Zayed v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1210
•11 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zayed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1210
File number(s): SYG 912 of 2021 Judgment of: JUDGE MARQUARD Date of judgment: 11 August 2025 Catchwords: MIGRATION – Decision of Administrative Appeals Tribunal to refuse medical treatment visa – whether medical evidence not considered – whether failure to consider treatment in home country – whether Tribunal should have made further enquiries – whether procedural fairness denied – application dismissed- procedural issue – admissibility of new medical evidence Legislation: Australian Constitution (Cth) s 75
Migration Act1958 (Cth) ss 29, 31, 65, 351, 359A, 360, 474, 476
Migration Regulations 1994 (Cth) sch 2 cll 602.211, 600.212, 600.215
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Bala v Minister for Immigration and Border Protection [2019] FCA 600
Craig v State of South Australia; (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
ETA067 v Republic of Nauru (2018) 360 ALR 228
Hamod v New South Wales [2011] NSWCA 375
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Pasha v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 907
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Servos v Repatriation Commission (1995) 56 FCR 377
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 87
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
SZJMG vMinister for Immigration and Citizenship [2008] FCA 1145
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
Division: Division 2 General Federal Law Number of paragraphs: 158 Date of hearing: 19 June 2025 Place: Sydney Applicant: Litigant in person Solicitor for the First Respondent: Ms K Pieri of MinterEllison Lawyers Second Respondent: Submitting save as to costs ORDERS
SYG 912 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YASEEN AZZAM ARIF ZAYED
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
11 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Citizenship.
2.The application filed on 24 May 2021 is dismissed.
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 Marquard
Overview
By way of application filed 24 May 2021, the applicant has applied for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) dated 14 May 2021. The Tribunal, in that decision, affirmed a decision of a delegate of the first respondent, the Department of Home Affairs (the Department) dated 22 March 2019 not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa.
In order to succeed in the application, the applicant must demonstrate jurisdictional error in the decision of the Tribunal.
For the reasons that follow the application is dismissed.
Background
The applicant is a citizen of Jordan (Court Book (CB) 32).
He first arrived in Australia on 9 October 2005 as the holder of a Student (Subclass 570) visa (CB 104).
The applicant was granted several student visas between 2005 and 2012 (CB 101-104). His last substantive visa was a (Class TU) (Subclass 572) student visa (vocational education and training) granted on 30 March 2012 and ceasing on 15 March 2013 (CB 101). Since March 2013 the applicant has remained in Australia on various bridging visas (CB 101-103). According to the Department’s decision (CB 71) he applied for a temporary visa on 22 February 2013 and then ‘unsuccessfully sought various avenues of review for this refused application.’ According to Departmental records, the applicant applied for two permanent visas between 10 April 2013 and 7 July 2014 which were not granted and the applicant ‘unsuccessfully sought various avenue of review’ (CB 71). The records show that between 15 January 2014 and 3 April 2018 the applicant unsuccessfully sought Ministerial Intervention on two occasions (CB 71).
On 8 February 2019, the applicant lodged an application with the Department for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa which was deemed invalid on 11 February 2019 (CB 71).
On 4 March 2019, the applicant again made an application for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (CB 17). He stated that he sought to remain in Australia for treatment from 6 March 2019 to 28 May 2019 (CB 18). He described his medical treatment as follows (reproduced without alteration) (CB 19):
‘I have several mdical conditions – colonic polyp(s) – colon tumour – and adjustment disorder with depression/anxiety. I am scheduled for a medical assessment and colonoscopy’.
Provided with his application was a Form 1507, ‘Evidence of Intended Treatment’ (CB 28). In this form Dr Durmush stated that the treatment sought was ‘colonoscopy’. The applicant also provided to the Department a letter from Dr Ismail dated 27 February 2019 stating that the applicant was suffering from (reproduced without alteration) ‘ongoing colon habbit issues for which he did had colonoscopy in 2006.’ The doctor said that he was the applicant’s financial supporter and that the applicant was booked for a colonoscopy in April 2019, and that if the applicant travelled to Jordan he would not be able to afford a colonoscopy (CB 72).
On 22 March 2019, the Department refused to grant the Medical Treatment (Visitor) (Class UB) (Subclass 602) visa. The delegate of the Department was not satisfied that the applicant intended to stay in Australia temporarily for the purpose for which the visa was granted. The Department was not satisfied therefore that the applicant met the criteria in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 69).
On 3 April 2019, the applicant sought review of the Department’s decision with the Tribunal (CB 73). On the same day, the Tribunal acknowledged the applicant’s application for review. The applicant was invited to provide material or written arguments for the Tribunal to consider (CB 90).
On 13 April 2021, the applicant was invited to attend a Tribunal hearing scheduled on 10 May 2021 to take place by Microsoft Teams owing to the COVID-19 pandemic. He was also invited to provide documents on which he intended to rely (CB 111 to 113).
The applicant provided to the Tribunal a letter dated 19 April 2021 from Dr Ismail stating that the applicant was bankrupt and the doctor supported him. The doctor reported that the applicant had been ‘booked for a colonoscopy on 29 April 2019,’ which he did not attend. The doctor also reported that the applicant was suffering from complex psychological issues but that later ‘he felt better’. Dr Ismail said that psychological treatment was better in Australia than Jordan and the applicant needed treatment for two years (CB 130 to 131).
The applicant also provided to the Tribunal a letter from a psychiatrist, Dr Alhajali, dated 18 October 2020, reporting that the applicant suffered ‘chronic mental illness in the form of Obsessive Compulsive Disorder’. The doctor reported that his mental state was stable, ‘with ongoing obsessions and anxiety despite being treated with anti-depressants.’ Dr Alhajali said that the applicant’s condition was largely stable, and that he would support the applicant’s application for continued treatment in Australia as there was less adequate treatment in Jordan, and because of cultural issues. (CB 136).
On 10 May 2021, the applicant attended a hearing of the Tribunal conducted by Microsoft Teams to give evidence and present arguments. The applicant was assisted by an Arabic interpreter (CB 140).
