Lin v Minister for Immigration
[2018] FCCA 852
•10 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 852 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – judicial review application lodged out of time – refusal of an extension of time. |
| Legislation: Migration Act 1958 (Cth), s.477 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Kaur v Minister for Immigration [2017] FCA 1411 Lin v Minister for Immigration & Anor [2015] FCCA 1283 Sayadi v Minister for Immigration [2015] FCA 1235 SZVKP v Minister for Immigration & Anor [2015] FCCA 787 VCAD v Minister for Immigration [2005] FCAFC 1 |
| Applicant: | HENG LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1935 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to s.477 of the Migration Act 1958 (Cth), the application for an extension of time is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1935 of 2017
| HENG LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The applicant, Mr Lin, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 November 2016. The decision was made orally and a written record was produced the following day. The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Lin a medical treatment visa.
The present proceedings
Mr Lin’s judicial review application was lodged on 21 June 2017. That was substantially outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Mr Lin seeks an extension of time under s.477(2) of the Migration Act.
For the purposes of dealing with that application I have before me the judicial review application and Mr Lin’s affidavit filed in support of it.
I also received as evidence the court book filed on 5 September 2017. Mr Lin denied receipt of that court book, but I am satisfied that it was sent to his address for service at the time it was produced. I explained the contents of the court book to him, and I am satisfied that he has not been prejudiced by the late provision of it.
In considering whether it would be in the interests of the administration of justice for the Court to grant an extension of time I have considered the length of the delay, Mr Lin’s explanation for that delay and the legal merit of the judicial review application.
The delay in this case was 197 days, which is significant. The Minister concedes that he would suffer no prejudice other than costs if time were extended, but the mere absence of prejudice to the Minister is not enough of itself to justify an extension of time.
The Minister opposes an extension of time on the basis that the judicial review application lacks sufficient merit, and Mr Lin has not provided an adequate explanation for the delay.
In his affidavit Mr Lin refers to his fear of returning to China, which appears to have motivated his application for the visa, but does not explain the delay in coming to court. In his judicial review application Mr Lin refers to financial hardship and the asserted fact that his partner had applied for a protection visa. I asked Mr Lin about that, and he told me that, in fact, the protection visa application was made by his mother about seven or eight years ago. As I put to him, it is hard to see any relevance in that protection visa application and the delay in him coming to court.
I accept that Mr Lin and his partner may be subject to financial strictures, but I do not accept that that provides a sufficient explanation for the significant delay in this case. I otherwise agree with the Minister’s submissions on that issue.
The extent and reasons for the delay
Mr Lin has failed to file any affidavit evidence explaining the delay or showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time as required by rule 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth). The grounds of the application for an extension of time assert that Mr Lin was suffering from financial hardship and could not afford to pay the Court application fees or “professional people” to assist him. Financial hardship is not a satisfactory explanation for the delay and it was open to Mr Lin at any time to make an application for waiver of the application fee.[1]
[1] SZVKP v Minister for Immigration & Anor [2015] FCCA 787; Lin v Minister for Immigration & Anor [2015] FCCA 1283
Mr Lin also states that his partner applied for a protection visa and requests the Court accept his application and give him a “fair decision”. It is not apparent what relevance his partner’s protection visa application has to his application for extension of time.
Critically, for the reasons outlined below, the proposed substantive application lacks sufficient merit to warrant an order extending time and the underlying visa application is futile. Accordingly, it is not in the interests of the administration of justice for the Court to extend time and we oppose the application for an extension of time.
I also agree with the Minister’s submission that the judicial review application does not disclose a sufficiently arguable basis to justify an extension of time.
Background and Mr Lin’s claims
Mr Lin is a male citizen of China who applied for a medical treatment (subclass 602) visa on 16 June 2016 on the basis of his “back pain” which required medical care from 18 June 2016 to 18 June 2017.[2] His last substantive visa was a student (subclass 571) visa which ceased on 29 March 2011.[3]
[2] Court Book (CB) 1-10
[3] CB 19
Depending on whether an applicant holds a substantive temporary visa at the time of application for the visa, an applicant is required to meet different sub-clauses within clause 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In circumstances where Mr Lin did not hold a substantive temporary visa at the time of the visa application, Mr Lin was required to meet clause 602.213(3), (4) and (5).[4]
[4] Clause 602.213(5) was repealed by Item 4 to Schedule 3 of the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017. However, that amendment only applied in relation to an application for a medical treatment (visitor) (class UB) visa made on or after 1 July 2017. Mr Lin’s visa application was made on 16 June 2016
On 20 June 2016, a delegate of the Minister (delegate) refused to grant the subclass 602 visa as the application for the visa was not made within 28 days of the expiry of the last substantive visa held by Mr Lin.[5]
[5] Clause 602.215; CB 18-20
The Tribunal
On 6 July 2017, Mr Lin lodged an application for review with the Tribunal[6] and provided a copy of the delegate’s decision to the Tribunal.
