Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 2004

1. By an application filed in this Court on 17 February 2020 (Application), the Applicant seeks judicial review of the decision of the Second Respondent (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. The Tribunal affirmed the decision of a delegate of the First Respondent (Delegate) on the basis that the Applicant did not genuinely intend to stay temporarily in Australia for the purpose for which a Medical Treatment (Visitor) (Class UB) (Visa) is granted.

1. The Applicant is a citizen of India. He arrived in Australia on 13 June 2009 on a Student (Subclass 572) Visa. The Applicant then unsuccessfully applied for a number of other visas before remaining in Australia unlawfully between 2 October 2012 to 25 July 2018. The Applicant applied for the Visa on 20 July 2018 (Visa Application).
2. On 27 July 2018 the Delegate decided not to grant the Visa (Delegate's Decision).
3. The Applicant was notified of the Delegate's Decision on 8 August 2018.
4. On 27 July 2018, the Delegate refused to grant the visa based on the Applicant not satisfying Sch 2 cl 602.215 of The Migration Regulations 1994 (Cth) (Regulations).
5. The Applicant sought to temporarily remain in Australia until 14 September 2018 for medical treatment for a Pilonidal Abscess. He provided to the Delegate 'Form 1507 Evidence of Intended Medical Treatment' completed by his treating doctor. In that form the treating doctor recorded that the Applicant was being treated with antibiotics and that he may need surgery.
6. The Delegate observed that documentation provided in support of the Visa application did not state that he was gravely ill or receiving intensive or critical care, nor did it state that the Applicant must remain in Australia for on-going consultation. The Delegate was not satisfied that the Applicant was unable to depart Australia and seek the medical treatment elsewhere.
7. The Delegate also formed the view that Applicant's adverse migration history which included unsuccessfully applying for two visas, being unlawfully in Australia for 6 years and the fact that he had not departed the country since his arrival on a student visa in 2009 strongly indicated that the Applicant continued to seek a visa pathway to remain in Australia on a permanent basis and that the Applicant did not genuinely intend to remain in Australia on a temporary basis.
8. The Applicant applied to the Tribunal for review of the Delegate's Decision on 20 August 2018 (Merits Review Application).
9. The Tribunal confirmed receipt of the Merits Review Application on 4 September 2018.
10. On 12 December 2019 the Tribunal invited the Applicant to a hearing in person on 21 January 2020 (Hearing Invitation). The Hearing Invitation was sent to the Applicant's nominated email address. The Hearing Invitation required the Applicant to provide a completed response form and any further information that the Applicant wished to rely upon at the hearing by 14 January 2020. The Applicant did not provide a completed response, nor did he provide any additional evidence.
11. The Tribunal hearing was held on 21 January 2020. The Tribunal hearing was conducted with a secondary applicant present who had applied for a visa on the basis of being a support person for the Applicant. That secondary applicant is not a party to the current judicial review proceedings.
12. The Tribunal allowed the Applicant a period of seven days to provide further medical evidence. If such evidence could not be provided by 28 January 2020, the Applicant was required to seek an extension of time. No further medical evidence was provided, and the Applicant did not seek an extension of time.
13. The Tribunal considered, Sch 2 cl 602.212(6) of the Regulations which provides the conditions under which a grant of a tourist medical visa could occur:

(6) All of the following requirements are met:

(a) the applicant is in Australia;

(b) the applicant has turned 50;

(c) the applicant has applied for a permanent visa while in Australia;

(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e) the applicant has been refused the visa;

(f) the applicant is medically unfit to depart 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.

1. The Applicant was born in 1987 and, at the time of the Tribunal's decision, was 32 years of age. As such, the Tribunal found that the Applicant did not meet the statutory requirement in Sch 2 cl 602.212(6)(b) of the Regulations that he be 50 years of age.
2. The Tribunal also found that the Applicant did not have a genuine intention to stay in Australia temporarily and as such did not meet the alternative criteria in Sch 2 cl 602.215 of the Regulations. The Tribunal found no evidence that the Applicant did not comply with the conditions of his student visa and subsequent bridging visa. The evidence that he had a genuine intention to remain temporarily in Australia was weighed against the fact that the Applicant remained unlawfully in Australia, without a visa for six years.
3. The Applicant provided evidence of a medical treatment for pilonidal abscess in the completed Form 1507. A course of antibiotics was prescribed for two months, with the possibility of surgery. The Applicant stated that he was prescribed four rounds of antibiotics. Two months for each round. Apart from the Form 1507, no other evidence of further medical treatment was provided.
4. The Tribunal affirmed the decision of the Delegate on 30 January 2020. The Applicant was notified of the Tribunal's decision on 31 January 2020.

