Cama v Minister for Immigration and Citizenship [2025] FedCFamC2G 1601

1. For the reasons that follow, I find the grounds do not disclose jurisdictional error.

1. On 29 August 2018, the applicant lodged an application for a medical treatment visa (Court Book (CB) 1 to 11). The applicant provided Form 1507 (Evidence of intended medical treatment) dated 27 August 2018 (Form 1507) by Dr Ashishkumar Shah (Dr Shah) of the Allcare Carnes Hill Medical Centre (CB 12). The form stated that the applicant required medical treatment for her right "shoulder tendinosis pain and endometrial hyperplasia". The treatment information section of the form stated "physiotherapy - if necessary cortisone injection - gynecology services (sic)".
2. The applicant stated in her application form that she wished to remain in Australia for the purpose of medical treatment for the period 11 September 2018 to 11 December 2019 and intended "to apply for a permanent stay in Australia within the next 6-12 months in order to receive ongoing treatment for my medical health condition" (CB 2 and 11).
3. On 30 August 2018, the Department of Home Affairs (Department) wrote to the applicant to acknowledge receipt of the application for the medical treatment visa and invited the applicant to provide the Department with all the information the applicant deemed relevant (CB 30).
4. On 7 September 2018, the applicant provided a completed Form 1023 (Notification of incorrect answer(s)), whereby she changed her answer in relation to her intention to enter a healthcare facility where she would be treated and any further referrals to the hospital, to an affirmative answer (CB 40 and 41).
5. On 12 September 2018, the applicant provided further documents in support of the medical treatment visa application (CB 42 to 45). The further documents included a personal statement by the applicant dated 10 September 2018, confirming the support people for her medical treatment visa application.

1. On 25 September 2018, a delegate of the Minister refused the applicant's application for the medical treatment visa, on the basis that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa was granted, and therefore was not satisfied the applicant met the criteria in cl 602.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Relevantly, the delegate found that the adverse migration history strongly indicated that the applicant intended to continue to seek a visa pathway to remain in Australia on a permanent basis. Further, the applicant's statement in her medical treatment application, that she intended "to apply for a permanent stay in Australia within the next 6-12 months", also demonstrated her intention to continue to seek a visa pathway to remain in Australia on a permanent basis (CB 54 to 57).

1. On 11 October 2018, the applicant lodged with the Tribunal an application for review of the delegate's decision dated 25 September 2018, which was accompanied by a "Request for Fee Reduction" in respect of the filing fee for the application (CB 58 to 67).
2. On 12 October 2018 and 17 October 2018, the applicant provided to the Tribunal additional documents in support of her application for review (CB 68 to 123). The further documents included a personal statement by the applicant dated 17 October 2018, which stated that it was never her intention to apply for permanent stay based on continuous residency in Australia, but to stay solely due to her health problems and to facilitate further treatment (CB 123).
3. On 22 October 2018, the Tribunal acknowledged receipt of the applicant's application for review and invited the applicant to provide any further material or written arguments for the Tribunal to consider (CB 124 to 126).
4. On 24 October 2018, the applicant provided a letter from Fairfield Hospital in further support of her application for review (CB 131 to 132).
5. On 28 October 2020, the Tribunal wrote to Dr Shah, the applicant's treating medical practitioner notified in Form 1507, requesting information in relation to the applicant's patient status, history and medical treatment (CB 142 and 143). Dr Shah advised the Tribunal as follows:

(a) On 2 November 2020, he no longer treated the applicant (CB 144).

(b) On 4 November 2020:

(i) he last saw the applicant for scripts on 20 November 2019; and

(ii) the applicant attended the practice on 23 October 2020 to inform him that she was seeing another doctor in Fairfield and requested copies of her records, which Dr Shah provided (CB 157).

1. On 2 November 2020, the Tribunal invited the applicant, by letter to the applicant's legal representative Mr Michael Kah (Mr Kah) of Kah Lawyers, to attend a hearing by video conference on 17 November 2020 (CB 147 to 155). The applicant was also invited to provide to the Tribunal any information she wished the Tribunal to consider, in addition to the following information specifically requested by the Tribunal:
   1. Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew) who have come to or visited Australia within the past 10 years.
   2. Full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years.
   3. Updated information about the visa applicant's employment and financial situation in their home country.
   4. Any other information relevant to the visa applicant's activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.
   5. Any information relating to any previous visa held by, or visa application made by, the visa applicant.
   6. Any information concerning any other travel by the visa applicant outside their present country of residence.
2. On 13 November 2020, Mr Kah provided the Tribunal with submissions and supporting documents including doctor's letters, a personal statement of the applicant dated 13 November 2020, bank account confirmations, payslips and a medical summary (CB 159 to 214). Relevant to the grounds for judicial review, Mr Kah made written submissions under the heading "genuine intention to stay temporarily" as follows (CB 164):

...We note that her mother Leba Lutu is already 83 years old and lives in Delainavesi Settlement, Lami, Suva in Fiji. Mrs Cama feels isolated and alone during COVID-19 pandemic and wishes to reunite with her mother and return to her home country where she is familiar with.

