Al-Dmour v Minister for Immigration and Multicultural Affairs

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).

1. On 7 March 2025, the applicant lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 4 March 2025 published as Al-Dmour v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 303 (Registrar Decision). The registrar summarily dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 March 2021.
2. For reasons that follow, the Review Application is dismissed.

1. The applicant, a citizen of Jordan, first arrived in Australia in December 2010 on a student visa.
2. Between August 2012 and October 2013, the applicant applied for a protection visa and a partner visa. Both visa applications were refused and reviews by the applicant of the refusal decisions were unsuccessful.
3. On 12 December 2018, the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) (subclass 602) visa. The applicant stated that he wished to remain in Australia until 6 December 2019 to seek medical treatment for mixed anxiety and depression.
4. On 14 December 2018, a delegate of the first respondent refused to grant the applicant the visa on the basis that the delegate was not satisfied the applicant genuinely intended to stay in Australia for the purposes of cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
5. On 28 December 2018, the applicant applied to the Tribunal for review of the delegate's decision.
6. On 1 March 2021, the applicant attended a hearing before the Tribunal via telephone.
7. On 4 March 2021, the Tribunal affirmed the decision not to grant the applicant a medical treatment visa.

Judicial review application by applicant and summary dismissal application by first respondent

1. On 31 March 2021, the applicant lodged an application with the Court seeking judicial review of the Tribunal's decision (Judicial Review Application). The application was accepted for filing on 6 April 2021. The application contained the following grounds (as written):
   1. The Tribunal failed to engage in active intellectual process and failed to apply reasonableness test. It should be noted that the objective of the Tribunal hearing is to provide fair hearing to me (the applicant) and to make sure that I am in proper mental and physical condition to provide evidence.
   2. Administrative Appeals Tribunal is infected with error not understanding that since January 2020 the pandemic has interrupted with any person seeking proper access for medical treatment as there were limitations and restrictions to gain access for treatment.
   3. Tribunal failed to consider I am suffering from depression and mental health problem and request for further medical evidence.
2. On 13 May 2021, a registrar of the Court made procedural orders, including that the applicant file and serve any amended application with proper particulars by 5 August 2021. The applicant did not file or serve an amended application.
3. Following a period of inactivity, on 15 January 2025, the first respondent filed an amended response which included a request that the matter be summarily dismissed under r 13.13(a) of the Rules.
4. On 16 January 2025, the Court listed the matter for a summary dismissal hearing on 4 March 2025 and, among other orders, directed the applicant to file and serve by 27 February 2025 any amended application and a written submission. The applicant did not file any materials in response to this order.
5. On 4 March 2025, there was a hearing of the first respondent's summary dismissal application before a registrar. The applicant appeared by Microsoft Teams. Following the hearing, and on the same day, the registrar made the Registrar Decision in which he ordered that the Judicial Review Application be summarily dismissed pursuant to r 13.13(a) of the Rules.

1. On 7 March 2025, the applicant lodged the Review Application pursuant to r 21.02 of the Rules. On 14 March 2025, the Review Application was accepted for filing. The orders sought by the applicant in the Review Application were (as written):
   1. That the orders of the Federal Circuit and Family Court of Australia made on 04 March 2025 be set aside.

2. In lieu thereof, that the following orders be made from this Court.

(a) A WRIT OF CERTIORARI removing the decision of the second respondent into this Court to be quashed.

(b) A WRIT OF MANDAMUS, directing the second respondent to rehear and re-determine the appellant's application to it according to law.

3. That the first respondent pays the costs to the applicant.

1. On 17 March 2025, the Court listed the Review Application for hearing on 26 March 2025 and directed the applicant to file and serve a written submission and any evidence in support of the Review Application by 21 March 2025.
2. The applicant did not file a written submission or evidence before the hearing on 26 March 2025.

1. At the hearing on 26 March 2025, the applicant appeared in person. He had not requested an interpreter. He spoke competent English. Ella Hilder from Australian Government Solicitor appeared on behalf of the first respondent.
2. At the commencement of the hearing, Ms Hilder provided the applicant with a copy of the Court Book which contained the Tribunal's decision and documents before the Tribunal. I explained to the applicant that the Court's role was limited to considering whether there is a jurisdictional error, which I described as a significant error or mistake, in the Tribunal's decision. I explained the main categories of jurisdictional error. I asked the applicant if he wanted a 10 minute break to consider any oral submissions he wanted to make to the Court. The applicant took up this opportunity.
3. After the 10 minute break, I invited the applicant to make oral submissions. The applicant stated that he had no submissions to make. I asked the applicant if he had read the Registrar Decision. The applicant replied that he had read the Registrar Decision. I asked the applicant if there was any part of the Registrar Decision with which he disagreed. The applicant replied that there was no part of the Registrar Decision with which he disagreed. I asked the applicant if there was any part of the Tribunal's decision he considered was not correct. The applicant replied to the effect that there was no part of the Tribunal's decision which he considered was not correct. I asked the applicant why, if he had no complaint about the Tribunal's decision or the Registrar Decision, he lodged the Review Application on 7 March 2025. The applicant replied that this was his only option. I infer that the applicant considered lodging the Review Application was his only option to remain lawfully in Australia for a further period of time.
4. Although not determinative to whether or not there is a jurisdictional error in the Tribunal's decision, it appeared from the applicant's conduct at the hearing on 26 March 2025 that he filed the Review Application for the collateral purpose of extending his bridging visa to remain lawfully in Australia, rather than for the purpose of persuading the Court that there is a jurisdictional error in the Tribunal's decision.

