Li v Minister for Immigration

[2018] FCCA 2637

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2637

Catchwords:
MIGRATION – Application for an extension of time to seek review of a decision of the Administrative Appeals Tribunal affirming a decision to refuse a Medical Treatment visa – where no arguable jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.362B, 379A, 379C, 477

Migration Regulations 1994 (Cth), cls.602.212, 602.213, Schedule 3 cl.3001

Cases cited:
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;
(2018) 92 ALJR 713

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Applicant: QINGHUA LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1740 of 2017

Judgment of: Judge Barnes

Hearing date: 4 September 2018

Delivered at: Sydney

Delivered on: 4 September 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time be refused.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1740 of 2017

QINGHUA LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for an extension of time under s.477 of the Migration Act 1958 (Cth) (the Act). Under s.477(1) an application to this court in relation to a migration decision must be made within 35 days of the date of the migration decision. The Applicant seeks review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 February 2017 affirming a decision of a delegate of the First Respondent not to grant her a Medical Treatment visa. It is not in dispute that the Tribunal decision is a migration decision. The Applicant did not file her application for review until 1 June 2017, which was outside 35 days from the date of the decision by approximately nine weeks. Hence she requires an extension of time.

2. Under s.477(2) of the Act the court may extend the 35 day period as it considers appropriate if an application for the extension of time has been made in writing specifying why the Applicant considers it necessary in the interests of the administration of justice to make the order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. The Applicant sought an extension of time in her review application.  Hence I have considered whether it is necessary in the interests of the administration of justice to grant the extension of time.  In so doing I bear in mind that the court’s discretion to extend time is broad and depends on the individual circumstances of the case.  Having said that, it is also well-established that the court will, at the least, consider the length of the delay in seeking judicial review and whether there is an adequate explanation for that delay, as well as whether there would be any prejudice to the respondents because of the delay and the merits of the substantive application (SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]). The Applicant did not raise any matters in support of her application for an extension of time beyond what appears in her application.

4. The Applicant applied for a Medical Treatment visa on 5 October 2016. The application was refused by a delegate on 10 October 2016 on the basis that the Applicant did not satisfy cl.3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations). The Applicant sought review by the Tribunal on 27 October 2016. Relevantly, in her review application she provided a postal address and also an email address under the heading “Correspondence details”. 

5. By letter of 17 January 2017 the Tribunal invited the Applicant to a hearing on 22 February 2017.  This letter was sent by email to the email address provided for the Applicant in her application for review.  The hearing invitation letter addressed issues to be discussed at the hearing and also informed the Applicant that if she did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear.

6. On 15 February 2017 the Tribunal sent another email to the Applicant at the same email address advising of a correction to the text of the hearing invitation letter. It was clarified that one of the issues the Tribunal would be considering at the hearing was whether the Applicant had complied with the timeframe requirements in Schedule 3 to the Regulations in relation to the time she lodged her visa application.

7. The Applicant did not respond to the hearing invitation.  She did not attend the Tribunal hearing.  The Tribunal made its decision on 23 February 2017. 

8. In its statement of reasons the Tribunal referred to the visa application, which it treated as having been made on the date of lodgement, 4 October 2016.

9. The Tribunal observed that at the relevant time the Medical Treatment (Class UB) visa contained one subclass (Subclass 602).  It referred to the criteria in Part 602 of Schedule 2 to the Regulations.

10. The Tribunal outlined the Applicant’s claim that she was applying for the visa as a person who would undergo medical treatment, that she was under “medical assessment” and referred to the fact that she had enclosed a copy of a tax invoice from a medical centre referring to “level B surgery”. 

11. The Tribunal had regard to the fact that, according to the Department’s records, the Applicant last held a substantive visa (a Subclass 571 visa) on 15 March 2008.  I note that this information was also recorded in the delegate’s decision.  The Tribunal referred to the fact that the visa had been refused on the basis that the application had not been validly made within 28 days after the day on which the Applicant’s last substantive visa ceased to be in effect. 

12. The Tribunal referred to the hearing invitation and the fact that the Applicant had been advised that if she did not attend the hearing and a postponement was not granted the Tribunal may make a decision on the case without further notice.  It recorded that the invitation letter also advised the Applicant that the Tribunal had considered all the material before it, but was unable to make a favourable decision on that information alone. 

13. The Tribunal had regard to the fact that no response to the hearing invitation was received and that SMS hearing reminders of the day and time of the scheduled hearing were also sent to the Applicant, five business days before the scheduled hearing date and one business day before the scheduled hearing date. 

