Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1948

1. By application filed on 7 September 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 20 August 2021. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant's Medical Treatment (Visitor) (Class UB) (subclass 602) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant is a citizen of Fiji born on 26 May 1977. He arrived in Australia on 20 July 1997 as the holder of a Prospective Marriage (class TO) (subclass 300) visa.
2. On 12 July 2019, the applicant applied for the visa, subject of these proceedings. In his application, he stated that he wished to remain in Australia until 11 July 2021 to seek medical treatment for various medical conditions.
3. On 25 July 2019, the delegate refused to grant the visa as they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment or related purposes.
4. On 9 August 2019, the applicant applied to the Tribunal for a review of the delegate's decision.
5. On 29 August 2019, submissions and various documents were provided to the Tribunal in support of the review application. The applicant provided evidence from his doctor indicating he was diagnosed with hypertension, hypercholesterolemia, diabetes, obstructive sleep apnoea, and a myocardial infarction; for which he required four stents and daily medication.
6. On 26 July 2021, the applicant was invited to appear before the Tribunal at a hearing scheduled for 17 August 2021.
7. On 17 August 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
8. On 20 August 2021, the Tribunal affirmed the delegate's decision.

1. The Tribunal noted at the time of the delegate's decision, Class UB contained one Subclass, being the Subclass 602 (Medical Treatment) visa, the criteria for which was set out in Part 602 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
2. At [3], it noted the requirement in cl 602.215: that a visa applicant genuinely intends to stay temporarily in Australia for the sole purpose for which the visa is granted.
3. At [4]-[9], the Tribunal set out the applicant's immigration history, which included applying for several permanent residence visas onshore.
4. At [11], the Tribunal noted the applicant's appearance before it (via Microsoft Teams) on 17 August 2021. The Tribunal noted the evidence before it, including oral evidence from the applicant's brother. It noted the applicant was assisted by an interpreter and that during the hearing there were some technical difficulties, however, it was satisfied the applicant was given the opportunity to give evidence and present arguments.
5. At [12], the Tribunal noted that it put to the applicant the concerns it had regarding his migration history and that the applicant did not appear to satisfy the requirements in cl 602.215. It noted the applicant was provided with the opportunity to respond to the Tribunal's concerns.
6. At [14]-[16], the Tribunal discussed the criteria in cl 602.215 required to be met for the grant of the visa. At [15], the Tribunal noted it must have regard to whether the applicant substantially complied with previous visa conditions, and whether he would comply with the conditions of a Subclass 602 visa.
7. At [16], it noted cl 602.212 required an applicant to meet one of seven alternative sub-criteria in cl 602.212(2)-(8). It noted cl 602.212(2) was relevant to the matter before it, broadly requiring (without alteration):
   • the arrangements for treatment have been concluded
   • if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia
   • the applicant is free of a disease or condition that may be a threat to public health or danger to the Australian community
   • arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and
   • payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
8. At [17], the Tribunal noted the applicant informed it that he was seeking to remain in Australia to receive medical treatment. It noted that there was no suggestion that any of the alternative sub-criteria were relevant or had to be considered.
9. At [18]-[21], the Tribunal found that cl 602.212(6), whether the applicant was medically unfit to depart Australia, was not satisfied as the applicant had not reached the age of 50 as required by the subclause.
10. At [22]-[36], the Tribunal considered whether the applicant possessed a genuine intention to reside in Australia temporarily for medical treatment.
11. At [22]-[23], the Tribunal accepted the applicant's claim that he substantially complied with the terms of his last substantive visa (a Subclass 309 visa) and the subsequent bridging visas.
12. At [25], the Tribunal considered the following information provided by the applicant as it pertained to whether he had a genuine intention to reside in Australia temporarily for medical treatment:

In April 2019 he suffered a minor heart attack and had a stent put in on 20 April 2019. He has heart disease but since that time, he has not had any developments or treatment except that he takes medication for his stent and blood thinners. He sees the GP once every 3 months to obtain his medications.

A sleeping disorder - he said that sometimes he can't sleep at night and in about late 2019 he started taking sleeping tablets. He takes no other treatment.

Diabetes which was diagnosed in April 2019 and for which he takes medication. He takes no other treatment.

Cholesterol for which he takes medication. He takes no other treatment.

