BMP20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 911
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMP20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 911
File number(s): BRG 410 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 18 September 2024 Catchwords: MIGRATION – Medical Treatment (Visitor) visa – Administrative Appeals Tribunal –– Judicial Review – application for extension of time to bring judicial review proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether an extension of time is necessary in the interests of the administration of justice – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 477(1), 477(2),
Migration Regulations 1994 (Cth) cl 500.212 in Schedule 2
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 29.05(2)(c)
Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
SZNXA v Minister for Immigration and Citizenship [2010] FCA 755
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
WSZVE v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 9 September 2024 Date of hearing: 9 September 2024 Place: Brisbane Solicitor for the Applicant: The Applicant was self represented and appeared in person. Solicitor for the Applicant: Ms Allen - Minter Ellison ORDERS
BRG 410 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMP20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name is to be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application for an extension of time is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $3930.00.
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).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court is an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”) within which to make an application to seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”) to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
BACKGROUND
The applicant is a citizen of Nepal. The applicant first arrived in Australia on 15 July 2010. She has not departed Australia since her arrival.
On 22 January 2021, the applicant applied for a Medical Treatment (Visitor) (Class BU) (Subclass 602) visa (“the visa”)
On 2 March 2021, the delegate refused to grant the visa on the basis that the applicant did not intend to stay in Australia temporarily and therefore did not meet the criteria in cl 602.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) (Court Book (“CB”) 48-55).
On 23 March 2021, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 56-62).
On 22 July 2022, the Tribunal wrote to the applicant requesting that she comment on information concerning her migration history which history suggested that the applicant wished to stay in Australia permanently (CB 98-101). The request also asked for information as to why the applicant had remained in Australia beyond the date by which the applicant had stated in her visa application the proposed medical treatment would be concluded. The Tribunal asked for information relating to the applicant’s medical treatment. The request also referred to the applicant having an outstanding debt to the Commonwealth in the sum of $6,608.00 in respect of costs orders made in the applicant’s previous unsuccessful review applications of a refusal to grant the applicant a Protection visa.
On 25 July 2022, the Tribunal invited the applicant to attend a hearing on 10 August 2022 to give evidence and present arguments relating to the issues arising in her case (CB 102-106).
On 5 August 2022, the applicant responded to the Tribunal’s invitation to comment and request for information (CB 121-122). Amongst other things, the applicant said that she had not depart Australia since the date of her arrival as her life would have been in danger and that she was genuinely staying in Australia to safeguard her life. The applicant did not provide any information about her medical treatment. The applicant stated that she would answer “all other things” at the hearing.
On 10 August 2022, the applicant attended the hearing before the Tribunal to give evidence and present arguments. The applicant was assisted by an Interpreter in the Nepali and English languages.
On 16 August 2022, the Tribunal affirmed the decision under review and gave written reasons (“Decision”).
THE TRIBUNAL’S DECISION
The application before the Court is not a hearing of the applicant’s substantive application for judicial review. Nevertheless, given the Court is to make an assessment, albeit it at a threshold or impressionistic level, of the merits of the substantive application, it is useful to set out a summary of the Tribunal’s decision.
The Tribunal first recited the background to the application and set out the terms of its correspondence to the applicant on 22 July 2022 and the applicant’s response on 5 August 2022 ([5]-[13]).
The Tribunal then set out the requirement in cl 601.215 of the Regulations which requires that an applicant for a Subclass 602 Medical Treatment visa genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted. The Tribunal concluded that the requirements of cl 601.215 applied ([17]-[18]).
The Tribunal then briefly set out the applicant’s migration history including that the applicant had arrived on a fraudulent passport, had not departed Australia since her arrival and had been unsuccessful in an application for a Protection visa including merits review and judicial review ([20]-[21]).
