Li v Minister for Immigration
[2018] FCCA 1106
•9 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1106 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case seeking reinstatement – substantive application dismissed for non-appearance in June 2016 – factors considered – no reasonable prospects of success – Application in a Case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 476 Migration Regulations 1994 (Cth), sch.2, regs.602.212, 602.213, sch.3, 3001 Cases cited: |
| Applicant: | ZHIGUANG LI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2950 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 April 2018 |
| Date of Last Submission: | 12 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore Lawyers |
ORDERS
The Application in a Case made on 16 March 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2950 of 2015
| ZHIGUANG LI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 16 March 2018. The AIC seeks to reinstate before the Court, an application for judicial review made on 30 October 2015. That application was dismissed on 17 June 2016 for the applicant’s (Mr Li’s) failure to appear at the scheduled hearing on that date.
The evidence before the Court is as follows:
a)The affidavit of Zhiguang Li, [no occupation], made on 15 March 2018, filed with the AIC.
b)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
c)The affidavit of Nicholas Anderson, solicitor, made on 5 April 2018.
The background to the AIC is as follows.
Mr Li is a citizen of the People’s Republic of China (CB 1). He was born on 30 December 1983 (CB 1). On 12 May 2015, while in Australia, he applied for a medical treatment visa (CB 1 to CB 14). In that application form, Mr Li stated that he needed to remain in Australia from 14 May 2015 to 14 November 2015 to attend to what he said was his “hyperthyroidism” (CB 3).
The delegate refused the application on 13 May 2015 (CB 19 to CB 25).
The criteria relevant to the grant of a medical visa at the relevant time, were set out at cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (see also s.31(3) of the Migration Act 1958 (Cth) (“the Act”).
For current purposes, cl.602.213(3), (4) and (5) of Schedule 2 to the Regulations were in the following terms (see [5] of the Minister’s first written submissions filed on 10 June 2016):
“Pursuant to s 31(3) of the Migration Act 1958 (Cth) (the Act), the criteria for a medical visa include those specified in cl 602.213 of sched 2 to the Migration Regulations 1994 (Cth) (the Regulations). It relevantly provides as follows:
(3) Subclauses (4) and (5) apply if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant did not hold a substantive temporary visa at that time; and
(c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4) The last substantive temporary visa held by the applicant was not:
(a) a Subclass 426 (Domestic Worker (Temporary) -- Diplomatic or Consular) visa; or
(b) a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.”
Mr Li was in Australia at the time of the making of his application for the medical treatment visa. At that time, Mr Li held a bridging visa. This is not a “substantive visa” as defined in s.5 of the Act. Therefore, cl.602.213(3)(a) and (b) of Schedule 2 to the Regulations were met.
In relation to cl.602.213(3)(c), with reference to cl.602.212(6) of Schedule 2 to the Regulations, the following is relevant. Mr Li was under the age of fifty at the time of the making of the application for the medical treatment visa. As he had not yet reached the age of fifty, cl.602.213(3) of Schedule 2 to the Regulations was engaged. This meant that cl.602.213(4) and (5) of Schedule 2 to the Regulations applied to his application for the medical treatment visa.
For current purposes, this directs attention to criterion 3001 of Schedule 3 to the Regulations, which was is in the following terms:
“Schedule 3
Additional criteria applicable to unlawful non-citizens and certain bridging visa holders
3001
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.”
On the evidence before the Court, Mr Li’s student visa expired on 31 October 2013 ([63] at CB 69). Therefore, that was the last day he held a substantive visa.
Criterion 3001(1) of Schedule 3 to the Regulations operated to mean that the application for the visa needed to have been made within 28 days of 31 October 2013. On the evidence before the Court, that did not occur. Therefore cl.602.213(5) of Schedule 2 to the Regulations was not satisfied.
The Minister’s delegate refused the application on the basis that cl.602.213 was not met, on 13 May 2013 (CB 49).
I note that Mr Li’s wife also made a separate application for a medical treatment visa on 12 May 2015 (CB 26 to CB 37). She gave her date of birth as 23 July 1985 (CB 26).