When asked if he has any other conditions, he said, somewhat vaguely, that he has to wait to see the doctor to see if there is anything else, but as far as he knows he has no other conditions.

1. At [26], the Tribunal accepted that the applicant had those specific medical conditions based on the information he provided. It noted however, that the only treatment the applicant was undergoing consisted of three-monthly general practitioner (GP) appointments and taking medication. The Tribunal was not satisfied it was the primary purpose for which the applicant was seeking the visa.
2. At [27]-[32], the Tribunal put evidence to the applicant concerning his migration history including numerous applications for permanent visas that were unsuccessful. It put to the applicant the reason his previous permanent partner visa was not granted, that when the Department of Home Affairs (the Department) organised a site visit, it did not appear that he was living there. The Tribunal addressed the applicant's claim that he had not done anything illegal in Australia, responding that the delegate found that he had stayed unlawfully in Australia.
3. At [33], the Tribunal weighed all the evidence before it and found that it was prepared to accept that the applicant had complied with previous visa conditions, however, this did not outweigh significant concerns relating to the applicant's migration history.
4. At [34], the Tribunal found that the current application before it was an attempt by the applicant to prolong his stay in Australia because he wanted to stay in Australia permanently.
5. At [37], the Tribunal concluded that the applicant failed to meet the requirements for the grant of the visa. Consequently, at [38], it affirmed the decision of the delegate to refuse to grant the applicant the visa.

1. The originating application was filed with the Court on 7 September 2021 and advanced four grounds of judicial review.
2. The applicant raised additional grounds in written submissions filed on 17 November 2025. The Court granted leave at the hearing for the applicant to rely on those additional grounds.
3. The Court Book was filed by the Minister on 22 October 2021 and was tendered into evidence at the hearing marked exhibit CB.
4. The matter was listed for hearing on 19 November 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 24 September 2025.
5. At the hearing on 19 November 2025, the applicant appeared in person. The Minister was represented by Mr J Fyfe of Minter Ellison.
6. Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed, and the role and powers of the Court in judicial review proceedings.
7. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application.

1. The originating application for judicial review advanced the following four grounds (without alteration):
   1. I told the Tribunal that I want to stay in Australia especially because of my medical condition and the support I receive and the fact that I have no one to go back to in Fiji.
   2. I do wish to genuinely stay in Australia for medical treatment.
   3. The Tribunal Member had sufficient evidence about my medical condition even she recommended that information about myself must not be published by the Tribunal and I am at a shock that the Tribunal failed to give me the chance to continue my medical treatment as well as she failed to refer my case to the honourable Minister knowing that all my siblings are in Australia and I am well integrated and have spent the majority of my life in Australia.
   4. The decision of the Tribunal is not reasonable and does not justify my circumstances.
2. The applicant raised the following additional grounds, in his written submissions filed on 17 November 2025, some of which overlap with those raised in his originating application (without alteration):

1. Introduction

I am the Applicant and appear on my own behalf.

I rely on my court documents and on the medical and family evidence already filed.

I ask the Court to find that the Tribunal made legal jurisdictional errors in its decision dated 20 August 2021, and that the decision should be set aside and sent back to the Tribunal for a new hearing.

2. Failure to Consider Important Evidence

The Tribunal did not properly look at my medical documents showing that I was receiving continuing treatment and rehabilitation after a serious heart and stroke condition.

There is no sign that the Tribunal considered these medical reports or how they showed I was still unfit to travel.

This means the Tribunal failed to consider relevant evidence, which is a jurisdictional error (see Dranichnikov v MIEA (2003) 77 ALJR 1088).

3. Wrong Approach to the Temporary-Stay Question

The Tribunal decided that I was not a genuine temporary visitor only because of my past visa history and not because of my current medical need.

It used the wrong test. The question was whether I intended to stay temporarily for medical treatment at that time, not what I had done years earlier.

By focusing on irrelevant things, the Tribunal used the wrong legal criterion and did not exercise its power correctly.

4. Unreasonable and Unfair Decision

The decision was unreasonable in the legal sense.

Given my medical problems, rehabilitation, and family support, it was not reasonable to conclude that my purpose was only to "prolong my stay."

The decision had no sensible or fair justification (Minister for Immigration v Li [2012] HCA 61; (2013) 249 CLR 332; SZVFW [2018] HCA 30; (2018) 264 CLR 541).