1. Further, the applicant in her written statement dated 13 November 2020 sent to the Tribunal said (CB 173):

After my treatment in Australia, I plan to depart Australia and return to my home country, Fiji. Over the last couple of months, with the consequences of the COVID-19 pandemic being felt within Australia and being suffered from health conditions, I am very afraid and feeling isolated and alone. I think about my mother Leba Lutu, who is now 83 years old and lives in Delainavesi Settlement, Lami, Suva in Fiji, and I miss her and hope I can stay with her. It is my plan that I will make arrangements to depart Australia after my treatment to reunite with my mother and live in my home country, Fiji where I am most familiar with.

1. On 16 November 2020, Mr Kah provided the Tribunal with additional supporting documents, including a health cover letter, hospital accounts and doctor's letters (CB 215 to 221).
2. Following the Tribunal hearing, on 10 December 2020 Mr Kah provided the Tribunal with further supporting documents, including the applicant's insurance policy, a doctor's letter, clinical notes and evidence of payments made to the Department (CB 226 to 230). The applicant's insurance policy and evidence of payments made to the Department is not reproduced as evidence in the Court Book.

1. On 17 November 2020, the applicant appeared before the Tribunal by video conference assisted by Mr Kah, and an interpreter in the Fijian language (CB 223). The applicant's son and one of her daughters also gave oral evidence at the hearing before the Tribunal.
2. The Tribunal correctly identified one of the issues before it was whether the Tribunal was satisfied the applicant genuinely intended to stay in Australia temporarily for the purposes of medical treatment ([12] and [19] of its reasons).

1. The Tribunal outlined the applicant's migration history at [9] of its reasons as follows:

The applicant first arrived in Australia on 30 October 1999 on a visitor visa. She departed Australia within her allocated visa time. The applicant next arrived in Australia on 3 September 2008 on a visitor visa and she departed Australia on 1 December 2008. She next entered Australia on 25 November 2010 on visitor visa and she departed Australia on 1 February 2011. She entered Australia again on 17 May 2011 and she departed Australia on 15 August 2011. On 21 October 2011 the applicant was granted a visitor visa that was valid until 4 October 2013. She entered Australia on 2 February 2012, and she departed Australia on 30 April 2012. She re-entered Australia on 4 November 2012 and she departed Australia on 2 February 2013. On 4 October 2013 the applicant was granted a further visitor visa that was valid until 21 March 2014. She arrived in Australia on 21 December 2013. On 12 February 2014 the applicant was included in a protection visa application as a dependent applicant. That application was refused on 11 August 2014 and the applicant sought review of the decision in the High Court of Australia with the result being recorded as a Minister win on 14 June 2018. On 11 July 2018 the applicant lodged an application under s.417 for a Ministerial Intervention as a dependent applicant. This was determined 'not to be referred' on 8 August 2018. On 29 August 2018 the applicant lodged a Medical Treatment visa application and was subsequently granted a Bridging visa E. During the time the applicant has been in Australia she has been an unlawful non-citizen for 39 days. (Emphasis added)

1. The Tribunal noted the further submissions and material provided by Mr Kah, which included the material at [16] and [17] of this judgment ([16] of its reasons).
2. Further, at [22] of its reasons, the Tribunal noted that the applicant in her application for a medical treatment visa stated that she wished to "remain in Australia for 12 months for medical treatment and that she intended to apply for a permanent stay in Australia within the next 6-12 months in order to receive ongoing treatment for her medical health condition as described by her doctor".
3. At [29] of the Tribunal's reasons, it stated that "after taking into account the evidence on the file and the evidence given at the time of hearing", the Tribunal was not satisfied that the applicant had a genuine intention to remain in Australia temporarily for the purpose for which the medical treatment visa was granted or for related purposes. The Tribunal's reasons for so finding, were that although it accepted the applicant's evidence that she had an elderly mother who was living in Fiji, given the applicant's migration history as outlined at [22] of this judgment, and her previously stated intentions as set out at [24] of this judgment, that she intended to apply for a permanent stay within the next 6 to 12 months, the Tribunal did not regard the evidence of the applicant's changed intention as persuasive ([28] of its reasons). The Tribunal made clear at [31] of its reasons that in assessing the applicant's intention as to whether she genuinely intended to stay temporarily in Australia, it placed "greater weight to her immigration history and her previously stated intentions", being her intention to apply for permanent stay.

