Saqarere v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1602
•2 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saqarere v Minister for Immigration and Citizenship [2025] FedCFamC2G 1602
File number(s): SYG 440 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 2 October 2025 Catchwords: MIGRATION – extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal not to grant the applicant a Medical Treatment (Visitor) (Class UB) (subclass 602) visa – applicant is a support person of the primary applicant in a related application – length and explanation for delay weigh in favour of the applicant – no jurisdictional error in the Tribunal’s decision not to grant a medical treatment visa to the primary applicant– no utility in granting leave for an extension of time – application dismissed Legislation: Migration Act 1958 (Cth), ss 476A(3), 477(1), 477(2), 477(3)
Migration Regulations 1994 (Cth), rr 600.212(4), 602.212(4)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Maurice Blackburn Pty Ltd v Commonwealth [2014] FCA 767
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: General Federal Law Number of paragraphs: 25 Date of hearing: 22 August 2025
25 August 2025Place: Sydney Counsel for the Applicant: Ms T Baw Solicitor for the Applicant: Kah Lawyers Solicitor for the First Respondent: Ms C Cloudsdale of Mills Oakley Solicitor for the Second Respondent: Submitted appearance save as to costs ORDERS
SYG 440 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PENISENI CAMA SAQARERE
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
2 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
On 17 March 2021, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 February 2021 (substantive application). The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) (subclass 602) visa (medical treatment visa).
Section 477(1) of the Migration Act 1958 (Cth) (Act) required an applicant to make such an application within 35 days of the date of the written decision of the Tribunal. The applicant was two days out of time. The applicant, by interlocutory application, requests the Court to exercise the power under s 477(2) of the Act to extend the 35-day period to enable the applicant to pursue the substantiative application in this Court.
BACKGROUND
The applicant is a citizen of Fiji. The applicant is the husband of the primary applicant in proceeding number SYG389/2021 (related application). On 10 October 2018, the applicant lodged an application for a medical treatment visa as a support person for the primary applicant (Court Book (CB) 2 to 29). On 16 October 2020, following the refusal of the delegate to grant a medical treatment visa to the primary applicant, the delegate refused to grant a medical treatment visa to the applicant (CB 37 to 41). The applicant sought a merits review of that decision in the Tribunal (CB 42 to 52).
TRIBUNAL'S DECISION
The Tribunal correctly noted that the issue for determination was whether the applicant met cl 600.212(4) of the Migration Regulations 1994 (Cth) (Regulations) ([13] of its reasons).
Given the Tribunal had affirmed the decision not to grant the primary applicant a medical treatment visa ([15] of its reasons), the Tribunal found that the applicant did not meet cl 602.212(4), which required the applicant to be a member of the family unit of a person who holds such a visa ([16] to [17] of its reasons). Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a medical treatment visa ([20] of its decision).
PROCEEDINGS BEFORE THE COURT
The applicant was represented at the hearing before me by counsel, Ms T Baw (applicant’s Counsel). The Minister was represented by Ms Cate Cloudsdale (Ms Cloudsdale), solicitor at Mills Oakley. The evidence (which was read without objection) from the applicant comprised the following two affidavits:
(a)The affidavit of Yu-ching Hsiao, solicitor affirmed on 18 March 2021; and
(b)The affidavit of Yu-ching Hsiao, solicitor affirmed on 29 March 2021, annexing the Tribunal’s decision in this matter regarding the applicant and the primary applicant.
The Minister relied on the Court Book, which was marked as Exhibit 1.
The applicant relied on her Counsel’s written submissions dated 25 July 2025 and the Minister relied on written submissions dated 8 August 2025. I also had the benefit of the oral submissions from both the applicant’s Counsel and Ms Cloudsdale.
GROUNDS FOR JUDICIAL REVIEW
The applicant’s amended application, which was accepted for filing on 30 March 2021, contained the following ground for judicial review, with particulars:
1.The Tribunal erred by relying on a jurisdictional fact that did not exist at the time of the decision.