5. Failure to Look at Humanitarian Factors

The Tribunal knew that I have close family in Australia who support me and help with my recovery.

It did not discuss whether these strong humanitarian circumstances should be referred to the Minister under section 351 of the Migration Act 1958 (Cth).

Not dealing with an important matter that was clearly raised is a legal error.

6. Lack of Procedural Fairness

At the hearing on 17 August 2021, the Tribunal said new things about me being "fit to travel" and that treatment was available in Fiji.

I was not told in advance that these matters would be used against me, and I was not given a proper chance to respond.

This is a breach of procedural fairness (Kioa v West [1985] HCA 81; (1985) 159 CLR 550; SZBEL v MIMIA (2006) 228 CLR 152).

7. Relief Requested

I ask the Court to:

(a) Set aside the Tribunal's decision of 20 August 2021;

(b) Send the matter back to the Tribunal for reconsideration according to law; and (c) Make no order as to costs (each side to pay their own costs).

8. Conclusion

I have serious ongoing health issues and I rely on my family for care and assistance.

I ask the Court to allow my judicial-review application so that my case can be properly considered under the law.

9. Medical Evidence

I have attached my medical documents from St George Hospital (Annexure A). These records show my ongoing treatment and rehabilitation for stroke and related conditions. They support that my medical care is still continuing under specialist supervision in Australia. Although the Applicant is 48 years old and not over 50, his current medical condition makes him unfit to depart Australia at this time, as supported by the attached hospital report.

10. Age and Medical Condition

Although I am 48 years old and not over 50, there is no legal requirement that a person must be over 50 to qualify for a medical or compassionate stay. The relevant question is whether my ongoing medical condition makes me unfit to depart Australia. My attached medical documents confirm that I am continuing to receive rehabilitation and neurological care following a stroke, which affects my ability to travel safely. The Tribunal's failure to properly consider this evidence was legally unreasonable and a jurisdictional error (see Li v Minister for Immigration and Citizenship [2012] HCA 61; (2013) 249 CLR 332; CQZ15 v Minister for Immigration and Border Protection [2017] FCA 1046; and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088).

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [32].
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

1. By ground one, the applicant appears to contend that the Tribunal failed to consider his evidence that he wanted to remain in Australia because of his medical condition and lack of family support in Fiji.
2. The issue before the Tribunal was whether the applicant genuinely intended to remain in Australia temporarily for the purpose of seeking medical treatment. In considering this issue, the Tribunal expressly had regard to the evidence before it pertaining to the applicant's medical conditions. The Tribunal also had regard to the applicant's evidence that he wished to remain in Australia to see a general practitioner every three months, and that he was receiving support from his family in Australia: at [25]-[33].
3. In considering the evidence before it, including the applicant's own evidence that he wished to remain in Australia to be with his family and that he was not undergoing any specific treatment, it was, as submitted by the Minister, open for the Tribunal to find that the applicant was seeking the visa to prolong his stay in Australia: at [34].
4. Ground one does not establish jurisdictional error on part of the Tribunal.

1. By ground two, the applicant appears to contend that the Tribunal erred by failing to consider evidence that he wanted to pursue medical treatment in Australia.
2. The reasons plainly disclose that the Tribunal had regard to the applicant's claim that he wanted to remain in Australia for medical treatment. Given the issue for determination before the Tribunal, which required it to consider whether the applicant intended to stay temporarily in Australia, the Tribunal also took into account other evidence before it, including the applicant's own evidence that he wished to stay permanently in Australia to get the support of his family as he had no one in Fiji.
3. As submitted by the Minister, in the circumstances where the applicant had repeatedly said he wished to stay permanently, and where his medical treatment only consisted of routine check-ups with a general practitioner every three months, it was open for the Tribunal to conclude that the applicant did not satisfy cl 602.215.
4. Ground two does not establish jurisdictional error on part of the Tribunal.