1. The following clauses in Schedule 2 of the Regulations deal with the criteria for the grant of a medical treatment visa:

The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

(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.

1. The applicant was represented at the hearing before me by Ms Theresa Baw of Counsel (applicant's Counsel). The Minister was represented by Ms Cate Cloudsdale (Ms Cloudsdale) solicitor at Mills Oakley. The evidence (which was read without objection) from the applicant comprised the following two affidavits:

(a) The affidavit of Mr Kah sworn on 12 March 2021, which annexed the transcript of the hearing before the Tribunal. References in this judgment to the transcript, is a reference to the said transcript of the hearing before the Tribunal. The applicant sought to rely on the transcript to support the ground that the Tribunal breached s 360 of the Act and acted unreasonably in failing to ask the applicant questions as to her relationship with her mother.

(b) The applicant's affidavit sworn on 25 July 2025 was relied upon to address a possible futility argument if jurisdictional error were found, in order to demonstrate that the applicant continued to require medical treatment despite approximately four years having elapsed since the Tribunal's decision.

1. The Minister relied on the Court Book, which was marked as Exhibit 1.
2. The applicant relied on her Counsel's written submissions dated 25 July 2025 and the Minister relied on written submissions dated 8 August 2025. I also had the benefit of the helpful oral submissions from both the applicant's Counsel and Ms Cloudsdale at two hearings before me on 22 August 2025 and 25 August 2025.

1. The following grounds for judicial review were raised in the amended application dated 25 July 2025 (as in original and omitting particulars):

Ground 1

The Second Respondent (the Tribunal) failed to consider the essential integers of the Applicant's claim.

Ground 2

The Tribunal breached s 360 of the Migration Act 1958 (Cth) and/or was legally unreasonable by failing to ask the Applicant questions relevant to the criteria of genuine intention under cl 602.215 of the Migration Regulations 1984 (Cth).

1. At the hearing, I granted leave (without objection) to the applicant to file a further amended application as the applicant had raised a new ground at the hearing. The Minister did not object to such leave being granted. In the further amended application dated 25 August 2025, the following additional ground was raised (omitting particulars):

Ground 3

The Tribunal failed to give genuine consideration to the request of the Applicant's representative that the Tribunal ask the Applicant questions about her relationship with her mother, and thereby breached s 360 of the Act and/or was legally unreasonable.

1. Ground 1 raises the question as to whether the Tribunal failed to consider a claim or an integer of a claim raised by the applicant. In support of this ground, the applicant raised the following particulars:

(a) The Applicant raised a substantial, clearly articulated argument relying upon established facts that she had a change in her intention, or a change of heart, about returning to Fiji, which arose from her experience of being afraid, isolated, lonely and suffering from health conditions during the COVID lockdown, and consequently, she started to miss her elderly mother and wanted to reunite with her in homeland of Fiji, where she is most familiar with, after her surgery.

(b) The Tribunal failed, to identify, understand and evaluate the integers of the claim. It failed to engage in an active and intellectual process directed at the claim and all its integers.

(c) If the aforementioned integers of the claim had been considered they would have been referred to in its reasons, even if they were then rejected or given little or no weight.

1. The applicant's complaint is that, although the Tribunal at [26] and [28] of its reasons referred to the applicant's change of intention, and wanting to return to Fiji once her medical treatment was concluded to be with her elderly mother, the Tribunal did so, without assessing the reasons for the applicant's changed intention. The applicant contended that the reasons were relevant to whether the Tribunal would accept the applicant's evidence as to the changed intention. The reasons were said to be that during the COVID-19 lockdown the applicant started to feel afraid, isolated, lonely and she started to miss her elderly mother and wanted to reunite with her mother in her homeland of Fiji, which country the applicant was most familiar.
2. The applicant also submitted that the Tribunal failed to consider "the main reason that the applicant did not return to Fiji since arriving in Australia, was that she had been a dependent in an application by her child for a protection visa".

