SZVIP v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1267

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

SZVIP v Minister for Immigration and Citizenship [2025] FedCFamC2G 1267

File number(s):

SYG 1721 of 2021

Judgment of:

JUDGE CLEARY

Date of judgment:

8 August 2025

Catchwords:

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied genuine temporary entrant criteria for purpose of visa – applicant did not satisfy cl 602.212(6) – whether decision was decision was legally unreasonable - no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) Sch 2 cls 602.212(6), 602.215

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Vo v Minister for Home Affairs [2019] FCAFC 108

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of hearing:

30 July 2025

Place:

Parramatta

Applicant:

In person

Solicitor for the Respondents:

Mr J. Fyfe of Minter Ellison

ORDERS

SYG 1721 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SZVIP

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	8 AUGUST 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,900.

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 CLEARY

INTRODUCTION

1. The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 24 August 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa) under s 65 of the Act.

   FACTUAL BACKGROUND

2. On 7 June 2019, the applicant lodged an application for a medical treatment visa.

3. On 2 July 2019, a delegate of the first respondent refused to grant the applicant the visa on the basis the applicant did not satisfy cl 602.215 to Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), or that the applicant was unfit to travel (cl 602.212(6) of the Regulations).

4. On 17 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

5. On 29 July 2021, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 18 August 2021.

6. On 18 August 2021, the applicant and her representative appeared before the Tribunal via telephone.

7. On 24 August 2021, the Tribunal affirmed the decision under review not to grant the applicant a medical treatment visa.

   TRIBUNAL’S DECISION

8. The Tribunal identified that the two main issues before it were whether the applicant intends to stay in Australia temporarily (cl 602.215) and whether the applicant is unfit to travel
   (cl 602.212(6)).

9. The Tribunal took the applicant through the delegate’s decision, which included her visa history, and invited her to make comments on it. The Tribunal also had regard to information relevant to the material issue on review, on both the Department and Tribunal files, together with the applicant’s oral evidence, oral submissions made by her migration agent and any other relevant matters.

10. The Tribunal considered whether the applicant had a genuine intention to stay temporarily for the purpose of the medical treatment visa, as required by cl 602.215 of the Regulations. This requirement would not apply if the applicant was unfit to depart Australia, satisfying all of the requirements as described in cl 602.212(6)(a)-(f).

11. In determining whether the applicant demonstrated a genuine intention to stay in Australia temporarily it considered:

    (a)whether the applicant had complied substantially with the conditions attached to her last substantive visa, or bridging visa, she had held;

    (b)whether the applicant had an intention to comply with the conditions to which the visa would be subject;

    (c)whether the applicant is attempting to obtain the visa to remain in Australia for a longer period to maintain ongoing residence in Australia;

    (d)whether the applicant’s personal circumstances would encourage her to return to her home country at the end of the proposed stay, including whether she has family members and community ties there;

    (e)if the applicant’s personal circumstances in Nepal might encourage her to remain in Australia , including whether she has family or community ties in Australia; and

    (f)any other conditions that might give the applicant an incentive to remain in Australia.

12. When asked how long the applicant intended to stay in Australia, the applicant stated she understood the visa was temporary but provided vague answers as to her future plans or length of time she was intending to stay.

13. The applicant stated she could not return to Nepal on the basis of her pregnancy and told the Tribunal she is taking medication for depression, although she previously stated she had stopped taking the medication in April 2021. The applicant stated that she would not be able to get treatment in Nepal and that she is getting good treatment in Australia.

14. The Tribunal was willing to accept that the applicant may not receive the same standard of treatment in Nepal as she does in Australia, however, the applicant had provided no evidence indicating that a citizen of Nepal could not return there and avail themselves of appropriate medical treatment. The Tribunal checked with the applicant at the hearing whether she wished or intended to provide medical evidence indicating that she would be ‘unfit to depart’ Australia and the applicant, through her representative, confirmed she would not be providing evidence of her being unfit to travel.

15. After consideration of all matters, individually and cumulatively, the Tribunal was not satisfied that the applicant intends her stay in Australia to be temporary.

16. The Tribunal, at [23] of its decision, set out the relevant criteria of cl 602.212(6)(a)-(f) of the Regulations, which the applicant was required to meet.

17. Clause 602.212(6)(b) requires an applicant to have turned 50. The applicant, born in 1983, did not meet this requirement. As the applicant did not meet cl 602.212(6)(b), it is not necessary for the Tribunal to consider whether she meets the remaining requirements in
    cl 602.212(c)-(f). For the sake of fairness, the Tribunal checked if the applicant wished or intended to provide evidence to indicate she was unfit to travel (cl 602.212(6)(f)). The Tribunal found the requirements in cl 602.212(6) were not met.

18. The Tribunal affirmed the decision not to grant the applicant a medical treatment visa.

    PROCEEDINGS IN THIS COURT

    Judicial review application and procedural orders

19. On 10 September 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 24 August 2021. The application contains two (2) grounds of review. They are (as written):

    1.The Tribunal had evidence about my pregnancy and that I am due to give birth on or about 21 January 2022 yet failed to accept that I do genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted. Under my current circumstances the Tribunal failed to make a decision and grant me the visa as unfit to depart especially during the lockdown and closure of international airport and Covid-19.

    2.The Tribunal's decision is unreasonable as it was made contrary to the evidence provided.

20. On 12 February 2025, the Court invited the applicant to attend a call over hearing on 27 February 2025. The applicant did not appear, and the application was dismissed for

    
    

    non-appearance, pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).

21. On 19 March 2021, the applicant lodged an application to have the proceedings reinstated (reinstatement application).

