Federal Court of Australia

DWW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 186

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    The appellant is a citizen of Lebanon who arrived in Australia on 12 August 2011, holding a Prospective Marriage visa. He later applied for a Partner visa which was refused. He had come to Australia to marry his cousin, but she had a relationship with another man and ended her sponsorship of the appellant’s visa application. The appellant’s application for merits review of that decision was unsuccessful.

2    The appellant next applied for a Protection visa, on 30 November 2012. This was refused and his application for merits review and Ministerial Intervention were also unsuccessful.

3    The appellant then made three applications for a Medical Treatment visa:

    the first one, on 24 September 2015, was refused on 30 September 2015. The appellant unsuccessfully sought merits review and then unsuccessfully sought judicial review in what was then the Federal Circuit Court of Australia (FCCA);

    the second one, on 5 June 2017, was determined to be invalid on 15 June 2017 due to non-payment of the application fee;

    the third one, on 23 June 2017, was refused on 29 June 2017. The appellant unsuccessfully sought merits review and then unsuccessfully sought judicial review in the FCCA. An appeal from that decision to this Court was dismissed on 23 May 2019.

4    The appellant made a fourth application for a Medical Treatment visa, on 24 June 2019. This application was refused by the delegate on 16 July 2019. An application for merits review in the Administrative Appeals Tribunal was unsuccessful. So was the appellant’s application for judicial review in the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court): DWW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 35 (hereafter “J”).

5    This is the appellant’s appeal from the decision of the Circuit Court.

BACKGROUND FACTS

6    At the time that the appellant applied for the visa it had only one subclass, subclass 602. The relevant criteria are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth). Clauses 602.212(6) and 602.215 provides:

602.212

…

Unfit to depart

(6)     All of the following requirements are met:

(a)     the applicant is in Australia;

(b)     the applicant has turned 50;

(c)     the applicant has applied for a permanent visa while in Australia;

(d)     the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e)     the applicant has been refused the visa;

(f)     the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

…

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 subclause 602.212(6) are met in relation to the applicant.

7    In his application, the appellant indicated that he sought the visa for the purpose of “regular doctor appointments for monitoring and check ups” and “regular continuous counselling appointments” for the period 25 June 2019 to 25 June 2021: at J[6].

8    The appellant also provided a form, completed by a doctor, which indicated that the appellant suffered from skin inflammation, reactive depression, testicular pain and dry eyes.

9    The doctor indicated that these conditions would be treated with antibiotics, cream, eye drops and counselling. The appellant attached an invoice of $65 for “Level B surgery” from the doctor dated 11 June 2019: at J[7].

10    The delegate refused to grant the visa on the basis that the applicant did not meet cl 602.215 of Schedule 2 to the Regulations, which (as can be seen at [6] above) requires that a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: at J[8]. The delegate set out the appellant’s immigration history and found it strongly indicated that the appellant intended to continue to seek a visa pathway to remain in Australia on a permanent basis. The delegate found the appellant was attempting to utilise the Medical Treatment visa as a means of maintaining ongoing residence, and that he did not genuinely intend to remain in Australia on a temporary basis: at J[9]. The delegate also concluded that the appellant did not meet the requirements of clause 602.212(6) as he had not demonstrated that he was not fit to depart Australia.

11    The Tribunal affirmed the delegate’s decision on the same basis as the delegate: at J[12]. The primary judge set out facts relevant to the Tribunal hearing in the following way at J[11] (references omitted):

On 26 August 2021, the Tribunal invited the applicant to a hearing (using the Microsoft Teams platform). On 24 September 2021, the applicant appeared at a hearing before the Tribunal. The Tribunal also received oral evidence from the applicant’s brother-in-law, which the Tribunal recorded was “consistent” with the evidence given by the applicant. The applicant gave the following evidence at the hearing:

(a)    in answer to the Tribunal’s question about what medical treatment he had received between 25 June 2019 and 25 June 2021, he responded that he had not received any medical treatment and had not been given a chance to receive medical treatment;

(b)    the applicant was not entitled to Medicare benefits and could not afford to pay for medical treatment himself. The applicant lived with his sister, brother-in-law and their four children. They could not afford to pay for his medical treatment;

(c)    when asked what type of treatment he wanted to receive, the applicant responded he was “physically unwell” and could not get married anymore as he could not be “a full husband physically”; and

(d)    he had no funds to return to Lebanon and “nothing to go back for”. He initially came to Australia to marry his cousin, but she had a relationship with another man, ended their relationship and ended her sponsorship for his visa application.

