Luo v Minister for Home Affairs

[2019] FCCA 272

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUO v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 272

Catchwords:
MIGRATION – Medical Treatment (Visitor) (class UB) visa – criteria for visa not established before Tribunal – application for judicial review filed out of time – application for extension of time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 417, 477

MigrationRegulations 1994 (Cth), Sch 2 cl 602.212, 602.215

Applicant: WILLIAM LUO (BY HIS LITIGATION GUARDIAN, SHUJIE LUO)

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 357 of 2018

Judgment of: Judge A Kelly

Hearing date: 7 February 2019

Date of Last Submission: 7 February 2019

Delivered at: Melbourne

Delivered on: 8 February 2019

REPRESENTATION

The Applicant: In person (by his litigation guardian)

Solicitor for the Respondents: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r 11.11(1) of the Federal Circuit Court Rules 2001 Shujie Luo be appointed as litigation guardian of the applicant.

2. The requirements of r 11.11(2) of the Federal Circuit Court Rules 2001 be dispensed with.

3. The application for an extension of time within which to file the application be dismissed.

4. The litigation guardian pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 357 of 2018

WILLIAM LUO (BY HIS LITIGATION GUARDIAN, SHUJIE LUO)

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 13 February 2018, the applicant seeks an extension of time within which to apply for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 December 2017 affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) made on 13 April 2017 not to grant the applicant a Medical Treatment (Visitor) (Class UB) (subclass 602) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2. The application was filed on behalf of the applicant by his father who has now been appointed as his litigation guardian.  On 7 February 2019, an order was made dismissing the application for an extension of time.  The history of the matter is slightly complicated but has been preceded by applications for protection visas and ministerial intervention.  My reasons for dismissing the application follow.

Background

1. The applicant, a 9 year old citizen of the People’s Republic of China. was born in Australia and has lived in Australia his entire life.

2. The applicant’s father arrived in Australia on 13 October 2004 as the holder of a Business Visitor (Subclass 456) visa.  On 6 August 2008 his mother entered Australia on a Visitor (Subclass 676) visa.  Neither of the applicant’s parents have left Australia since their initial arrival.

3. The applicant’s parents applied for and were refused Protection visas on a number of occasions, and unsuccessfully sought Ministerial intervention under s 417 of the Act on two occasions. The last such application was finalised on 24 March 2017.

4. On 3 April 2017, an application for the visa was lodged, on the basis that the applicant required medical treatment in Australia consisting of a liver transplant.  No medical evidence was provided in support of this claim.

5. On 13 April 2017, a delegate of the Minister refused to grant the applicant the visa pursuant to s 65(1)(b) of the Act.

6. On 27 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision. On 18 December 2017, the applicant’s father appeared before the Tribunal on the applicants behalf, doing so with the assistance of an interpreter in the Mandarin and English languages.

7. On 18 December 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa. 

8. The Tribunal identified the issues as being whether the applicant satisfied the requirements of cl 602.212 and cl 602.215 of the MigrationRegulations 1994 (Cth) (Regulations).

9. The Tribunal correctly noted that cl 602.212 required the applicant to satisfy one of the criteria relating to the purpose of his stay in Australia. The Tribunal identified cl 602.212(6) as being relevant to this matter and concluded that as the applicant was under 50 years of age, the requirements of that criterion could not be met.

10. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose in which the visa was granted.

11. The Tribunal noted the evidence of the applicant’s father that the only reason a Medical Treatment visa had been applied for was because the applicant needed a visa to attend school in Australia: Reasons, [13]-[14]. Contrary to the stated basis for the visa application, the applicant’s father also told the Tribunal that the applicant suffered from eczema and hay fever. When questioned about whether the applicant could not receive treatment for these conditions in China, the applicant’s father replied that Australia had better qualified doctors than China: Reasons, [13].

12. The Tribunal had regard to the fact that the applicant was born in Australia and has lived in Australia for his whole life: Reasons, [15].

13. The Tribunal also had regard to information contained in the delegate’s decision record that the applicant’s father had made four to five unsuccessful applications for a Protection visa since arriving in Australia. Furthermore, the applicant’s family had unsuccessfully sought Ministerial intervention under s 417 of the Act on several occasions.

14. Having considered all of the evidence, the Tribunal was not satisfied that the applicant could not obtain access to medical treatment for his eczema and hay fever in China, and that the applicant’s visa application had in fact been made so he could attend school rather than receive medical treatment in Australia.  In the view of the Tribunal, the evidence from applicant’s father indicated that he wished to remain in Australia permanently with his family and had no intention of returning to China, and that as the applicant was only eight years old, the applicant’s intentions would be determined by his parents on his behalf.

15. Taking into account all of the evidence provided, the Tribunal found that the applicant did not meet the requirements for the grant of a Medical Treatment visa and affirmed the delegate’s decision to refuse the application pursuant to s 65 of the Act.

Procedural history

1. On 10 January 2018, an application for judicial review of the Tribunal’s decision was filed with the Sydney registry of the Federal Circuit Court.