The Tribunal then referred to the evidence accompanying the visa application and the evidence at the hearing as follows (in summary):
(a)the applicant wrote in her visa application that she would be seeking treatment for severe mental illness and would be visiting a psychiatrist regularly at the cost of $20,000.00 [23];
(b)the medical evidence provided with the visa application was a 1507 Form detailing the medical condition requiring treatment as ‘major depression’ for which the treatment was antidepressant medications, cognitive behaviour therapy and psychiatrist referral and attaching a referral letter to a psychiatrist [24];
(c)that the applicant has no assets, does not work and is financially supported by her de facto partner [25] and [28];
(d)the applicant’s son’s schooling and extracurricular activities in Australia [25];
(e)the applicant’s family ties to Nepal [26];
(f)the applicant’s statement to the Tribunal that she needs the Medical Treatment visa to ensure that she could enrol her son in school and to facilitate his education [25];
(g)the reasons why the applicant had remained in Australia as an unlawful noncitizen for over six years and the applicant’s response to the Tribunal’s correspondence that she had been ‘hiding out’ [29];
(h)the applicant’s migration history [30];
(i)the applicant’s evidence as to the medical treatment she had received, and that the applicant did not provide any medical evidence to support her oral assertions about treatment and had no evidence about the requirement of ongoing treatment [31] – [33];
(j)the reasons given by the applicant as to why she still needed the visa given the time that had passed since making the visa application and that she had stayed in Australia an additional seven months beyond the time given in the visa application [32] – [33];
(k)that the applicant could obtain the medical treatment in Nepal [34];
(l)what the applicant’s plans were after the Medical Treatment visa expires [35];
(m)the country information for Nepal [36];
(n)the applicant’s outstanding debt to the Commonwealth [37].
The Tribunal found that there was no evidence suggesting there had been non-compliance with the conditions of the applicant’s last substantive visa or any bridging visa and no evidence the applicant did not intend to comply with the conditions which may attach to the visa and that she would be financially supported by her partner ([39]).
However, the Tribunal in considering the other relevant matters in cl 602.215(1)(c) concluded that the evidence overall indicates, and the Tribunal found, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of receiving medical treatment [52]. In making that finding, the Tribunal:
(a)attached adverse weight to the applicant’s use of a fraudulent passport; that she had maintained a continuous residence in Australia for over 12 years; and, her migration history [41] –[42];
(b)considered the applicant’s own evidence that she did not wish to return to Nepal [43];
(c)considered the long period for which the applicant had been in Australia as an unlawful non-citizen and that the applicant would be prepared to continue to remain in Australia unlawfully [44];
(d)accepted that the applicant was depressed but had not provided any current or other relevant evidence indicating she is undergoing medical treatment and that she intends to stay in Australia temporarily for that treatment ([45] –[48]) and that this indicates the applicant did not apply for the visa for medical treatment but did so to maintain an ongoing residency in Australia [46];
(e)considered that the applicant could obtain the medical treatment in Nepal [49];
(f)considered that the applicant’s personal circumstances in Nepal and her personal and economic circumstances in Australia would be a disincentive to return to Nepal [50] –[51].
The Tribunal concluded that the applicant did not have an intention to stay temporarily in Australia for the purpose of medical treatment and accordingly, did not meet the requirements of cl 602.215 ([52] – [53]).
Further, the Tribunal found that as the applicant had an outstanding debt to the Commonwealth and appropriate arrangements had not been made for payment, the applicant did not satisfy public interest criteria 4004 and thus cl 602.217(1) of the Regulations.
APPLICATION TO THIS COURT
On 30 September 2022, the applicant applied pursuant to s 477(2) of the Act, to extend time within which to bring the application seeking judicial review of the Tribunal decision. Pursuant to s 477(1) of the Act the application was required to be made within 35 days of the Tribunal decision, that is, by 20 September 2022. Accordingly, the application was filed 10 days out of time.
On 13 January 2023, procedural orders were made by this Court that at least 28 days before the hearing the applicant file and serve written submissions; any amended application with proper particulars of the grounds of the application and, any additional evidence on which the applicant seeks to rely. The first respondent was ordered to file and serve an Affidavit of service; written submissions and, any additional evidence at least 7 days before the hearing. The first respondent was also ordered to file an Affidavit as to service of the Court Book, the first respondent’s written submissions and any additional evidence filed by the first respondent.
The applicant did not file an Amended Application, any further Affidavits or written submissions. The first respondent filed written submissions. The first respondent also filed an Affidavit as to service on the applicant of the written submissions and the Court Book.