1. By ground three, the applicant appears to contend the Tribunal, having made non-publication orders in relation to information about his medical condition, failed to permit him to remain in Australia to continue his medical treatment, and failed to refer his matter to the Minister on the basis that all his siblings were in Australia and he was well integrated into the Australian community.
2. In oral submissions, the applicant said he could not return to Fiji as he did not have a place to live, and he had been residing in Australia since 1997.
3. As submitted by the Minister, the applicant has misunderstood the basis of the non-publication order made by the Tribunal pursuant to s 378(1) of the Act. It related to non-disclosure of information about the applicant's past visa applications and not about his medical conditions.
4. There is no evidence before the Court, and the applicant has not suggested, that he had asked the Tribunal to refer his matter to the Minister. In any case, there was no obligation on the Tribunal to refer the applicant's matter to the Minister under s 351 of the Act.
5. As submitted by the Minister, the referral of a matter for Ministerial intervention does not form part of the conventional statutory regime: see AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 at [17] citing AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131. There is nothing in Part 5 of the Act which would make referral of a matter for Ministerial intervention under s 351 subject to the requirements of legal reasonableness.
6. No jurisdictional error arises from the Tribunal not referring the applicant's matter to the Minister for intervention.
7. None of the matters raised by ground three establishes jurisdictional error on part of the Tribunal.

1. By ground four, the applicant appears to contend that the Tribunal's decision was legally unreasonable as it did not consider and/or explain his circumstances.
2. As stated above, the Tribunal's reasons disclose that it had regard to the evidence provided to it by the applicant. The Tribunal recorded in its reasons the applicant's medical conditions and why he wanted to remain in Australia.
3. Given the issue the Tribunal had to determine, as discussed above, it cannot be said that the Tribunal's findings and reasons were not open to it on the evidence before it.
4. The applicant's complaint, as submitted by the Minister, rises no further than a disagreement with the Tribunal's findings.
5. Ground four does not establish jurisdictional error on part of the Tribunal.

