CMD16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1247

1. The Applicant's wife - whose name has been anonymized as CMC16 - applied for a medical treatment visa on the basis that she had arranged medical treatment in Australia for anxiety and depression. The Applicant, whose name has been anonymized as CMD16 under s. 91X of the Migration Act 1958 (Cth), applied for a medical treatment visa because he sought "to give emotional and other support" to his wife. The Tribunal refused to grant a visa to the Applicant's wife and to the Applicant. The Tribunal refused to grant the Applicant's wife the visa because it was not satisfied that she genuinely intended to stay temporarily in Australia. The Tribunal refused to grant the Applicant a visa because a criterion for the grant of a visa to a support person was that the person seeking the medical treatment held a visa.
2. Each of the Applicant and his wife applied for judicial review. I heard the Applicant's case concurrently with his Wife's judicial review application. I will dismiss the Applicant's application as I have dismissed the wife's application. These reasons should be read concurrently with the reasons in the wife's case: CMC16 v Minister for Immigration And Multicultural Affairs [2025] FedCFamC2G 1246.
   1. Before their applications for medical treatment visas, the Applicant and his wife - both citizens of India - had unsuccessfully applied for a protection visas. The Applicants had exhausted his appeal rights as to the refusal to grant them protection visas. 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 his special leave application as to a protection visa was refused, the Applicant applied for a medical treatment visa.
4. It was the Applicant's wife (CMC16) who had arranged medical treatment for anxiety and depression in Australia. Although the Tribunal accepted that CMC16 had arranged medical treatment and -as a result - met a primary criterion for the grant of the visa under cl. 602.212(2) of Sch. 2 to the Migration Regulations 1994 (Cth) it was not satisfied that she genuinely intended to stay temporarily in Australia and therefore the Tribunal was not satisfied that she met another primary (and mandatory) criterion under cl. 602.211 and 602.215(2) for the grant of a medical treatment visa.
5. As I have noted, the husband-applicant (CMD16) 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 him under cl 602.212(4)(a). The Tribunal accepted that the husband sought to give emotional and other support to his wife and met the criterion under cl 602.212(4)(a).
6. Nonetheless, because an additional primary criterion of a visa grant to the husband as a support person under cl. 602.212(4)(b) was that the wife as the person receiving the medical treatment held the visa, the husband was unable to meet that criterion and the Tribunal refused to grant him a visa. In practical terms, the grant of a visa to the husband as a support person depended upon, and was tied to, the grant of a visa to his wife as the person actually seeking the medical treatment.
7. The Tribunal made two separate, albeit inter-related, decisions on 20 August 2023 as to each of the wife (CMC16) and the husband (CMD16) refusing to grant a visa to each of them.
8. The wife (CMC16) and the husband (CMD16) - separately sought judicial review, each with their own grounds - as to the Tribunal's decisions which has led me to publish two sets of reasons.

1. On 17 March 2007, the Applicant husband arrived in Australia as the holder of a student visa. The Applicant held two further Student visas and a Temporary Graduate visa.
2. From September 2011 he held a series of Bridging visas.
3. On 13 August 2014, the Applicant's wife applied for a Protection (subclass 866) visa, which included the applicant in that application (as her support person). on 30 March 2015 a delegate refused to grant the visa.
4. On 17 August 2016 the Tribunal affirmed the delegate's decision to refuse to grant the husband the Wife (CMC16) and the husband (CMD16) protection visas.
5. As I have noted on 18 August 2022, the High Court refused a special leave application which marked the end of road - as far as court options were concerned - for the protection visa applications for the Applicant and his wife.
6. On 11 September 2022, less than one month later, the Applicant applied for a Medical Treatment (Class UB) (Subclass 602) visa. The Applicant applied for the visa on the basis of supporting his wife, who had also applied for a Medical Treatment visa.

1. The Tribunal accepted - as to the wife's application -that she had arranged medical treatment in Australia and therefore met the requirements of cl 602.212(2).
2. The Tribunal set out the relevant part of cl. 602.212(4) criteria for the grant of a medical treatment visa to the husband as a support person (TD, [11]):

Support person

(4) All of the following requirements are met:

(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:

(i) the requirements described in subclause (2) or (3) are met; or

(ii) the requirements described in subclause 675.212(2) or (3) are met; or

(iii) the requirements described in subclause 685.212(2) or (3) are met;

(b) the person to whom the applicant is to provide support holds:

(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

(c) the applicant satisfies public interest criterion 4005.

