Lin v Minister for Immigration & Border Protection
[2015] FCCA 1283
•18 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1283 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 477 Federal Circuit Court Rules 2001 (Cth) r.44.12 Migration Regulations 1994 (Cth) |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34 Singh v Minister for Immigration and Citizenship [2013] FCA 813 SNSYE v Minister for immigration and Citizenship [2010] FCA 500 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 |
| Applicant: | WUDE LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3472 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 18 May 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the Respondents: | Ms Bernadette Rayment (Mills Oakley Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3472 of 2014
| WUDE LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed 15 December 2014 was 3 days from the date of the decision sought to be reviewed.
The applicant attended a directions hearing before a Registrar of the Court on 5 March 2015. On that occasion the applicant was given leave to file and serve further documents in support of that application. A Registrar of this Court set the matter down for a show‑cause hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). However, such a hearing is premature to the application of the applicant that time be extended to him to seek judicial review of the Tribunal’s decision.
The applicant was unrepresented before the Court today, although has the assistance of an interpreter.
The applicant confirmed that he had no further documents to provide to the Court this morning in support of his application.
I explained to the applicant that the two significant matters that would operate on the mind of the Court in considering his application for an extension of time were his explanation for his delay and the prospects of success of his substantive application.
Pursuant to s.477 of the Act, an application for judicial review of a decision of the Migration Review Tribunal must be lodged within 35 days of the date of the migration decision.
Section 477 of the Act is as follows:
“Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or
(d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
It is common ground that the applicant’s application, filed on 15 December 2014, was three days in excess of that time limit and, accordingly, the applicant requires an Order of the Court in order to continue with his application.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).
Pursuant to s.477(2) of the Act, the Court may extend time beyond the 35‑day period if the Court is satisfied that it is necessary, in the interests of justice, to do so. I accept that there is no substantive prejudice to the first respondent in granting an extension of time to the applicant, and the first respondent does not suggest otherwise.
The applicant confirmed that his explanation for his delay did not go beyond that identified in his originating application for review, which was as follows:
“1. I have been suffering from financial hardship, I could not afford the court application fee until today.
2. I could not afford the professional people or lawyer fee to complete my application.
3. now I borrowed the application fee and I wish the court to accept my application.”
In the Court’s view, there is nothing in that explanation that would be satisfactory, by itself, to justify an extension of time. The applicant refers to his inability to access lawyers and to pay the application fee. They are bare statements that were unparticularised and were not expanded upon before this Court. There is no evidence of any application for a waiver of a fee or any evidence as to attempts made by the applicant to obtain any legal advice.
The grounds of the applicant’s substantive application are contained under two headings in the application and are as follows:
“Orders sought by Applicant
l, I disagree with Immigration and MRT's decision. They did not consider that I have genuine intention to apply for a 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 MRT did not give a good consideration of my situation was out of my control.
3, DIBP and MRT should granted my subclass 602 visa application and allow me to conduct my medical treatment In Australia.
The Grounds of the Application are:
1, 1 am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control.
2. MRT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation
3, I don't think I have been fairly treated by MRT and DIBP in regards to my 602 visa
application as I desperately need medical treatment in Australia”
The first respondent’s solicitor, Ms Rayment, relied on the first respondent’s written submissions filed on 12 May 2015, which summarised the background of the applicants’ claims and the MRT’s decision, as follows:
“11. On 16 October 2014, the applicant lodged an application for review of the delegate’s decision: CB 23-24. On 30 October 2014, the Tribunal invited the applicant to attend a hearing scheduled for 7 November 2014: CB 33-34. Arrangements were made for the applicant to attend the hearing as he was in immigration detention and he attended the Tribunal hearing held on 7 November 2014: CB 35-37. The Tribunal discussed with the applicant his migration history and the applicant sought to explain why he failed to apply for the Medical Treatment visa within 28 days of the last substantive visa: CB 41, pars 6-9.
12. On 7 November 2014, the Tribunal affirmed the delegate’s decision on the basis that the applicant did not satisfy cl 3001 and therefore did not meet the requirements of cl 602.213: CB 40-45.”
In oral submissions, Ms Rayment submitted that in refusing the applicant the visa for which he had applied, being a visa for medical treatment, it was a mandatory criterion that the applicant apply for any such visa within 28 days of the expiration of his last visa. The relevant provision is cl.3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (“Criterion 3001”).
The MRT’s decision makes clear that the applicant’s student visa expired on 2 April 2009 and that until 14 October 2014 the applicant did not hold any other valid visa.
The MRT concluded that as the visa application was not made within 28 days of the relevant date, being 2 April 2009, the applicant did not satisfy Criterion 3001, that being a mandatory criterion of the visa for which he applied. The applicant’s grounds, such as they are, are wholly unparticularised. The applicant has said nothing further in support of any of his complaints this morning. On their face, they do not disclose an error capable of review by this Court, and no other submission has been made to the Court by or on behalf of the applicant to suggest that the MRT’s decision is affected by jurisdictional error.
Whilst I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, none is apparent on the face of the MRT’s decision record, and none has been otherwise identified by the applicant.
In the circumstances, the applicant’s application for judicial review of a decision of the Migration Review Tribunal dated 7 November 2014 has no prospects of success, and, in the circumstances, there would be no utility in granting any extension of time to the applicant.
Accordingly, the applicant’s application for time to be extended to him to seek judicial review of the decision of the Migration Review Tribunal, dated 7 November 2014, is refused.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 1 June 2015
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