SZVUO v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 505
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZVUO v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 505
File number: SYG 1697 of 2022 Judgment of: JUDGE LAING Date of judgment: 16 June 2023 Catchwords: MIGRATION - application for summary dismissal – review of a decision affirming refusal of a medical treatment visa – whether the substantive application before the Court lacks reasonable prospects of success – application dismissed pursuant to r 13.13(a) Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth) ss 359, 359B, 359C, 360, 379A, 379C
Migration Regulations 1994 (Cth) r 4.17
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41
Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 8 June 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared in person Solicitor for the Respondents: Ms M Tidy of Sparke Helmore Lawyers ORDERS
SYG 1697 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZVUO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The application filed on 18 November 2022 be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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 LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
The Minister has made an application for summary dismissal, pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
For the following reasons, I accept that it would be appropriate to dismiss the application for judicial review.
BACKGROUND
The applicant is a citizen of India who arrived in Australia in 2013 as the holder of a Tourist (Subclass 600) visa. In July 2013, the applicant applied for a protection visa which was refused on 23 January 2014. The applicant unsuccessfully sought Tribunal and judicial review.
On 27 October 2021, the applicant applied for the medical treatment visa that is the subject of these proceedings. The Delegate refused that application on 8 November 2021.
On 23 November 2021, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 7 October 2022, the Tribunal invited the applicant to provide information as follows:
You are invited to provide the following information in writing:
•The nature of the medical treatment proposed for you.
•What arrangements have been concluded to carry out the treatment?
•What arrangements have been concluded for the payment of all costs related to the treatment?
•Whether the medical treatment referred to in your Form 1507 (Evidence of Intended Medical Treatment) has commenced, and if so, has it concluded or when is it due to conclude?
An applicant for a Subclass 602 Medical Treatment visa must meet the requirement that he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Noting that your application was made on 27 October 2021, that your application form stated that you wished to remain in Australia for the purpose of undergoing medical treatment from 29 October 2021 to 18 December 2021 and that you have been in Australia since 5 May 2013, please provide any evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The deadline for receipt of the information was stated as 21 October 2022. The correspondence noted the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant did not provide the information within the prescribed period. No extension was requested or granted.
On 24 October 2022, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[8] of its decision, including its invitation to provide information and the lack of response. At [8], the Tribunal stated:
8.The review applicant did not provide the information within the prescribed period and no extension was requested or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
At [10]-[11], the Tribunal set out the issue before it as follows:
10.The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.
11.Relevantly to this matter cl. 602.215 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.
The Tribunal found that the requirements of cl 602.212(6) were not met. In this regard, the applicant did not appear to have met all criteria, other than the health criteria, for any permanent visa. Nor was there any suggestion that the applicant had been relevantly certified as being medically unfit to depart Australia (at [12]-[14]).
In relation to the question of whether the applicant met cl 602.215, the Tribunal reasoned at [17]-[23]:
17. With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, the only medical evidence provided by the applicant is the Form 1507 provided by Dr [redacted] which stated that the applicant required treatment for depression with anxiety. The doctor indicated that he was being treated with Citalopram tablets. Further, in his application form the applicant stated that he would be under medical care from 29 October 2021 to 18 December 2021.
18. The applicant did not respond to the Tribunal's invitation to provide information regarding the nature of the medical treatment proposed for him, what arrangements had been concluded to carry out the treatment and for the payment of all costs related to the treatment, whether the medical treatment referred to in his Form 1507 had commenced, whether it has concluded or when it was due to conclude. Nor did the applicant provide any evidence supporting his claim that he had a genuine intention to stay temporarily in Australia for the purpose of medical treatment, noting that in his application form, he stated that he would be under medical care from 29 October 2021 to 18 December 2021.
19. The applicant's failure to provide relevant information about his medical treatment has led the Tribunal to conclude that he does not genuinely intend to stay temporarily for the purpose for which the visa is granted.
20. The Tribunal's concern in this regard is compounded by the applicant's migration history. Departmental records show that, since his arrival in Australia on a Tourist visa in May 2013, the applicant applied unsuccessfully for a permanent Protection visa for which he unsuccessfully sought merits and judicial review.
21. There is no evidence that the applicant did not comply with the conditions of his last substantive visa, the Tourist visa he held in 2013 and there is no evidence he has failed to meet the conditions of his various bridging visas.
22. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). There is no evidence that the applicant intends to study while in Australia and the Tribunal accepts the applicant will comply with condition 8201. However, given that the applicant's previous applications for a permanent Protection visa, which he pursued through to judicial review, the Tribunal considers that the applicant has a strong motivation to remain in Australia. The Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.
23. Having considered these matters cumulatively, including the applicant's migration history which shows a motivation and intention to remain in Australia permanently, the lack of evidence of any concluded arrangements for medical treatment and his failure to depart at the end of the period originally sought for medical treatment, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal concluded that the applicant did not meet cl 602.215. Accordingly, the Tribunal affirmed the Delegate’s decision (at [24]-[26]).