14. The Tribunal was satisfied that the Applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, and that two separate SMS reminders were sent to her. In these circumstances the Tribunal decided, pursuant to s.362B of the Act, to make a decision on the review without taking any further action to enable the Applicant to appear before it.

15. In considering the Applicant’s claims and evidence, the Tribunal described the issue in the case as whether the Applicant satisfied the criterion in cl.602.213. It noted that the Applicant had not attended a hearing at which the Tribunal would have discussed the requirements of that clause with her. The Tribunal summarised the requirements of cl.602.213 relevant to the Applicant’s circumstances, including that at the time of the visa application she either held a substantive temporary visa of a specified type or, if she did not do so and was not medically unfit to depart Australia within cl.602.212(6), that certain additional requirements were met, being that the substantive temporary visa was not of a specified subclass and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 were met.

16. The Tribunal found that as the Applicant was under the age of 50 years, she could not meet the medically unfit criterion in cl.602.212(6); that she did not hold a substantive temporary visa at the time of her application for the Medical Treatment visa; that the last such visa held by her was not a Subclass 403 or 426 visa and hence that she must meet the Schedule 3 criteria.

17. On the evidence before it the Tribunal accepted that, as recorded in the delegate’s decision (which it appears was provided to the Tribunal with the review application), the Applicant’s last substantive visa ceased on 15 March 2008 and her Medical Treatment visa application was made on 4 October 2016. The Tribunal had regard to the fact that in order to satisfy criterion 3001 the visa application must have been lodged within 28 days of the relevant day as defined in cl.3001(2). It found that for the Applicant the relevant day was the last day when she held a substantive visa, that is 15 March 2008. The Tribunal found that as the visa application was not made within 28 days of the relevant day the Applicant did not satisfy criterion 3001 and hence did not satisfy cl.602.213 and did not meet the requirements for the grant of the visa. The Tribunal affirmed the decision not to grant her a Medical Treatment visa.

18. I gave the Applicant the opportunity today to explain why she considered it necessary in the interests of the administration of justice to grant her an extension of time within which to seek judicial review of the Tribunal decision.  In particular, I raised with her the issue of her delay and whether there was an explanation and gave her the opportunity to address the merits of her grounds of review as well as any other matters which she wished to raise.

19. The Applicant told the court that she did not understand why she needed an extension of time, as she believed she had lodged her application within 35 days of the Tribunal decision.  It is clear that that is not the case.  The application was filed some nine weeks outside the 35 days. 

20. Despite having said this to the court today, in her application for review the Applicant did seek an extension of time.  Her written explanation for why she considered this necessary in the interests of the administration of justice was as follows:

    My previous lawyer did not inform me (sic) the decision of the AAT, so I miss (sic) the time frame to appeal to Federal Circuit Court.

21. The difficulty with this explanation is that the Applicant was not legally represented before the Tribunal and is not represented before the court.  Nor is there any evidence that she had a migration agent at any stage when the matter was before the Tribunal or, indeed, before the Department.  In her review application she provided the Tribunal with personal details and an address, email and mobile telephone number on which she could be contacted.  The Tribunal decision was notified to the Applicant by email sent to her on 24 February 2017 to the email address she provided in her review application.  In these circumstances this explanation is not satisfactory.  There is no evidence before the court explaining the delay. 

22. When this was raised with the Applicant today, she said that she thought she was waiting for the outcome of ministerial intervention.  She then indicated that she “supposed” that this had been so, but that she could not remember whether in fact that was the case.

23. There is also no evidence in that respect before the court.  I note that the Applicant has been given two opportunities to file evidence had she wished to do so.  Her bare assertion is not evidence.  In any event, even if the Applicant was awaiting the outcome of a ministerial intervention request, in the circumstances of this case I am not satisfied that this provides a reasonably satisfactory explanation for the delay.  That is not to say that an application for ministerial intervention might never be taken into account as part of all the circumstances explaining a delay, but on the evidence before the court in this case the Applicant’s assertion is not such as to satisfy me that there is a reasonably satisfactory explanation for the delay, particularly as it emerged that the Applicant could not remember whether she was in fact awaiting the outcome of an application for ministerial intervention. 

24. There is no suggestion of any prejudice to the Respondents if the extension of time were to be granted. 

25. Importantly, in this case the merits of the application, taken at their highest on the material before the court and considered on a reasonably impressionistic level (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] – [63] per Mortimer J, upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478), do not warrant or support the grant of an extension of time. The grounds in the application are not arguable.

