EEI20 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2022-09-13|Before: Mr J, Jackson J

The appeal is dismissed.
The appellant must pay the first respondent's costs of the appeal, fixed on a lump sum basis.
On or before 4.00 pm AWST on 27 September 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.
In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is a migration appeal concerning an application for a Medical Treatment (Visitor) (Class UB) visa (subclass 602). The Federal Circuit Court of Australia (as it then was) dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the first respondent (Minister) to refuse the visa. The unsuccessful applicant now appeals to this Court from the Federal Circuit Court's decision. The appeal was commenced on 18 November 2020 but for reasons associated with the COVID-19 pandemic, the proceeding was only listed in May 2022, for hearing on 7 September 2022. For the following reasons, the appeal will be dismissed.

Background and statutory framework 2 The appellant is a citizen of India. He had a lengthy history of Australian visas and visa applications before he made the application for a medical treatment visa. He first came to Australia in 2008 as the holder of a student visa. It appears that he may have gone back to India and returned to Australia in 2011 on another student visa. Later in 2011, he applied for a skilled graduate visa, which was refused. He unsuccessfully pursued review processes, which ended in 2013. Then, also in 2013, he sought ministerial intervention, which was unsuccessful. After that, again in 2013, he applied unsuccessfully for a protection visa. Review options were pursued unsuccessfully until he withdrew an application or appeal to this Court (the evidence does not make its nature clear) in December 2018. Meanwhile he was also the subject of a short-lived nomination for a Regional Sponsored Migration Scheme (Subclass 187) visa in 2016. He is currently in Australia as the holder of a bridging visa. According to the Tribunal decision, the appellant has breached conditions of previous visas held, remained in Australia unlawfully for several periods of time, and during those periods did not contact the Department to resolve his migration status. 3 The application for a medical treatment visa was made on 21 January 2019. The statutory framework governing the application was as follows. 4 Under s 29 of the Migration Act 1958 (Cth) the Minister may grant a non-citizen a visa to travel to and enter Australia and to remain in Australia. Section 65(1) of the Migration Act relevantly requires the Minister, after considering a valid application for a visa, to determine whether he is satisfied that the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) are satisfied. If the Minister is not so satisfied, he must refuse the visa. Section 31(1) provides that there are to be prescribed classes of visas. Regulation 2.01(1)(a) relevantly provides that the prescribed classes of visas are such classes as are set out in the respective items in Schedule 1. Item 1214A of Schedule 1 provides for Medical Treatment (Visitor) (Class UB) visas as a class of visa. Under reg 2.02(2), for the purposes of Schedules 1 and 2 'a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa'. In item 1214A(4) of Schedule 1, the Part of Schedule 2 that is specified as being relevant is Subclass 602 (Medical Treatment). Subclass 602 is comprised of six clauses, numbered 602.1-602.6. Regulation 2.03(1) provides that for the purposes of s 31(3), the prescribed criteria for the grant to a person of a visa of a particular class include the primary criteria set out in a relevant Part of Schedule 2. In relation to Subclass 602, the primary criteria are found in cl 602.2. 5 By that winding path, it emerges that the primary criteria that must be satisfied for the medical treatment visa sought in this case are those in cl 602.2 of Schedule 2 to the Regulations. Only some of those criteria need be described here. Two will be mentioned because they provide context to understand the criterion that is in issue and the Tribunal's decision on it. The first is cl 602.211, which relevantly requires, as an overarching principle, the applicant for the visa to seek to remain in Australia temporarily for the purposes of medical treatment or for related purposes. The second is cl 602.212(2), which sets out criteria about the medical treatment which, if satisfied, will result in satisfaction of the overall criterion of cl 602.212. Broadly, and relevantly to the appellant here, the applicant must seek to obtain medical treatment in Australia, must have concluded arrangements to carry out the treatment, and must have concluded arrangements to pay all costs of the treatment, either without payment of those costs being a charge on any Australian government or public authority or with the approval of a government authority for the payment of the costs. Giving the appellant the benefit of the doubt at several points, the Tribunal found that his application satisfied those criteria in cl 602.212(2) (and some others), so they are not in issue on the appeal. What is in issue is the criteria in cl 602.215. The delegate determined that criteria was not met and the appellant subsequently applied for review of that decision. 6 Clause 602.215 provides: (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. 7 In relation to cl 602.215(2), the appellant did not meet the requirements in cl 602.212(6), including the requirement that he establish that he was medically unfit to depart from Australia due to a permanent or deteriorating disease or health condition as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth. The outcome of the review therefore turned on whether the criterion in cl 602.215(1) was satisfied. 8 As noted above, the delegate determined that it was not, and refused the application for the medical treatment visa on 5 February 2019. The appellant then applied for review to the Tribunal.

