intellectual consideration. No particulars in support of this assertion were provided. He claimed he did not attend further counselling sessions due to circumstances beyond his control. He continues to suffer mentally and has a strong incentive to return to India. In reply he stated that the Tribunal should have believed the treating doctor.

    The first respondent’s submissions

26. The first respondent submitted that the applicant’s single ground of judicial review variously alleges that the Tribunal misunderstood the applicant’s case, attacked his credibility, failed to consider the seriousness of his illness, and failed to consider that he had a genuine intention to stay temporarily in Australia for medical treatment reasons. It was submitted that, taken at its highest this seeks impermissible merits review.

27. There has been no attempt to explain how the Tribunal misunderstood the applicant’s case and the Tribunal accurately summarised the documentary evidence before it and the oral evidence given at the Tribunal hearing.

28. The assertion that the Tribunal failed to consider the seriousness of the applicant’s illness is misguided as it was not required to make a finding in this regard. The issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment.

29. In dealing with the question of the applicant’s genuine intention to stay temporarily, the Tribunal considered the documentary evidence that he required weekly psychologist sessions and the evidence that he had only attended five times. It also considered the applicant’s failure to comply with the conditions of a Subclass 602 visa and his migration history.

    Consideration

30. The applicant has been in Australia since 2009 as the holder of a Student visa.  Since the expiration of that visa, he has actively pursued a course of applying unsuccessfully for a number of different visas, including now a second Medical Treatment visa. On two occasions he has remained unlawfully in Australia, albeit for very brief periods of time.

31. The applicant’s sole ground of judicial review amounts to no more than a vehement disagreement with the outcome arrived at by the Tribunal and invites the Court to undertake impermissible merits review: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).

32. The Court is satisfied that the adverse credit findings arrived at by the Tribunal were open to it on the evidence and materials before it and for the reasons it gave.  Those findings are not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness: (see; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).

33. The Court rejects the applicant’s assertion that the Tribunal failed to give the applicant’s claims proper and intellectual consideration.  The explanation now proffered by the applicant as to why he did not attend the balance of his psychologist sessions is not supported by any evidence that circumstances changed. The initial evidence was that the applicant’s brother would pay for the applicant’s medical treatment.

34. The Court can detect no error in the manner in which the Tribunal went about its task. The Court is not satisfied that the applicant has raised any matter that would constitute jurisdictional error on the part of the Tribunal

    CONCLUSION

35. Accordingly, the application is dismissed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       22 March 2023