1. The Application was filed in this Court on 17 February 2020, within 35 days of the date of the Tribunal's Decision prescribed by s 477 of the Migration Act.
2. On 14 May 2025 orders were made for the Applicant to file material prior to final hearing. No additional material was filed by the Applicant.
3. This matter was heard on 20 October 2025 and proceeded in person. The Applicant appeared as a litigant in person. The Minister was represented by a Solicitor.
4. The Applicant relied upon the following documents:

(a) The Application filed on 17 February 2020; and

(b) The Affidavit filed on 17 February 2020.

(a) The Response filed on 10 March 2020; and

(b) The Outline of Submissions filed 3 on October 2025.

1. The Minister filed the Court book on 17 June 2020 which was relied upon in these proceedings.
2. The Applicant relied on the following grounds of review (Grounds of Review):

(1) I want my decision should be reviewed for Jurisdictional Error in Federal Circuit Court.

(2) I am suffering from pilonidal abscess disease that require further treatment.

(3) I have not been provided the opportunity to be heard and I shall get the fair chance to represent myself and defend my case.

(4) I have provided the documentary evidences in support of my claims of my treatment.

(5) The disease that I am suffering from may need to have surgery done and I am unfit for travelling.

(6) In my opinion, the Tribunal has made the Jurisdictional Error while reaching the decision in my case.

1. At the outset of the hearing I explained to the Applicant the nature of the hearing being one of judicial review and the process that would be undertaken. I asked him to point out the serious error or big mistake that the Tribunal made and if he could take me to the paragraph in the Tribunal decision where he said the big mistake occurred. I confirmed with the Applicant that he had in his possession in Court the material he relied upon as well as the material relied upon by the Minister and the Court Book. I was satisfied that the Applicant was able to meaningfully participate in the proceeding.
2. Leave was granted, unopposed at the hearing for the Applicant to amend his application to include seeking an order for a writ of mandamus.

1. I took the Applicant to each of the six grounds in his application and asked his to tell me what the Tribunal's big mistake was with respect to each of these grounds.
2. The Minister made a global submission that as each of the grounds were unparticularised and could be dismissed on this basis. I accept this submission. The position is well supported by authority: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. The Applicant was invited to amend his application and provide submission prior to the court hearing and elected not to do so.

1. With respect to Grounds 1, 2, 4 and 6 the Applicant made a submission that the error made by the Tribunal was that he did not get a visa. These submissions invite impermissible merits review and must be dismissed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at [272].
2. With respect to Ground 5 the Applicant submitted that he was told by the doctor that it would be unfair to travel. I agree with the submissions of the Minister on Ground 5 that the Applicant is inviting the Court to undertake its own assessment of the merits of his visa claim. The Applicant is inviting the Court to engage in an impermissible merits review.
3. In so far as it is alleged by the Applicant that the Tribunal failed to consider his evidence, I agree with the Minister's submission that this claim cannot be made out. No additional material was provided to either the Department or the Tribunal after making the Visa Application. The Tribunal considered the Form 1507 being the evidence relied upon by the Applicant, at paragraphs [8], [20] and [27] of its decision.
4. The Applicant is unable to point to a jurisdictional error on the part to the Tribunal. Grounds 1, 2, 4, 5 and 6 must be dismissed.

1. The Applicant submitted with respect to Ground 3 that the Tribunal did not seek any further information from him after the conclusion of the hearing.
2. The Minister submitted that the Tribunal had complied with is procedural fairness obligation in s357A and s360 of the Act. The Applicant was invited to and attended the hearing. The Applicant attended the hearing gave evidence and made submissions.
3. I agree with the submission of the Minister that there is nothing before the Court which would suggest that the Tribunal did not afford the Applicant a meaningful opportunity to be heard: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [76].
4. Further contrary to the submission made by the Applicant he was afforded an opportunity to provide further medical evidence post hearing but elected not to avail himself of that opportunity, nor did he seek and extension of time to provide further medical evidence to the Tribunal.
5. No jurisdictional error has been identified by the Applicant with respect to Ground 3 and it must be dismissed.

1. The Applicant has not established jurisdictional error. The Application must be dismissed.
2. The Minister sought:

(a) an order changing the name of the First Respondent from Minister for Immigration and Multicultural Affairs to Minister for Immigration and Citizenship; and

(b) an order for costs of $5,400.00 which is less than the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Accordingly, the Applicant is to pay the Minister's costs in the sum of $5400.00.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.