22. On 20 May 2025, a Registrar of this Court made an Order that the reinstatement application be allowed. The Orders included that both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.

23. On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 30 July 2025.

    Hearing on 30 July 2025

24. At the hearing of this matter on 30 July 2025, the applicant appeared unrepresented with the assistance of a Nepalese interpreter. Mr J. Fyfe of Minter Ellison appeared for the first respondent.

25. At the commencement of the hearing, I allowed the Court Book, which contained the Tribunal’s decision and other documents that were before the Tribunal, together with the applicant’s affidavit in support of his application to be admitted as evidence.

26. I then invited the parties to make final oral submissions. I took the applicant through each of the two (2) grounds of review in her application and asked her if she wanted to make any submissions about them, and to tell the Court why he considered the Tribunal’s decision was wrong. The applicant filed in Court (with leave and the consent of the first respondent) a 2 page outline of written submissions.

27. Mr Fyfe made brief oral submissions addressing the written submissions the applicant had filed in Court. The applicant’s written submissions addressed factual errors and conclusions made by the Tribunal, and, as Mr Fyfe correctly submitted, these were matters this Court does not have jurisdiction to consider by reason of, amongst other cases, the Full Court decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).

    CONSIDERATION

28. To obtain the relief sought the applicant must prove that the Tribunal’s decision is vitiated by jurisdictional error that is, a serious legal error, results in an administrative decision lacking any legal force: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] and LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] (LPDT). In most cases, to constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].

29. As I explained to the parties at the hearing, courts have a limited role in judicial review proceedings: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]. In reviewing the Tribunal’s decision, the Court does not consider the merits of the Tribunal decision: Djokovic.

30. Below the Court sets out its consideration of the two grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.

    Ground 1

31. Ground 1 asserts that the Tribunal failed to accept the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted, despite the evidence about her pregnancy. The applicant contends the Tribunal failed to make a decision and grant the visa as she was unfit to depart, especially during the lockdown, closure of international airport and Covid-19.

32. At the hearing on 30 July 2025, I gave the applicant an opportunity to explain orally what she meant by this ground. As I outlined above, the applicant handed up a written submission, which I read. She told the Court she relied upon the content of the document in support of her application. In summary, that document set out her complaint about a number of the factual findings made by the Tribunal, in particular the findings that the applicant was not unfit to travel as per the relevant Regulations, namely, cl. 602.212(6)(a)-(f).

33. The first respondent submitted that ground 1 merely contained a disagreement with the factual conclusions of the Tribunal decision and should be rejected.

34. The Tribunal at [12] to [18] of its decision considered whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, pursuant to cl 602.215 of the Regulations. The Tribunal found the applicant did not genuinely intend to stay temporarily in Australia. The Tribunal also found that she was not unfit to depart Australia (as that is defined by cl 602.212(6)(a)-(f) of the Regulations) because she did not satisfy sub-clause 6 (b) - she was not over the age of 50 years. These findings are factual findings made by the Tribunal which this Court has no jurisdiction to review.

35. Ground 1 does not identify any jurisdictional error and can be characterised as being a disagreement with the factual findings and conclusions of the Tribunal. Disagreement with the Tribunal’s findings and conclusions does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, at [40] per Gleeson CJ and McHugh J; see also Vo v Minister for Home Affairs [2019] FCAFC 108, per Derrington, Banks-Smith and Colvin JJ.

36. Ground 1 must be dismissed.

    Ground 2

37. Ground 2 does not contain an arguable jurisdictional error. It asserts the decision was unreasonable and contrary to the evidence. It is also not particularised.

38. It is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]-[45] and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (SZGUR).

39. However, it will rarely be appropriate to dismiss a review ground in a migration case for lack of particularisation where, as here, the applicant is appearing on her own behalf: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]. In those circumstances, I gave the first applicant an opportunity to explain orally what she meant by this ground.

40. I asked the applicant at the hearing what “evidence” she was referring to in ground 2. She told the Court she was referring to her oral evidence about her pregnancy in 2021.

41. For the reasons given above, the findings made by the Tribunal were open on the evidence before it. There was nothing unreasonable about the findings, nor were they “contrary” to evidence. Ground 2 does not establish jurisdictional error.

42. For completeness, at paragraph 7 of her written submissions, the applicant claimed that at the time of the hearing in the Tribunal she was suffering from mental health issues and was confused. At the hearing before me, the applicant re-iterated the complaint in paragraph 7.

43. The first respondent, in oral submissions, made the following submissions on this matter. First, he submitted the applicant was assisted by an interpreter and represented by a migration agent at the Tribunal hearing. Second, there is no evidence in the Tribunal decision that the applicant told the Tribunal Member at the hearing that she was ill or confused about the proceedings. Third, there is no basis in paragraph 7 for establishing jurisdictional error.

44. I agree with the first respondent’s submissions. There is no evidence to support what the applicant has said in paragraph 7 of her written submissions. The only evidence of what occurred at the Tribunal is the decision itself, and it does not reveal any complaint by the applicant that she was not able to participate in the hearing because she was ill or confused. The Court is entitled to accept the Tribunal's decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1.

45. Ground 2, like ground 1, contains no more than a general disagreement with the Tribunal’s findings. Mere disagreement with the Tribunal’s findings does not establish jurisdictional error.

46. Ground 2 does not establish the Tribunal committed jurisdictional error.

    DISPOSITION

47. For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114].

48. The application is dismissed.

    COSTS

49. The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $5,900 which is less than scale amount under Schedule 2 to the Rules. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order for costs in this amount.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       8 August 2025