2. On 12 February 2018, the applicant filed a notice of discontinuance.

3. On 13 February 2018, the applicant filed a further application for judicial review; on this occasion in the Melbourne registry and in doing so sought an extension of time within which to apply for judicial review of the Tribunal’s decision.  The application was supported by an affidavit affirmed by the applicant’s father on 13 February 2018.  The affidavit stated that the application had been filed in the Melbourne registry because the applicant’s family had moved to Keilor East in Victoria, and exhibited a copy of the Tribunal’s Reasons.

4. On 28 November 2018, a Registrar adjourned the matter for directions before a judge of the court on 12 December 2018.

5. On 10 December 2018, the Minister filed an application in a case seeking that the proceeding be summarily dismissed.

6. On 12 December 2018, the applicant’s father appeared to represent the applicant in the proceeding.  Orders were made adjourning both the Minister’s application in a case and the application for an extension of time for hearing on 7 February 2019.  Despite opportunities afforded to the applicant to file further evidence and submissions, nothing was filed.

7. On 19 December 2018, the Minister filed an amended response seeking the application for an extension of time to be dismissed because the application was incompetent.

Extension of time

1. By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is expressed as being subject to two conditions: (1) an application has been made in writing for such an extension; (2) the court is satisfied that it is necessary in the administration of justice to do so.[1]  The first of those conditions was met by the request for an extension as made in the application for judicial review.  The second condition is in issue.

   [1]For the avoidance of doubt, the 35 day time limit commences to run from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).

2. The discretion to enlarge time for the commencement of proceedings is a broad one.  It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the substantive application.

3. While the period of delay is not large, the applicant has not satisfactorily explained the delay in filing his application.  The applicant’s grounds assert that after filing the Sydney application, he moved to Victoria and “had to withdraw my application” before the first call-over date in Sydney.  No affidavit material or other documents have been provided to substantiate those contentions. The applicant otherwise reasserts the grounds pleaded in his proposed substantive application for review.  

4. The applicant was in a position to lodge an application for judicial review of the Tribunal’s decision within the statutory time limit – in fact, he did so, seeking review in proceeding SYG74/2018 but then discontinuing that proceeding.  The subsequent decision to discontinue that application and lodge another application out of time does not provide a satisfactory explanation for the delay in filing this application.

5. However, as the applicant was represented by his father at the hearing, I have assumed in his favour that the applicant and his father may have seen no material difference in deciding to pursue the application in Melbourne rather than Sydney.  It have also assumed in his favour that the significance of discontinuing the Sydney proceeding was not readily apparent to the applicant or his father.

6. The Minister acknowledged that no prejudice that could not be remedied by an appropriate order as to costs would be suffered.

7. The Minister submitted that the interests of the administration of justice weighed heavily against the grant of a favourable exercise of discretion by reason that the grounds of review were devoid of merit. 

8. The application contained three grounds of review.  In my assessment of those grounds I proceed on the basis that an evaluation of the substantive merits does not require that it be demonstrated that they be made out to a standard as would support a conclusion that jurisdictional error was established and that relief ought be granted.  Rather, it is sufficient for present purposes that the grounds of review are shown to be arguable.

9. Ground 1 reads:

   The Tribunal failed to afford procedural fairness.

10. Ground 1 did not identify how it was said that the Tribunal had failed to afford the applicant procedural fairness.

11. In my view, the Tribunal complied with its hearing obligations. The Tribunal invited the applicant to give evidence and present arguments on the issues in the review.  

12. As the Reasons confirm, in the course of the hearing, the applicant’s father conceded that he had applied for the visa for the purpose of enabling his son to study and remain in Australia indefinitely, rather than temporarily for medical treatment as claimed in the application.  

13. I agree in the Minster’s submission that this concession made it clear that the applicant could not meet the criteria for the visa and for that reason, the Tribunal was bound to affirm the decision under review.

14. Ground 1 is without merit.

15. Ground 2 reads:

    The Tribunal erred in taking into account of irrelevant consideration, namely, the Tribunal also considered the applicant’s past protection visa application and ministerial intervention.

16. Contrary to Ground 2, the considerations identified are relevant matters which the Tribunal was entitled to take into account. The Tribunal’s references to the previous applications for Protection visas and for Ministerial Intervention respectively were relevant to an issue to be determined by the Tribunal: namely, whether the applicant intended genuinely to stay temporarily in Australia for the purpose for which the visa was granted: cl 602.215. The Tribunal relied upon this information in its consideration of whether the applicant’s father (and the applicant, as his intentions were determined by those of his parents) had an intention of returning to China: Reasons, [21]. This finding was directly relevant to its assessment of whether the applicant met cl 602.215.

17. Ground 2 is without merit.

18. Ground 3 reads:

    The Tribunal misconstrued the cl. 602.215 of schedule 2 of Migration Regulations 1994.

19. Ground 3 is also entirely unparticularised.

1. Nothing in the Reasons supports a contention that the Tribunal misconstrued cl 602.215. Further, even if it had misconstrued this provision, no jurisdictional error would be established. The finding that the applicant did not meet cl 602.215 was only one of the bases on which the Tribunal affirmed the decision. It also found that cl 602.212 was not met, a finding that mandated the decision to affirm the delegate’s decision to refuse the application.

2. Ground 3 is devoid of merit.

3. For those reasons, I concluded that the interests of the administration of justice favoured a conclusion that the application for an extension of time should be refused. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  8 February 2019