Anthony v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 415
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anthony v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 415
File number(s): SYG 1505 of 2018 Judgment of: JUDGE LAING Date of judgment: 25 May 2022 Catchwords: MIGRATION – application to extend time for applying for judicial review of a decision not to grant a Medical Treatment (Visitor) visa – whether the Court has jurisdiction to grant the relief sought by the applicant – whether the extension of time ought to be refused in any event – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth) ss 47, 51A, 65, 338(2), 348, 474(2), 476, 476(2)(a), 476(4), 477(1), 477(2)
Migration Regulations 1994 (Cth) Schedule 1; 1214A(3)(c), Schedule 2; cl 602.215, 602.212(6)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 25 May 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared in person Solicitor for the First Respondent Mr Wall, HWL Ebsworth, appeared in person ORDERS
SYG 1505 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIJU CHRISTOPHER ANTHONY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 30 May 2018 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 1 and 2 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application, filed on 30 May 2018 (Application), seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision by a delegate (Delegate) of the Respondent (Minister) made on 13 April 2018 refusing to grant the applicant a Medical Treatment (Visitor) visa (Medical Treatment Visa).
BACKGROUND
The applicant is a citizen of India. He arrived in Australia in 2008 on a Subclass 676 Visitor visa that was valid for a three month stay. He made previous, unsuccessful applications for other visas and spent some time unlawfully residing in Australia before applying for the Medical Treatment Visa on 29 March 2018.
On 13 April 2018, the Delegate refused the application.
THE DELEGATE'S DECISION
The Delegate found that the applicant did not meet cl 602.215 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Delegate set out this provision and the related provision cl 602.212(6) as follows:
602.215
(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.
602.212(6)
(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.
The Delegate observed that in the applicant’s case, cl 602.215 needed to be satisfied. This required that the applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted. The Delegate considered that this would ordinarily not be satisfied where lengthy or rolling visas had been sought for prolonged medical treatment, where an applicant was medically capable of departing Australia.
The Delegate had regard to the applicant’s immigration history, including his previous failed visa applications and periods of unlawful residence in Australia. The Delegate observed that with the present visa application, the applicant had lodged a form in which a General Practitioner had stated that the applicant suffered from anxiety, depression and mood swings, and was prescribed an antidepressant medication that was to be taken nightly. However, the Delegate observed that no further medical reports or treatment plan had been provided at the time of decision. Nor had any medical evidence been provided demonstrating that the applicant was unfit to travel or otherwise incapable of departing Australia, or that he needed to remain in Australia in order to take medications.
The Delegate did not consider that the applicant had presented sufficiently compelling, changed or exceptional circumstances to warrant departure from policy and the legal requirements of the genuine visit criterion. The Delegate stated that Medical Treatment Visas are intended for “visits only, for the purposes of treatment”.
The Delegate observed that the applicant had resided in Australia for 10 years and had held no substantive visa since the cessation of his Visitor visa in 2008. The applicant was found to have repeatedly failed to comply substantially with the conditions of his visas and to have spent considerable periods as an unlawful non-citizen. He was found to have attempted at least twice to apply for permanent residence and to have repeatedly escalated his appeals, to the Tribunal, the courts and the Minister. The applicant’s immigration history was found to indicate that “he has no intention to depart Australia and is persistent in gaining permanent or long –term residence in Australia”.
The Delegate found that the applicant had not provided sufficient evidence of any intention or incentive to depart Australia now or in the future. He had provided no evidence that he would now comply with the conditions of the visa if granted.
The Delegate acknowledged that the applicant would prefer to remain in Australia indefinitely in order to access services and for other reasons such as working and maintaining residence with family and friends. However, in the absence of sufficiently extenuating, compelling or compassionate circumstances, the Delegate concluded that the applicant had applied for the visa in order to prolong and maintain his residence in Australia.
In these circumstances, the Delegate was not satisfied that cl 602.215 was met.
JURISDICTIONAL ISSUE
The Minister submits that this Court has no jurisdiction to grant the relief sought by the applicant. For the following reasons, I accept that submission.
Section 477(2) of the Act empowers the Court to extend time for the making of an application under s 477(1) “for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision”. The power therefore contemplates circumstances in which the Court’s jurisdiction under s 476 is capable of being invoked.
Section 476 of the Act relevantly provides that:
…
(2) The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision…
(4) In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period;…
A "privative clause decision" is defined in s 5 of the Act by reference to s 474(2). Section 474 relevantly provides:
…
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…
(3) A reference in this section to a decision includes a reference to the following:…
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate direction, approval, consent or permission (including a visa);…
The Minister was required to make, and did make, a decision of an administrative character regarding the applicant’s Medical Treatment Visa application, pursuant to ss 47 and 65 of the Act. The Delegate's decision of 13 April 2018 to refuse the Applicant's Medical Treatment Visa application is accordingly a "privative clause decision" within the meaning of ss 474(2) and 476(4) of the Act.
The decision would have been “reviewable under Part 5” of the Act if an application for such review had been made within time. In this regard, s 338(2) of the Act relevantly provided:
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared;…
An application for a Medical Treatment Visa was able to be granted whilst the applicant was in the migration zone: cl 1214A(3)(c) of Schedule 1 to the Regulations. The applicant was in Australia at the time of application. He was not in immigration clearance, nor had he been refused immigration clearance and not subsequently been cleared, when the Delegate’s decision was made.
