SZTWV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3266

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWV v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3266

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicant met the criteria for a medical visa – whether the applicant genuinely intended to stay temporarily in Australia – no arguable case for the relief claimed – application dismissed.

Legislation:

Migration Regulations 1994 (Cth) sch.2 cls.602.2, 602.212, 602.215

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:

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

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 221 CLR 1

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

NADH of 2001 & Ors v Minister for Immigration and Multicultural and

Indigenous Affairs (2004) 214 ALR 264

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001)

205 CLR 507

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Applicant: SZTWV

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 835 of 2019

Judgment of: Judge Emmett

Hearing date: 13 November 2019

Date of Last Submission: 13 November 2019

Delivered at: Sydney

Delivered on: 13 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 835 of 2019

SZTWV

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 3 April 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 26 March 2019 (“the Tribunal”). 

2. The applicant confirmed that she had attended a directions hearing with an interpreter on 2 May 2019. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.

3. At that directions hearing the first respondent was given leave to return to the matter to the Court's list for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the grounds of the application did not disclose an arguable case for the relief sought. The matter was otherwise set down for a callover on 26 August 2020.

4. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal's decision is affected by a mistake going to its jurisdiction. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. I further explained to the applicant that, under the Rules of this Court, where the application does not disclose an arguable case for the relief sought, the application may be dismissed forthwith.

5. Relevantly, r.44.13(1) of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. By letter dated 7 August 2019, the first respondent requested that the matter be listed for a show cause hearing. Accordingly, on 12 August 2019, the callover on 26 August 2020 was vacated, the applicant was directed to file and serve written submissions by 31 October 2019 and the matter was set down for a show cause hearing pursuant to r.44.12 of the Rules today before me.

7. The applicant was unrepresented before this Court although had the assistance of an interpreter. 

8. The applicant confirmed this morning that she had not filed any other document either in accordance with the directions made by the Court or otherwise, and that she had no further documents to provide to the Court this morning. 

9. The applicant confirmed that she continued to rely on the grounds of her initiating application, filed on 3 April 2019.

10. The grounds of review upon which the applicant relies are as follows:

    “1. I am a Chinese citizen and have a genuine intention for subclass 602.

    2. AAT refused my review simply because they concerned my intention without any evidence.

    3. I don't think I have been fairly treated by AAT and Department of Home Affairs in regards to my 602 visa application as I desperately need medical treatment in Australia.”

11. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever she wished in support of those grounds. 

12. The applicant had nothing to say in support of Ground 1 and Ground 2. In support of Ground 3, the applicant said that she had not been treated fairly because she needs medical treatment.

13. In support of her application generally the applicant stated that she has a genuine intention but no money for the treatment and that her husband and child are here so she wishes to stay in Australia.

14. Ground 1 does not identify any issue capable of demonstrating jurisdictional error. It is no more than a bare unparticularised assertion.

15. Ground 2 asserts that the Tribunal refused the applicant’s review essentially without any evidence. The Tribunal's decision record does not support that assertion.

16. The Tribunal noted that the applicant's application was for review of a decision made by a delegate of the first respondent (“the Delegate”) refusing the applicant a grant of a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (“Medical Treatment Visa”). The applicant applied for the Medical Treatment Visa on 8 December 2017. The decision of the Delegate refusing the applicant's Medical Treatment Visa application was made on 8 January 2018.

17. The Delegate found that the applicant was attempting to obtain a Medical Treatment Visa to maintain ongoing residence in Australia, to continue working in Australia and to access services in Australia.

18. On 25 January 2018, the applicant lodged an application for review by the Tribunal of the Delegate’s decision. On 25 March 2019, the applicant attended a hearing before the Tribunal to give evidence and present arguments. The applicant had the assistance of an interpreter at that hearing.   

19. The Tribunal noted that the Medical Treatment Visa for which the applicant had applied is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The Tribunal identified the issue before it as to whether the applicant genuinely intends to stay temporarily in Australia.

20. Clause 602.2 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) states that all applicants must satisfy the primary criteria at the time a decision is made on the application.

21. The primary criteria includes cl.602.215 of the Regulations, as follows:

    “(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. 

22. The Tribunal considered whether the applicant met cl.602.212(6) of the Regulations, all of which must be met. The Tribunal noted that clause cl.602.212(6) of the Regulations required the applicant be in Australia; have turned 50; have applied for a permanent visa in Australia and have met all criteria for that visa other than the health criteria but had been refused a visa; and, 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.

23. The Tribunal accepted that the applicant was in Australia at the time the application was made and found therefore that the applicant did satisfy cl.602.212(6)(a) of the Regulations. The Tribunal found that on the evidence before it the applicant had not yet turned 50 years of age and therefore the applicant did not satisfy cl.602.212(6)(b) of the Regulations.

24. The Tribunal found, in those circumstances, that the requirements of cl.602.212(6) of the Regulations were not met and noted that the applicant was not medically unfit to depart Australia.

25. Therefore, the Tribunal found that cl.602.215 of the Regulations applied. The Tribunal then considered the requirements of cl.602.215 of the Regulations which provide that the applicant has complied substantially with the conditions to which her last substantive visa or any subsequent bridging visa; and, whether or not the applicant intends to comply with the conditions to which the Medical Treatment Visa would be subject.

