CMC16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1246

1. The Applicant, whose name has been anonymized as a protection visa applicant under s. 91X of the Migration Act 1958 (Cth) as CMC16, is a citizen of India. I note that I heard this case concurrently with CMD17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1247 and I also publish my reasons in that matter today. CMC16 and CMD17 are wife and husband respectively
2. The Applicant and her husband CMD17 have exhausted their appeal rights as to past protection visa applications. The High Court refused special leave to them on 18 August 2022 (CMC16 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCASL 132).
3. On 19 September 2022, approximately one month after the special leave application as to the protection visas was refused, the Applicant (CMC16) applied for a medical treatment visa.
4. Because the Tribunal was satisfied that "arrangements had been concluded" for the Applicant's treatment for depression and anxiety in Australia the Tribunal found that Applicant met one primary criterion for the grant of a medical treatment visa under cl. 602.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth).
5. Because the Tribunal was not satisfied that the Applicant intended to stay temporarily in Australia the Tribunal was not satisfied that she met another primary criterion under cl. 602.211 and cl. 602.215(2) for the grant of a medical treatment visa. It therefore refused to grant her a visa. The Tribunal was not satisfied that the Applicant genuinely intended to stay temporarily in Australia for a number of reasons. The reasons included that the Applicant's application for a medical treatment visa and a temporary stay in Australia in accordance with that visa was inconsistent with her recently rejected application for a protection visa which was conditioned on a permanent stay in Australia. Another reason the Tribunal was no satisfied that the Applicant genuinely intended to stay temporarily in Australia was that the Applicant had been in Australia for more than 15 years, since 2007, which was evidence that she did not intend to stay temporarily.
6. The Applicant's husband (CMD16) also applied for a medical treatment visa on the basis that he sought "to give emotional and other support" to his wife, a primary criterion for the grant of a visa to a "support person" under cl. 602.212(4)(a). The Tribunal accepted that the husband (CMD16) sought to give emotional and other support to his wife. Nonetheless, because another primary criterion of a grant to the husband of the visa as a support person under cl. 602.212(4)(b) was that the wife herself held a medical treatment visa, the Tribunal refused to grant a visa to the husband because the wife did not hold the substantive visa. A medical treatment visa for a support person depended on, and was tied, to, the grant of a visa to the person seeking medical treatment to whom the support-person applicant sought to give "emotional and other support".
7. The Tribunal made two decisions on 20 August 2023: one as to each of the wife (CMC16) and the husband (CMC17).
8. Both applicants - the wife (CMC16) and the husband (CMD16) - seek judicial review as to the Tribunal's decisions as to them. Each of CMC16 and CMC16 made their own application in this court. Because the two applications raise slightly different grounds, I will publish my reasons as to CMC16 and CMD16 separately.
9. These reasons concern the wife (CMC16). These reasons ought to be read together with reasons I will separately publish as to the Husband (CMD17). I have set out the medium neutral citation for the decision as to the husband above.
10. My decision is to dismiss both applications.
11. My reasons as to dismissing the wife's application for judicial review follow.

1. It is convenient to set out some background as to the Tribunal's consideration of issues in connection with the Applicant's depression and anxiety and the arrangements she had made for treatment of it in Australia.

Clause 602.212(2) - treatment for anxiety and depression

According to the visa application form:

• The applicant is seeking to remain for medical treatment for mental illness to be provided by [psychologist, name omitted]. The applicant states that she is suffering from severe mental health issues including depression and anxiety.
• The applicant is supported financially by her husband who will finance her stay [she provided her husband's banking documents showing one account with a closing balance of over $50,000 on 1 September 2022, and an access account with which he undertakes transactions including making payments to the applicant]. She requires his assistance in the form of continuous caring and support.
• She seeks to remain in Australia from 15 September 2022 to 31 March 2023.