As suggested by the name, “Part 5-reviewable decision[s]” are reviewable under Part 5 of the Act: see s 348 of the Act.
It follows that the Delegate’s decision was a "privative clause decision" that would have been “reviewable under Part 5” of the Act if an application for this been made within time. It is therefore a “primary decision” within the meaning of s 476 of the Act. As such, this Court has no jurisdiction to review it: s 476(2)(a) of the Act.
EXTENSION OF TIME APPLICATION
In the alternative, the Minister submitted that the Court would in any event dismiss the application under s 477(2) of the Act according to ordinary principles. In light of the conclusion reached on the jurisdictional issue, it is not strictly necessary to address this contention. However, given that it was the subject of submissions, I note for completeness that this contention on behalf of the Minister has also been accepted.
The principles regarding an application for an extension of time under s 477(2) of the Act were recently considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15). The provision requires the Court “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (Jagot and Halley JJ). Whilst the matters to which regard may be had are not expressly confined by the Act, matters that are usually relevant include the extent of the delay and the explanation for it, any prejudice to the respondent, the impact on the applicant, the public interest, and the merits of the substantive application (see BTI15 at [26] per Logan J).
The delay in this case is limited, with the application being filed 12 days out of time. However, the explanation given (that the applicant was unware of the time limit) is unsatisfactory: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 at [38]. No specific prejudice has been identified by the Minister. However, there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17]. If the extension of time is not granted, then the Delegate’s decision will stand. Avenues for further review will be limited: see BTI15 at [4] per Logan J.
The substantive grounds that have been raised by the applicant do not appear to be reasonably arguable, even at a “a reasonably impressionistic level”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63]. All that is stated in the application form under the heading “Grounds of application” is the following (errors in original):
2. The Minister fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.
3. The Minister had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act.
The grounds do not particularise how the Delegate is contended to have misinformed themselves regarding the “true nature” of the applicant’s evidence, or to have lacked jurisdiction to make the decision under review. Some indication is given in the form under “Grounds of application for extension of time”, where the applicant contends that the Delegate erred in not finding that he met the requirements for the visa. This invites impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The affidavit submitted with the application additionally contends that the Delegate’s decision was “unjust” and “made without giving [the applicant] the opportunity to present [his] arguments”, denying him “natural justice”. However, the applicant has not demonstrated any procedural step the Delegate was required to take but did not take. None is apparent to me on the fact of the materials. In this regard, it should be noted that the requirements of natural justice are limited under the Act: see s 51A.
At the hearing of this matter, the applicant submitted that although he had been invited to an interview by the Department, he had not been provided with sufficient time to submit the evidence that he wished to submit. However, as I explained to the applicant, a difficulty with that submission is that there is no evidence before the Court that he sought any additional time from the Department. I did not understand the applicant to contend that such a request had been made.
For these reasons, even if I had found that the Court had the jurisdictional ability to grant the relief sought, I would not have been inclined to grant the extension of time.
ADDITIONAL MATTERS RAISED AT THE HEARING
At the hearing, the applicant stated that he had not received a copy of the Court Book (Exhibit CB) prior to today. In response to this, the Minister tendered correspondence (Exhibit A) demonstrating that the Court Book had been served upon the applicant by email and post. The applicant accepted that he had received the email, although he did not recall the attachment. In any event, the applicant was able to recognise most of the documents contained within the 32 page Court Book. This was in circumstances where the majority of the documents in the Court Book consisted of, firstly, the material submitted by the applicant with his visa application and, secondly, correspondence from the Department regarding the Delegate’s decision. The only other documents contained in the Court Book were screenshots of the Department’s records that appear to have been relied upon by the Delegate as showing the applicant’s immigration history. When asked, the applicant confirmed that he did not need additional time to consider these documents.
The applicant did seek additional time during the hearing more generally to submit further documents and evidence. However, he did not indicate what additional material he wished to submit. I noted that given what I had explained about the limited role of the Court on judicial review, additional evidence directed towards the merits of the Delegate’s decision, as opposed to the legality, was unlikely to assist the Court. As the applicant has not specified in any detail what further evidence he would like to submit, nor how it may assist his case, I did not propose to adjourn the matter. Such a course could only result in the parties being exposed to additional and unnecessary costs, in circumstances where the Court lacks jurisdiction in this matter.
The applicant also submitted at the hearing that he had a lot of problems in 2018. He stated that he was ill, had received no support from the government and needed cash in order to see doctors. The applicant sought to emphasise that he needed permission to live in Australia. However, as I endeavoured to explain to the applicant, this Court simply does not have the power to grant him this outcome that he seeks.
CONCLUSION
For these reasons, it is necessary to dismiss the application.
The Minister seeks costs fixed in the amount of $3,667, which was the amount applicable under the Federal Circuit Court Rules 2001 (Cth) that were in place at the time the application was made. Having regard to the scale and the work performed in the matter, I accept that the amount sought is reasonable.
34 I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 27 May 2022
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