12    The Tribunal found that the appellant:

    did not meet cl 602.215 of Schedule 2 to the Regulations because he did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted;

    was required to meet cl 602.215 as he was not “unfit to depart”, as prescribed by cl 602.212(6). The appellant was 35 years old and accordingly did not meet cl 602.212(6)(b), which requires that the appellant have turned 50. The Tribunal was not required to consider the remaining criteria in cl 602.212(6), because each of the criteria in cl 602.212(6) must be met. Nevertheless, the Tribunal found that a number of other criteria had not been met.

13    The Tribunal’s reasons included:

14.    In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has had regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject. He has filed with the Tribunal a copy of the Department’s Decision Record dated 16 July 2019. It indicates that during his time in Australia he has been an unlawful non-citizen for 107 days. The Tribunal is therefore not satisfied that he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject.

15.     The Tribunal has also had regard to other relevant matters. The Department’s Decision Record dated 16 July 2019, filed with the Tribunal by the applicant, sets out his lengthy immigration history in Australia. It indicates that he arrived in Australia on 12 August 2011 as the holder of a Prospective Marriage (class TO) (subclass 300) visa. On 23 December 2011, he applied for a Partner Combined (class UK/BS) visa and his application was refused on 20 June 2013. On 28 June 2013, he applied for a review of that decision by the Migration Review Tribunal (MRT). On 31 July 2014, the MRT affirmed the decision made by the Department.

16.     The Department’s Decision Record indicates that on 30 November 2012 the applicant applied for a Protection visa. On 28 March 2013, his application was refused. On 9 April 2013, he applied for a review of that decision by the Refugee Review Tribunal (RRT). On 5 August 2013, the RRT affirmed the decision made by the Department. On 27 September 2013, he requested Ministerial intervention under s.417 of the Act. On 2 November 2013, it was deemed “inappropriate to consider”. On 11 September 2014, he again requested Ministerial intervention under s.351 of the Act. On 15 August 2015, it was “not considered”. On 22 September 2015, he made a third request for Ministerial intervention under s.351 of the Act. On 25 September 2015, it was “not referred”.

17.     The Department’s Decision Record indicates that on 24 September 2015 the applicant applied for a Medical Treatment (class UB) (subclass 602) visa. On 30 September 2015, his application was refused. On 20 October 2015, he applied to the Tribunal for a review of that decision. On 19 January 2016, the Tribunal affirmed the Department’s decision. On 9 March 2016, he applied to the Federal Circuit Court for judicial review. On 19 May 2017, his application was dismissed. On 5 June 2017, he applied for a second Medical Treatment (class UB) (subclass 602) visa. On 15 June 2017, his application was determined to be invalid due to (non-payment) of the fee.

18.     The Department’s Decision Record indicates that on 23 June 2017, the applicant applied for a third Medical Treatment (class UB) (subclass 602) visa. On 29 June 2017, his application was refused. On 12 July 2017, he applied to the Tribunal for a review of that decision. On 18 April 2018, the Tribunal affirmed the Department’s decision. On 27 April 2018, he applied to the Federal Circuit Court for judicial review. On 5 November 2018, his application was dismissed. On 15 November 2018, he appealed to the Full Court of the Federal Court ... On 23 May 2019, his appeal was dismissed.

19.     On 24 May 2019, the applicant applied for a fourth Medical Treatment (class UB) (subclass 602) visa. On 16 July 2019, his application was refused. On 2 August 2019, he applied to the Tribunal for a review of that decision and that is the application currently before the Tribunal. In his visa application, he stated that he seeks the visa for the purposes of “regular doctor appointments for monitoring and check-ups and regular continuous counselling appointments” for the period 25 June 2019 to 25 June 2021. During the hearing, the Tribunal asked him what medical treatment he has received between 25 June 2019 and 25 June 2019 [sic – 2021]. He responded that he has not received any medical treatment and has not been given a chance to receive medical treatment. He is not entitled to Medicare and cannot afford to pay for medical treatment himself. He lives with his sister, brother-in-law and their four children. They cannot afford to pay for his medical treatment.

