MAFILEO v Minister for Immigration

[2017] FCCA 842

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAFILEO & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 842

Catchwords:
MIGRATION – Application for an extension of time – visa – Medical Treatment (Support Person) visa – very substantial delay – no adequate explanation – no merit – no reasonable prospect of success – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05

Migration Act 1958 (Cth), ss.417, 476, 477, 477(1) & (2) and 479(A)

Migration Regulations 1994 (Cth), cl.602.213 of Schedule 2

Cases cited:

Gallo v Dawson (1990) 93 ALR 479

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395
MZZYC v Minister for Immigration and BorderProtection [2015] FCA 1426

First Applicant: LAVINIA MAFILEO

Second Applicant: EDWIN MAFILEO

Third Applicant: SIONE TALAFEKAU MAFILEO

Fourth Applicant: ELIEZER MAFILEO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 419 of 2016

Judgment of: Judge Heffernan

Hearing date: 11 April 2017

Date of Last Submission: 11 April 2017

Delivered at: Adelaide

Delivered on: 11 April 2017 (ex tempore)

REPRESENTATION

The Applicant: First applicant in person with an interpreter

Counsel for the Respondents: Mr A Cunynghame

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), is dismissed.

2. The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 419 of 2016

LAVINIA MAFILEO

First Applicant

EDWIN MAFILEO

Second Applicant

SIONE TALAFEKAU MAFILEO

Third Applicant

ELIEZER MAFILEO

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled reasons from transcript)

1. This is an application for an extension of time in which to file an application for a judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The first applicant seeks to review a decision of the Migration Review Tribunal, as it then was, dated 11 March 2015. That decision affirmed an earlier decision of a delegate of the Minister that determined not to grant the applicant a Medical Treatment (Support Person) Visa. The application was filed on 2 December 2016 almost 600 days out of time.

2. The application was supported by an affidavit that annexes a copy of the Tribunal decision but provides no further information.  The applicant filed an amended application on 12 December 2016 that adds the applicant’s son and husband as applicants to these proceedings.  The proposed grounds of application are as follows:

   “1.The Tribunal erred in not granting an adjournment once it discovered that the applicant’s representative did not show up. 

   2.Very upset and disappointed.

   3.Misunderstood/misunderstanding.”

3. The first applicant represented herself in the proceedings before me.  She was assisted by an interpreter proficient in Tongan and English.  In February 2017 the Court made an order permitting the applicant to file and serve an amended application and any further supporting material by 28 February.  The first applicant has filed an affidavit, dated 24 February 2017, that annexes materials primarily relating to the health of her son, Eliezer.  The relevant background to this matter has been usefully summarised by the first respondent in an outline of submissions.  I do not understand the content of that summary to be disputed by the first applicant and I will paraphrase it below. 

4. The applicant applied to the Department of Immigration and Border Protection on 7 January 2014 for the visa. The applicant was the only person included in the application. She provided various medical documents relating to her son in support of the application. On 20 January 2014 a delegate of the Minister refused to grant the applicant the visa because she did not satisfy cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). This is because the application for the visa was not made within 28 days of the date on which the applicant last held a substantive visa.

5. It was necessary for the applicant to satisfy a number of criteria pursuant to the Regulations.  Criterion 3001 required the application for the visa to have been made within 28 days of the relevant day.  The relevant day was the last day when the applicant held a substantive visa.  In the applicant’s case this was 28 January 1999.  The applicant applied to the Tribunal for a review of the delegate’s decision.  The hearing proceeded on 2 February 2015.  On 19 January 2015 written submissions were provided to the Tribunal by the applicant’s migration agent.

6. The effect of the migration agent’s submission was that the applicant had compelling personal reasons which suggested the criteria of Schedule 3 should be waived to enable her to support her son who might have required an operation. The migration agent also provided the Tribunal with evidence from the Women’s and Children’s Hospital in Adelaide which set out the nature of the son’s illness and his ongoing treatment. The applicant attended at the Tribunal hearing on 2 February 2015 and was assisted by an interpreter. The migration agent did not attend at that hearing.