The basis of her application was said to be that she was a “secondary person” of Mr Li. Clause 602.212(4) of Schedule 2 to the Regulations allows a medical treatment visa to be granted to a person, who, in essence, provides support to a person who holds a medical treatment visa.
The delegate refused her application for essentially the same reasons as those for Mr Li.
Mr Li and his wife made a joint application for review to the Tribunal on 1 June 2015 (CB 50 to CB 51). Both appeared at a hearing before the Tribunal (CB 61).
The Tribunal affirmed the decision not to grant a medical visa to Mr Li. The Tribunal agreed with the delegate that Mr Li did not satisfy cl.602.213 of Schedule 2 to the Regulations for the reasons given by the delegate ([13] at CB 69 to [18] at CB 70).
The Tribunal also found it did not have jurisdiction to review the delegate’s decision relating to Mr Li’s wife. For the reasons set out below, it is not necessary to pursue this.
On 30 October 2015, Mr Li and his wife sought judicial review of the Tribunal’s decision in this Court.
By orders made by a Registrar of the Court on 31 March 2016, the application was set down for final hearing on 17 June 2016. On that day, there was no appearance by, or on behalf of, the Mr Li or his wife. There was also no application from Mr Li or his wife for an adjournment of the hearing. Nor was any explanation given as to their inability to attend. The application was dismissed with costs pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Mr Li has now (on 16 March 2018), some 21 months later, made this AIC which seeks reinstatement of his substantive application. His wife is not an applicant in the AIC. This was confirmed by Mr Li at the hearing of the AIC.
The issue raised for consideration now, is whether the order dismissing Mr Li’s substantive application should be set aside. I understand the AIC to invite the Court to proceed pursuant to r.16.05(2)(a) of the FCC Rules, even though the AIC makes no reference to it. The Minister opposes the making of such an order.
It is the case that the relief the applicant seeks is discretionary. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation. However, this consideration must be balanced with the obligation of the Court to ensure litigants have the opportunity to present a case where there is a real dispute (see NAJN v Minister for Immigration [2003] FMCA 414 at [7] per Barnes FM (as she then was) and SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260 at [23] – [25]).
The particular elements for consideration in the present case are the length of the delay, whether Mr Li has provided a satisfactory explanation for the non-appearance at the previous Court occasion, and whether there is an arguable case or such merit in the substantive application calling for review, or the interests of justice require that Mr Li should be given the opportunity to present his case.
Mr Li appeared before the Court on 22 March 2018 for directions on the AIC. The Minister was represented by a solicitor. I explained to Mr Li the matters relevant to his AIC. I made orders in the following terms:
“1. The applicant file and serve any further evidence by way of affidavit on or before 5 April 2018.
2. The first respondent file and serve any further evidence by way of affidavit on or before 9 April 2018.
3. The Application in a Case made on 16 March 2018 is listed for hearing at 11:00am on 11 April 2018 before Judge Nicholls at Court 8.2, 80 William Street Sydney.”
I note that by the date of the hearing of the AIC on 11 April 2018, Mr Li had filed nothing in support of his AIC (aside from the affidavit accompanying the AIC filed on 16 March 2018).
The delay in this case is significant. The substantive application was dismissed on 17 June 2016. The AIC was made on 16 March 2018. That is, 21 months later.
Mr Li has provided no explanation, let alone evidence, to explain this significant delay. This is despite the fact he was given the opportunity to do so. Given the importance of the finality of litigation, that alone, in my view, is sufficient to dismiss the AIC.
Nor has Mr Li provided any evidence to explain his failure to attend on the previous occasion. His affidavit filed with the AIC simply states:
“I am a Chinese citizen and have a real intention for subclass 602 visa. Before, I had to lodge my 602 visa after my substantive visa was expired due to the fact that the situation was beyond my control.”
Under the heading of “Orders Sought” in the AIC, Mr Li says he wants his case reinstated because he “mistakenly remember[ed] the wrong date”. In the circumstances, this also is not a satisfactory reason, particularly as he has not explained why it took him 21 months to realise his “mistake”.
