Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1180
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1180
File number: MLG 1562 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 11 November 2024 Catchwords: MIGRATION – medical (subclass 602) visa – visa refused – breach of clause 602.2 of Schedule 2 to the Migration Regulations 1994 (Cth) – judicial review –
applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – very weak prospects of success of the substantive application – not satisfied it is necessary in the administration of justice to grant an extension of time – application for extension of time dismissed.Legislation: Migration Act 1958 (Cth) ss 477(1), 477(2), 477A(2)
Migration Regulations 1994 (Cth) sch 2, cls 602.2, 602.212(6), 602.215, 602.215(1), 602.215(6)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) div 1, pt 2, sch 2, item 2
Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
Craig v State of South Australia [1995] HCA 58
GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169
Htun v Minister for Immigration & Multicultural Affairs[2001] FCA 1802
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration & Border Protection v Singh[2014] FCAFC 1
Minister for Immigration & Citizenship v Li[2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 24
SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 3 July 2024 Dates of hearing: 10, 31 October 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr Sathiendrakumar Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1562 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day within which an application under s 477(1) of the Migration Act 1958 may be made is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,889.38.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
The applicant is a citizen of India who arrived in Australia on 3 November 2008: Court Book (CB) 7, CB84 as the holder of a student visa: CB84-CB85, Supplementary Court Book (SCB) 3. Subsequent applications for a partner visa (7 December 2010) and a protection visa (3 July 2014) were refused: CB7, CB84-CB85. The applicant’s bridging visa ceased on 3 December 2014, but he remained in Australia as an unlawful non-citizen until 2 January 2018, at which time he was granted a Bridging visa E (050): CB7, CB84-CB85, SCB1. On 23 January 2018, the applicant applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa on the basis that he was treated for depression, obsessive-compulsive disorder (OCD) and anxiety with cognitive behavioural therapy: CB7, CB66-CB75, CB78-CB79, CB84-CB85.
On 15 February 2018, a delegate of the (then) Minister for Home Affairs refused the visa application: CB2-CB9. The delegate concluded the applicant did not meet one of the primary criteria in cl 602.2 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Specifically, the applicant did not meet cl 602.215(1) – which provides the applicant must genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The delegate considered the applicant’s history which indicated a pattern of non-compliance with his respective visas. The delegate noted the applicant did not provide sufficient evidence of an intention to depart from Australia and so, refused the medical treatment visa: CB6-CB9.
The applicant subsequently applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB10-CB26. The Tribunal acknowledged the review application on 5 March 2018: CB29-CB30, and on 7 January 2019, invited the applicant to attend a hearing scheduled for 21 February 2019 to give evidence and present arguments relating to the issues in the case: CB57-CB58. Separately on 5 March 2018, the Tribunal wrote to the applicant requesting that he provide a copy of the delegate’s decision record: CB28-CB30. The applicant provided the Tribunal with a screenshot of the first page of the notification of the delegate’s decision: SCB4-SCB5.
The applicant attended the scheduled hearing at which he gave evidence, presented arguments and provided medical evidence – a psychologist’s and a psychiatrist’s report: CB63-CB75, CB86. On 1 April 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a medical treatment visa: CB83, notice of which was given to the applicant on 3 April 2019: CB82.
In its Statement of Decision and Reasons (Decision), the Tribunal set out at [1]-[6] a brief background and the relevant medical treatment visa criteria by reference to cl 602.215 of Sch 2 to the Regulations. It identified at [6] that the issue before it was whether the applicant satisfied cl 602.215 of the Regulations which requires that the applicant intends to stay temporarily in Australia for the purpose for which the visa was granted. At [7]-[8], the Tribunal summarised the applicant’s medical and immigration history, with the Tribunal noting the applicant confirmed the latter as set out in the delegate’s decision. At [9]-[17], the Tribunal summarised and discussed the matters raised by it and by the applicant during the hearing.
As the applicant had not reached the 50 years of age threshold, the Tribunal determined at [18]-[21] the applicant did not meet the criteria in cl 602.212(6) relating to whether the applicant is medically unfit to depart Australia. At [22]-[31], the Tribunal turned to the requirement in cl 602.215 that the applicant genuinely intends to stay temporarily in Australia for the purpose of the visa and the considerations therein.