On 14 May 2021, the Tribunal affirmed the decision of the Department (CB 146).
Tribunal Decision (TD) 14 May 2021 (CB 147-151)
The Tribunal identified that the Department refused to grant the applicant the visa because the delegate of the Department found that the applicant was attempting to utilise the medical treatment pathway as a means of ongoing residence and also found that he did not genuinely intend to stay in Australia temporarily ([3] of the Tribunal Decision).
The Tribunal noted that the Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes ([6] of the Tribunal Decision).
The Tribunal considered cl 602.211 of Schedule 2 to the Regulations which requires that the applicant seek to visit Australia or remain in Australia temporarily for the purposes of medical treatment or for related purposes. The Tribunal found that the requirements of cl 602.211 were not met ([7-8] of the Tribunal Decision).
The Tribunal also considered cl 600.212 (6) of Schedule 2 to the Regulations which concerns lack of fitness to depart Australia. The Tribunal found that the applicant had not turned 50 and therefore did not meet cl 602.212 (6) ([9-11] of the Tribunal Decision).
The Tribunal then considered cl 602.215 – whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical or related treatment. The Tribunal noted that it was required to consider whether the applicant had complied substantially with the conditions of the last substantive visas held or any subsequent bridging visa, intention to comply with conditions and any other relevant matter: cl 602.215(1)(a) to (c), ([12] of the Tribunal Decision).
The Tribunal found that it was not satisfied that the applicant met cl 602.215 of Schedule 2 to the Regulations taking into consideration cl 602.215 (1)(a) to (c), and for the following reasons ([13] and [15] of the Tribunal Decision):
·The applicant stated in his visa application that he needed to remain in Australia for a colonoscopy in 2019 which he needed, but he did not attend the appointment. He said that he had had colon issues since 2006 and did not attend the appointment because his mental health ‘became bad’;
·The applicant had provided a short letter from a psychiatrist outlining that the applicant had been seeing him for several years. The psychiatrists reported that the applicant was suffering from a compulsive disorder and was on anti-depressants. The applicant told the Tribunal that recently he was getting better. The Tribunal did not ‘receive any indication’ that the applicant was unfit to return to Jordan. The Tribunal did not have an extensive report on his mental health. The applicant was given time to provide further information but did not do so;
·The Tribunal received a letter from Dr Ismail, who said that he was a ‘supporter’ of the applicant, stating that the applicant had psychological issues and did not attend his colonoscopy appointment. Dr Ismail suggested that the applicant needed to stay in Australia for two more years. There was no medical reason as to why the applicant needed to stay for two years. The letter had many spelling mistakes and the appearance of being cut and pasted but the Tribunal accepted that it was a genuine letter;
·The applicant said that he wanted to continue his treatment for a year then return to Jordan. According to independent information, Jordan had a first-class health care system and there was psychiatric treatment and anti-depressant medication available. The applicant said that he came from a poor family and could not afford the treatment. He said that since Syrian refugees were going into Jordan, there was a shortage of medication and COVID was a problem;
·The applicant had applied for so many visas that the Tribunal felt that he was just trying to extend his time in Australia. When this was put to the applicant, he acknowledged that he had applied for many visas, but said he ‘was having issues’. The Tribunal was not satisfied that he intended to depart Australia.
The Tribunal recorded that it had considered all the evidence and concluded that the applicant was ‘wishing to stay in Australia’ and the visa was a way ‘to extend his time’. The Tribunal noted that the applicant had been in Australia since 2005 and applied for many visas. Further, the Tribunal noted that the applicant had not advanced any compelling or compassionate reasons for remaining in Australia. The Tribunal concluded that the applicant did not intend to stay temporarily in Australia and found that he did not meet cl 602.215 of Schedule 2 to the Regulations ([14-15] of the Tribunal Decision).
The Tribunal affirmed the decision of the Department dated 22 March 2019 under review ([17] of the Tribunal Decision).
Proceedings before this Court
Documents filed at hearing
The applicant filed an application for judicial review of the Tribunal Decision in this Court on 24 May 2021.
The applicant raised eight grounds of review in his application. He filed an affidavit with his application, sworn on 21 May 2021, attaching the Tribunal Decision, which was included in documents tendered by the first respondent, so not admitted separately into evidence by the Court.
The applicant filed submissions on 29 May 2025 (Applicant’s Submissions).
The first respondent filed submissions on 13 June 2025 (Respondent’s Submissions).
The applicant appeared before the Court on 19 June 2025 as a litigant in person. Ms Pieri from MinterEllison appeared for the first respondent. An interpreter assisted the Court. The applicant confirmed that he could understand the interpreter. The first respondent tendered the Court Book containing the Tribunal Decision and other documents before the Tribunal which was marked Exhibit R1.
A court has a duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 (Hamod). The touchstone at all times remains that of fairness and a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial (Hamod per Whealy JA at [311] – [313]).
As the applicant was a litigant in person, the Court ensured that the applicant was in possession of the Court Book and the Respondent’s Submissions. The Court also outlined the role and processes of the court and explained that jurisdictional error must be shown if the applicant were to succeed in his application. The Court also outlined some common categories of jurisdictional error, noting that these categories were not exhaustive, and explained that the Court could not engage in reviewing the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272. During the hearing the Court provided the applicant with an opportunity to further particularise the grounds of review and make submissions, in accordance with principles in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7].
New evidence before this Court
In an email dated 29 May 2025, the applicant attempted to file a bundle of documents which was 16 pages long (Supporting Documents). The bundle comprised:
·A document from an organisation called ‘World Obesity’ providing a profile on Jordan’s health system.
·A letter from Dr Barhin to Dr Ali dated 14 November 2023.
·A medical certificate from Dr Ali dated 24 February 2025.
·A medical certificate from A/Prof Weltman dated 6 December 2024.
·A letter from Dr Ali to Dr Barhin dated 10 October 2023.
·A letter from A/Prof Weltman dated 2 October 2024.
·A letter from A/Prof Weltman dated 21 May 2025.