[6] CB 21-22
By a letter dated 29 September 2016, Mr Lin was invited to attend a hearing before the Tribunal scheduled for 1 November 2016,[7] which he attended.[8]
[7] CB 26-28
[8] CB 32-35
The Tribunal’s decision
On 1 November 2016, the Tribunal made an oral decision affirming the delegate’s decision.[9] Mr Lin subsequently requested a written statement of its oral decision[10] and on 3 November 2016, the Tribunal provided Mr Lin with a written statement of decision and reasons dated 2 November 2016.[11]
[9] CB 36-38
[10] at CB 39-40
[11] CB 41-44
The Tribunal identified the date that Mr Lin applied for the medical treatment visa as “16 June 2006”.[12] In the context of the decision, this is plainly a mere typographical error and should read “16 June 2016”. The Tribunal subsequently referred to the correct date.[13] This typographical error did not carry any significance and could not be said to have affected the exercise of the Tribunal’s power.[14]
[12] CB 44, [3]
[13] CB 44, [8]
[14] SZRBA v Minister for Immigration [2014] FCAFC 81
The Tribunal identified the issue on the review was whether Mr Lin satisfied the requirements of clause 602.213(1), which required that Mr Lin be in Australia at the time of application and held a substantive temporary visa at that time.[15] The Tribunal found that although Mr Lin was in Australia at the time of application, his last substantive visa expired on 29 March 2011.[16] In these circumstances, Mr Lin was required to meet the Schedule 3 criteria including clause 3001. Clause 3001 required Mr Lin to have lodged his visa application within 28 days of the “relevant day”. As Mr Lin’s last substantive visa expired on 29 March 2011, the Tribunal found the relevant day was 29 March 2011.[17] The Tribunal found that as the application for the medical treatment visa was made on 16 June 2016, it was not within 28 days of the relevant day. Accordingly, the Tribunal found that Mr Lin did not satisfy clause 3001 and could not meet the requirements of clause 602.213.[18]
[15] CB 44, [5]
[16] CB 44, [6]
[17] CB 44, [7]
[18] CB 44, [8]
The proposed application for judicial review
Mr Lin has not availed himself of the opportunity afforded by orders made on 17 July 2017 that granted him leave to file and serve any proposed amended application or additional affidavit evidence by 6 November 2017.
The proposed application for judicial review does not contain any proper grounds of review. A document titled “Attachment to Grounds of Application” contains ten paragraphs under two separate headings. Paragraphs [1] to [3] are listed under “Orders sought by Applicant” and an additional [1] to [3] (which I refer to as [4] to [6]) are listed under “Grounds of the Application”.
Proposed Grounds 1 to 3 state that Mr Lin disagrees with the Tribunal decision and alleges the Tribunal did not consider his “genuine intention” to apply for the visa. Mr Lin submits that he could not apply for the visa offshore as he has strong fears about returning home and his “compelling reasons” were not considered. He states that his visa application should be granted. Proposed Grounds 4 to 6 again state Mr Lin’s “genuine intention” for the visa, assert that the Tribunal did not consider his compelling reasons and that Mr Lin does not think he was fairly treated as he requires medical treatment in Australia.
These assertions fail to give rise to any arguable case of jurisdictional error and fundamentally fail to grapple with the basis for the Tribunal’s decision. To the extent that Mr Lin contends that the Tribunal should have waived the requirements of clause 3001 because of his particular circumstances or “genuine intention”, then such a complaint is misconceived because the Tribunal had no such discretion. In the absence of any discretion on the part of the Tribunal, Mr Lin’s personal circumstances, compelling or otherwise, were irrelevant to the Tribunal decision.[19] Criterion 3001 is a strict, objective criterion which the Tribunal does not have discretion to waive.[20] Mr Lin’s complaints cannot be made out.
[19] Sayadi v Minister for Immigration [2015] FCA 1235 at [18]-[19]; Kaur v Minister for Immigration [2017] FCA 1411 at [9]-[12]
[20] Ibid
Even if some error was established in the procedure adopted by the Tribunal, it would be futile to remit the matter to the Tribunal.[21] As the visa application was not lodged within 28 days of Mr Lin’s last substantive visa ceasing, he cannot meet the requirements for the grant of the visa in clause 602.213 and the granting of relief would be futile. In addition, in his visa application Mr Lin indicated that he required medical care from 18 June 2016 to 18 June 2017. This period has now passed.
[21] VCAD v Minister for Immigration [2005] FCAFC 1 at [23]; SZBYR v Minister for Immigration (2007) 235 ALR 609
Conclusion
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case. I will order that pursuant to s.477 of the Migration Act, the application for an extension of time be dismissed.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale. Mr Lin did not wish to be heard on costs.
Noting that the judicial review application was filed in June 2017, I will fix costs in the sum of $3,606, consistently with the Court scale applicable at that time.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 April 2018
0
7
5