Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 1339

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be changed to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs, to be determined on a lump sum basis.

5.    By 4.00 pm on 2 October 2026, the parties file any agreed proposed minute of orders fixing the amount of the first respondent’s costs.

6.    In the absence of agreement:

(a)    By 4.00 pm on 16 October 2026, the first respondent file and serve a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) (Practice Note).

(b)    By 4.00 pm on 30 October 2026, the appellant file and serve a Costs Response in accordance with paragraphs 4.13 and 4.14 of the Practice Note.

(c)    The amount of the lump sum of the first respondent’s costs of the proceeding be determined by a Registrar of the Court.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, who is a citizen of India and who applied unsuccessfully for a medical treatment visa, appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (the FCFC): Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 700 (the Reasons).

2    Briefly, the background to the appeal is as follows:

(a)    In 2009, the appellant arrived in Australia on a Student (Subclass 572) visa.

(b)    The appellant has a lengthy migration history which includes periods of unlawful stays.

(c)    On 7 September 2021, the appellant applied for a Medical Treatment (Subclass 602) visa (Medical Treatment Visa) to undertake medical treatment from 8 September 2021 to 30 December 2021. In her application for the visa, the appellant identified “chronic left shoulder pain and injury” and “associated low back pain” as the medical conditions requiring treatment.

(d)    On 30 September 2021, a delegate of the Minister for Home Affairs refused to grant the visa.

(e)    The appellant applied to the then Administrative Appeals Tribunal (the Tribunal) (now the Administrative Review Tribunal) for merits review of the delegate’s decision.

(f)    On 22 November 2022, the Tribunal affirmed the decision of the delegate not to grant the appellant with a visa (the Tribunal Decision).

(g)    The appellant applied to the FCFC for judicial review of the Tribunal Decision.

(h)    On 27 July 2023, a hearing took place before the primary judge in the FCFC. The appellant appeared for herself with the assistance of an interpreter in the Punjabi and English languages.

(i)    On 9 August 2023, the FCFC dismissed the application for judicial review.

3    By notice of appeal dated 4 September 2023, the appellant appeals to this Court from the judgment of the FCFC.

4    Although the matter was originally listed for hearing on 6 March 2026, the hearing was adjourned at the request of the appellant due to medical and personal circumstances. The appeal was subsequently listed for hearing on 1 June 2026 and 23 June 2026, but those hearings were also adjourned for the same reasons. The hearing took place on 19 August 2026. The appellant represented herself with the assistance of an interpreter in the Punjabi and English languages. The interpreter was unfortunately not in the courtroom but was participating by videoconference. Due to audio issues with the connection to the initial interpreter, arrangements were made for a substitute interpreter to perform the role (also by videoconference). Although the quality of the audio was poor at times, the audio quality was satisfactory overall. I am satisfied that the appellant had a proper opportunity to make her oral submissions (which were brief) through the interpreter.

5    In advance of the hearing, the first respondent (the Minister) filed and served an outline of submissions. The appellant did not file an outline of submissions.

Medical Treatment Visa

6    As noted above, the appellant applied on 7 September 2021 for a Medical Treatment Visa.

7    The criteria for the grant of a Medical Treatment Visa were set out in cl 602.215 of Sch 2 to the Migration Regulations 1994 (Cth), which provided:

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.

8    For the purposes of cl 602.215(2), cl 602.212(6) of Sch 2 to the Migration Regulations provided:

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.

The Tribunal Decision

9    The Tribunal found (at [22]-[23]) that cl 602.212(6) did not apply in this case because there was insufficient evidence to make a finding that the appellant was medically unfit to depart Australia due to “a permanent or deteriorating disease or health condition” (as referred to in cl 602.212(6)(f)). Also, the appellant did not meet the criterion in cl 602.212(6)(b): see the Tribunal’s reasons, [24].

10    The issue, then, was whether the appellant satisfied the criteria in cl 602.215. The Tribunal considered the evidence that was before the Tribunal at [27]-[32] of its reasons. The Tribunal made findings (at [33]) that the appellant was attempting to utilise the Medical Treatment Visa pathway “as a means to maintain ongoing residence” and that the appellant “[did] not genuinely intend to remain in Australia on a temporary basis”.