The first respondent objected to the admission of the Supporting Documents on the basis of relevance, as the medical reports and the independent country report had not been before the Tribunal for consideration (Tp 8.5-8). The applicant contended that the documents showed that the Tribunal had made a ‘legal mistake’, as they indicated that he was staying in Australia for the purpose of medical treatment, and his situation was serious and dangerous. He said that if he did not use the laxative this may result in extraction of part of the colon (Tp 6.6-14).
The applicant also produced a 55-page bundle of documents at the hearing which was marked for identification as MFA 1. He confirmed that these were new medical documents, including CT scans, receipts, blood test results and referrals, which were not before the Tribunal and were dated after the Tribunal Decision (except for one, which was a list of medication he was taking at the time) (Tp 6.26-30). He said that the documents in the 55-page bundle evidenced his obsessive-compulsive disorder and why he could not go to Jordan for treatment (Tp 6.37-42 and 7.31-35). He claimed that the documents also evidenced medication he was taking at the time of the Tribunal hearing, and he said that the Tribunal Member did not ask him about this medication (Tp 7.5-16). The first respondent opposed the admission of these document on the basis of relevance, as they were not documents before the Tribunal (Tp 8.5-8).
New evidence, which was not before the Tribunal, is not admissible in this Court unless it bears on some jurisdictional error: SZJMG vMinister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]. The applicant has submitted that the new documents he has provided demonstrate that he had medical conditions and was taking medication at the time of the Tribunal Decision and that this would illustrate that the Tribunal made an error by not accepting that he genuinely intended to stay temporarily in Australia for the purposes of medical treatment.
While the new medical reports and information may well provide evidence of the applicant’s condition, and circumstances in Jordan, they are not relevant to the question of whether the Tribunal fell into jurisdictional error, as the Tribunal could not make determinations based on evidence that was not before it. It appears therefore that the applicant’s purpose in providing these documents to the Court, is to invite reconsideration of the merits of the Tribunal Decision. The documents are not relevant to the issue of jurisdictional error because they were not before the Tribunal. There was also no evidence before this Court that a request was ever made to put any of these documents before the Tribunal (noting that most post-date the Tribunal Decision). It is not open for the applicant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with factual conclusions made by the Tribunal: see Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 cited in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 (MZXHY) per Nicholson J at [8].
The only purpose of admission of the article from the organisation called ‘World Obesity’ providing a profile on Jordan’s health system, is to invite the Court to disagree with conclusions reached by the Tribunal, even if the content in that article is different to the country source quoted by the Tribunal. As was the case in MZXHY, it was not open for the Court to admit the document as fresh evidence and make findings of fact which contradicted the Tribunal (MZXHY at [8]).
For these reasons at the hearing the Court denied the application by the applicant to admit the Supporting Documents and the documents in the 55-page bundle marked MFI 1 into evidence.
Three further documents were sent to the Court by the applicant after the hearing. The first two were emails dated 19 June 2025 and 23 June 2025 from a person called ‘Ibrahim Al-Tawil’. The third document was a report from Dr Alsayed dated 10 January 2019 sent as an attachment in the 23 June 2025 email. The first respondent was invited to make submissions as to the admissibility of these documents. The first respondent consented to the content of the emails being treated as submissions and did not consider it necessary to make submissions in reply. The first respondent objected to the medical report from Dr Alsayed dated 10 January 2019 being filed or read into evidence on the basis that judgment was reserved, and the document was not relevant as it was not before the Tribunal.
The content of the emails dated 19 June 2025 and 23 June 2025 have been treated as submissions. The report of Dr Alsayed was not before the Tribunal and is not relevant to the consideration of jurisdictional error in the Tribunal Decision. It has not been admitted into evidence or considered.
Consideration – was there jurisdictional error in the tribunal decision?
Legal principles relevant to the visa application
The applicant applied to the Department for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa.
Section 29(1) of the Migration Act1958 (Cth) (Act) gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: s 31(1) and s31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act.
The criteria for this type of visa is set out in Schedule 2 to the Regulations.
The Tribunal affirmed the decision of the Department not to grant the visa. The Tribunal was not satisfied that the applicant intended to stay temporarily in Australia for the purpose for which the visa was granted, finding that he did not meet cl 602.215 of Schedule 2 to the Regulations, set out below (compilation date 19 April 2021 - 25 June 2021):
602.215
(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 s subclause 602.212(6) are met in relation to the applicant.
Judicial review by this Court
The applicant has applied for judicial review pursuant to s 476 of the Act.
Section 476 of the Act provides that this court has the same original jurisdiction as does the High Court in relation to migration decisions under s 75(v) of the Constitution. The High Court, under s75(v) of the Constitution has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
A privative clause as defined at s474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that a decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The task of this Court in judicial review is not to undertake a general review, but to consider jurisdictional error and if found, to quash the decision of the Tribunal: Craig v State of South Australia; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17] as follows:
…an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.
The High Court has confirmed that a court cannot consider the merits of the Tribunal Decision: Wu Shan Liang at 272. The Court can grant relief if satisfied that the decision of the Tribunal is affected by jurisdictional error.
The categories of jurisdictional error were considered by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have the jurisdiction to make it”.
The court must review a decision of the Tribunal by reference to the applicant's complaints about that decision: Djokovic at [17]. However, where the applicant is unrepresented, the court must remain astute to jurisdictional error: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) at [100].
Consideration of the grounds of jurisdictional error alleged by the applicant
The applicant specified eight grounds of review in his application and raised new grounds in submissions and at hearing.
After considering each of the grounds, along with new grounds raised in submissions and hearing, the Court has not identified any jurisdictional error, for reasons set out below. In general, the applicant by the grounds articulated appeared to be inviting this Court to engage in merits review, which is impermissible: Wu Shan Liang at 272. Even where there may be disagreement with the merits of a decision, this does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611; at [40]. The Court has also remained alert to other ground of jurisdictional error in the Tribunal Decision, and has not found any such error in the decision.
Ground One
In Ground One the applicant submitted (reproduced without alteration):
The Tribunal Member refused my application for medical treatment visa even though the Tribunal had evidence about my medical condition especially letters from a psychiatrist outlining my condition.