26. The first ground is that the Tribunal “ignored the fact that I have done the reinstatement of my application”. This ground is misconceived in the circumstances of the Applicant’s case. This is not a case in which the reinstatement procedure was available. Rather, the Tribunal made a decision pursuant to s.362B(1A)(a) of the Act. This ground is not arguable.

27. The second ground is a general, unparticularised claim that the Tribunal made a jurisdictional error when refusing the application.  I asked the Applicant what her concern was about the Tribunal decision and procedures.  Her response was that she thought the Tribunal had not reviewed the decision properly.  She then sought an adjournment of the hearing, because she could “not remember” and she “did not know where to start” and she “was not well prepared”.

28. I refused an adjournment in circumstances where the Applicant had been given a (second) opportunity to file evidence and written submissions by orders of 3 August 2018. 

29. However, I have considered (and the solicitor for the Minister addressed) whether there is any arguable jurisdictional error apparent on the material before the court. 

30. There is no arguable jurisdictional error in relation to the manner in which the Tribunal complied with its obligations to invite the Applicant to a hearing. The hearing invitation was given by one of the methods specified in s.379A of the Act (in this case sent to an email address the Applicant had provided in support of her application as an address to which communications may be sent). There is nothing in the material before the court to raise any concern about any failure of transmission. I note that under s.379C(5) of the Act when a document is given to a person by such method the person is taken to have received the document at the end of the day on which the document is transmitted. The hearing invitation contained the matters specified in the Act and there is no arguable case that the Tribunal’s power under s.362B of the Act to make a decision on the review was not enlivened in these circumstances.

31. As the First Respondent acknowledged, such power is discretionary and should be exercised reasonably.  I am satisfied that in this particular case there is nothing in the circumstances to raise any concern that the Tribunal’s discretion was not exercised reasonably (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713). I also note that the Tribunal not only sent the hearing invitation to the email address provided, but also sent two separate SMS hearing reminders to the Applicant.

32. The solicitor for the Minister provided the court with a copy of the Regulations as they stood at the relevant time, as there has since been an amendment. It is apparent having regard to the Regulations applicable at the time of the visa application and Tribunal decision that there is nothing to raise any concern that there was any arguable misunderstanding or misapplication of the law by the Tribunal in relation to the criteria in Part 602 of Schedule 2 to the Regulations or the requirements of criterion 3001 in Schedule 3 to the Regulations. In other words, there is nothing in the material before the court to give rise to any concern as to an arguable jurisdictional error by the Tribunal.

33. The third ground in the application is a contention that the Department (sic) refused the visa application on the ground that the Applicant did not meet cl.602.213 and criterion 3001, but that the Applicant has evidence showing that she met the requirement.  The Applicant did not address this ground when invited to do so beyond stating that she could not remember what she meant by this ground.

34. The Applicant has not explained how it is that she met, or what evidence she has to show that she met, either cl.602.213 or criterion 3001.  Her assertion does not establish any arguable jurisdictional error on the part of the Tribunal in proceeding on the basis that criterion 3001 was applicable and in finding that the Applicant had not made the application for the visa within 28 days of the relevant day, being the date on which she last held a substantive visa. 

35. If by this ground the Applicant intended to seek review of the Department’s decision, it is a primary decision and is not reviewable in these proceedings (and see s.476(2)(a) of the Act).  If she intended to seek merits review, merits review is not available in these proceedings.

36. There is no arguable jurisdictional error apparent on the basis contended for in ground 3 or otherwise on the material before the court.

37. Beyond this, neither party drew my attention to any other circumstances that might be taken into account in considering whether to grant the application for an extension of time.  I have borne in mind the consequences for the Applicant of being unsuccessful in these proceedings, but also the public interest in resolution of these matters. 

38. On balance, having regard to all of the material before the court, in particular the lack of any arguable basis for any of the grounds of review and the fact that the delay, while not as substantial as some delays in seeking judicial review, has not been the subject of a reasonably satisfactory explanation. In all the circumstances I am not satisfied that it is necessary in the interests of the administration of justice to grant the Applicant an extension of time under s.477(2) of the Act.

39. The Applicant has been unsuccessful.  It is appropriate she meet the costs of the First Respondent.  In the circumstances of this case it is reasonable that the Minister have costs in the recommended scale amount at the time of the application. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  18 September 2018