In any event, there is no assertion by Mr Li that he was not on notice of the Registrar’s orders made on 31 March 2016. I take judicial note from what is on the Court’s file that Mr Li was present at a callover before the Registrar on 31 March 2016 when the Registrar made the relevant orders. He was assisted by an interpreter in the Mandarin language on that day.
The evidence of Mr Anderson reveals that in that intervening period Mr Li was in regular contact with the Minister’s department and received various bridging visas which allowed him to remain lawfully in Australia. It is also the case that Mr Li came to Australia as the holder of a student visa. This visa ceased on 31 October 2013. In his application for the medical treatment visa, Mr Li stated that he had “overstayed” in Australia (CB 6).
At the same part of the application form, Mr Li stated that he has an “RRT debt” from which it can reasonably be inferred that he unsuccessfully applied for a protection visa and then sought review to the former Refugee Review Tribunal (“RRT”).
Mr Li then applied for the medical treatment visa on 12 May 2015. He stated in that application that he wished to remain in Australia for medical treatment from 14 May 2015 to 14 November 2015 (CB 2).
It is now 36 months since Mr Li applied for the medical treatment visa. There is nothing from Mr Li to indicate that he continues to require medical treatment. While he made that assertion before the Court, no evidence whatsoever (despite the opportunity to provide evidence) was brought forward by Mr Li in that regard.
Mr Li’s affidavit in support of the AIC merely states that he had a “real intention” to apply for the medical treatment visa. Even if that was the case in 2015, there is nothing by way of evidence from Mr Li to indicate that he continues to require medical treatment, such that the purpose for applying for the medical treatment visa continues.
Mr Li has produced no evidence to explain why he delayed for 21 months before seeking reinstatement of his substantive application.
The affidavit of Mr Anderson provides evidence of Mr Li’s dealings with the Minister’s department. For the period from the dismissal of the substantive application (17 June 2016), to the making of the AIC (16 March 2018), a period of 21 months, Mr Li attended at the offices of the Minister’s department and was interviewed by an officer of the Minister’s department on four occasions. He was also interviewed by telephone on four other occasions.
On each occasion, Mr Li was granted a Bridging visa “E” on the basis that he was making “acceptable arrangements to depart Australia”. Plainly, he did not do so.
Nor is there any merit in the grounds of the substantive application such that the interests of justice require their reinstatement for consideration.
The “grounds” of the substantive application are as follows:
“Orders sought by the Applicant
1. I disagree with Immigration and AAT’s decision. They did not consider that I have genuine intention to apply for medical visa onshore.
2. They did not consider the fact that I had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.
3. DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.
The Grounds of the Application are:
1. I am a Chinese citizen and have a real intention for subclass 602 visa. Before, I had to lodge my 602 visa after my substantive visa was expired due to the fact that the situation was beyond my control.
2. AAT refused my review simply because I did not have the visa at the time of the application and did not consider my special situation situation.
3. I don’t think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia.”
I note that while there may have been some issue in relation to the Tribunal’s consideration of Mr Li’s wife, no such issue arises in his case.
As set out above, the Tribunal’s decision in light of the relevant regulatory requirements, and the facts before the Tribunal, was inevitable. Mr Li did not, and on the facts could not, satisfy the provisions of cl.602.213(5) of Schedule 2 to the Regulations. To be granted the relevant visa, he was required to meet that criterion.
Contrary to the implication in the grounds of the substantive application, the Tribunal had no discretion in the circumstances to grant him the visa under the statutory and regulatory scheme. This is not a case where compelling or compassionate circumstances are relevant.
In the circumstances, it is not in the interests of justice to set aside the orders made on 17 June 2016. It would be futile to do so given what is set out above. The substantive application cannot succeed.
Conclusion
In all therefore, the delay is significant. No explanation let alone a reasonable or satisfactory one has been provided for Mr Li’s
non-attendance at the hearing of the substantive application, nor importantly, to explain the subsequent 21 month delay in making his AIC. While it is the case that the Minister does not press any prejudice if the application to reinstate were granted, the lack of any reasonable prospects of success in the grounds of the substantive application, and indeed the futility in granting the AIC, given the relevant regulatory and statutory scheme, means that the AIC must be refused. I will make that order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 May 2018
0
2
7