The first respondent contended that this ground asked the Court to engage in impermissible merits review. It does appear from the wording of the ground as expressed, that the applicant is suggesting that a different decision ought to have been made on the evidence, and insofar as this is what is being suggested, the Court cannot engage in merits review: Wu Shan Liang at 272.
The applicant may also be contending that because he had produced evidence about a medical condition, and particularly a medical report, the Tribunal was bound to find that he met the criteria for the visa. This reflects a misunderstanding of the law. In order meet the criteria for a Subclass 602 visa, an applicant must meet several criteria. These include cl 602.215 of Schedule 2 to the Regulations, which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to several matters in reaching a finding (ref cl 602.215(1)(a-c)), not simply the medical evidence.
The applicant has also claimed that evidence was not considered. In the Applicant’s Submissions he contended that the Tribunal did not fully consider the medical reports he provided. At the hearing of this Court, he said that the psychiatrist, Dr Alhajali, was ‘number 2 out of 300 psychiatrists recommended by the Australian government’ (Tp 10.19-23) He queried why the report was not taken into consideration. He said that the Tribunal Member had no right to ‘refuse somebody’ who was accredited and had a provider number (Tp 10.28-33).
The first respondent submitted that the Tribunal considered the psychiatrist’s report ([13] of the Tribunal Decision) and did not question the diagnosis provided by the psychiatrist. To the extent that in this ground the applicant is contending that the Tribunal did not consider relevant evidence, the Tribunal Decision does indeed indicate that the Tribunal considered the applicant’s medical’s evidence and intellectually engaged with it. At [13] of the Tribunal Decision, the Tribunal referred to the reports of the psychiatrist, Dr Alhajali as well as the report of Dr Ismail. These reports were discussed in some detail at [13] of the Tribunal Decision. The Tribunal referred to the letter from the psychiatrist ‘outlining that the applicant is on an anti-depressant and has compulsive disorder’ ([13] of the Tribunal Decision). The Tribunal also referenced the letter from Dr Ismail ([13] of the Tribunal Decision). Although the Tribunal had some concerns about the letter which had many spelling mistakes and looked like it had been cut and pasted, the Tribunal did accept that it was a genuine letter. The Court is satisfied that the Tribunal considered and intellectually engaged with these reports ([13] and [14] of the Tribunal Decision).
To the extent that the applicant is questioning the weight given to the medical reports by the Tribunal, weight was a question for the Tribunal in the discharge of its statutory duty: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11]. Weight to be ascribed to evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, per Brennan CJ, Toohey, McHugh and Gummow JJ at 291 to 292:
The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.
To the extent that the applicant is inferring that the findings were legally unreasonable, the Court notes that the Tribunal set out the correct legislative provisions in [12] and [13] of the Tribunal Decision. The Tribunal then considered the evidence at [13], including matters such as the non-attendance at his medical appointment, failure to provide additional documents despite additional time granted, no medical reason for staying in Australia for a further two years, country information about availability of medical treatment in Jordan, and his migration history ([13] of the Tribunal Decision). After considering these factors, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily ([14] of the Tribunal Decision). The decision therefore had an evident and intelligible justification and could not be said to be legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76]. The issue of legal unreasonableness is discussed further in this judgment in relation to Ground Eight.
Ground One does not disclose any jurisdictional error.
Ground Two
In Ground Two in the application, the applicant contended (reproduced without alteration):
The Tribunal failed to act on the medical reports and failed to accept that I will not be able to receive proper medical treatment if I return to Jordan.
The first respondent contended that in Ground Two the applicant was requesting that the Court engage in impermissible merits review. The first part of this ground is a repeat of Ground One, that the Tribunal did not consider or did not give sufficient weight to the medical reports. Ground One has been considered above and the Court has found that there is no jurisdictional error disclosed by this part of the Ground.
The second part of this ground infers that the Tribunal fell into jurisdictional error by not accepting the applicant’s submissions that he would be unable to receive proper medical treatment if he returned to Jordan.
In the Applicant’s Submissions he referred to an article by World Obesity which he provided to the Court. This document was referred to earlier in this decision. It was not admitted into evidence and has not been taken into consideration by this Court.
The applicant submitted that he had serious concerns about the Jordanian health system and his ability to afford care. At the hearing, he said that he had provided a medical report to the Tribunal which referred to the fact that he was a poor person and his family could not afford health care in Jordan (Tp 10.30-32). He also said that in Dr Alhajali’s report dated 18 October 2020, the doctor referred to ‘less adequate treatment’ in Jordan. He submitted that the Tribunal did not consider that in Jordan, people who see psychiatrists are regarded as ‘crazy’. Dr Alhajali’s report stated ‘I would support his application for continuing treatment in Australia rather than less than adequate treatment in Jordan and due to cultural issues’. The Court Book and Tribunal Decision do not reveal that any other evidence was before the Tribunal of negative attitudes to mental illness in Jordan, other than Dr Alhajali’s comment about ‘cultural issues’.
The issue of attitudes to mental illness was not specifically referred to by the Tribunal in the Decision, however at [13] of the Tribunal Decision, the Tribunal referred to the reports of the psychiatrist, Dr Alhajali and Dr Ismail. These reports were discussed in some detail at [13] of the Tribunal Decision The Tribunal is not required to recite the entire evidence before it: ETA067 v Republic of Nauru (2018) 360 ALR 228 (ETA067) per Bell, Keane and Gordon JJ at [13]. The fact that ‘cultural issues’ as mentioned in Dr Alhajali’s report were not referred to in the Tribunal Decision does not mean that the Tribunal did not consider the issue in the context of consideration of adequate health care in Jordan. Where it is apparent that a decision-maker has read a document in the course of a review, it is likely the decision-maker has read the contents: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 (SZDXZ) per Heerey, Branson and Emmett JJ at [27]. In SZDXZ the Court noted at [29] that the Tribunal may not have referred to evidence because it may have been inconsistent with the Tribunal’s conclusions and that may have been a similar course of action taken by the Tribunal in this matter. The Court in SZDXZ said at [30]-[31]:
[30] In Re Minister for Immigration and Multicultural Affairs; ; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[65] McHugh J (sitting alone) approved the following observations of the Full Court of the Federal Court in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] and [31]:
Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.