In considering the applicant’s visa history, the Tribunal noted at [23] of the Decision that:
Departmental records indicate that the applicant's last substantive visa was a student visa (subclass 573) granted on 16 October 2008 which ceased on 8 December 2012. Since then he has held a succession of bridging visas with the exception of the period from 3 December 2014 (when his bridging visa ceased) and 2 January 2018 when he was granted a Bridging visa E (subclass 050). During that period he was unlawful. In the delegate's decision record it is stated that the applicant began to develop issues with Student visa conditions and either deferred their studies or changed courses and that he has failed repeatedly to comply with visa conditions, although it is not clear which conditions specifically and when. At hearing the applicant said he studied for around a year after he arrived in Australia, undertaking a diploma in multimedia and design however he did not want to study after that. His evidence was somewhat vague and it is unclear whether he abided by his student visa conditions. Nonetheless, even if the Tribunal accepts that he has abided by visa conditions of his last substantive visa and subsequent bridging visas, for the reasons below the Tribunal is not satisfied that he will abide by future visa conditions.
As to the applicant’s immigration history, the Tribunal noted at [24] the applicant had resided in Australia for over a decade and had remained unlawfully during the period between 3 December 2014 to 2 January 2018. The Tribunal also noted the applicant had unsuccessfully applied for a partner visa, and before that, a protection visa, and reasoned that the applicant’s immigration history suggested he did not genuinely intend to stay temporarily in Australia for the purposes of medical treatment. At [25], the Tribunal considered the applicant’s oral evidence about his plans to return to India – once he feels 'ok' he will leave Australia and does not know how long that will take – was vague. The Tribunal noted the applicant made no plans to return to India. The Tribunal also reasoned the applicant’s claim that he wanted to remain in Australia only to obtain medical treatment, was undermined by the fact he failed to obtain treatment until November 2018 despite applying for the visa in January 2018 for that purpose.
The Tribunal accepted at [26] the applicant suffered OCD, anxiety and depression: that he had seen a psychologist on occasion since, a psychiatrist twice and a naturopath once; and that he had been prescribed medication to help manage his symptoms. However, the Tribunal noted at [27] that the applicant did not provide any evidence suggesting that the medical treatment he was prescribed was not accessible to him in India. At [28], the Tribunal observed that the applicant was unable to adequately explain why he did not obtain treatment during the 10-month period that he applied for the medical treatment visa or what his future treatment might look like apart from taking medication. With reference to the doctor’s report, the Tribunal noted that the report failed to outline the nature and duration of any treatment.
The Tribunal reasoned at [29] that the applicant’s immigration history and his oral evidence indicated he wished to maintain ongoing residence in Australia and suggested that he did not genuinely intend to leave Australia at the end of his treatment. Considering the evidence about: the applicant's circumstances; his medical issues and treatment; his migration history and the vagueness around the nature and period of any treatment for which the visa is sought, the Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa and found that cl 602.215 was not met: Decision at [30]-[31].
By application filed on 21 May 2019 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal’s decision. An application to the Court for a review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Migration Act 1958 (Cth) (Act). The Tribunal made its decision on 1 April 2019 and the 35-day period within which an application to the Court must be made ended on 6 May 2019. The applicant therefore made his application 15 days after the time prescribed had lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to do so, and the Court is so satisfied.
The applicant’s grounds in support of his application for an extension of time specify the following (reproduced verbatim):
1. I am struggling with Finance issue
2. I am also struggling with health and suffering from depression.
The correct approach to the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2) was explained by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 as follows:
10. The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11. At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12. On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to 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 level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13. In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14. Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15. The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16. Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17. French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18. However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19. It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(citations omitted).
The non-exhaustive principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 to which reference is made at [13] of Tu'uta Katoa were approved in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [2], [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556 at 566, [40].
The extent of the delay - 15 days - is relatively short. The explanation given for the delay is twofold. First, the applicant contends the delay occurred or is explained because he struggles with financial issues. Despite orders made by Registrar Cummings on 12 June 2024 requiring the applicant to file and serve, inter alia, written submissions and any additional evidence on which the applicant seeks to rely, there is no evidence about: the nature and extent of the applicant’s financial issues; the period during which the applicant suffered under the said financial issues; how those issues affected his capacity to file a judicial review application in time; or how the financial issues are said to explain the period of delay. There is also no evidence about how the applicant’s financial circumstances changed to allow the current application to be made at all. Generally speaking, an applicant’s financial circumstances or difficulties alone will be an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]; GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25]. Consequently, I do not accept the applicant’s financial circumstances about which there is no evidence, provides a satisfactory explanation for the delay.