1. Ground one asks the Court to find that the Tribunal made a jurisdictional error and send the matter back to the Tribunal for reconsideration. This is not a proper ground of review.
2. By ground two, the applicant asserts that the Tribunal failed to consider medical evidence, including evidence relating to his continued medical treatment and rehabilitation, and evidence which demonstrated he was still unfit to travel. As discussed above, the Tribunal did have regard to the evidence before it regarding the applicant's medical condition. It accepted, based on the medical evidence before it, that the applicant had the stated medical conditions. The mere fact that the applicant had those conditions did not entitle him to the visa. The issue before the Tribunal was not whether the applicant had the said medical conditions, but whether he intended to remain in Australia 'temporarily' for the purpose of medical treatment. Having considered the totality of the evidence before it, including the evidence given by the applicant about the treatment he was receiving, it was not satisfied that the applicant met the requirements of cl 602.215. It is to be noted that cl 602.215 applied to the applicant because the provision in cl 602.212(6) about being unfit to depart Australia did not apply to him as he had not turned 50. The Tribunal was correct in finding that the applicant did not satisfy the requirement in cl 602.212(6). Ground two does not disclose jurisdictional error.
3. By ground three, the applicant asserts that the Tribunal asked itself the wrong question and took into account irrelevant information when determining whether he was a genuine temporary entrant. It was submitted that the error arose from the Tribunal considering the applicant's previous visa history rather than his current medical needs. The applicant's immigration history was plainly relevant to considering whether the applicant intended to stay temporarily in Australia for the purpose of medical treatment. The Tribunal found that based on the applicant's history, which included multiple unsuccessful permanent visa applications and occasions where the applicant remained unlawful in Australia, that the applicant had an ongoing intention to remain in Australia. This was not disputed by the applicant, and he had also given evidence to the Tribunal that he wished to remain in Australia, where he had the support of his family. The Tribunal did not ask itself the wrong question nor could it be said that it took into account irrelevant evidence or an irrelevant consideration. Ground three does not disclose jurisdictional error.
4. By ground four, the applicant contends the Tribunal's decision was legally unreasonable because it concluded that the purpose of applying for the visa was for the applicant to 'prolong [his] stay'. As discussed above, the Tribunal was entitled to have regard to the applicant's immigration history and to find, on the basis of that evidence (and on the basis of the applicant's own evidence), that the applicant's intention was to remain permanently in Australia. This reasoning was not irrational, illogical, or unreasonable. Legal unreasonableness has not been established. Ground four does not disclose jurisdictional error.
5. By ground five, the applicant contends that the Tribunal failed to consider his strong humanitarian circumstances, these being his family in Australia and the assistance he would receive from them, and whether these circumstances warranted referral for Ministerial invention under s 351 of the Act. In this regard, I refer to the consideration, above, of ground three advanced in the originating application. For the same reasons, I conclude that no error arises from the Tribunal not referring the matter to the Minister under s 351 of the Act. Ground five does not disclose jurisdictional error.
6. By ground six, the applicant contends that the Tribunal breached its procedural fairness obligations by failing to inform him in advance of new matters raised with him at the hearing, including his fitness to travel and medical treatment being available in Fiji. Neither of these issues had to be put to the applicant in advance of the hearing. As noted above, the issue for determination related to whether the applicant intended to remain temporarily in Australia for the purpose of medical treatment. It was the same issue on which the delegate refused to grant the visa, as such, it cannot be said that the applicant was not on notice of the issues arising in relation to the decision under review: s 360 of the Act. Neither the applicant's inability to satisfy the requirement in cl 602.212(6) nor whether medical treatment was available in Fiji were matters the Tribunal was obliged to give him advanced notice of. In that regard, there was no failure on the part of the Tribunal to afford the applicant procedural fairness. Ground six does not disclose jurisdictional error.
7. Ground seven requests the Court to set aside the Tribunal's decision and remit the matter for reconsideration. This is not a proper ground of review.
8. Ground eight reiterates the evidence that the applicant has ongoing health issues and requires his family's assistance and that the judicial review application should be allowed on this basis. The Court has no jurisdiction to consider the merits of the applicant's eligibility for a visa. The evidence pertaining to the applicant's heath issues and his desire to remain in Australia to get the support of his family was considered by the Tribunal. No error is disclosed in the way the Tribunal considered that evidence or the findings it made in respect of that evidence. Ground eight does not disclose jurisdictional error.
9. Ground nine refers to medical documents relevant to the applicant's ongoing treatment and rehabilitation for his medical condition and states that notwithstanding his age, the applicant's condition makes him unfit to depart Australia. As discussed above, no error is disclosed in the Tribunal's consideration of cl 602.212(6) which stipulates that the applicant had not turned 50 to satisfy the provision of being 'unfit to depart'. The Tribunal had no discretion in this matter and its findings that cl 602.212(6) did not apply to the applicant was correct. Further, the Court notes that the applicant did not attach any medical documents. In any case, I would not have been able to take these documents into account as any currently issued medical documents would not have been before the Tribunal at the time it made its decision. Ground nine does not disclose jurisdictional error.
10. By Ground ten, the applicant contends the Tribunal erred by finding that there was a legal requirement that an applicant for a medical treatment visa or compassionate stay be aged at least fifty. The applicant submitted there is no such legal requirement and the relevant question for the Tribunal was whether he had an ongoing medical condition such that he was unfit to depart Australia. It was submitted that the applicant's attached medical documents confirm that his ongoing medical conditions make him unable to depart Australia and that he continues to receive rehabilitation and care, and that the Tribunal's failure to properly consider this evidence was legally unreasonable. As noted above, no documents were attached to the applicant's submission to the Court and, in any case, the Court could not consider these documents as they were not before the Tribunal. Further, it cannot be said that the Tribunal failed to consider documents which were not before it. It is evident from its reasons that the Tribunal did consider the documents that were before it relating to the applicant's medical conditions. I am unable to discern any error in the Tribunal's consideration of that evidence. No legal unreasonableness is disclosed in the way the Tribunal considered the evidence relating to the applicant's medical conditions that was before it at the time it made its decision. Ground ten does not disclose jurisdictional error.

1. The grounds raised by the applicant in his written submissions referred to several authorities. While the authorities exist, not all the citations were correct. The applicant informed the Court that the submissions were prepared by a friend who assisted him. In any case, I have had regard to the authorities relied upon by the applicant, many of which stand for well-established principles of proper administrative decision-making. In the absence of further particulars, it appears to me that the Tribunal's decision and reasons, and the process it followed, was entirely consistent with the general principles set out in the authorities.

1. As none of the grounds raised by the applicant establish jurisdictional error, the application for judicial review must be dismissed.

1. At the hearing, the Minister sought an order that the applicant pay their costs fixed in the sum of $5,900.00. The applicant was invited to make submissions with respect to costs. The applicant did not do so. I am satisfied that, in this case, costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I am satisfied that the costs sought in this matter are reasonable.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.