The applicant appeared unrepresented. She had the assistance of an interpreter in the Nepalese and English languages.
At the commencement of the hearing the Court confirmed with the applicant that she had a copy of her Application and Affidavit filed on 30 September 2022, the Court Book and the first respondent’s written submissions.
The matter was then stood down to give the applicant time with the Interpreter to translate the first respondent’s written submissions.
As the applicant was unrepresented, the Court explained that the purpose of the hearing was to decide whether an extension of time in which to file the application for judicial review should be granted.
CONSIDERATION
Pursuant to s 477(2) of the Act, the Court may, by order, extend the time for the making of an application for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Act, if:
a) an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The phrase “necessary in the interests of the administration of justice” is ‘deliberately broad’ and it is in each case for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [39] (“Katoa”) per Gordon, Edelman and Steward JJ).
Nevertheless, factors commonly regarded include (Katao at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ; [40] per Gordon, Edelman and Steward JJ ):
a) the length of the delay;
b) the explanation for the delay;
c) any prejudice to the respondent or third parties;
d) any prejudice to the administration of justice as a result of the delay;
e) the merits of the underlying application.
The Court has taken the approach of considering those factors in determining whether it is satisfied in the interests of the administration of justice that time should be extended.
Extent and explanation for the delay
As stated, the applicant filed the application for judicial review 10 days outside the 35-day time limit imposed by s 477(1) of the Act.
The first respondent accepts that this is a minor delay (first respondent’s written submissions (“FRS”) [25]).
In the application for an extension of time, the applicant provides the following explanation for the delay (without alteration).
1. Psychological effects
2. Mentally disturbed.
The applicant’s Affidavit filed with the application does not provide any explanation for the delay or any supporting evidence. In oral submissions the applicant said:
“…I am on regular mental stress. I’m on a mentally stress, and I had not been able to do regular check ups because of the financial hardship. My partner is the only one who is working at the moment. That’s the reason I had not been able to go for a regular check-up, as the check-ups are very expensive”.
“…because I could not do the application just by myself, so I took help from one of the brother. That’s why I would say it has been delayed”.
The first respondent submitted that the applicant has not provided sufficient documentary evidence in support of the claimed reasons for the delay (FRS [25]). The Court observes that the applicant has not, in fact, provided any documentary evidence. The first respondent further submitted that the applicant does not identify how her mental state or psychological impairments prevented her from filing the application in time (FRS [25] - [26]). In oral submissions, the first respondent submitted:
“In relation to the applicant’s oral submissions that she was unable to complete the application herself and that she required the assistance of a brother, no explanation has been provided as to why she was not able to complete the application without assistance, or why this assistance could not have been sought and provided before the end of the time period, nor has she provided any evidence of her attempts to seek such assistance during this time. I would submit that the applicant is in no different position to the many other self-represented applicants whose first language is not English and who were able to meet the 35 day deadline. Accordingly, it is submitted that the applicant has not provided a reasonable or adequate explanation for the
delay”.The limited explanation for the delay weighs against an extension of time being granted. However, the Court accepts the difficulties an unrepresented applicant may have in adequately articulating the reasons for delay and providing supporting evidence. Having regard to the limited extent of the delay, overall, the Court is of the view that these factors taken together weigh in favour of an extension being granted.
Prejudice, impact on the public and the applicant
The first respondent accepts that no specific identifiable prejudice would be suffered if the applicant were granted an extension of time. The first respondent notes however that it is well established that mere absence of prejudice to a respondent is insufficient to justify an extension of time being granted (FRS [27] referring to Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 349).
As to the impact on the applicant, the first respondent correctly observes that no right of appeal would lie to the Federal Court of Australia in the event that this Court did not grant the extension sought although an application could be made to that Court for judicial review (FRS [28]).
On balance, the Court is satisfied that this factor weighs in favour of an extension being granted.
Merits of the proposed substantive application
This then leaves an assessment of the merits of the substantive proposed application.
The Court agrees with the submission of the first respondent that in this matter whether an extension should be granted principally turns on the merits of the proposed substantive application (FRS [29]).
For the reasons set out below, the Court is of the view that the applicant’s proposed substantive application has no reasonable prospects of success and that leave should not be granted for the extension of time sought.