Second, as to the applicant’s health and depression as explaining the delay, the CB contains some material, namely a report by Dr Dharmage, a psychiatrist, dated 26 March 2019: CB78-CB79, diagnosing the applicant with OCD and a 5 January 2018 report from the applicant’s psychologist opining the applicant’s presentation was consistent with, inter alia, major depressive disorder and OCD: CB66-CB67. Although these documents support the applicant’s reference to health issues and depression, they do not cover the period in which the applicant was required to apply for review of the Tribunal’s decision, namely 1 April 2019 to 6 May 2019, or the period of the delay. Moreover, the reports are not directed to proffering any explanation about the impact of the applicant’s health and depression on his cognitive capacity or how they might explain or account for the delay in making the judicial review application. In the absence of further medical evidence, the applicant’s health and depressive issues in the abstract do not provide an adequate or satisfactory explanation for the delay. For this reason, I granted the applicant an adjournment so that he could consult his treating medical practitioner to obtain a medical report(s) during the period between 1 April 2019 to 21 May 2019 (the period) addressing: the nature and extent of any diagnosed mental health condition affecting the applicant during the period; whether the medical practitioner examined the applicant during the period; the impact of the applicant’s diagnosed mental health condition on his cognitive capacity, and ability to function during the period.
On 28 October 2024 the applicant filed an affidavit annexing a letter dated 23 October 2024 addressed to the Court from a Dr Sarita Kotur: Exhibit A1, affidavit of Amrinder Singh, affirmed on 25 October 2024. Dr Kotur is a physician providing medical services at the Union Medical Centre in Springvale, Victoria. Dr Kotur’s letter sets out that the applicant: has been a patient of the clinic since 2016; suffers from depression and OCD; and has been on medication since 2018. The letter also sets out that both depression and OCD “can cause impairment in thoughts and decision making skills,” and that during the period the applicant “has been on treatment” and “is still on treatment”. However, Dr Kotur’s letter does not specify:
·that she was the applicant’s treating physician during the period;
·that the applicant consulted her during the period; or
·the impact of the applicant’s depression and OCD on his cognitive capacity and ability to function during the period.
The applicant maintained that Dr Kotur was his physician and that he consulted her during the period. Even accepting the applicant’s assertion, Dr Kotur’s letter is short on any detail about the impact of the applicant’s diagnosed mental health condition on his cognitive capacity, and ability to function during the period. Whilst I accept that the applicant’s depression and OCD may from time to time affect his decision-making and thought capacities, I am not persuaded on the strength of the medical evidence nor on the applicant’s say-so that his mental health status, for which he appears to have been prescribed medication, satisfactorily explains the delay.
Ultimately the period of delay is relatively short and, considered in light of the absence of any satisfactory explanation for the delay, the extent and reason for the delay weighs against a conclusion that it is in the interests of justice to extend time, but the weight I ascribe is not significant. But even if the relatively short period of the delay and the explanation for it was satisfactory so as to weigh in the applicant’s favour, in light of my assessment of the merits of the proposed judicial review grounds below, this would be insufficient to outweigh the very weak judicial review grounds the applicant proposes to advance.
There is no evidence the applicant took any action to dispute the Tribunal’s decision other than making the late judicial review application; however, given the applicant’s mental health condition and the short period of the delay, I do not consider this to be material.
The first respondent says that while there is no specific prejudice to the first respondent beyond the public interest in the finality of administrative decision making, the proposed substantive application contemplated by the applicant does not disclose any merit, such as to warrant the Court granting the extension of time. I will turn to the merit of the substantive application shortly. For present purposes that there is no prejudice to the first respondent weighs in the applicant’s favour, but as I earlier noted, the mere absence of prejudice is insufficient to warrant the grant of an extension of time: Hunter Valley at 349; Parker at [6]; Mentink at [33]; SZTRY at [6]; BQQ15 at [33].
Turning then to consider the merits of the substantive judicial review application, the applicant’s grounds for judicial review are (reproduced verbatim):
1.I complete believe that AAT did not make fair decision. They ignored my Doctor and Psychiatrist medical certificat [sic].
2.They also ignored as am on Prescription drugs which has to be Continued until my Doctor and Psychiatrist ask to stop.
3.They also ignored The way I attempt to kill myself with knife and Position [sic] and admit in the hospital.
In an effort to assist the applicant’s understanding of the Court’s function in judicial review applications, during the hearing before me on 10 October 2024, reiterated on 31 October 2024, I endeavoured to explain that the Court cannot conduct a merits review of the Tribunal’s decision and that for the Court to intervene, it needed to be shown that the Tribunal fell into jurisdictional error. I explained that the possible categories of jurisdictional error are not exhaustive but most commonly, jurisdictional error will arise if:
(a)a decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179;
(b)a decision-maker ignores relevant material: Craig at 179;
(c)a decision-maker relies on irrelevant material: Craig at 179;
(d)a decision-maker fails to follow mandatory statutory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [207]-[208];
(e)a decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42];
(f)a decision-maker shows actual or there is apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80 at [2]; and
(g)a decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
The applicant was unable to elaborate on his proposed review grounds during the hearing before me, nor did he advance any further basis on which it might be said the Tribunal’s decision is affected by jurisdictional error. Having regard to the Decision and the material in the CB, the review grounds proposed to be advanced appear very weak and on the facts are unlikely to succeed.