1. It is well established that a failure to consider an integer of a claim may constitute jurisdictional error in that the Tribunal had failed to carry out its statutory duty to review.
2. The Full Federal Court in Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh) (per Reeves, O'Callaghan and Thawley JJ), at [34] to [36], usefully summarised the relevant legal principles as follows:

[34] ...[A] Tribunal charged with "review" may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

• a "substantial, clearly articulated argument relying upon established facts" - see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

• a claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

• a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" - see: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

[36] ...The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

1. The legal principles as to when there may be such a failure to consider an integer of a claim are conveniently set out by the plurality in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1/2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) at [24] to [27] (footnotes omitted):
   1. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
   2. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
   3. Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
   4. None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

Whether the Tribunal failed to consider the reasons for the applicant's change of intention

1. At [29] of the Tribunal's reasons, the Tribunal expressly stated, inter alia, that "after taking into account the evidence on file", it was not satisfied that the applicant met the requirements for the medical treatment visa. I find that on a fair reading of the said reasons, the Tribunal was aware of the detailed evidence of the applicant on file, as identified at [17] of this judgment, which was to the effect that given COVID-19 and her feelings of isolation, she had a change of intention and she genuinely wished to return to Fiji to be with her elderly mother and be in a familiar country once the medical treatment was concluded.
2. At [28] of its reasons, the Tribunal found that it did not "regard the evidence as being persuasive evidence of her [the applicant's] intention to return to Fiji once her medical treatment is concluded." The reference to "evidence" in this part of [28] of the Tribunal's reasons, I find, is a reference to the applicant's evidence as identified at [17] of this judgment, which records the reasons for the applicant's change of intention, being the effects of COVID-19 lockdown and feelings of isolation. By the said finding at [28] of its reasons, the Tribunal did not accept the applicant's evidence as to her changed intention, and by so finding, the Tribunal implicitly did not accept the applicant's evidence as to any reasons that led to a change in intention. As the Full Court found in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (French, Sackville and Hely JJ) at [47], "[i]t may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected".
3. For the reasons set out in [38] and [39] of this judgment, I reject the applicant's submission that the Tribunal failed to consider the reasons for the applicant's change in her intention to return to Fiji.
4. I also reject the applicant's submission that the Tribunal failed to consider that "the main reason that the applicant did not return to Fiji since arriving in Australia was that she had been a dependent in an application by her child for a protection visa", for the following reasons:

(a) First, there was no clearly articulated evidence or submission made to the Tribunal that "the main reason" for not returning to Fiji was because she was a dependent in an application for a protection visa. Mr Kah, the applicant's solicitor, at the hearing before the Tribunal made a submission to the Tribunal that he was not asking the Tribunal to disregard the applicant's migration history, but was saying that the applicant was a dependent in a visa applicant, made by her family member and she relied on other members of her family to guide her in those applications (Tp21.15).

(b) Second, in any event, I find the Tribunal did engage and consider as part of the migration history the fact that the applicant was a dependent in the protection visa application and in the Ministerial Intervention application. This is evident from [9] of the Tribunal's reasons, where it clearly sets out that it was aware that the applicant's migration history, included that she "was included in a protection visa application as a dependent applicant...and for a Ministerial Intervention as a dependent applicant".

(c) Third, in considering the issue of the applicant's genuine intention to stay temporarily in Australia, at [26] and [28] of its reasons, the Tribunal then considered the applicant's migration history, which included the migration history as set out at [9] of its reasons, which as said included a reference to the applicant being a dependent applicant, against the applicant's other evidence as to her changed intention to go back to Fiji, and attributed weight and persuasive quality to the evidence as it thought appropriate.

1. Ground 1 does not disclose any jurisdictional error.

1. Ground 2 raises the issue of whether the Tribunal breached s 360 of the Act and/or acted legally unreasonably during the oral hearing in failing to ask the applicant questions about her relationship with her mother who lived in Fiji which was a reason for the applicant's changed intention to return to Fiji once her medical treatment was concluded. The applicant contended that line of questioning was relevant to the criteria for the medical treatment visa, being that the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment.
2. In support of Ground 2, the applicant provided the following particulars:

(a) At the Tribunal hearing Applicant's legal representative requested that the Tribunal ask the Applicant questions about her relationship with her mother.

(b) The Applicant had provided written evidence that she very much wants to see her ailing and aged mother, because while experiencing COVID the Applicant has had a change of heart and she wants to return home to Fiji, a place she is familiar with, after her surgery.

(c) The Tribunal failed to ask the Applicant relevant questions and the failure constituted a failure to provide a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, in breach of s 360 of the Migration Act, and/or the Tribunal was unreasonable.

(d) Furthermore, no explicit reasons were given by the Tribunal which explained why it failed to ask those questions.

(e) Also, taking oral evidence from the Applicant on her claim would have provided the Tribunal with the opportunity to test the credibility of her written evidence.