The Tribunal's review 9 The Tribunal's review and its decision on that review are fully described in the reasons of the primary judge and it is not necessary to give a full description here. The points that are salient for the purposes of the current appeal are as follows. 10 The Tribunal delivered oral reasons at a hearing on 16 June 2020, which it then reduced to writing. It set out the appellant's migration history, as recounted in the delegate's decision, in some detail, being the history presented in more summary form above. 11 The application for the medical treatment visa was lodged in January 2019, and in it the appellant sought to remain in Australia until December 2019. It was supported by a document signed by a Dr Faigenbaum from Mirrabooka Medical Centre indicating that the appellant required antidepressant medication and cognitive behaviour therapy (CBT). That form was signed by the doctor in December 2018, the same month in which he had discontinued his Federal Court proceeding. There was no suggestion in the material before the Tribunal that the appellant had experienced anxiety or depression before then, or had sought treatment for those conditions before then. 12 After noting the proximity between the timing of the withdrawal of the Federal Court proceeding and the consultation with the doctor, the Tribunal said (para 15): I readily acknowledge that you were lawfully entitled to pursue the review and appeal applications as is your legal right. However, in your case there are reasonable inferences open when your migration history is viewed as a whole. You have now spent nearly 12 years in this country without ever holding a substantive visa. You have initiated all avenues open to you to pursue your desire to remain in this country on a permanent basis. 13 The appellant lodged no other documents in the course of the Tribunal review until April 2020, when the Tribunal asked whether he intended to lodge any further documents or information. That appears to have prompted him to lodge a set of documents, the high point of which was an undated letter from a receptionist at Mirrabooka Medical Centre saying that he had an appointment with the doctor in the following week. 14 After describing those matters, the Tribunal said (para 25): My initial view, and I still hold that view, was that the motivator for you to make the appointment with Dr Faigenbaum was the fact that I had initiated inquiries about your evidence and not your own motivation to seek the evidence. 15 The Tribunal then recounted a hearing it held with the appellant on 23 April 2020, and doubts and questions it put during that hearing about the appellant's putative medical treatment and motivations for seeking it. 16 The Tribunal held a further hearing on 12 May 2020 and the appellant provided further documents suggesting he was going to undergo CBT and had been prescribed an antidepressant. The Tribunal recounted further doubts and questions it had put to the appellant at that hearing about his purported condition and treatment. It recounted further inquiries it had made of the appellant after that hearing, and further documentation received after that, about treatment with a psychologist he was to undergo. 17 The Tribunal then ran through the statutory requirements that are summarised above and, after giving the appellant the benefit of the doubt on several questions, came to the issue of the criterion in cl 602.215(1) as to whether the appellant genuinely intended to stay temporarily in Australia for the purpose for which the visa was to be granted. The Tribunal had regard to some matters relevant to cl 602.215(1)(a) and (b). The Tribunal then returned to the appellant's history of visa and review applications in Australia, the timing of when he sought medical treatment, and the fact that he had not suffered from anxiety or depression before the withdrawal of his Federal Court proceeding. It then said (para 62): In my view a reasonable inference is open that you have sought out the medical visa for the primary purpose of extending your stay, your now long term stay in Australia. You have demonstrated a determination to remain in this country. That in itself is not determinative of this decision but it certainly bears significant weight. 18 The Tribunal then referred to the fact that the appellant had not been back to India since 2011 and so it was clear that he did not feel any particular affinity to that country or he would have made efforts to return. The Tribunal referred to the relative paucity of evidence about the medical treatment, in particular about CBT, and the timing of such steps as the appellant had taken to obtain evidence, relative to the Tribunal process. It said that the appellant had not provided any information as to the non-availability of CBT in his home area in India. It accepted that to some extent the appellant suffered from anxiety and depression, but after briefly reviewing such evidence as there was about the appellant's treatment history, said that his condition was 'not an acute one'. The Tribunal then concluded (para 69): After having given due regard to all of those matters individually and cumulatively and the considerations that I am required to give in clause 602.215(1)(a) to (c) I am not satisfied that you genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. In my view your history indicates that you have clearly sought out and are continuing to seek out every available option to remain in Australia. Clause 602.215 is not met. 19 The Tribunal thus affirmed the decision under review.

