Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 20 June 2023
• Neutral Citation: [2023] FCA 670
• Date: 20 June 2023

Federal Court of Australia

Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 670

Appeal from:	Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137
File number(s):	NSD 1246 of 2021
Judgment of:	JACKMAN J
Date of judgment:	20 June 2023
Catchwords:	MIGRATION – application for extension of time to seek leave to appeal from, and if granted appeal from, primary judgment – where medical treatment visa refused on the basis that the applicant failed to meet the requirements of the Migration Regulations 1994 (Cth), Sch 2, cl 602.215 – the filing of incorrect forms may be an adequate explanation for delay – whether insufficient weight was placed on the applicant’s medical evidence – Tribunal’s decision assessed by reference to the circumstances existing at the time of the decision – no realistic prospect of appeal succeeding – application dismissed
Legislation:	Migration Regulations 1994 (Cth) Sch 2, cll 602.212, 602.215 Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Cases cited:	Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137 BQQ15 v Minister for Home Affairs [2019] FCAFC 218 GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 Kheir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1974 Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	23
Date of hearing:	15 June 2023
Counsel for the Applicant:	The Applicant was self-represented.
Solicitor for the First Respondent:	Mr A Moss of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance.

ORDERS

		NSD 1246 of 2021
BETWEEN:	KESHAB PRASAD ADHIKARI Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JACKMAN J
DATE OF ORDER:	20 june 2023

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J

1. By an application filed on 15 November 2021 (Application), the applicant seeks an extension of time in which to file a notice of appeal, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules). If granted, the applicant seeks to appeal from the decision of the primary judge of the Federal Circuit and Family Court of Australia (Division 2) dated 15 October 2021: Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137.

2. The applicant is now 51 years old, and is a citizen of the Federal Democratic Republic of Nepal (Nepal). The applicant applied for a Medical Treatment (Visitor) (Class UB) subclass 602 (Medical Treatment) Visa (Medical Treatment Visa) on 12 January 2018. His application stated that he was receiving treatment from his doctor and psychologist as he was suffering from mental illness. Subsequent material from his treating doctor indicated that he was suffering from major depression, and was receiving medication and regular counselling sessions with a psychologist which were envisaged to continue to be required for a few more years.

3. On 26 March 2018, the Delegate refused to grant the applicant a Medical Treatment Visa, finding that he failed to satisfy the visa criteria set out in cl 602.215 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly stated that:

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.

The requirements described in subcl 602.212(6) were not met because the applicant at that time had not turned 50.

4. The applicant sought merits review from the Administrative Appeals Tribunal (Tribunal) on 10 April 2018. On 29 October 2019, the Tribunal issued its decision, finding that the applicant failed to satisfy cl 602.215.

5. On 28 November 2019, the applicant sought judicial review of the Tribunal’s decision from what was then the Federal Circuit Court.

6. The primary judge distilled the grounds of judicial review as follows:

1. The Tribunal did not accept the applicant was telling the truth (ground 1).

2. The Tribunal acted unfairly and harshly towards him (ground 2).

3. The applicant was impaired in giving evidence and presenting arguments to the Tribunal (ground 3).

4. The Tribunal ought to have made inquiries of the applicant’s treating doctor and counsellor (ground 4).

5. To the extent the Tribunal accepted the applicant’s evidence about his medical condition, and his evidence of the medical treatment the applicant was receiving, it was not open to the Tribunal not to accept the applicant intends [to stay] temporarily in Australia for the purpose for which he applied for the Medical visa (ground 5).

7. The primary judge said in relation to ground 1 that the Tribunal did not find the applicant was not telling the truth; on the contrary, the Tribunal accepted the applicant’s evidence: [18]. The primary judge dismissed grounds 2 and 3 as set out above, on the basis that those claims were not supported by any evidence: at [18].

8. In relation to ground 4 as set out above, the primary judge dismissed this ground, finding that it was for the applicant to put such medical evidence before the Tribunal as he wished, and that the applicant was on notice that he would need to provide medical evidence about when his treatment would end: at [19]-[21].

9. In relation to ground 5 as set out above, the primary judge held that no error was made out. The primary judge referred to cl 602.215 of the Regulations requiring that an applicant must have a genuine intention to stay temporarily in Australia, and that that intention must be for a particular purpose, namely the purpose for which the medical visa is granted. The primary judge said that where, as the Tribunal found in the applicant’s case, there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intends to stay temporarily in Australia: [23]. The primary judge said that if the evidence reveals that an applicant will undertake medical treatment indefinitely, and the applicant’s intention is to stay in Australia to receive such treatment, it is impossible to find that the applicant has a genuine intention to stay temporarily in Australia, because an applicant’s intention would then be to stay in Australia indefinitely: [23].

10. On 15 November 2021, the applicant filed his application for an extension of time in which to appeal from the primary judgment. On the same day, the applicant also filed an affidavit (erroneously dated 24 November 2021),...