1. The applicant's Counsel submitted that Mr Kah (incorrectly spelt as Mr Carr in the Tribunal hearing transcript) made a specific request to the Tribunal to ask the applicant questions about her relationship with her mother. The part of the transcript the applicant's Counsel relied on was as follows (Tp19.40 to Tp20.19):

MR CARR (sic): Sure, sure. And then we will do that, Member. So I think the - well, the main issue about genuine intention to return after the completion of the medical treatment. So in light of the long history of the client in Australia on the (indistinct) visa and then multiple visas, while she has - and yes, she (indistinct) her family here, including grandchildren, but she also has, back in Fiji is not only her home and sisters and brothers, but actually she also has her mother, which she actually didn't tell you about, so it would be - it might be helpful for the tribunal to actually ask questions about her relationship with her mother because it appears - her instructions are that the main reason that she is willing to return home is that she wants to get the benefit of, obviously Australian medical services, but at the end of that she is happy to return home to actually see her ailing and aged mother and so - and that's contained in her statement.

In here (sic) evidence today she actually hasn't even mentioned her mother, so that is a little bit leading there.

MEMBER: I was aware from other documents before me that there was - she did still have an ageing mother in Fiji.

MR CARR (sic): Yes. So my understanding is that basically she realised that her time is up and that it is appropriate and she actually desires to see her mother so, which is a change, and so that is what her intent is, to actually get this knee surgery completed, to which she does have private monies available for that. She also has some medical insurance that she has in accordance with the requirements.

1. The applicant's Counsel also submitted that following such a request by Mr Kah for the Tribunal to ask the applicant questions about her relationship with her elderly mother, in order to ensure the applicant was given a real and meaningful hearing, and in acting reasonably in conducting the hearing, the Tribunal was required to cross-examine/test the applicant as to her statement that she had changed her intention. The applicant's Counsel submitted that the types of questions the Tribunal was required to reasonably ask about the applicant's relationship with her mother were to the following effect:

"So tell me about your mother. How old is she? How long ago did you see her? You say in your statement, you would like to return to see her. You have had a change of heart. What makes you say that now?

...

So why should the tribunal believe you, now that you have in fact had a genuine change of heart?

...

So tell me what experience that you had during COVID, that prompted you to have this change of heart. Why didn't you go back to see your mother earlier than this?

...

Why should - after your immigration history of staying in Australia and making applications for all sorts of other visas, why should the tribunal believe you now, that you have in fact had this change of heart because it has got to do with the relationship with your mother?"

1. The applicant's Counsel also relied heavily on the decision of Griffiths J in Huynh v Minister for Immigration and Border Protection [2015] FCA 701 (Huynh), to support her argument that the Tribunal, in this case, was required to ask the applicant questions about her relationship with her mother, in order to comply with the obligations of s 360(1) of the Act and carry out a hearing that was real and meaningful.
2. Given the applicant's heavy reliance on Huynh, I will deal with that case in some depth to ascertain the extent to which it may apply to this case. Relevantly, the facts in Huynh were that:

(a) The Tribunal in exercising the power under s 359(1) of the Act, to "get any information that it considers relevant", invited the appellant (the visa sponsor) to appear before it to give evidence and present arguments relating to the issues arising in the application for review of the delegate's decision sought by the appellant (at [13] to [14]).

(b) The Tribunal indicated on multiple occasions that it may wish to take evidence from Mr Phi Thanh Le (Mr Le), the appellant's husband, in relation to his relationship with the appellant, and requested his telephone contact details (at [13] and [15]).

(c) Mr Le was interviewed for approximately five minutes by telephone by a Tribunal member (at [21]). In the interview, the Tribunal member:

(i) asked Mr Le to respond to the statement that the delegate was concerned that the application was not a genuine spouse application;

(ii) asked Mr Le a very general question by inviting him to describe his wife, her personality and what made her a suitable partner for him; and

(iii) without exploring any matters further and without raising any other matters of concern to the Tribunal, concluded the interview.

1. The relevant issue before the Federal Court in Huynh was whether the Tribunal acted unreasonably, in the legal sense, in failing to take specific relevant evidence from Mr Le.
2. At [87] of Huynh, Griffiths J concluded that the Tribunal acted unreasonably, in the relevant legal sense, in failing to ask Mr Le during the course of the interview of him questions relating to the matters referred to at [33] of that judgment. Griffiths J came to this conclusion for the following reasons:

(a) First, the Tribunal in exercising the power under s 359(1) of the Act, to "get any information that it considers relevant", requested Mr Le, as a witness, to be available to give evidence and therefore the Tribunal plainly considered that he might be able to give it information which was relevant to the review. His Honour specifically emphasised that the Tribunal was not obligated to obtain evidence from Mr Le, but chose to do so (at [88]).