In forming a view as to the merits of the substantive application, the Court is not necessarily limited to anything more than an impressionistic consideration of the grounds of review (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). This is not, however, a case in which it is necessary or appropriate for the Court to engage in a more comprehensive assessment of the merits of the substantive application.
The task of the Court, in assessing merits is to evaluate whether a ground of review is ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (Katoa at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
The grounds of review set out in the application are (without alteration):
Ground One
I am a genuine applicant.
Ground Two
I have serious medical and psychological issues.
As can be seen the application does not articulate any grounds of review by reference to recognised categories of jurisdictional error. Nor does the application particularise the grounds that are asserted. The applicant was given, but did not take up, the opportunity to file an amended application with particularised grounds of review.
The first respondent submitted that because the application does not identify or allege what error of law or failure to exercise proper procedure it is asserted was committed by the Tribunal, the application should be dismissed (FRS [30] referring to WSZVE v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J; SZNXA v Minister for Immigration and Citizenship [2010] FCA 755 at [21] per Reeves J).
The Court should be reluctant to dismiss a ground of review in circumstances where the applicant is unrepresented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [8]-[10] per Colvin J). That approach should apply, perhaps with greater force, in the context of an assessment of the merits of a ground of review in an application to extend time.
The applicant was given an opportunity to explain orally why she thought the Tribunal had made a legal or procedural error. The applicant said:
“…I’m really suffering from the mentally stress, and because I had not been able to provide evidences on that, maybe the tribunal has made the decision”.
“…What I was trying to say is, maybe because I could not provide any evidence from the doctor’s side, that’s why the tribunal had made the decision for me”.
Noting that the applicant was unrepresented, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible. It appears to the Court that the applicant asserts that:
(a)the Tribunal was wrong because it did not believe that she was a person in need of medical treatment; and
(b)the Tribunal was wrong in concluding that she did not genuinely intend to stay temporarily in Australia.
The Tribunal did consider whether the applicant had a medical condition. The Tribunal accepted that the applicant was suffering from depression (Decision [45]). However, there was a lack of evidence as to the medical treatment that the applicant had received and as to what ongoing treatment the applicant would require (Decision [48]). It was therefore entirely open on the evidence for the Tribunal to conclude, as it did, that the purpose for which the applicant was seeking the visa was not to stay in Australia to receive medical treatment (Decision [49]).
It is evident from the Tribunal’s written reasons that it considered all the evidence before it in concluding that the applicant did not genuinely intend to stay temporarily in Australia for the purpose of obtaining medical treatment. The Court agrees with the first respondent’s submission that the conclusion reached by the Tribunal was open to it and was clearly not illogical, irrational or unreasonable (FRS [32] referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] per Crennan and Bell JJ) and that there was nothing in the Tribunal’s reasons to indicate extreme illogicality in its decision making process (FRS [32] referring to CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 at [60]-[61] per Kerracher, Griffiths and Rangiah JJ).
The applicant did not assert that she had not been given a meaningful opportunity to put her case to the Tribunal. Nevertheless, consistent with its obligations as a model litigant, the first respondent made written submissions as to procedural fairness (FRS [33]-[36]). The Court agrees with those submissions that the Tribunal complied with its obligations with respect to procedural fairness.
The first respondent also raised in written submissions (FRS [19]) and orally, the applicant’s outstanding debt to the Commonwealth. The first respondent asked the Court to consider whether, in any event, an order extending time would be futile. Clause 602.217(1) of the Regulations requires that the applicant satisfy, relevantly, public interest criteria 4004. As the applicant did not, at the time of the Tribunal’s decision, satisfy public interest criteria 4004 the Tribunal could not have made a decision other than to affirm the delegate’s decision. The applicant told the Court that the debt was still outstanding. Nevertheless, it is possible that were time extended and the applicant were to be successful on an application for judicial review the debt might by that time be extinguished or arrangements entered into. In that event, it could not be said that granting an extension of time would be futile.
However, for the reasons given, the Court is of the view that the applicant’s substantive application has no reasonable prospects of success and that accordingly an order should not be made extending time.
CONCLUSION
The application to extend time is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate: Nazrana Saheb
Dated: 18 September 2024
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