7. After the hearing on 25 February 2015 the applicant’s migration agent sent a further letter to the Tribunal from the Women’s and Children’s Hospital which confirmed her son’s need for further treatment. On 11 March 2015 the Tribunal affirmed the decision of the delegate. The Tribunal found that the applicant’s last substantive visa expired on 28 January 1999 and for that reason the applicant had applied for the visa more than 28 days after that date. The Tribunal concluded that the applicant could not meet criterion 3001. For that reason the Tribunal concluded that it was not possible for the applicant to satisfy cl.602.213 of Schedule 2 to the Regulations.

8. The Tribunal did give consideration to the applicant’s submission about personal and compelling reasons.  The Tribunal concluded that it did not have any discretion because criterion 3001 was a mandatory requirement.  For that reason it found that it had no alternative but to affirm the decision under review. 

9. The first applicant made brief submissions before me.  She said that the main reason she is making this application is to seek help for her son.  She said there was a misunderstanding about the Tribunal hearing and that it took a lot of time to gather information that might help her application.

10. The first applicant said that she disagreed with the Tribunal decision and that she was seeking other ways to assist her son.  She told the Court that she relied on her migration agent but that some of the information that she had been given was unclear or too late to assist her.  She told the Court that now she has a better understanding she is asking for an extension of time. 

11. The first respondent made brief oral submissions and also relied on its written outline of submissions.  It says that neither the son nor the husband of the first applicant have proper standing to bring this application before the Court.  With respect to the first applicant’s application, the first respondent says that it should be dismissed for three reasons.  Firstly, because of the very lengthy delay in making the application, secondly, because there is no adequate explanation for the delay and, thirdly, because the application itself just does not have any merit.  It says that the application has no merit because the first applicant could not satisfy the mandatory criteria for the visa. 

12. I will consider first the question of the standing for the second and third applicants inclusive. They were not applicants to the review before the Tribunal. Relevantly, s.479(A) of the Act provides that an application under s.477 may only be made by the applicant to the review. This precludes the son and the husband of the first applicant from making an application. They do not have standing to make an application.

13. I will now consider the application of the first applicant.

14. Under s.477(1) of the Act, an application to this Court for a remedy pursuant to s.476 of the Act, must be made within 35 days of the date of the migration decision. Pursuant to s.477(2) of the Act, an extension of time may be granted by the Court. There are two matters of which I must be satisfied as preconditions to making an order for an extension of time. The first relates to the need for a written application that sets out why the applicant believes it is necessary in the interests of justice to make the order.

15. The first applicant has filed a written application seeking an extension of time and briefly explaining her reasons. She has not filed an affidavit providing an explanation for the delay as required by r.44.05 of the Federal Circuit Court Rules 2001 (Cth). The first applicant has technically satisfied the first precondition but has not supported her application with an explanation on oath.

16. The second precondition that I must be satisfied about is that it is necessary in the interests of the administration of justice that an order be made.

17. I am not confined in the matters to which I can have regard in considering this question but they must have a logical and sensible connection to the interests of the administration of justice.  A number of cases have identified criteria that are frequently relevant to determining this question.  Those factors have included the length of the delay, any explanation given for the delay, whether the respondent has been prejudiced by the delay, the merits of the proposed judicial review application, and the effect on the applicant if an extension of time is refused.

18. With respect to the merits of the proposed application it is not necessary for the applicant to demonstrate to the Court that the proposed ground will ultimately be successful.  It is necessary that they have at least a reasonable prospect of success.  I must give close consideration to the merits of the proposed grounds.  The discretion to grant or to refuse an application to extend time must be exercised judicially.  It becomes a question of balancing competing interests.  One of the relevant considerations is that there is a significant public interest in finalising legal disputes.