1. The Tribunal noted the nature and content of a letter from the Applicant's treating psychologist as follows (TD, [8]):

A typed letter from the psychologist dated 1 September 2022 stated that the applicant had begun psychological treatment sessions for treatment of generalised anxiety disorder and major depressive disorder. It is stated that the applicant reported that she had come to Australia from India in 2007. She had left India after an attack on her family and an attempted kidnapping. Her brother had come to Australia soon after this. She completed studies and had been working until recently. She reported that in 2021 her brother had been through anxiety and depression and she had provided care and support to him, which had had a significant impact on her, she became overwhelmed with anxiety and is unable to participate in daily tasks as she used to. The psychologist accepted that the applicant had experienced trauma in India and had provided support to her brother, on the basis of essentially self-reporting: specifically on the basis of the applicant's reporting of past events, her reporting of her symptoms, as well as the results of her Depression, Anxiety and Stress Scale questionnaire [a self-reporting questionnaire completed on 7 June 2022 where the applicant provided responses to a series of questions including, but not limited to, whether she finds it hard to wind down or experience positive thoughts, whether she worries, whether she felt downhearted and blue, whether she over-reacts and whether she was not enthusiastic about things](footnote omitted) The psychologist opined that it would be detrimental to the applicant to return to India without treatment. It was recommended that the applicant have fortnightly sessions of cognitive behaviour therapy (CBT) to provide her with the tools to relax.

1. The Tribunal referred to the Applicant's letter to the Department dated 19 September 2022 in which she set out her submissions as to the genuineness of her application including that (TD, [10]):

I strongly say that I am a genuine applicant for this medical treatment visa. I started my medical treatment in June 2022, 3 months before I lodged my medical treatment visa application. I was genuinely undertaking my medical treatment on my bridging "C" visa and didn't have intentions to apply for a medical treatment visa at all. All I wanted was to complete my medical treatment before going to India for good. Unfortunately, my judicial review application for my protection visa was finalized in August 2022. I was asked to leave the country in 28 days. But my medical treatment wasn't completed yet. Hence, to complete my medical treatment, I had to apply for this visa. I contacted few migration agents after my judicial review application was finalized and I was recommended to apply for ministerial intervention. I did not apply for that as I believe that I was fully eligible to apply for a medical treatment visa due to my medical issues. Hence, I do believe that I am a genuine applicant to apply for this visa.

1. The Tribunal noted that the Applicant had updated her medical material in July 2023 (about a month before the Tribunal hearing) when she provided a further report from her psychologist. The Tribunal noted that (TD, [17]):

The psychologist said that the DASS results indicated extremely severe depression and anxiety, and moderate stress. She opined that the applicant still has the diagnoses previously given. It was stated that the applicant has attended 11 therapy sessions. She has also engaged in CBT. She has reported improvements in her general well-being, manages household tasks and engages in regular exercise and has reduced anxiety feelings at home during the day. She has successfully met some of her exposure goals and she needs support to build on the goals. It was asserted by the psychologist that it would be a risk for her to go back to India where the source of her trauma was. It was estimated that she would require a further 12 months' therapy to have a substantial reduction in symptoms and maintain her improvement.

1. The Tribunal accepted the Applicant's psychologist's diagnoses that "the applicant has generalised anxiety disorder, major depressive disorder and stress" (TD, [32]).
2. The Tribunal said as to the Applicant having arranged medical treatment for anxiety and depression in Australia (at [34]) :

The Tribunal accepts that the applicant satisfies this threshold criteria and meets the requirements in cl 602.212(2).

Clause 602.215 - the Applicant's intention to stay temporarily in Australia

1. The Tribunal was not, however, satisfied that the Applicant genuinely intended to stay temporarily in Australia under cl. 602.215. As a result, the Tribunal refused the visa.
2. It is necessary to consider whether the Tribunal made a jurisdictional error in reaching its conclusion that it was not satisfied that the Applicant genuinely intended to stay temporarily in Australia.

1. In her Application, the Applicant detailed 8 grounds of review.
2. Although the court made orders for her to do so, the Applicant did not file any written submission in support of her grounds. At hearing, she declined the opportunity to make oral submissions. Specifically, as I explained the judicial review process to her, she submitted (T5:L44-45):

So, we don't have anything new to submit. We are just here for the decision.

1. I will therefore proceed to assess her application by reference to the grounds set out in her Initiating Application.
2. Grounds 1 to 3 set out a procedural history of her visa application.
3. Ground 4 is that she does "not agree" with the decision.
4. None of the matters in grounds 1-4 give rise to a jurisdictional error and it is not necessary to refer further to those grounds.

GROUND 5: DID THE TRIBUNAL FAIL TO RECOGNISE THE "COMPELLING CIRCUMSTANCES" OF THE APPLICANT'S SEVERE DEPRESSION?