11    Accordingly, the Tribunal concluded that the criteria in cl 602.215 were not met.

12    The Tribunal therefore affirmed the decision of the delegate to refuse the appellant’s application for a Medical Treatment Visa.

The primary judge’s reasons

13    The primary judge set out the context of the application for judicial review at [2]-[13] of the Reasons.

14    The primary judge summarised the Tribunal’s reasons at [14]-[22] of the Reasons.

15    At [24], the primary judge set out the appellant’s grounds of judicial review. There were 15 grounds of review. At [27], the primary judge summarised the appellant’s oral submissions.

16    The primary judge considered the appellant’s grounds of review at [31]-[53] of the Reasons. In some cases, the primary judge considered the grounds together as a group.

17    The primary judge concluded that none of the appellant’s grounds of review were made out. Accordingly, the primary judge dismissed the application for judicial review.

The appeal

18    By her notice of appeal, the appellant raises eight grounds of appeal:

1.    The Court ignored my submission that the interpreter that I was provided for the Tribunal hearing did not do her job right. The interpreter did not fully explain my position to the Tribunal member. I explained to the interpreter in detail, but the interpreter spoke in English only for short periods of time. I was denied a fair hearing.

2.    The Court noted that transcript of Tribunal hearing was not in evidence before the Court, but the Court or even the respondents or their lawyers made no attempts to provide recording or transcript of Tribunal hearing to the Court.

3.    The Tribunal and Court failed to give me more time to provide further evidence in relation to my medical condition and treatment. The Court was critical that I had not provided such evidence prior to the Tribunal hearing but the court did not consider the reasons why it could not be provided then.

4.    The Court also ignored my submission that the Tribunal hearing was very short (about 15 minutes), which had not given me time to even fully explain my circumstances.

5.    Decisions of Tribunal and Court were made against the principles of natural justice and without considering my circumstances fully.

6.    The court was wrong in agreeing with Tribunal's decision, especially where the Tribunal had focused more on my prior immigration history rather than my then medical condition and treatment for same.

7.    The Tribunal and Court did not take into account any of my exceptional circumstances, including the fact that my financial hardship was a constraint in me paying for my medical treatment, hence prolonging my medical condition.

8.    The court erred by simply agreeing with Minister's submissions that my prior immigration history was relevant to my intention of staying in Australia. I submit that this is wrong. The Court should have considered my application for Medical Treatment Visa on its own merits. The Court also ignored the fact that I had complied with all my visa conditions.

19    These grounds of appeal include several grounds that differ from the appellant’s grounds before the FCFC. To the extent that the appellant seeks to raise new points on appeal, she requires leave to do so. In his outline of submissions, the Minister indicates that he opposes leave being granted. However, in case leave is granted, the Minister addresses all of the grounds of appeal.

20    In circumstances where the appellant is not legally represented, I propose to consider each of the appeal grounds on their merits rather than spending time determining whether the appellant should have leave to raise new points on appeal. I note that the strength of the new points is relevant to whether or not leave should be granted. I note also that, given that the appellant was not legally represented in the FCFC, there is an apparent explanation for why any new points were not raised at first instance.

21    By ground 1, the appellant contends that she was denied a fair hearing in the FCFC. In particular, she contends that the FCFC ignored her submission that the interpreter for the Tribunal hearing had not performed her role properly. This contention was not one of the appellant’s grounds of review in the FCFC. However, the appellant did raise this contention in her oral submissions before the primary judge: see the Reasons, [27(e)]. The primary judge dealt with this contention at [54] of the Reasons. Her Honour noted that the transcript of the Tribunal hearing was not before the Court; therefore, there was no evidence that the interpreter did not explain the appellant’s position fully to the Tribunal. Although that reasoning was relatively brief, this was understandable in circumstances where the contention was not raised in the appellant’s grounds of review but only orally. In light of that paragraph of the Reasons, I am not satisfied that the FCFC ignored the appellant’s submission regarding interpretation issues at the Tribunal hearing. Ground 1 is therefore not made out.