[31] In Ex parte Durairajasingham McHugh J at [65] additionally said:
… it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
The Court is satisfied that the medical reports were considered by the Tribunal and that the Tribunal actively engaged with the evidence. In ETA067 Bell, Keane and Gordon JJ at [13], distinguished between omission of reference to evidence, and failure to consider a dispositive issue. The issue raised by Dr Alhajali, ‘less than adequate health care’ was considered by the Tribunal. At [13] of the Tribunal Decision, the Tribunal recorded that it put to the applicant that he would be able to see a psychiatrist in Jordan and depression medication was available in Jordan. The Tribunal recorded the applicant’s response, which was that psychiatrists in Jordan do not use the same techniques as they do in Australia and that he came from a poor family and could not afford the treatment. The Tribunal recorded that the applicant gave oral evidence that since Syrian refugees were in Jordan, there was a shortage of medication and COVID-19 is also ‘a problem’. The Tribunal also referenced a country report which indicated that although there was pressure on the Jordanian health system from Syrian refugees, Jordan has an advanced health care system: [13] of the Tribunal Decision. The Tribunal therefore considered the dispositive issue raised, adequacy of health care in Jordan, and the applicant’s evidence in respect of this issue.
To the extent that in this ground the applicant takes issue with the Tribunal’s conclusions that Jordan has an advanced health care system, based on a country report, this was a matter for the Tribunal. The factual conclusions to be drawn from the evidence, and weight given to the evidence, is a matter for the Tribunal: NAHI at [11].
No jurisdictional error is disclosed in Ground Two.
Ground Three
In Ground Three the applicant contended (without alteration):
The Tribunal filed to contact Dr Kennan Ismail concerning his support and the genuine contents of the letter.
At the hearing the applicant submitted that he had known Dr Ismail since 2008 and he was ‘like a father to him’. He said that Dr Ismail knew everything about him, and the Tribunal should have contacted him as the report he provided included a statement that if the Tribunal needed any further information, they could contact him (Tp 10.45-11.1).
The first respondent contended that the Tribunal was not required to contact Dr Ismail, referring to the decision in Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [187]. In that decision, the court emphasised that the tribunal was not in the position of a contradictor, and it was for the applicant to advance evidence or arguments: Abebe at [187].
Litigants in person may not be familiar with processes of the Tribunal, including when to give evidence. However, the applicant was provided with opportunities to provide evidence at various stages of the Tribunal process. Prior to the hearing, on 3 April 2019, the applicant was invited to provide material or written arguments for the Tribunal to consider (CB 90). On 13 April 2021 the applicant was invited to attend a hearing of the Tribunal on 10 May 2021 and was also invited to provide documents on which he intended to rely (CB 111). He also gave oral evidence at the hearing and was provided with an opportunity to provide further written evidence by 13 May 2021 ([13] of the Tribunal Decision). There is no indication that the applicant requested that Dr Ismail give oral evidence or provide further written evidence.
While it is always open to a Tribunal to make further enquiries, there is no general duty on the Tribunal to enquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) per Gummow and Hayne JJ at [43]. In VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, Crennan J confirmed existing authority that the Tribunal’s power to get information that it considers relevant is permissive and not mandatory at [27].
This is not a situation in which the Tribunal failed to make an enquiry about a critical fact which could be easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.at [25] The Tribunal is inquisitorial and has a duty to review (SZIAI at [18]). This does not necessitate pro-active enquiries unless about critical facts. The report of Dr Ismail was before the Tribunal and there was no submission made that there was further information about critical facts which could have been obtained. As in SZIAI at [26], there was nothing to indicate that an enquiry would have yielded a useful result, as there was evidence before the Tribunal of Dr Ismail’s support, and the Tribunal had accepted that the letter was genuine.
Ground Three does not disclose jurisdictional error.
Ground Four
In Ground Four, the applicant contended that (reproduced without alteration):
I indicated that I want to go back to my country Jordan after I complete my treatment I Australia because the Psychiatrists in Jordan do not use the same technique as they do here and the Tribunal failed to put to me whether the medical treatment is available the same way as in Australia.
At the hearing, the applicant contended that his doctor prescribed him medication which was mixed in a certain way and it would not be available in Jordan. He contended that the Tribunal should have asked him about this and taken it into consideration.
The first respondent submitted that the Tribunal was not required to put to the applicant the issue of whether the appropriate medical treatment was available in Jordan. The first respondent submitted that this information fell within the exception in s 359A(4)(a) of the Act. The first respondent submitted further that the Tribunal had discussed country information about the Jordanian health system with the applicant, and took into consideration the applicant’s response that psychiatrists in Jordan do not use the same techniques as Australian psychiatrists.
The Court is of the view that the Tribunal adequately raised the dispositive issue of healthcare in Jordan with the applicant and provided him with an opportunity to comment on the treatment and medication available. At [13] of the Tribunal Decision, the Tribunal asked the applicant why he did not want to go back to Jordan. It is for an applicant to make his case: Abebe at [187] and the Tribunal specifically asked him about his reasons for not wishing to return to Jordan. The Tribunal also put to the applicant that he could see a psychiatrist in Jordan and access depression medication (at [13] of the Tribunal Decision). The applicant responded that psychiatrists do not use the same techniques in Australia. Although asked about depression medication, he did not provide information about the different mix of medication, although he had the opportunity to do so. There was no further general duty on the Tribunal to enquire: SGLB at [43].
There were also other opportunities for the applicant to provide this kind of evidence. Prior to the hearing, on 3 April 2019, the applicant was invited to provide material or written arguments for the Tribunal to consider (CB 90). On 13 April 2021, the applicant was invited to attend a hearing of the Tribunal on 10 May 2021 and was also invited to provide documents on which he intended to rely (CB 111). He also gave oral evidence at the hearing and was provided with an opportunity to provide further written evidence by 13 May 2021 ([13] of the Tribunal Decision).