26. Evidence of intended medical treatment was provided by the applicant in support of her Medical Treatment Visa application in Form 1507. That Form had the name of the applicant's medical practitioner and identified the applicant's medical condition and treatment information as follows:

    “Details of Treatment

    4. Medical condition requiring treatment

    GORD

    Dysmenorrhoea

    5. Treatment information

    1. GORD – on PP1 for referral for Endoscopy (Dr. Robert Cheng)

    2. Dysmenorrhoea – review by Dr. Wei Li (Gynaecologist)”

27. In particular, the Tribunal noted that the applicant’s treating medical practitioner, Dr H Yin, wrote on Form 1507 that the applicant had been referred for an endoscopy and that she had been reviewed by a gynaecologist. The Tribunal noted that the applicant said at the hearing that she did not have the endoscopy but was taking medication instead and that she wished to see whether the medication worked. The Tribunal noted that the applicant said she had been taking the medication on and off and confirmed that she did see a gynaecologist who told her that she has a mild condition affecting the lining of her womb for which she uses a cream from time to time.

28. The Tribunal put to the applicant that China has a well-developed health system and asked if there was any reason why she could not obtain the medication in China. The Tribunal noted the applicant's response that she did not know if the required medication would be available to her. The Tribunal also put to the applicant that based on her evidence she sees a doctor from time to time to obtain a cream and medication; she has no treatment arranged; and, that it is possible she would be able to obtain any required medication in China. The Tribunal put to the applicant that, therefore, she is unlikely to satisfy the requirements for the Medical Treatment Visa.

29. The Tribunal noted the applicant's response that no treatment had been arranged for the time being but that she still has a fear and would like to be given an opportunity to remain in Australia.

30. The Tribunal then noted the applicant's migration history in detail as follows:

    “The applicant confirmed the history as outlined in the Decision Record. It states that she first came to Australia on 25 April 2007 on a Student visa subclass 571 and has never left. She was granted a further Student visa subclass 571 onshore. When it ceased in March 2009, she remained in Australia unlawfully for almost four years. The record states that she applied for a Protection visa-subclass 866 on 29 January 2013. Her child, who was born in Australia in May 2013, was included on the Protection visa application. Her application was refused and the decision was affirmed by the then Refugee Review Tribunal in January 2014. On 18 February 2014, the visa applicant sought judicial review and in October the same year, the Federal Circuit Court dismissed the appeal. The applicant's attempt to seek Ministerial Intervention was not considered and she was notified of the unfavourable outcome on 24 March 2015. She remained in Australia unlawfully for a further two years. The Decision Record states that the applicant and her child were granted a further Bridging visa E to facilitate departure. However, they did not depart and on 8 December 2017, the applicant lodged an application for a Medical Treatment visa.”

31. The Tribunal put to the applicant that given her migration history, that she had been unlawful for two periods amounting to some six years; and given her oral evidence that no specific medical treatment had been arranged, the Tribunal could not be confident that she would depart should a Medical Treatment Visa be granted. The Tribunal noted the applicant's response that she did not know what to say and then stated that she wanted to be a good person, even though she was unlawful for two periods, and apologised for having done so.

32. Ultimately, the Tribunal accepted that the applicant had been diagnosed with the two conditions referred to in her application. The Tribunal also considered the applicant's migration history and found that it indicated a wish to remain in Australia. The Tribunal further found that the applicant was prepared to ignore Australia's migration laws and had not provided any evidence that further treatment had been arranged.

33. Based on those findings, the Tribunal found that the requirements in cl.602.215 of the Regulations had not been met and accordingly affirmed the decision under review.

34. A fair reading of the Tribunal's decision record discloses the basis for its conclusions. Essentially that the applicant failed to meet a mandatory criterion of the Medical Treatment Visa, being cl.602.215 of the Regulations, and that the applicant had provided no evidence that further treatment had been arranged.

35. The Tribunal put to the applicant matters of concern that it had about her review application and noted her responses.

36. In the circumstances, the Tribunal's findings were open to it on the evidence and material before it and for the reasons it gave. The Tribunal's findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issues before the Tribunal and which it identified. Those findings were not tainted by any failure to afford procedural fairness or findings without a logical or probative basis or unreasonableness and were not without an intelligible justification and were made in a procedurally fair manner (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

37. For the same reasons, Ground 3 does not demonstrate any unfairness on the part of the Tribunal. 

38. Whilst not identified as a ground of application, the applicant also asserted as follows: 

    “Department of Home Affairs and AAT have strong prejudice to my application and suspect my geniuses without any evidence which is totally unacceptable.”

39. I understand that ground to be an allegation of bias. Such an allegation is serious and usually requires evidence, such as a transcript of the Tribunal hearing. The applicant was given an opportunity to file evidence in support, including any transcript of the Tribunal hearing. The applicant did not do so and in the circumstances, the Court is entitled to accept the Tribunal's decision record as accurately reflecting the matters to which it referred as taking place at the hearing in the absence of any evidence of the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

40. A fair reading of the Tribunal's decision record does not suggest that the Tribunal approached its task other than with a mind open to persuasion.  There is no evidence upon which a fair-minded lay observer properly informed as to the nature of the proceeding, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

41. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

42. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision, and similarly, the mere fact that that the Tribunal makes adverse findings in respect of an applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached its task other than with a mind open to persuasion. (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

43. Otherwise, the applicant's complaints are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints seek merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

44. In the circumstances, whilst I make no final decision as to whether or not the Tribunal's decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal capable of establishing error and none is apparent on the face of the Tribunal's decision record. The Tribunal referred to the relevant law affirming the decision under review. 

45. In the circumstances, I am not satisfied that the application has an arguable case for the relief claimed. Accordingly, in the exercise of the Court's discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application, filed on 3 April 2019, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 14 November 2019