1. The Applicant's principal ground of review is Ground 5 as follows:

I acknowledge that I am in Australia since February 2007. But my concern is that my presence in Australia has nothing to do with my current medical condition. Anyone can get sick at any time and at any age. I am hardest hit by my mental health situation and in order to survive, I must continue with my medical treatment in Australia. AAT failed to recognize that there were compelling circumstances (Severe depression) for my temporarily stay in Australia on a medical treatment visa.

[As written]

1. The issue for decision is whether the Applicant has proved that there was a jurisdictional error in how the Tribunal dealt with her "compelling circumstances".

Disagreement with the outcome is not of itself jurisdictional error

1. The Tribunal had to consider any "compelling circumstances" not "at large" but in the specific context of the regulations. Whether it granted the visa was not a matter of discretion, rather the Tribunal has to engage in an evaluation of whether it was satisfied the Applicant met the primary criteria for the grant of the visa. Specifically, the Tribunal had to evaluate whether it was satisfied that the Applicant met the mandatory criteria for the grant of a medical treatment visa set out in cl. 602 of Schedule 2 to the Regulations_._ Relevantly, the Applicant had to meet requirements in cl. 602.212(2)-(8) (requirements about seeking medical treatment) (as to which the Tribunal was satisfied) and cl. 602.211 and cl. 602.215(1) (a genuine intent to stay temporarily in Australia) (as to which the Tribunal was not satisfied).
2. Under s. 65 of the Act, if the Tribunal was satisfied the Applicant met the relevant criteria it had to grant the visa and refuse the visa if not so satisfied.
3. If Ground 5 is characterised as no more than a statement of emphatic disagreement with the outcome in the Tribunal, it is an invitation to the court to engage in impermissible merits review. It is impermissible for me - conducting judicial review - to engage in a "reconsideration of the merits of the decision" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272).

Did the Tribunal bring its mind to bear on the Applicant's compelling circumstances as to why she submitted that she intended to stay temporarily in Australia?

1. Ground 5 might be characterised as a submission that the Tribunal failed to consider a submission made to it (Plaintiff M1/2021 v. Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, [24]).
2. The High Court plurality explained in Plaintiff M1 that the Tribunal must "read, identify, understand and evaluate" each of the arguments and their component integers the Applicant puts forward. The decision-maker must "bring their mind to bear upon the facts stated in them and the arguments or opinions put forward."
3. The Tribunal brought its mind to bear on the "compelling circumstances" the Applicant put forward.
4. As noted, the Tribunal extensively referred to the Applicant's material which supported her argument that she was suffering from "severe mental health issues" and discussed that issue at length in its reasons.
5. With particular influence to Ground 5, the Tribunal also had to bring its mind to bear on the arguments the Applicant put forward as whether she genuinely intended temporarily to stay in Australia.
6. Although the Tribunal accepted that the Applicant suffered from severe anxiety and depression and had arranged medical treatment as to her mental health challenges, there were several reasons which caused the Tribunal not to be satisfied that she genuinely intended to stay temporarily in Australia. Those reasons appear in my discussion of ground 6 below.
7. As to whether there was jurisdictional error because the Tribunal failed to consider an argument put forward by the Applicant or an integer of an argument as explained in Plaintiff M1, the Applicant has not pointed to any matter she submits that the Tribunal ought to have considered and failed to consider.
8. It cannot be said that the Tribunal did not bring its mind to bear in any relevant matter as to genuineness of the Applicant's intention to stay in Australia temporarily having regard to each of the matters set out below.
9. Ground 5 has not been made out

GROUND 6: WAS THE APPLICANT THE VICTIM OF "UNFAIR TREATMENT"?

1. On the most beneficial reading available, Ground 6 may be understood as a contention that the Tribunal's decision was unreasonable in the legal sense either because the reasoning process was affected by a specific error or because the result was so unreasonable that it could not have been reached if proper reasoning had been applied (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [81]-[83]).
2. For the reasons set out below, there was no jurisdictional error as to how the Tribunal dealt with this issue.
3. The Applicant has not pointed to any specific error in the reasoning process.
4. I have considered whether the Applicant has proved legal unreasonableness via a result lens (see SZVFW, [83]) because her circumstances were so compelling that the result that the Tribunal was not satisfied that the Applicant genuinely intended to stay in Australia temporarily could not have been reached if proper reasoning had been applied.
5. The Tribunal noted (as it was reasonably entitled to do) that the Applicant had previously twice applied for permanent visas: first, by way of a skilled visa application, and second, a protection visa.
6. The Tribunal noted that she had in 2011 applied for a permanent skilled independent visa which was refused.
7. In 2014, the Applicant had applied for a permanent protection visa which was ultimately unsuccessful on the refusal of her special leave application in August 2022. As a result, the Tribunal noted that the Applicant had been in Australia without a substantive visa for over 10 years (TD, [9]). As to her protection visa application, she had "maintained review/appeals until the High Court refused the application in 2022" (TD, [46]).
8. Further, the Tribunal was entitled to weigh in its consideration the Applicant's "migration history" in support of a conclusion that she did not intend to stay in Australia temporarily. As of the date of the Tribunal's decision, the Applicant had been in Australia for 16 years. The Tribunal observed (TD, [50]):