By proposed ground 1, the applicant would contend that the Tribunal failed to consider his medical evidence. However, the Decision records that the Tribunal considered the medical evidence the applicant provided, that is the report of Mr Efremidis, psychologist, dated 19 December 2017: Decision at [7], [28], the test results from his naturopath: Decision at [12], Mr Efremidis’ supplementary report dated 5 January 2018: Decision at [14], and Dr Dharmage’s report, dated 26 March 2019: Decision at [17], [26], [28].
By proposed ground 2, the applicant would contend that the Tribunal failed to consider that the applicant was on prescription drugs which he must continue taking until he is advised by his medical practitioners to cease. It appears the Tribunal considered and accepted the applicant’s evidence that he was prescribed anti-depressants and anti-anxiety medication: Decision at [12], [17], [26]. It noted at [27] of the Decision that the applicant could not provide any evidence of why his prescribed medication would not be available in India, or why he could not continue any treatment there.
By proposed ground 3, the applicant would contend the Tribunal failed to consider the applicant’s attempted suicide and admission to hospital. The Tribunal recorded this in the Decision at [11], but that the applicant suffered from mental health issues was not in issue. As already noted, the Tribunal accepted so much. The issue before the Tribunal was whether the applicant satisfied cl 602.215 of the Regulations, which requires that the applicant intends to stay temporarily in Australia for the purpose for which the visa was granted. As I have earlier recounted, the Tribunal reasoned the applicant’s immigration history and his oral evidence indicated he wished to maintain ongoing residence in Australia, suggesting that he did not genuinely intend to leave Australia at the end of his treatment. The Tribunal was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa and found that the requirements of cl 602.215 were not met, having regard to: the evidence about the applicant's circumstances; his medical issues and treatment; his migration history and the vagueness around the nature and period of any treatment for which the visa is sought: Decision at [29]-[31]. The review grounds proposed do not disclose any arguable case of jurisdictional error nor do they explain why the Tribunal is said to have erred.
It appears to me on the face of the materials before the Court that the Tribunal considered the available evidence, including the medical evidence provided by the applicant, applied the relevant statutory framework in assessing that evidence, and made findings open to it. I therefore agree with the first respondent’s contention that the proposed review grounds do not appear to amount to more than an emphatic disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review. This is perhaps best demonstrated by the applicant’s contention in the first sentence of his review grounds that “[he] complete[ly] believe[s] the [Tribunal] did not make [a] fair decision”.
Additionally, the applicant’s proposed review grounds as set out in his application are not well particularised. This is despite an order made by Registrar Cummings on 12 June 2024 requiring the applicant to file and serve, inter alia, any amended application with proper particulars of the grounds of the application. The lack of particulars would also provide the Court with a basis to dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969; AQN15 v Minister for Immigration and Border Protection [2016] FCA 571; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13].
For these reasons, I consider that the merits of the application are very weak and so weighs heavily against a conclusion that it is in the interests of the administration of justice to extend time. The considerations discussed taken together do not persuade me that it is in the interest of justice to order that the 35-day period within which an application to the Court may be made be extended. Accordingly, the application to extend time will be dismissed.
The first respondent sought costs fixed in the sum of $5,500.00 in the event the applicant is unsuccessful. As the proceeding will be dismissed at an interlocutory stage, the amount sought would exceed the amount allowed by item 2 of Div 1 Pt 2 Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The additional sum is said to be justified because of costs thrown away by reason of the adjournment of the hearing on 10 October 2024, which the first respondent opposed, its resumption on 31 October 2024 at which the first Respondent was required to appear.
I accept that had the applicant complied with Registrar Cumming’s earlier mentioned order (which included a requirement the applicant file and serve any additional evidence on which he seeks to rely) by procuring and filing a medical report supporting his contention that the impact of his mental health conditions explained the delay, an adjournment would have been unnecessary. I therefore accept that an additional sum for costs thrown away should be awarded but I consider that the additional sum sought (which exceeds $1,300) is excessive. I will allow an additional $700.00 which I consider reasonable. Consequently, an order for costs requiring the applicant to pay the first respondent’s costs fixed in the sum of $4,889.38 will be made.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 11 November 2024
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