(b) Second, having exercised its discretionary power under s 359(2) of the Act to invite Mr Le to give information orally, "the Tribunal was obliged to conduct its interview of Mr Le reasonably in the sense explained in cases such as Li and Singh". His Honour stated that the purpose of s 359 of the Act is to empower the Tribunal in its discretion to get information either orally or in writing, which is relevant to the issues arising in the review (at [89]).

(c) Third, his Honour emphasised that it was important to bear in mind that it was the Tribunal's decision to request that Mr Le be available to give evidence. This plainly contemplated that further steps would be taken to implement that discretion, including asking questions of Mr Le at the interview which were relevant to the issues under review. His Honour noted that the requirement for reasonableness in the legal sense must extend to the Tribunal's questioning of Mr Le at the interview (at [90]).

(d) Fourth, the opportunity afforded to Mr Le had to be "real and meaningful and not just an empty gesture" (at [91]).

(e) Fifth, the Tribunal must have believed that Mr Le was capable of giving information which it considered to be relevant to the issues arising in relation to the decision under review (at [92]).

(f) Sixth, the Tribunal had imposed on it an express obligation to have regard to information which is relevant and which it obtains under either s 359(1) or (2) of the Act (at [93]).

(g) Seventh, the prohibition of anyone other than the Tribunal from examining or cross-examining a person who appears before the Tribunal to give evidence served to reinforce the Tribunal's inquisitorial role and its responsibility of ensuring that a witness whom it called to give oral evidence was given a "real and meaningful" opportunity to give evidence on issues considered relevant by the Tribunal (at [94]).

1. It is noted that Griffiths J at [102] of Huynh, stated that there may be cases where the Tribunal could justifiably come to the view that no point would be served by hearing the evidence of a particular witness. In circumstances where the Tribunal arranged for Mr Le to give oral evidence and it had not explained why it did not squarely put to Mr Le its specific concerns, justice and fairness obliged the Tribunal to provide Mr Le with a meaningful opportunity to address those issues of concern, and required the Tribunal to put those issues of concern to Mr Le for comment in a way which enabled him to respond meaningfully. At [103], his Honour emphasised that his conclusion that the Tribunal's actions constituted unreasonableness in the legal sense reflected the particular facts of that case and did not involve an impermissible review by the Court of the merits of the case.
2. I find that Huynh is distinguishable from the present case because it involved a tribunal exercising the express power under s 359(1) of the Act, to "get" information it considered relevant and the tribunal was then required to "have regard to that information in making the decision on the review". I accept the Minister's submissions that unlike the Tribunal in Huynh, the Tribunal in this case had not enlivened any such statutory discretion, and accordingly, there were no obligatory steps to complete the exercise of any such power.
3. Further, in this case, I find that the Tribunal did give the applicant a real and meaningful hearing to give evidence and present arguments as to the reasons for her changed intention and the Tribunal acted reasonably for the reasons that follow.
4. First, the applicant was aware that the question of her real intention to remain in Australia temporarily was central to the determination of her review application before the Tribunal. On that issue, the applicant was aware of the following:

(a) In her medical visa application, the applicant had said that she intended "to apply for a permanent stay in Australia within the next 6-12 months" (CB 2 to 11).

(b) The delegate in the decision dated 25 September 2018 (CB 54 to 57) had noted (a) above and found that the said statement demonstrated that the applicant intended to continue to seek a visa pathway to remain in Australia on a permanent basis.

(c) In the review before the Tribunal, the applicant provided new evidence as to her changed intention and said that she now intended to go back to Fiji due to her experience during COVID-19 and wished to be with her elderly mother in Fiji and live in her homeland (CB 164 and 173).

1. Therefore, it was obviously open on the known material to the applicant, that the Tribunal may not accept the applicant's new evidence was persuasive, and that an issue before the Tribunal was the credibility of the applicant's changed intention: Long v Minister for Immigration & Citizenship [2025] FCA 751 at [43].
2. Second, the Tribunal clearly at the outset of the oral hearing with the applicant (Tp3.5-10) made it clear that the delegate had found that the applicant did not intend to stay in Australia on a temporary basis and that was the matter the Tribunal was looking at. Thus, the applicant was squarely told at the hearing that the issue before the Tribunal was the applicant's intention to stay in Australia on a temporary basis. Pausing there, it is noted that the Tribunal in identifying the issue did not need to identify the factual matters that "go to" the issues themselves: SZJUM v Minister for Immigration and Citizenship [2007] FCA 1486 (Bennett J) at [25], cited in SZHZD v Minister for Immigration and Citizenship [2008] FCA 1200 (Stone J) at [6] and ANH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10 (Farrell J) at [54].
3. Third, as stated in SZJZS v Minister for Immigration and Citizenship & Anor [2008] FCA 789 (Flick J) at [16]:

A general answer may be provided to the alleged "duty to investigate": even though the tribunal performs an "inquisitorial function", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the tribunal to make out an applicant's case for him: compare Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ; 62 ALR 321 . Mason J there observed (at CLR 587; ALR 348 ):

... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.