SUMMARY DISMISSAL: SOME RELEVANT PRINCIPLES
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides as follows:
143 Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.
Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.
Rule 13.13 of the Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether there is a real or genuine dispute as to any material fact(s) upon which the Court may reasonably find for the non-moving party: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41 at [6]; AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] and Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7].
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 18 November 2022. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The Tribunal's decision was effected by jurisdictional error in that the Tribunal did not allow me to present my case before the Tribunal. The Tribunal failed to satisfy statutory obligation was serious jurisdiction caused by the Tribunal.
2. The Tribunal fell into jurisdictional error misinforming itself as to the true nature of the Applicant's evidence and thereby incorrectly dealt with the evidence.
3.The Tribunal denied me procedural fairness.
Grounds 1 and 3
Grounds 1 and 3 contended that the Tribunal failed to allow the applicant to present his case, failed to satisfy its statutory obligations and denied the applicant procedural fairness.
As the Minister submitted, however, the Tribunal’s procedural fairness obligations were limited under Part 5 of the Migration Act 1958 (Cth) (Act).
I accept that the applicant was not invited to attend a hearing before the Tribunal. However, the applicant’s entitlement under s 360 of the Act to attend a hearing before the Tribunal was lost in circumstances where the applicant did not respond within the required period to the invitation to provide information that was issued under s 359 of the Act: ss 359C(1) and 360(2)(c) of the Act.
The invitation to provide information complied with the requirements of s 359(3) of the Act, in that it was given by one of the methods specified in s 379A (i.e. by email to the last address the applicant had provided in connection with the review). The applicant was therefore taken to have received the invitation by the end of the day on 7 October 2022: s 379C. He was provided with the minimum prescribed notice period of 14 days: r 4.17 of the Regulations. The invitation otherwise appears to have complied with the requirements of s 359B of the Act. The applicant did not respond to the invitation. The Tribunal was therefore not required to invite the applicant to a hearing and in fact possessed no power to do so: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [29].
Having regard to the above, I am unable to ascertain in the materials any arguable basis for finding that the applicant was denied the opportunity to present his case, or denied procedural fairness, in accordance with the provisions of the Act. No such basis has been identified by the applicant. I therefore accept the Minister’s contention that grounds 1 and 3 do not have reasonable prospects of success.
Ground 2
Ground 2 contended that the Tribunal misinformed itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the evidence.
Apart from what was set out in the Delegate’s decision, the evidence before the Tribunal appears to have been limited to the application form for the visa and a Form 1507. As the Tribunal set out accurately in its decision, the Form 1507 was signed by a doctor and stated that the applicant required treatment for depression with anxiety, which was being treated with Citalopram tablets (at [3] and [17]). The visa application form indicated that the applicant would be under medical care from 29 October 2021 to 18 December 2021 (at [17]-[18]).
No arguable basis has been identified for finding that it was closed to the Tribunal to have considered that this evidence, when considered together with the applicant’s migration history and lack of response to the Tribunal’s request for further information, was insufficient to satisfy the Tribunal that the applicant genuinely intended to stay temporarily in Australia for the purposes of the visa. From my own review of the materials, I have not identified any arguable basis for finding that this reasoning was closed to the Tribunal or reflected any misunderstanding on the part of the Tribunal of the evidence that was before it.
I therefore accept the Minister’s submission that ground 2 does not have reasonable prospects of success.
Further submissions at hearing
At the hearing, the applicant explained that he did not have enough money for medical treatment. I am not unsympathetic to this submission. However, as I explained at the hearing, this Court is unable to overturn the Tribunal’s decision based upon compassionate grounds.
When questioned further about how the Tribunal’s conduct was said to have been procedurally unfair, the applicant submitted that he had been affected psychologically and that he had been unable to do anything in circumstances where he had no money and no one to assist him. I have considered whether this might give rise to any ground of review that may have reasonable prospects of success.
Ultimately, however, I am not persuaded this is the case. The applicant did not contend that he was medically incapable of participating in the review before the Tribunal. There is no indication in the material before me that such a suggestion was made to the Tribunal. As explained above, the applicant’s right to a hearing before the Tribunal was lost by reason of his lack of response to the Tribunal’s correspondence. The applicant emphasised that he would be unable to provide any evidence to the Court in respect of his medical condition, as he could not afford to see a doctor.
In these circumstances, it seems to me that adjourning this matter to a final hearing would result in the applicant being exposed to greater costs in pursuit of an application that has no reasonable prospects of success. This does not seem to me to be an appropriate course to take.
CONCLUSION
For the foregoing reasons, I find that the application for judicial review should be dismissed pursuant to r 13.13(a) of the Rules.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 June 2023
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