22    By ground 2, the appellant contends that the Court noted that the transcript of the Tribunal hearing was not before the Court, but the Court (and the Minister) made no attempt to obtain a recording or transcript of the Tribunal hearing. This is not a point that was raised in the grounds of review at the FCFC. In my view, it was for the appellant to make her case before the FCFC. This included obtaining any evidence (such as the recording or the transcript) that she sought to rely on. It was not incumbent on the Court or the Minister (at least in the circumstances of this case) to obtain the recording or the transcript. Accordingly, ground 2 is not made out.

23    By ground 3, the appellant contends that the Tribunal and the Court failed to give the appellant more time to provide further evidence in relation to her medical condition and treatment. This ground corresponds to ground 10 in the FCFC proceeding. The primary judge dealt with this ground at [33]-[39] of the Reasons. In summary, the primary judge concluded that the appellant was afforded an opportunity to give evidence to the Tribunal about her medical condition and treatment. In my view, no error is shown in the primary judge’s reasoning or conclusion. Ground 3 is therefore not made out.

24    By ground 4, the appellant contends that the FCFC ignored her submission that the Tribunal hearing was very short, such that she did not have sufficient time to explain her circumstances. This was not specifically raised in the appellant’s grounds before the FCFC but was raised in the appellant’s oral submissions: see the Reasons, [27(a)]. The primary judge considered this contention at [45] of the Reasons. I therefore reject the contention that the FCFC ignored the appellant’s submission regarding the length of the Tribunal hearing. Ground 4 is therefore not made out.

25    By ground 5, the appellant contends that she was denied natural justice by the Tribunal and the FCFC and that they failed to consider her circumstances fully. In the FCFC proceeding, grounds 10 and 12 raised natural justice issues relating to the Tribunal hearing. The primary judge dealt with those grounds at [33]-[39] and [45]-[46] respectively. I have already stated that no error is established in relation to [33]-[39] of the Reasons. Further, in my view, no error is established in relation to [45]-[46] of the Reasons. In summary, I am not satisfied that the primary judge erred in concluding that the appellant was not denied natural justice by the Tribunal. Further, I am not satisfied that the FCFC denied the appellant natural justice. There does not appear to be a proper basis for that contention. Accordingly, ground 5 is not made out.

26    By ground 6, the appellant contends that the FCFC was wrong in “agreeing” with the Tribunal Decision, especially where the Tribunal focused more on her immigration history than her medical condition and treatment. This ground corresponds with one of the points the appellant made orally before the FCFC: see the Reasons, [27(c)]. It is inaccurate to say that the primary judge agreed with the Tribunal; rather, her Honour concluded that there was no jurisdictional error. I am not satisfied that this ground has any merit. The Tribunal was entitled to consider the appellant’s immigration history (as well as her medical condition and treatment), as the immigration history was relevant to the criteria in cl 602.215 (specifically, whether the appellant genuinely intended to stay temporarily in Australia). Ground 6 is therefore not made out.

27    By ground 7, the appellant alleges that the Tribunal and the FCFC did not take into account her exceptional circumstances, including financial hardship (which was a constraint in paying for medical treatment). This ground does not correspond to a ground before the FCFC. I do not consider this contention to have merit, as the Tribunal did refer to and take into account the appellant’s financial circumstances (at [15]-[16]). Ground 7 is therefore not made out.

28    By ground 8, the appellant contends that the FCFC erred by agreeing with the Minister’s submissions that the appellant’s immigration history was relevant to her intention of staying in Australia (see the Reasons at [47]). As indicated above, in my view, the appellant’s immigration history was relevant to the question whether the criteria in cl 602.215 were satisfied (specifically, whether the appellant genuinely intended to stay temporarily in Australia). Accordingly, no error is established in the reasoning of the primary judge. Ground 8 is therefore not made out.

Conclusion

29    For the above reasons, none of the appellant’s grounds of appeal are made out. It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will also order that these costs be determined on a lump sum basis.

Associate:

Dated:    11 September 2026