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or ...

1. Aided by s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 (Spencer) and Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przyblowski) at [6]-[7], some principles concerning the test for summary dismissal are:

(a) The respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of success.

(b) An application "need not be hopeless or bound to fail for it to have no reasonable prospect of success": s 143 of Act.

(c) The provision "will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable": Spencer at [22].

(d) The "exercise of powers to summarily terminate proceedings must always be attended with caution": Spencer at [24].

(e) An "assessment of whether a proceeding has no reasonable prospects of success ... involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court": Przyblowski at [7(4)].

(f) The "determination of a summary dismissal application ... requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial": Przyblowski at [7(5)].

1. In considering whether any deficiency in the applicant's pleadings in the present matter is "incurable" (Spencer at [22]), it is relevant that the applicant has had a number of opportunities to file an amended application and written submission, but has not done so.
2. To successfully prosecute his application for judicial review, the applicant must establish that the Tribunal's decision is affected by jurisdictional error.
3. Where a registrar of the Court exercises a power, Part 21 of the Rules permits a dissatisfied party to apply for review by a judge of the exercise of power. Rule 21.04 states that the review "must proceed by way of a hearing de novo".

The Tribunal failed to engage in active intellectual process and failed to apply reasonableness test. It should be noted that the objective of the Tribunal hearing is to provide fair hearing to me (the applicant) and to make sure that I am in proper mental and physical condition to provide evidence.

1. It is stated in the Registrar Decision at [10] that "the Tribunal's reasons self-evidently reveal an active intellectual engagement with the evidence concerning the dispositive issue, which was whether the applicant genuinely intended to remain in Australia temporarily for the purpose for which the medical treatment visa would be" granted and "the Tribunal's conclusion that the applicant did not meet cl 602.215(1) was clearly open to it and did not lack an evident and intelligible justification". I agree with these observations. As stated above in paragraph 20, at the hearing in this Court on 26 March 2025, the applicant did not disagree with these observations.
2. It is also stated in ground 1 that "the objective of the Tribunal hearing is to provide fair hearing to me and to make sure that I am in proper mental and physical condition to provide evidence". This statement does not assert any error in the Tribunal's decision. Further, there was no evidence before the Tribunal, and there is no evidence before the Court, that the applicant was incapable of properly participating in the Tribunal hearing.
3. Ground 1 does not have reasonable prospects of success.

Administrative Appeals Tribunal is infected with error not understanding that since January 2020 the pandemic has interrupted with any person seeking proper access for medical treatment as there were limitations and restrictions to gain access for treatment.

1. If the applicant had made a submission to the Tribunal that the COVID pandemic placed limitations and restrictions on persons gaining access to medical treatment, and the Tribunal had not considered the submission, this might arguably be a jurisdictional error. But, first, there is no material in the Court Book which suggests that the applicant made this or any similar submission to the Tribunal. Second, as recorded in the Registrar Decision at [12], the applicant acknowledged at the summary dismissal hearing on 4 March 2025 that he did not "mention anything about the COVID-19 Pandemic during the Tribunal hearing".
2. Ground 2 does not have reasonable prospects of success.

Tribunal failed to consider I am suffering from depression and mental health problem and request for further medical evidence.

1. It is stated in ground 3 that the Tribunal "failed to consider I am suffering from depression and mental health problem". The Tribunal at [4] and [5] summarised the medical evidence provided by the applicant in support of his application, including the opinion of a psychologist that the applicant "qualifies for the diagnosis of Adjustment Disorder With Mixed Anxiety and Depressed Mood". The Tribunal therefore considered and had regard to the medical evidence concerning the applicant's mental health condition. The Tribunal was not required to expressly find that the applicant suffered from depression or mental health problems. This contention has no reasonable prospects of success.
2. It is also stated in ground 3 that the Tribunal "failed to consider ... request for further medical evidence". There is no material in the Court Book which indicates that the applicant made a request to obtain further medical evidence. The Tribunal does not have an obligation to consider a request never made. This contention has no reasonable prospects of success.

1. Ms Hilder sought costs in the sum of $1,000. Ms Hilder stated that this amount was less than 75% of the first respondent's solicitor/client costs. The amount sought by Ms Hilder appears reasonable. The Court will make a costs order in this amount.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.