No jurisdictional error arises in Ground Four.
Ground Five
In Ground Five the applicant contends that (without alteration):
I do not deny that Jordan has advanced health care system but it will not apply to my current medical attention I receive in Australia.
At the hearing, the applicant contended that the health system was more advanced in Australia than in Jordan.
In this Ground, it appears that the applicant takes issue with the findings of the Tribunal that he could access health care in Jordan. As set out earlier in relation to Grounds Three and Four, the Tribunal raised the issue of health care and medication in Jordan with the applicant. His evidence that psychiatrists use different techniques in Jordan and that he could not afford the treatment in Jordan, was referred to in the Tribunal Decision at [13]. His evidence about the impact of Syrian refugees on the health care system and the shortage of medication was also referred to in the Tribunal Decision [13].
To the extent that the applicant disputes the findings of the Tribunal, this is not a matter for the Court. It is for the Tribunal to make factual findings based on the evidence before it. In Wu Shan Liang the High Court said at 272:
.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
There is no jurisdictional error disclosed in Ground Five.
Ground Six
In Ground Six the applicant contended (without alteration):
Contrary to the finding of the Tribunal I am genuinely sick and I have genuine intention to return to my country after completing my treatment.
At the hearing he contended that it was evident from his medical report that he was sick and there were certificates to prove it.
The first respondent submitted that this in ground the applicant was seeking impermissible merits review by the Court.
The Court has already found in the consideration of Grounds 1 and 2 that the Tribunal considered the medical reports. There is no jurisdictional error from failing to take into account relevant evidence.
This ground appears to contend that the Tribunal’s conclusion, after consideration of the reports, was wrong. As set out in relation to Ground 5, the conclusions based on evidence before it were a matter for the Tribunal. The Court cannot engage in impermissible merits review.
There is no jurisdictional error revealed in Ground 6.
Ground Seven
In Ground Seven the applicant contended (without alteration):
I provided to the Tribunal medical letters and compelling reasons to stay in Australia because of COVID-19 as well as the availability of medical report from my doctors here which will not be available to me if I return to Jordan.
The applicant submitted at hearing that Jordan was ‘closed’ during the COVID-19 pandemic, and that this should have been taken into consideration by the Tribunal.
The first respondent submitted that the applicant was seeking impermissible merits review. The first respondent also contended that the issue was not whether the applicant was able to depart Australia, but rather whether he intended to stay temporarily for the purposes of medical treatment.
The Tribunal referred to the applicant’s evidence about the COVID-19 pandemic in Jordan at [13] of the Tribunal Decision. It can be inferred therefore that the Tribunal took this into consideration. In any event, the first respondent is correct that the Tribunal considered the question of whether the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment, and took into consideration various relevant factors in making this decision. This included the medical reports, which is discussed in relation to Grounds 1 and 2.
No jurisdictional error is disclosed in Ground Seven.
Ground Eight
In Ground Eight the applicant submitted (without alteration):
The decision of the Tribunal is affected by error because the Tribunal filed to give reasonable explanation.
The first respondent submitted that the Tribunal set out detailed reasons for its findings, and it was for the applicant to present his case to the Tribunal.
Section 430(1) of the Act set out the Tribunal’s responsibilities to provide a written statement of decision (compilation date 22 March 2021 -24 May 2021):
430 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made
Each of the elements of s 430 of the Act were met by the Tribunal. Firstly, the Tribunal set out the decision of the Department and confirmed that it affirmed the decision of the Department ([5] and [17] of the Tribunal Decision). Secondly, the Tribunal set out the reasons for the decision ([7 - 14] of the Tribunal Decision). Thirdly, the decision record sets out the Tribunal’s findings on material facts ([8, 11 and 13] of the Tribunal Decision). For example, the Tribunal recorded that it accepted that Dr Ismail’s letter was genuine ([13] of the Tribunal Decision) Fifthly, the decision record sets out the evidence and other materials on which the Tribunal relied ([13] of the Tribunal Decision). For example, the Tribunal recorded that the applicant stated in his application that he had booked for a colonoscopy in his application but had not attended and that he was asked about this at the hearing of the Tribunal ([13] of the Tribunal Decision).
The Tribunal therefore complied with s 430 of the Act to provide a written statement of decision, setting out the reasons for the decision, findings on material questions of fact and referring to the evidence or material upon which the findings of fact were based.
If applicant is contending in this ground (or the grounds considered together) that the decision of the Tribunal was unreasonable, the Court notes that the test of unreasonableness must be ‘necessarily stringent’: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) per Kiefel CJ at [11]. The characterisation of a decision as legally unreasonable is not easily made out: Djokovic [33].
The principles of legal unreasonableness were summarised in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 (Pandey) per Wigney J at [41] as follows:
...The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
...
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
After reviewing the Tribunal Decision, the Court has not identified underlying jurisdictional error in the decision-making process (Pandey at [41]). The Court does not consider that the exercise of the jurisdiction was unreasonable in the sense of ‘arbitrary, capricious, without common sense or plainly unjust’ (Pandey at [41] citing Li at [28], [110]; Singh at [44]). The decision had an evident, transparent and intelligible justification (Pandey at [41] citing Li at [105]; Singh at [44]-[45]). The Tribunal referred to the relevant legislative provisions: [7-12] of the Tribunal Decision. The Tribunal also identified that Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and that the Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last substantive visa or bridging visa, as well as the applicant’ intention to comply with visa conditions and other relevant matters: ([12] of the Tribunal Decision).
The Tribunal then found that having regard to these considerations, it was not satisfied that the applicant genuinely intended to stay temporarily for the purpose of medical treatment. The Tribunal provided five reasons for this (see dot points in [13] of the Tribunal Decision). After consideration of these five reasons, the Tribunal concluded that the applicant was ‘wishing to stay in Australia and this visa is a way to extend his time’. The Tribunal noted that the applicant had been in Australia since 2005 and applied for numerous other visas: ([14] of the Tribunal Decision).