The Federal Circuit Court decision 20 The appellant was self-represented before the Federal Circuit Court. His grounds of review were: 1. The AAT made a mistake in my review. 2. The AAT did not properly consider my medical treatment. 3. The AAT made a mistake by saying I'm not a genuine temporary entrant. 21 The application was supported by a brief affidavit affirmed by the appellant which said: 1. The AAT made a mistake in my review. 2. The AAT did not properly consider my medical treatment. 3. I had a doctor plan for my medical treatment, and it was genuine for my mental health issues. 4. The AAT made a mistake by saying I'm not a genuine temporary entrant. 5. After my medical treatment and my mental health is fixed I can go back to India and face my family. 22 The primary judge summarised the appellant's migration history and the history of the Tribunal review and went through the Tribunal's decision in detail. His Honour recounted the history of the proceeding in the Federal Circuit Court including an explanation of the concept of jurisdictional error which he gave to the appellant. After brief reference to the legislation, His Honour went on to consider the grounds of review. 23 As to ground 1, a broad assertion of a mistake by the Tribunal, his Honour said he could not identify an error in the Tribunal's decision. 24 As to ground 2, a contention that the Tribunal did not properly consider the appellant's medical treatment, the primary judge read paragraph 3 of the affidavit as particularising the ground. His Honour referred to the Tribunal's quite detailed engagement with all the medical evidence the appellant had presented and dismissed the ground. 25 As to ground 3, the primary judge read paragraph 5 of the affidavit as particularising the ground. His Honour held that the Tribunal demonstrated significant engagement with the appellant's evidence when considering the factors required by cl 602.215(1)(a) to (c) and so did not err in the way alleged in the ground. He also considered whether the Tribunal's finding that it was not satisfied that the appellant genuinely intended to stay temporarily in Australia for the purpose of receiving medical treatment was illogical in the strong sense explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] (Crennan and Bell JJ). His Honour concluded that it could not be said that the Tribunal's decision was illogical or irrational, and that the inferences the Tribunal drew were entirely open to it and were not inferences that no reasonable decision-maker could draw. His Honour summarised the factors on which the Tribunal's conclusion was based, which ultimately led it to find that the appellant has sought the medical treatment visa as another 'available option' to remain in Australia. His Honour considered that the Tribunal's determination that the appellant sought the visa as a way of remaining in Australia flowed logically from the evidence. He dismissed ground 3, and after considering other matters that are not relevant on this appeal, dismissed the application.

Grounds of appeal 26 The appellant is self-represented in this appeal. There are two grounds of appeal. Although they seem to incorrectly refer to the Federal Circuit Court as the first respondent, and are framed as though the appellant is applying for judicial review of that court's decision, if one gives the appellant the benefit of the doubt as a self-represented litigant, they can be understood as grounds of appeal in the way that follows. 27 Ground 1 alleges in essence that the Federal Circuit Court erred by failing to find that the Tribunal had prejudged the matter. Its particulars refer to the first three of the four paragraphs of the Tribunal's decision that I have quoted in full above (paras 15, 25 and 62). It then says that despite those paragraphs, the Tribunal accepted and the Federal Circuit Court affirmed that the appellant suffered from depression and anxiety. A further particular contends that a fair-minded lay observer might reasonably apprehend that the Tribunal's mind was closed to persuasion that the appellant sought the medical visa for the purpose of obtaining medical treatment in Australia. The ground as a whole therefore asserts apprehended bias on the part of the Tribunal. In the Federal Circuit Court the appellant did not allege that the Tribunal was biased, so he needs leave to pursue this new ground. 28 Ground 2 seems to say that the Federal Circuit Court engaged in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds. That assertion seems better adapted to the appellant's criticisms of the fact finding process of the Tribunal. So for completeness I will consider it on the basis that it alleges illogicality or irrationality on the part of the Tribunal, further or alternatively on the part of the Federal Circuit Court. 29 The appellant filed no written submissions despite having been directed to do so, and his brief oral submissions will be described in the course of considering the appeal, to which I now turn.