19. It is incumbent upon the applicant to advance a plausible reason for the delay in commencing the proceedings in this matter.  I have had regard to the decision of the High Court in Gallo v Dawson[1].  In that matter McHugh J concluded that a case would need to be exceptional before a Court would extend time after many months simply because the applicant had not appealed until they had researched the relevant issues. 

    [1] (1990) 93 ALR 479.

20. The Tribunal decision was made on 11 March 2015.  The first applicant had until 15 April to make an application to this Court within time.  The length of the delay is not, of itself, conclusive but it does highlight the need for the applicant to provide an adequate explanation for the delay.  It has been observed that an important consideration with respect to delay is in the public interest in there being an end to litigation and the efficacy of Acts and decisions of public bodies and officials.  I have given weight to this consideration.  I am not satisfied that the first applicant has provided an adequate explanation for the length of the delay in this matter.

21. The delay is very substantial. The delay is not adequately explained by the first applicant having elected to pursue Ministerial intervention under s.417 rather than applying for judicial review within time. In making the election to pursue that course the first applicant made a practical decision. In the case of Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[2] the Court referred to authorities that establish that embarking on such a course should properly be characterised as an indication that the applicant accepted the Tribunal’s decision as being correct and that they did not intend to challenge that decision further in the Court.

    [2] [2004] FCA 395.

22. In the case of MZZYC v Minister for Immigration and Border Protection[3] the Court noted that seeking Ministerial intervention was an alternative course of action taken by the applicant instead of pursuing their appeal rights and a conscious decision not to pursue their appeal rights.  In this matter the situation is slightly different because the first applicant made the election to pursue Ministerial intervention on 1 April 2016.  That was almost a year after the time in which to make an application to this Court had lapsed.  So, before the first applicant took action of any description there was a delay of about 12 months.

    [3] [2015] FCA 1426 at [4].

23. The first respondent does not claim prejudice in the event that an extension of time is granted.  That is not a conclusive matter. 

24. The effect on the first applicant of a refusal to extend time is, in this case, linked closely to the merits of a proposed application.  I will now consider the merits of the proposed application.  With respect to ground one this, in effect, alleges procedural unfairness because the first applicant was denied representation.  The first applicant has provided no evidence that she requested an adjournment of the proceedings.  The first applicant’s representative provided written materials to the Tribunal before and after the hearing. 

25. The representative did not make any complaint in correspondence after the hearing to the effect that the first applicant had been prejudiced, or that a further hearing was required, or that the first applicant complained of any procedural unfairness in the conduct of the hearing.  I am not satisfied that there is a reasonable prospect of success on this ground.  The Tribunal extended the appropriate invitation to the first applicant and she was given an opportunity to attend, give evidence, and make submissions in support of her case. 

26. With respect to ground two, this is an expression of dissatisfaction with the decision of the Tribunal.  That dissatisfaction may be understandable but, regrettably for the first applicant, it does not establish jurisdictional error.  This Court cannot conduct a hearing on the merits of the application for the visa.  This ground is an invitation to the Court to consider the merits of the application.  There is no reasonable prospect of success to this ground. 

27. Similarly, the third ground, suggesting that the Tribunal misunderstood the circumstances or merits of the first applicant’s application for the visa, cannot be sustained.  This is also a merits based argument.  The first applicant’s oral submission that she did not understand or receive information from her migration agent also does not establish that there was any jurisdictional error in the Tribunal’s decision. 

28. I should add, although it is not the subject of a ground of review, that the Tribunal appears to have summarised and applied cl.602.213 of Schedule 2 to the Regulations correctly.

29. It appears to have correctly concluded that the first applicant could not satisfy the mandatory terms of criterion 3001 in Schedule 3 to the Regulations. On the face of the Tribunal decision there does not appear to have been an error in the approach it took to these matters. In summary, with respect to the merits of the proposed application for judicial review, I am not satisfied that any of the proposed grounds of review has a reasonable prospect of success.

30. For that reason the effect on the first applicant of refusing to grant an extension of time is significantly lessened.  I am not satisfied that it is in the interests of justice to extend the time in which the first applicant may make this application.

31. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 28 April 2017