The findings were within a range of possible, acceptable outcomes which are defensible in respect of fact and law (Li at [ 105]). It cannot be said that the Tribunal made a decision or that it reached a state of satisfaction that was so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach: Djokovic at [33]. The decision was not legally unreasonable.
No jurisdictional error is disclosed by Ground Eight.
Grounds raised in submissions
Failure to consider evidence
In the Applicant’s Submissions, the applicant contended that the Tribunal Decision was based on the migration history rather than the application as a whole. This is in essence a claim that the Tribunal did not take the applicant’s evidence into consideration.
The Tribunal outlined its reasoning in [13] of the Tribunal Decision. The Tribunal stated that it had regard to the considerations set out in cl 602.215(1)(a) to (c) of Schedule 2 to the Regulations.
The first and second of these considerations – cl 602.215(1)(a) and (b) of Schedule 2 to the Regulations - are whether the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, and whether the applicant intended to comply with conditions to which the Subclass 602 visa would be subject. While the Tribunal said that it considered these factors, it did not provide detail of this consideration, which may have been helpful to a reader. However, as the Tribunal said that it had considered the factors, the Court accepts that it did. The Tribunal’s consideration of intention to comply with conditions can be inferred in bullet point five of [13] of the Tribunal Decision. The Tribunal referred to the many visas which the applicant had applied for. The Tribunal stated that it was not satisfied that the applicant intended to depart Australia (which would be a breach of a condition).
The third factor, cl 602.215(c), is ‘any other relevant matter’. In bullet points one to four of [13] of the Tribunal Decision, the Tribunal referred to other relevant maters, including the medical reports, evidence given by the applicant in his application and at hearing and information about the Jordanian health system.
Given that the Tribunal considered the factors set out in cl 602.215 (a) to (c) of Schedule 2 to the Regulations as required and outlined five reasons for reaching a conclusion that the applicant did not genuinely intend to stay temporarily in Australia for the purpose of medical treatment, the Court does not accept that the Tribunal Decision was based on migration history alone rather than on all the evidence before it.
This ground does not disclose jurisdictional error.
Bias
In the Applicant’s Submissions he claimed that the Tribunal Member had already made a decision prior to inviting the applicant to attend a hearing. In this ground, it appears that the applicant is claiming that the Tribunal Member was biased, as she did not approach the matter with an open mind.
The first respondent submitted that the applicant had not provided particulars of bias. The Court agrees, the applicant has not particularised what bias the Tribunal Member is alleged to have displayed.
There can be a finding of actual bias where it is evident that the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [71]-[72]. There is no such evidence before this Court.
There can be a finding of apprehended bias where the Tribunal conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32]. The Court is not satisfied that bias has been made out. The allegations have not been ‘distinctly made and clearly proved’: Jia Legeng at [127]. The applicant has not articulated with any kind of precision or clarity what kind of bias is alleged. The applicant has not provided evidence of bias, only suggesting that the Tribunal Member had already made her mind up. There is no evidence of a closed mind, either through a close reading of the Tribunal Decision or the Court Book.
There is no jurisdictional error disclosed by reason of bias.
Failure to refer for ministerial intervention
The applicant contended that the Tribunal should have referred the matter to the Minister for Immigration for consideration of the ministerial intervention powers in the legislation.
The applicant is referring to s351 of the Act, which provides (compilation date 22 March 2021 – 24 May 2021) :
351 Minister may substitute more favourable decision
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2)In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3)The power under subsection (1) may only be exercised by the Minister personally.
(4)…
In Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 87 at [18], Collier J stated ‘it is unclear to the Court on what basis the Tribunal was obliged to advise the appellants to seek Ministerial intervention or to refer the matter to the Minister for intervention under exceptional circumstances. The appellant’s second ground of appeal is vague and demonstrates no error on behalf of the Tribunal nor the primary Judge’. Similarly, the ground in this matter is unparticularised and no detail has been provided as to the basis for a referral.
The first respondent submitted and this Court agrees, that there is no statutory obligation for the Tribunal to refer a matter for intervention.
In any event, a tribunal’s decision not to refer a matter to the minister for exercise of his or her ministerial intervention powers, or an omission to consider ministerial intervention by the Tribunal, does not amount to jurisdictional error: see Pasha v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 907 per Deputy Chief Justice Mercuri at [45-49].
No error is disclosed in this ground.
Procedural fairness
The applicant contended in the Applicant’s Submissions that the applicant was denied natural justice by the Tribunal. He argued that he should have been allowed to make further submissions on adverse information. At the hearing, the applicant said that the Tribunal Member failed to ‘ask about everything’ as the hearing was conducted by telephone (Tp 11.42-46). He also claimed that the Tribunal Member should have asked him about Jordanian culture or his own unique treatment (Tp 12.4-14).
The first respondent submitted that the hearing went for an hour and there was adequate opportunity for the applicant to raise issues, and he did not raise the issue of culture. He had also been invited to provide documents to the Tribunal prior to the hearing (Tp 14.35-47). The first respondent submitted that there was no further adverse information to be put to the applicant beyond that which was discussed (Tp 15.4).
The first respondent submitted that the applicant was accorded general procedural fairness. He was invited to a hearing pursuant to s 360(1) of the Act.
The applicant has not particularised this ground. To the extent that he is claiming that he should have been allowed to make further submissions on adverse information, the Court notes that the medical reports and visa history were discussed at the hearing ([13] of the Tribunal Decision). The migration history was set out in the delegate’s decision such that the applicant would have been aware of it as a dispositive issue.
Country information is excluded from the obligation under s 359A of the Act to put adverse information to the applicant: s 359A(4)(a) of the Act. The other information referred to in the Tribunal Decision was information provided by the applicant and details of the applicant’s migration history, which was set out in the Department’s decision, and therefore excluded from the obligation to put the information to the applicant pursuant to s 359A: s 359A(4)(b) of the Act.
