El Hallak v Minister for Immigration

[2017] FCCA 1009

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL HALLAK v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1009

Catchwords:
MIGRATION – Judicial review of decision by Administrative Appeals Tribunal affirming decision not to grant Medical Treatment (Visitor) (Class UB) visa – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476(1), 477(1), 477(2)

Migration Regulations 1994 (Cth), Schedule 2, cls.602.212(6), 602.213(5), Schedule 3, cl. 3000(2)(c)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: BILAL EL HALLAK

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 527 of 2016

Judgment of: Judge Manousaridis

Hearing date: 12 May 2017

Date of Last Submission: 12 May 2017

Delivered at: Sydney

Delivered on: 19 May 2017

REPRESENTATION

Applicant appeared in person assisted by an interpreter. 

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 527 of 2016

BILAL EL HALLAK

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS  TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 9 March 2016 the applicant, a citizen of Lebanon, filed an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical visa).

2. The Tribunal made its decision on 19 January 2016, which means the application for judicial review was filed outside the 35-day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). The applicant, therefore, seeks an order under s.477(2) of the Act extending the 35-day period prescribed by s.477(1) of the Act.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [1] [2013] FCA 1284 at [47]

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has recently held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Explanation for delay

1. The applicant, who is not legally represented, set out in an affidavit the facts on which he relies to explain his delay. In short, the applicant says he first attempted to lodge his application with this Court by post that he sent from Punchbowl post office on 11 February 2016. The Registry of the Family Law Court received the application. That is apparent from the presence of the words “Received 16 Feb 2016 Family Court of Australia Sydney Registry” that have been stamped on the affidavit the applicant filed with his application for judicial review.

2. Thus, the explanation for the applicant’s not filing his application for judicial review is that he either posted the application to the incorrect address or it was posted to the correct address and incorrectly processed by this Court’s Registry. Either way, I am satisfied the applicant has given a reasonable and adequate explanation for the delay. I am also satisfied that the delay is relatively minor, and there is no prejudice to the first respondent (Minister), or to the public interest, because of the delay.

Merits of application if extension granted

1. To be in a position to assess the merits of the applicant’s proposed grounds, it will be necessary to set out some background

Background

1. The applicant applied for a Medical visa on 24 September 2015. At the time of the application, the applicant had to satisfy, among other things, cl.602.213(5) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided that the applicant must satisfy “Schedule 3 criteria 3001, 3003, 3004 and 3005”. Schedule 3 criterion 3001(1) provides that an application “is validly made within 28 days after the relevant day (within the meaning of subclause (2))”. Relevant to the case before me is cl.3000(2)(c) which applies where the applicant ceased to hold, among other things, a substantive visa on or after 1 September 1994. The relevant day in these circumstances is the later of the last day the applicant ceased to hold a substantive visa or the day when the applicant last entered Australia unlawfully.

2. The applicant entered Australia on 12 August 2011 as the holder of a subclass 300 prospective marriage visa.[6] The applicant was later granted a subclass 820 partner visa (Partner visa). That appears to have occurred on 1 February 2012.[7] In its reasons for decision, the Tribunal noted the Partner visa ceased to have effect on 1 July 2013. It is not clear on what basis the Tribunal so noted. A record of the visas granted to the applicant show that on 30 November 2012 the applicant was granted a class WA-010 visa, which is a class of bridging visa, and that, up to 29 September 2015, the applicant had regularly been granted bridging visas. The precise date on which the Partner visa the applicant held ceased to have any effect, however, is not relevant because it is clear the applicant held bridging visas for substantially more than 28 days before he applied for the Medical visa.[8]

   [6] CB67, [7]. That visa was granted on 20 July 2011 – CB23

   [7] CB23

   [8] CB23

Tribunal’s decision

1. The Tribunal referred to the applicant’s migration history in Australia, noting that the applicant’s Partner visa ceased on 1 July 2013, and that there was no evidence before the Tribunal the applicant has been granted a substantive visa since that time. Given the applicant applied for the Medical visa on 24 September 2015, which is more than 28 days after the Tribunal was of the view the Partner visa had ceased, the Tribunal concluded the applicant did not satisfy cl.602.213 of Schedule 2 to the Regulations.

2. The Tribunal also considered the applicant’s claim that he suffers from illnesses, and that he is receiving medical treatment. The Tribunal was not satisfied the applicant was 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 Tribunal, therefore, was not satisfied the applicant is medically unfit to depart Australia “in accordance with cl.602.212(6)” of Schedule 2 to the Regulations. That paragraph provided as follows:

   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.

Proposed grounds

1. The proposed grounds of application are as follows:

   1.I provided evidence of my medical condition and the Tribunal refused my application based on Schedule 3 which is a problem according to law.

   2.I ask the Court to find that the decision by the Tribunal is wrong because I need medical treatment and the 28 days should not apply to me.

   3.I submit another medical evidence to show that I suffer serious medical condition and need treatment.

2. The applicant, who as I have already said is not legally represented, made submissions relating to the reasons he filed his application out of time. The applicant, however, did not make any submissions about the grounds set out in his application. He indicated to me that he did not understand what occurred before the Tribunal.

3. The intention of the proposed grounds is clear enough. The applicant complains the Tribunal erred in not accepting that the applicant’s medical condition ought to have entitled him to remain in Australia. This, however, does not raise any arguable case of jurisdictional error.

4. To have been entitled to remain in Australia because of his medical condition, the applicant had to satisfy cl.602.212(6) of Schedule 2 to the Regulations. The Tribunal considered that question, and there is no arguable case the Tribunal made any jurisdictional error in concluding the applicant did not satisfy cl.602.212(6). Quite apart from the particular paragraph of that subclause the Tribunal considered, the applicant could not have satisfied some of the other conditions, such as his having turned 50 years of age, or his having applied for a permanent visa while in Australia.

5. There is also no reasonably arguable case the Tribunal erred in concluding the applicant applied for the Medical within 28 days after the date on which he ceased to hold a substantive visa. Whatever the precise date on which the Partner’s visa the applicant held ceased to have effect, it is clear the applicant applied for a Medical visa more, and substantially more, than 28 days after the day he had first been granted a bridging visa.

Conclusion and disposition

1. Although the applicant has provided an adequate explanation for his delay in applying for judicial review, and the delay is minor, the proposed grounds are not reasonably arguable. In those circumstances, I am not satisfied it is necessary in the interests of the administration of justice that an order should be made under s.477(2) of the Act extending the time provided for by s.477(1) of the Act to make an application for relief under s.476(1) of the Act.

2. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 19 May 2017