Particulars
a. The applicant applied to be a support person for his wife, the primary person – Mrs Keresia Wati Cama, who has applied for a medical treatment visa.
b. The second respondent (the Tribunal) was satisfied that the applicant is a member of the primary person’s (his wife’s) family unit.
c. The Tribunal found that at the time of the decision the applicant’s wife did not meet the criteria for a medical treatment or hold such a visa (the jurisdictional fact).
d. Accordingly, the Tribunal found that the applicant is not a member of a family unit of a person who holds such a visa, and thereby does not meet cl 602.212(4) of Schedule 2 of the Migration Regulations 1984 (Cth).
e. However, the applicant’s wife did satisfy the criteria for a medical treatment visa.
f. Accordingly the wife has commenced proceedings in the Federal Circuit Court of Australia for judicial review of the Tribunal decision affirming the decision of the delegate of the first respondent not to grant her a medical treatment visa (wife’s Application).
g. The Tribunal erred by finding that the jurisdictional fact did not exist, when in fact it did, as the Tribunal’s decision for the wife was affected by jurisdictional error.
h. As the applicant’s Application is dependent upon the facts and issues of his wife’s application, the applicant will seek to have the matters heard together.
i. The applicant’s wife fulfilled the criteria for a medical treatment visa, therefore, the Tribunal decision that the applicant was not a support person was affected by jurisdictional error.
CONSIDERATION
Whether to grant an extension of time?
It is helpful to set out the relevant legal principles that apply to this Court’s consideration as to whether or not to exercise the power to extend the time within which to allow an applicant to make an application for judicial review.
Sections 477(1) and 477(2) of the Act provides:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The meaning of the date of the migration decision is set out at s 477(3) of the Act.
The applicant has made an application for an extension of time. The question is whether this Court is satisfied it is necessary in the interests of the administration of justice to make the order extending time.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time, but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) of the Act were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to “evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time, although it is noted that this list is not exhaustive:
(a)the length and explanation of delay;
(b)any prejudice to the parties if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
Length and explanation of delay
Pursuant to s 477 of the Act, an application to this Court for review of the Tribunal’s decision is required to be made within 35 days of the date of the migration decision. In this case, there has been a two day delay in filing the application to this Court. The applicant’s explanation was as follows (as per original):
1.The applicant had to seek personal loans and other financial arrangement to raise the necessary monies for the Court filing fee and required extra time to prepare and complete an Application for Exemption/Reduction of Court Fees on the basis of Financial Hardship due to lack of funds.
2.The date of decision records of the AAT was 08 February 2021 and the date of notification was 11 February 2021. The applicant filed the application to the Federal Circuit Court within 35 days of the date of notification of decision.
I find that the length of the delay is minor, and the explanation for the delay weigh in favour of the applicant being granted an extension of time.
Prejudice to the parties
The Minister accepted that there is no prejudice that could not be remedied by a costs order as a result of the delay.
Public interest and impact on the applicant
There is no public interest concerned in this matter.
With regard to the impact upon the applicant, if an extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his medical treatment visa application. Section 476A(3) of the Act provides that no appeal lies to the Federal Court from a judgment of this Court that makes an order or refuses to make an order under s 477(2): Maurice Blackburn Pty Ltd v Commonwealth [2014] FCA 767 at [26].
Merits of the substantive application
The substantive application was heard concurrently with the related application by the primary applicant. At the hearing before me, the Minister accepted that if I found jurisdictional error in the related application and made orders remitting that matter to the Tribunal, then it was appropriate that the Court grant leave for an extension of time in this matter. Similarly, if I found no jurisdictional error in the related application, then it would follow that I would not grant leave for an extension of time in this matter.
In the proceedings in the related application by the primary applicant, I found that the Tribunal's decision was not affected by jurisdictional error and I made orders dismissing the application in those proceedings. Therefore, it follows that I find no merit in this substantive application.
CONCLUSION
Despite accepting that the length and explanation for delay weigh in favour of the applicant, there is no merit in the substantive application given the dismissal of the related application in proceeding number SYG389/2021. Accordingly, it is not in the interest of the administration of justice to make an order for extension of time given the lack of utility.
Accordingly, the substantive application in this matter must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 2 October 2025
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