1. The tribunal accepted that the "applicant seeks to provide [his wife] with emotional and other support (including finances)" (TD, [17]).
2. Ultimately, however, as the Tribunal was not satisfied that the Applicant's wife genuinely intended to stay temporarily in Australia and, therefore, she did not meet a primary criterion for the grant of a visa under cl. 602.215, in consequence the Tribunal found that "the applicant is unable to meet cl 602.212(4)", that he was providing support to a person who held the visa (TD, [28]). The Tribunal expressed its conclusion as follows (TD, [29]-[30]):
   1. The Tribunal is not satisfied on the evidence before it that the applicant seeks to provide support to a person who holds a Subclass 602 visa. There is no evidence that the applicant otherwise meets cl 602.212(4).
   2. Given the above findings, the requirements in cl 602.212(4) are not met.
3. The Tribunal's decision as to the fact that the Applicant was unable to meet cl. 602.214(4) was - of itself - sufficient to justify its conclusion to refuse the visa.
4. The Tribunal "for the sake of completeness" (TD, [32]) also considered whether the Applicant generally intended to stay temporarily in Australia for the purposes of cl. 602.215. The Tribunal concluded as follows (TD, [59]):

The Tribunal is not satisfied that he is seeking to remain in Australia for the purpose of supporting his wife during medical treatment. Instead, his evidence, migration history and his recent pursuit of two permanent visa applications, the latter to the High Court, indicates that he does want to stay in Australia permanently.

1. The Applicant's 10 grounds of judicial review are as follows:
   1. I lodged a subclass 602 visa application which has been refused by immigration department and the AAT department.
   2. The reason for my subclass 602 visa application was to support a person (My Wife) who was applying for a medical treatment visa for a medical treatment.
   3. My subclass 602 visa review application was successful as my wife didn't hold a medical treatment visa (Her subclass 602 visa was refused as well)
   4. I do not agree with their decisions and want to dispute the decisions in the Federal Circuit Court.
   5. My wife's 602 visa application was refused due the reason that department had concern over my wife's immigration history and the incentives to go back to home country upon completion of my wife's medical treatment.
   6. Me and wife are in Australia since February 2007. But our concern is that my wife's presence in Australia has nothing to do with her current medical condition at present. She is going through the worst times of her life, and it is utmost important for her to undergo proper medical treatment in Australia.
   7. I believe that I and my wife have been treated unfairly by both Immigration department & AAT department.
   8. I believe that a jurisdictional error has been made while deciding on our applications and we were denied procedural fairness in our applications.

9. I want to dispute the decision in Federal Circuit Court.

10. My wife's lodgement ID is 1244041

Grounds 1-3, 5, 10: Outline of procedural history

1. Grounds 1-3 and 5 do no more than outline the procedural history. These are not grounds of review. I need not say any more about them.
2. Similarly, Ground 10 which identifies the applicant's wife's lodgement ID is not a ground for judicial review. I say no more about it.

Grounds 4 and 9: Husband disagrees with decision

1. Grounds 4 and 9 set out that the Applicant disagrees with the Tribunal's decision and wishes to dispute the matter. My role is limited to ensuring whether to deciding whether the administrative decision-maker made the decision in accordance with law. I cannot engage in merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36).
2. Grounds 4 and 9 - which do no more than express the Applicant's disagreement with the decision - are not proper grounds of review and I need not say any more about them.

Ground 6: Was the Tribunal's finding unreasonable?

1. As the Minister interpreted Ground 6 it "appears to suggest that the Tribunal's finding that the applicant did not intend to remain in Australia temporarily due to his migration history was unreasonable".
2. I accept the Minister's submissions that in circumstances in which the Tribunal noted (among other matters) that the Applicant had been in Australia for more than 16 years, had unsuccessfully applied for a protection visa and litigated that claim all the way to the High Court a claim being based on an intention to permanently stay in Australia - there was an evident, transparent and intelligible justification for a conclusion that the Applicant did not genuinely intend to stay temporarily in Australia (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; [2016] FCFCA 11, [92]). The Applicant did not identify any specific error in the Tribunal's reasoning process. Because there was an evident and intelligible justification for the Tribunal's conclusion, it cannot be said that the conclusion was unreasonable in the legal sense.
3. Ground 6 has not been proved.

Grounds 7 and 8: Was the applicant afforded procedural fairness by the Tribunal?

1. The Tribunal had noted (TD, [16]) that on 26 June 2023, it sent the Applicant a request for information which - on one reading - suggested that the delegate had refused to grant the visa on the basis of cl. 602.215 - the criterion which required the decision-maker to be satisfied that the Applicant genuinely intended to stay temporarily in Australia - when:

the letter should have said that the delegate had refused to grant the visa on the basis of cl.602.212 (whether the applicant meets the permitted purposes of the visa), and that the Tribunal would consider that clause as well as cl.602.215 (whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted).

360 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. As the High Court explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [36]:

But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

1. The significance of the extract from para. [16] of the Tribunal's reasons above is that, for the purposes of procedural fairness under s. 360, the Applicant was on notice that there were two principal issues that arose in relation to the decision: namely, the issue that the grant of a visa to him as a support person depended upon the grant of a medical treatment visa to his wife as a person who was actually seeking the treatment and, second, whether the applicant genuinely intended to stay temporarily in Australia. As a Full Court held in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 31; [2011] FCAFC 88 at [64] "whether the obligation to afford procedural fairness has been discharged is a practical matter that is "not to be evaluated minutely".
2. In this case, the Tribunal afforded applicant procedural fairness in relation to the issues arising as to the decision under review so as to afford to him an opportunity to give evidence and present arguments relating to those issues.
3. Grounds 7 and 8 have not been proved.

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. It is not necessary. 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. I will order that the Applicant pay the First Respondent's costs fixed in the amount of $5000.

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