1. In Abebe v Commonwealth (1999) 197 CLR 510 (Abebe), as set out at [187] by their Honours Gummow and Hayne JJ, the applicant in that case was asserting that the want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. To that their Honours said:

The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

1. Fourth, it is apparent from the following excerpts of the transcript of the hearing before the Tribunal, that the applicant was given ample opportunity to mention her mother and her experience during COVID-19, as the reason she now had a changed intention to remain in Australia only temporarily, but despite such opportunities, the applicant did not speak to such reasons:

(Tp.3-5)

MEMBER:...The decision was refused on the grounds that you did not meet the requirements of clause 602.215. 602.215 is the clause that relates to your intention and the delegate found that you did not intend to stay in Australia on a temporary basis and that was the basis of the refusal. That is the matter that I am going to be looking at this morning.

...

(Tp9.3-5)

MEMBER: What family do you still have in Fiji?

INTERPRETER: A younger sister and a brother. Two brothers, sorry.

...

(Tp10.11-25)

MEMBER: So, Mrs Cama, would it be fair to say that since 2013 you have been trying to find ways that your family could stay in Australia?

INTERPRETER: No, we wanted just to stay here temporarily before returning to Fiji.

MEMBER: You understand that the delegate found that this visa that you've applied for now, the medical treatment visa, was just another way of you trying to stay in Australia. But what the delegate said was that your conduct in continually seeking visas and review of visas that were refused was indicative of you wanting to live here permanently; what do you say to that?

INTERPRETER: No, because since I have come to meet with my injury, just seeking medical treatment for my injury and when that is over we will return to Fiji.

...

(Tp16.45 to Tp17.1-23)

MEMBER: So, Ms Cama, you have been in Australia for the last six years without a substantive visa.

INTERPRETER: Yes.

MEMBER: The tribunal may make a finding that the conduct is not consistent with a person who intends to only stay temporarily in Australia.

INTERPRETER: Yes, no.

MEMBER: Sorry, could you - what do you (w)ant to say to me about that?

INTERPRETER: I am hoping that as soon as my medical treatment is complete I will return to Fiji.

MEMBER: And just so I understand, when you say you're hoping that your medical treatment, when it is complete. At this stage you are on a waiting list for knee surgery and you don't have any real idea as to when that surgery may take place?

INTERPRETER: Yes.

MEMBER: Ms Cama, thank you. Is there anything further you want to say to me?

INTERPRETER: No, that would be all, Member.

1. Fifth, Mr Kah said to the Tribunal in relation to the applicant's mother (from Tp19.46 to Tp20.7) as follows:

...it might be helpful for the tribunal to actually ask questions about her relationship with her mother because it appears - her instructions are that the main reason that she is willing to return home is that she wants to get the benefit of, obviously Australian medical services, but at the end of the day she is happy to return home to actually see her ailing and aged mother and so - and that's contained in her statement.

In here (sic) evidence today she actually hasn't even mentioned her mother, so that is a little bit leading there.

1. To that statement, the Tribunal answered that it was aware from other documents before it that the applicant still had an elderly mother in Fiji (Tp20.10). In response, the applicant's solicitor gave some evidence at Tp20.13-18 as to the applicant's intention, submitting that there was a change of intention and the applicant now "actually desires to see her mother...which is a change and that is what her intent is". After providing that submission, the applicant's solicitor did not ask the Tribunal to ask any further questions of the applicant as to her relationship with her mother. I am satisfied that fairly read the transcript discloses that, after the Tribunal said it was aware of the applicant's written statement as to the applicant's change of intention and wish to return to Fiji to see her elderly mother, the applicant's solicitor did not press for the Tribunal to ask questions of the applicant on that topic.
2. It is a matter for the applicant to advance the case she wishes to make before the Tribunal, and it is then a matter for the Tribunal to determine whether the applicant's case is made out: Abebe at [187] and [197] per Gummow and Hayne JJ, at [295] per Callinan J. It is not for the Tribunal to make out the applicant's case on a live issue, and in circumstances where an applicant knows that an issue will be live at a review hearing before the Tribunal, the applicant should positively put before the Tribunal evidence of what his or her plans are in relation to that issue: Vu Vu & Ors v Minister for Immigration & Anor [2020] FCCA 2292 at [24] per Egan J.
3. I note for completeness that the applicant's Counsel specifically said at the hearing before me that her client was not seeking to challenge the Tribunal's decision on the basis that the Tribunal had failed to raise an "issue" with the applicant in the "SZBEL sense", being a reference to the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), or that there had been a failure to inquire about a critical fact as discussed by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
4. For the reasons identified above, the applicant's contention that the Tribunal was required to cross-examine and test the applicant as to her evidence in relation to her changed intention in order to give a real and meaningful hearing and act reasonably in the conduct of the hearing is rejected. I find that Ground 2 does not disclose any jurisdictional error.