Prior to the hearing, on 3 April 2019, the applicant was invited to provide material or written arguments for the Tribunal to consider (CB 90). On 13 April 2021, the applicant was invited to attend a hearing of the Tribunal scheduled on 10 May 2021 and was also invited to provide documents on which he intended to rely (CB 111). He also gave oral evidence at the hearing and was provided with an opportunity to provide further written evidence by 13 May 2021 ([13] of the Tribunal Decision). The Court is satisfied that the applicant was afforded procedural fairness, and no jurisdictional error is disclosed. If he wished to put evidence to the Tribunal about the culture or his own unique medical needs, he had the opportunity to do so.
No jurisdictional error arises through failure to provide procedural fairness.
Failure to enquire about medication
At the hearing of this Court, the applicant submitted that the Tribunal should have made enquiries about his medication. He acknowledged that the Tribunal Member did ask him about his current medication and he told her he was on Prozac (Tp 7.5-6). He said that she did not ask him about other medication he was taking, although he had thought she would do so (Tp 7.7-8).
The first respondent contended that the Tribunal was not required to make enquiries as it was for the applicant to make his case. It is for an applicant to adduce evidence in support of his or her application: Abebe at [187]. As discussed earlier in this judgment, the applicant was provided with opportunities prior to, at the hearing and after the hearing, to provide evidence upon which he intended to rely. The applicant could have utilised these opportunities to provide evidence about his medication.
As referred to earlier in this decision, there is no general duty on the Tribunal to enquire about issues: SGLB per Gummow and Hayne JJ at [43].
There is no jurisdictional error disclosed by this ground.
Failure to enquire about the reason the applicant needed to stay in Australia for two years
After the hearing in this Court, an email from a person named Ibrahim Al-Tawil was received by the Court (dated 19 June 2025). The email stated that the applicant had forgotten to mention something at the hearing and Mr Al-Tawil was providing the information on behalf of the applicant. He said that:
He wishes this information to be taken into account: “The Minister's office counsel declared in clause 16C that Doctor Kanaan wrote in the letter (page 131) that Yaseen needed 2 additional years of treatment, however, the counsel said that there was no medical reason for Yaseen to stay for an additional 2 years” .Yaseen's response to this is that the honourable judge of the tribunal hearing did not ask about the reason for those 2 years nor any related details, although he did ask Yaseen about other matters in detail. The reason for the 2 years is because Yaseen's psychiatrist warned him not to cease treatment for the 2-year duration to ensure an effective result and avoid long-term damaging consequences.
The first respondent was invited to make submissions in relation to this email. The first respondent consented to the content of the email being treated as submissions and did not consider it necessary to make submissions in reply.
The Court notes that the Tribunal had before it a letter of Dr Kennan Ismail dated 27 February 2019 (CB 33). Dr Ismail referred to the applicant’s difficult financial circumstances and how it would be difficult for him to pay for the procedure in Jordan. In that letter Dr Ismail did not provide a medical reason for the need for the applicant to remain in Australia beyond the need for the colonoscopy. Dr Ismail said that it would not be a ‘big deal’ to have another few months in Australia.
A further letter from Dr Ismail dated 19 April 2021 was before the Tribunal (CB 130). In this letter Dr Ismail said that the applicant had not attended his colonoscopy. He said that the applicant was suffering from complex psychological issues and had a flare up of his condition and stopped eating. He said that later he discussed the colonoscopy with the applicant, but the applicant postponed it and got psychological treatment, which the doctor said was much better in Australia than in Jordan. Dr Ismail said that the applicant needed treatment for two years.
At [13] of the Tribunal Decision, the Tribunal referred to Dr Ismail’s report, including his statement that the applicant needed treatment for two years.
If the applicant is contending that there was other medical information relevant to the applicant’s need to remain in Australia, there were many opportunities prior to and at the Tribunal hearing to adduce this evidence, as referred to earlier in this decision. At [14] of the Tribunal Decision, the Tribunal recorded that it asked the applicant why he did not want to return to Jordan, providing him with an opportunity to explain or adduce evidence as to why he wanted to remain in Australia for two years rather than return to Jordan.
It is for an applicant to adduce evidence in support of his case, and there is no general duty on a Tribunal to conduct further enquiries: Abebe at [187]; SGLB at [43].
There is no jurisdictional error in the Tribunal Decision by failing to make further enquiries about why the applicant needed to stay in Australia for two years.
Age requirement
An email from a person named Ibrahim Al-Tawil was received by the Court on 23 June 2025 purporting to make submissions on behalf of the applicant. The first respondent was invited to make submissions in relation to this email. The first respondent consented to the content of the email being treated as submissions and did not consider it necessary to make submissions in reply.
Mr Al-Tawil said that the applicant had forgotten to say at hearing that he was unaware that the age for a ‘treatment application’ was 50 years and he is not aged 50. He said that the applicant relied on a Departmental officer as to which visa he should apply for and the officer was aware of his age. He said that the Tribunal Member did not mention to him that the age for an application was 50 years old. He claimed that because of this omission, the Tribunal was not ‘within their judicial right’ to rely on the age requirement.
The applicant appears to have confused cl 602.215 with cl 602.212 (6) of Schedule 2 to the Regulations.
The Tribunal considered cl 602.212 (6) of Schedule 2 to the Regulations which concerns lack of fitness to depart Australia. The Tribunal found that the applicant had not turned 50 and was not unfit to depart and therefore did not meet cl 602.212 (6) of Schedule 2 to the Regulations ([11] of the Tribunal Decision). An applicant can still be granted a medical treatment visa if he or she meets cl 602.215 of Schedule 2 to the Regulations if they are under 50 years old. The Tribunal was not satisfied that the applicant met cl 602.215 as the Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted and age was not an issue.
There is no jurisdictional error in relation to this ground.
Name changes
On 27 February 2025, orders were made by Registrar Roberts of this Court, that the name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs and the name of the second respondent be amended to the Administrative Review Tribunal.
Since then, following the election in May 2025 there have been further portfolio name changes. The name of the first respondent is now the Minister for Immigration and Citizenship. The name of the first respondent has been changed accordingly.
CONCLUSION
The Court is satisfied that the Tribunal Decision is not affected by jurisdictional error. Absent jurisdictional error, the application to this Court must fail.
The application filed on 24 May 2021 is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Deputy Associate:
Dated: 11 August 2025
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