Consideration 30 Generally, if a proposed new ground has no merit, there will be no justification for permitting it to be raised for the first time before the appellate court: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48]. Here, ground 1 has no merit, so leave to raise it will be refused. 31 The ground refers by way of particulars to statements made in the Tribunal's reasons which indicate that the Tribunal had formed views adverse to the appellant, to the effect that there were reasonable inferences open based on his migration history; that he only sought an appointment with the doctor because the Tribunal had asked for evidence of treatment; and that he sought the medical visa for the primary purpose of extending his stay in Australia. The ground also mentions that the Tribunal accepted and the Federal Circuit Court affirmed that the appellant suffered from depression and anxiety. It is not clear how that point bears on the subject of proposed ground 1, prejudgement or bias. But I infer that the appellant's point is that the acceptance that he was suffering from depression and anxiety should have led inexorably to a conclusion that he genuinely intended to stay temporarily in Australia for the purpose of treating those conditions. He appears to contend that the Tribunal's contrary conclusion indicates that it was biased or, at least, would cause a fair-minded lay observer to reasonably apprehend that the Tribunal's mind was closed to persuasion. 32 The difficulty for the appellant is that he is relying on the Tribunal's expression of its reasons for reaching the decision as a basis to assert bias. But the mere fact that the Tribunal has reached adverse conclusions by the time it starts to give its reasons for decision cannot establish prejudgement or a reasonable apprehension of bias. By that time, the hearing has occurred and the submissions and other material put to the Tribunal have been considered. It is to be expected that the Tribunal has formed definite views by then. In Hutchinson v Comcare (No 2) [2021] FCA 284 at [47] I said that it is 'possible to conceive of a case in which the preponderance of material in front of a decision-maker is so overwhelmingly in favour of a certain outcome that, when the decision-maker does not refer to the material, that bespeaks prejudgment and bias'. But, as von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], it will be a 'rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision'. 33 On no view is this such a case, and nor does any reasonable apprehension of bias arise (assuming in the appellant's favour that such an objection can be put after the decision is handed down). The Tribunal's reasons show no more than it had considered the evidence and information before it and reached conclusions on the basis of that material. The Tribunal's reference at para 25 (reproduced at [14] above) to it having formed an initial view about the reason the appellant made his first appointment with the doctor does not bespeak prejudgement or bias. There is no requirement for decision-makers to keep their minds entirely free of any view on any aspect of a matter until the last moment of making a decision: see e.g. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [192]; Zaki v Minister for Immigration and Border Protection [2019] FCA 1822 at [104]. Further, an allegation of actual or apprehended bias must be distinctly made and clearly proved: Jia at [69]. And to the contrary of any suggestion of bias here, the Tribunal gave the appellant three hearings and multiple opportunities and reminders to provide information in support of his visa application. It also, as I have mentioned, gave him the benefit of the doubt on several points, describing his evidence on such points as 'light'. 34 Nor can it be said that the Tribunal's acceptance that the appellant suffered from anxiety and depression was such a significant point in his favour that the Tribunal's ultimate conclusion bespeaks prejudgement, or would mean that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. It can be accepted that a finding that a person does have a medical or psychiatric condition may support an inference that the person genuinely seeks a medical treatment visa for the purpose of medical treatment. But there is no logical inconsistency between the presence of a medical condition and a finding that the purpose of the visa application is nevertheless to prolong the applicant's stay in Australia. To satisfy the criterion in cl 602.215(1), an applicant must intend to stay in Australia temporarily. It is quite possible that a person may use a real condition from which they suffer as a pretext for a visa application to prolong the person's stay in Australia indefinitely. Proposed ground 1 has no merit and leave to raise it is refused. 35 The reasons just given also dispose of ground 2, which asserts illogicality or irrationality in the Tribunal's decision or (perhaps) in the primary judge's decision. From the appellant's oral submissions it was clear that the alleged illogicality and irrationality lay in the asserted inconsistency between the finding that he did suffer from depression and anxiety, and the finding that his purpose in applying for the visa was to prolong his stay in Australia. For the reasons already given, there was no logical inconsistency between those two things. 36 Neither on that ground nor any other ground can it be said that the Tribunal's conclusion was such that no rational or logical decision-maker could have arrived at the decision on the same evidence or that there was no logical connection between the evidence and the inferences or conclusions drawn: see SZMDS at [130]-[131], [135] (Crennan and Bell JJ). The appellant's history of making multiple visa and review applications, with the result of extending his stay in Australia to at least nine years (by the time of the Tribunal decision), provided a logical basis for the inference the Tribunal made as to the purpose of the medical visa application. 37 In oral submissions the appellant also criticised the Tribunal's reliance on the absence of any evidence that he had sought treatment for depression or anxiety before his first appointment with the doctor in Mirrabooka. The appellant appeared to say that depression is something that builds slowly and only when it gets to a certain point will the patient and those around them be aware of it. But whether that is factually correct or not, it goes to the merits of the Tribunal's decision, and is not so weighty as to indicate illogicality of the kind described in SZMDS. 38 It was no part of the Federal Circuit Court's function to decide for itself whether it would have reached a different view on the basis of the same evidence: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J). It follows that the primary judge was correct to dismiss the ground of review which asserted illogicality on the part of the Tribunal, and there is no illogicality or irrationality in his Honour's decision either. Ground of appeal 2 is not upheld. 39 The appeal must be dismissed, with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Migration Act 1958(Cth)ss 29, 31, 65

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