Ng v Minister for Home Affairs

[2018] FCA 1795

FEDERAL COURT OF AUSTRALIA

Ng v Minister for Home Affairs [2018] FCA 1795

Appeal from:	Application for extension of time: Ng v Minister for Immigration [2018] FCCA 1363
File number:	NSD 810 of 2018
Judge:	PERRAM J
Date of judgment:	19 November 2018
Catchwords:	MIGRATION – application for extension of time to appeal from Federal Circuit Court – whether Court erred in dismissing appeal from Administrative Appeals Tribunal – where Applicant applied for medical treatment visa outside prescribed time limit
Legislation:	Migration Regulations 1994 (Cth) sch 2 cl 602.212, 602.213; sch 3 criteria 3001
Date of hearing:	19 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	K Garaty of HWL Ebsworth Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 810 of 2018

BETWEEN:

KIM SENG NG

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	19 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for extension of time be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. This is an application for an extension of time in which to appeal from orders made by the Federal Circuit Court on 12 April 2018.  The Applicant missed the deadline by only 12 days, which is not especially serious and would not stand in the way of his appeal were it otherwise of merit.  The Federal Circuit Court dismissed the Applicant’s application to set aside an earlier decision of the Administrative Appeals Tribunal.  The Tribunal had decided that the Applicant was not eligible for a Medical Treatment (Visitor) (Class UB) visa because he had failed to apply for it within 28 days of his last substantive visa expiring as required by the regulations.  The Tribunal, therefore, affirmed an earlier decision of the delegate of the Minister to the same effect.

2. The Applicant’s last substantive visa expired on 28 January 2010 and he applied for the Medical Treatment visa on 17 May 2016 over six years out of time. The effect of cls 602.212(6) and 602.213 of sch 2 and criteria 3001(1) and (2)(c) of sch 3 of the Migration Regulations 1994 (Cth) is to require the application to be made within 28 days. The Applicant is simply, therefore, not eligible for this visa. Consequently, regardless of whether the Tribunal disported itself in arriving at its decision, it was irretrievably correct.

3. The Court below perceived no error in the Tribunal’s decision-making process.  The Court found that:

   ·the Applicant’s disagreement with the Tribunal’s decision did not disclose a ground of review;

   ·the existence of compelling reasons to grant the visa was beside the point when the eligibility criteria could not be waived;

   ·his desire to apply for a Medical Treatment visa and receive medical treatment in Australia was irrelevant to the forensic task at hand;

   ·the fact that the situation was not of the Applicant’s control was likewise irrelevant;  and

   ·the fairness or otherwise of the process were beside the point when he was not eligible for the visa.

4. In all of this, the Federal Circuit Court was plainly correct.  Any appeal would, therefore, be hopeless.  Leave to appeal is, therefore, refused with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: 

Dated:        19 November 2018