1. Ground 3 raises the issue of whether the Tribunal breached s 360 of the Act and/or acted legally unreasonably during the oral hearing in failing to genuinely consider the request by the applicant's legal representative to ask the applicant questions about her relationship with her mother who lived in Fiji, as that line of questioning was relevant to the criteria for the medical treatment visa, being that the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment.
2. In support of the ground, the applicant raised the following particulars:

(a) At the Tribunal hearing, the Applicant's legal representative requested that the Tribunal ask the Applicant questions about her relationship with her mother.

(b) Obtaining oral evidence from the Applicant in respect to her mother at the Tribunal could have changed the outcome of the Tribunal decision.

(c) The Tribunal failed to give a genuine consideration to that request.

(d) The Tribunal also failed to provide any reasons for its failure to do obtain that oral evidence.

1. The applicant's Counsel submitted that the applicant's solicitor, Mr Kah, made a specific request to the Tribunal to ask the applicant questions about her relationship with her mother. The part of the transcript the applicant's Counsel took me to (Tp19.40 to Tp20.19) is extracted at [45] of this judgment.
2. The applicant's Counsel contended that, when on specific notice to ask further questions of the applicant, in this case being about the relationship of the applicant with her mother, then there was an obligation on the Tribunal to genuinely consider that request. The applicant's counsel submitted that a failure to do so would mean the applicant was not given a real and meaningful hearing and that there was a breach of s 360 of the Act.
3. The applicant's Counsel relied on SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 (Rangiah J) (SZVBB) and Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 (Spender, Kenny and Lander JJ) (Maltsin).
4. At [33] of SZVBB, his Honour Rangiah J cited their Honours Spender, Kenny and Lander JJ in Maltsin at [38] that "[t]he Tribunal is required to give genuine consideration to an applicant's wish for the Tribunal to obtain oral evidence...This requires that the Tribunal cannot decline the applicant's wishes capriciously, but must take into account relevant matters such as the relevant and potential importance to the outcome for the review of the evidence that could be given".
5. The Minister correctly pointed out that both the decisions in Maltsin and SZVBB are distinguishable from the facts in this case. In Maltsin, the applicant had requested in writing that the Tribunal, pursuant to the powers expressly stated in s 361(2) of the Act, that "the applicant ...wants the Tribunal to obtain oral evidence from a person or persons named in the notice". Once such notice is given, pursuant to s 361(3) of the Act, the Tribunal "must have regard to the applicant's notice but is not required to comply with it". It was in the context of considering s 361(3) of the Act that the Full Court in Maltsin at [38] said:

...This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant's wishes. The Tribunal must not merely go through the motions of considering the applicant's wishes as expressed in the notice. As the respondent's counsel said, the authorities establish that the invitation to appear before the Tribunal must be "real and meaningful and not just an empty gesture": NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant's wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness...

1. In SZVBB, the Court was considering the requirements imposed on the Tribunal pursuant to s 426(3) of the Act, which was equivalent to s 361(3) of the Act. The Tribunal in this case was not exercising any such power to call a witness under ss 361 or 426 of the Act.
2. In any event, I find that Ground 3 fails on a factual basis. As said, I find that after the exchange following the initial request by Mr Kah to the Tribunal to ask the applicant questions about her relationship with her mother, Mr Kah did not press or make a further request to the Tribunal to ask the applicant questions for the reasons I have outlined at [60] to [61]. It is fair to say and reasonable that the Tribunal viewed the exchange, as being no more than the applicant's solicitor informing the Tribunal of the applicant's evidence as to her mother (which evidence the applicant did not repeat at the hearing) and stating that it might be helpful for the Tribunal to ask some questions about the relationship. The Tribunal responded that it had knowledge of that evidence from the evidence on file. After that exchange Mr Kah did not press that he requested the Tribunal to ask the applicant further questions as to the applicant's relationship with her mother. I find in the circumstances, it was reasonable for the Tribunal not to have dealt with this matter further.
3. For the reasons identified above, I find that Ground 3 does not disclose any jurisdictional error.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.