The Tribunal referred to its concern that the applicant's migration history indicated an intention to remain in Australia. It noted that her last substantive visa was a Subclass 485 visa which ceased more than 10 years ago, and that she subsequently applied for 2 permanent visas, and she has never returned to India since 2007. The Tribunal put to her that her migration history may indicate that she does not have an intention to return to India. She responded that she will definitely go, she does not want to stay here. The Tribunal asked why she does not want to stay here and she said that she just wants to focus on her medical treatment and she will go back to India. The Tribunal considers that her migration history does indicate an intention to remain indefinitely in Australia.

[Footnotes omitted and emphasis added]

1. In addition, the Tribunal expressed three "further concerns" (TD, [51]) about her evidence.
2. First, the Tribunal expressed a concern that the Applicant had outstayed the period set out in her initial application for a medical treatment visa. In her initial application for a medical treatment visa the Applicant said that she wished to remain in Australia for 6 months of treatment until March 2023 but by the date of the Tribunal decision she had remained in Australia until August 2023, four months beyond that 6 month period (TD, [51]).
3. Second, there was an inconsistency between her evidence - "that she is getting worse every day" - and her husband's evidence that "she is improving and she is getting more positive" (TD, [52]).
4. Third, the Tribunal reasoned that there was an inconsistency between (on the one hand) the Applicant having argued for the purposes of her protection visa application that she needed to stay permanently in Australia and that she had a well-founded fear of serious harm if she returned to India yet (on the other hand) one month later for the purposes of her medical treatment visa application having argued that she intended to return to India in 6 months (TD, [55]). The Tribunal concluded that (TD, [60]):

.... The applicant was either prepared to say what she considers to be necessary to obtain a desired visa outcome in the current application, or that the feared claims of harm/death in the protection visa proceedings were not reliable.

1. The Tribunal's conclusion was set out as follows (TD, [67]):

The Tribunal is not satisfied that she is seeking to remain in Australia for the purpose of medical treatment. Instead, her evidence, migration history and her recent pursuit of 2 permanent visa applications, the latter to the High Court, indicates that she does want to stay in Australia permanently. The Tribunal does not accept that, if a condition of no further stay was imposed, she would comply with this. The Tribunal does not accept her claim that she intends to stay in Australia for the purposes of medical treatment and then return to India.

1. There was nothing legally unreasonable in the Tribunal's approach. The Tribunal's reasons had an evident, transparent and intelligible foundation (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; [2016] FCFCA 11, [92]).
2. Ground 6 has not been made out.

GROUNDS 7 AND 8: WAS THE APPLICANT DENIED PROCEDURAL FAIRNESS AND WISHES TO DISPUTE THE DECISION IN COURT?

1. Ground 7 is that the Applicant asserts that she was denied procedural fairness. In the absence of any particularisation as to how she alleges she was denied procedural fairness, it is not possible to respond meaningfully to Ground 7. Suffice to say, the Applicant has not discharged her onus to prove jurisdictional error as to Ground 7.
2. Ground 8 records that the Applicant wishes to dispute the decision in the court. So framed, it does not disclose jurisdictional error.

1. In the alternative, the First Respondent submitted that the application was an abuse of process. The First Respondent conceded that I need not deal with its argument unless necessary. Because the Applicant has not proved any ground of judicial review, I do not propose further to consider the First Respondent's argument that her application is an abuse of process.

1. I will dismiss the application.
2. I will order that the Applicant pay the First Respondent's costs fixed in the amount of $5000 which I consider appropriate as an amount less than scale having regard to the fact that I heard this matter concurrently with the application in CMD17.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.