20.     The Tribunal asked the applicant why he has not returned to Lebanon. He responded that he has no funds to return to Lebanon and has nothing to go back for. The situation in Lebanon is very bad. There is no government, no food, no power, no healthcare, the people have nothing to eat and the hospitals are closed. He came to Australia to marry his cousin but she had a relationship with another man, ended their relationship and withdrew her sponsorship for his visa application. He came here with hopes and aspirations to start a new life with her, have a family and a future but it did not work out and he feels frustrated. He tried to meet another woman and start life with her but that did not work out either.

21.     The Tribunal asked the applicant why he now wants the Medical Treatment visa. He responded that he is seeking treatment so that he can restore his condition to what it was when he came to Australia. When asked what type of treatment he wants to receive, he responded that he is physically unwell and cannot get married anymore as he cannot be “a full husband physically”. He has repeated this to everyone. He wants to receive treatment so that he can be as he was when he arrived here. When asked from whom he will receive this treatment, he responded that he applied for a Medical Treatment visa so that he can get the help and support he needs but no one is looking after him or caring for him. He wants the visa for at least a year, entitlement to Medicare benefits and permission to work in Australia.

…

25.     The applicant’s immigration history (including living in Australia as an unlawful non-citizen for a period of 107 days) and his own evidence lead the Tribunal to the conclusion that he has no intention of returning to Lebanon, he wants to live in Australia permanently and he wants access to the benefits of being an Australian permanent resident. The Tribunal is of the view that he has used repeated applications for Medical Treatment (subclass 602) visas, which are not subject to the bar under s 48 of the Act, for the purpose of maintaining ongoing residence in Australia.

26.     On the evidence before it, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Therefore, the Tribunal finds that he does not meet the requirements of cl 602.215.

14    The appellant applied for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) on 25 October 2011, raising the following three grounds:

1.    Firstly I am a victim of the law because I am under 50 years of age.

2.    The Tribunal recognised the situation in Lebanon and failed to act on it and allow me to remain here.

3.    I accept my immigration history but my circumstances are compelling and Lebanon is not safe for me to return to as per social media and Smartraveller recognised by Australia.

15    The primary judge addressed each of these grounds of review in detail. Her Honour’s reasons were given ex tempore on 1 February 2022. The primary judge made the following orders:

1.    The application filed on 25 October 2021 is dismissed.

2.    The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $6,800.

3.    Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

16    The primary judge’s reasons were published in written form on 22 February 2022.

THE APPEAL

17    By a notice of appeal filed in this Court on 16 February 2022, the appellant appeals on the following grounds:

1.    I appeared before Judge Given via telephone and I explained my situation and I only received the Order on 3 February 2022 and I have not received the judgment yet.

2.    I do not agree with the Judge’s Order as it was made against the medical provided by my Doctor and I have not received a Court Book to rely on but this time I reserve my right to provide further explanation when I receive the Court book.

18    These grounds of appeal do not allege any error of law. None were identified in oral submissions. I note in relation to Ground 1 of the appeal that the primary judge made an order which had the effect of protecting the appellant’s appeal rights. I note in relation to the first aspect of Ground 2 of the appeal that the primary judge took into account the only expert medical evidence which was before the Tribunal, namely the doctor’s form and the tax invoice - see [9] above. As noted at T[19] and J[11], the appellant told the Tribunal he had not received any medical treatment between 25 June 2019 and 25 June 2021. The appellant made submissions on the appeal, with the assistance of an interpreter, to the effect that he wanted to obtain treatment in Australia before going back to Lebanon. These submissions go to the merits of the case rather than to any error on the part of the primary judge or jurisdictional error on the part of the Tribunal. I note in relation to the second aspect of Ground 2, there was no evidence to suggest that the appellant did not receive a Court Book in the proceeding before the primary judge. The material before this Court indicates that the Court Book was filed and served on the appellant by post and email, to his nominated postal and email addresses on 18 November 2021.

19    The primary judge respectfully and appropriately addressed the grounds of review before her and did so without error. Her Honour’s reasons addressing each of the grounds, and the various oral submissions made, are set out in her Honour’s reasons at J[29] to [47]. They do not require repetition. The primary judge was correct to conclude that no jurisdictional error on the part of the Tribunal had been established.

CONCLUSION

20    The appeal must be dismissed with costs.

Associate:

Dated:    9 March 2023