Smyk v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1545

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Smyk v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1545

File number(s): SYG 356 of 2022
Judgment of: JUDGE SKAROS
Date of judgment: 23 September 2025
Catchwords:  MIGRATION – medical treatment visa – application for extension of time to seek judicial review of the Tribunal decision – minimal delay – explanation for the delay – no prejudice to the Minister – no arguable case of jurisdictional error - application for extension of time refused
Legislation:

 Migration Act 1958 (Cth) ss 477(1), 477(2)

Migration Regulations 1994 (Cth) cl 602.212(2), 602.215

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110

Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: Division 2 General Federal Law
Number of paragraphs: 54
Date of hearing: 9 September 2025
Place: Parramatta
Solicitor for the Applicant: Self-represented litigant
Solicitor for the First Respondent: Ms M. Prefontaine, Australian Government Solicitors
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 356 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PIOTR KAZIMIERZ SMYK

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

23 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application for extension of time filed on 23 February 2022 pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $4, 000.

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 SKAROS

INTRODUCTION

  1. By application, filed on 23 February 2022, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 18 January 2022. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Medical Treatment (visitor) (class UB) visa (the visa).

    [1]The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time,…

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Smyk v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1545
Case
[2025] FedCFamC2G 1545
Decision Date

CaseChat Overview and Summary

In the case of Smyk v Minister for Immigration and Multicultural Affairs, the applicant, a Polish citizen, sought an extension of time to apply for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had affirmed a decision by the Minister for Immigration and Multicultural Affairs, refusing the applicant a Medical Treatment (visitor) visa. The applicant sought an extension of time to file the application for judicial review, which was one day beyond the 35-day statutory period. The primary legal issue before the Court was whether the Court should grant an extension of time under s 477(2) of the Migration Act 1958 (Cth).

The Court considered the relevant factors in deciding whether to grant an extension of time, including the length of the delay, the explanation for the delay, any prejudice to the Minister, and whether the proposed grounds of the judicial review application had any merit. The applicant argued that the delay was minimal, that he was unaware of the process and had sought the assistance of a migration agent, and that the agent did not charge for their services. The Court noted that the delay was minimal, which slightly favoured the grant of an extension of time. However, the Court was not satisfied that the applicant had provided a sufficient explanation for the delay, as he had not engaged a lawyer due to financial constraints but had not taken steps to engage a lawyer or seek legal advice earlier. The Court was also not satisfied that the applicant had demonstrated that the proposed grounds of the judicial review application had any prospect of success or raised a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.

The Court held that it was not necessary in the interests of the administration of justice to grant an extension of time. The Court noted that the applicant had remained in Australia unlawfully for several years and had applied for numerous visas, which did not demonstrate a genuine intention to comply with visa conditions. The Court also noted that the applicant had not provided sufficient evidence to demonstrate that he had a genuine intention to stay temporarily in Australia for the purposes of medical treatment or related purposes, as required by the Migration Regulations 1994. The Court was not satisfied that the applicant had demonstrated that the Tribunal had made a jurisdictional error in refusing to grant the visa. Accordingly, the Court refused the application for an extension of time.

No further orders were made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By application, filed on 23 February 2022, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 18 January 2022. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Medical Treatment (visitor) (class UB) visa (the visa).[1]The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.BACKGROUND The following background is derived from information the Court Book and the Minister’s submissions and is not in dispute. The applicant is a citizen of Poland. He arrived in Australia on 11 December 2009 as the holder of a visitor visa, which ceased on 15 December 2009. The applicant applied for and was granted various student visas, on which he remained in Australia between 15 December 2009 and 15 June 2015. On 15 June 2015, the applicant lodged a temporary work (Subclass 457) visa. He was granted a Bridging A visa in relation to that application. The Subclass 457 visa application was refused on 21 December 2017 and the associated Bridging A visa ceased on 18 January 2018. The applicant remained unlawfully in Australia until 25 March 2020. On 25 March 2020, the applicant applied for the visa, subject of these proceedings. In his application, he stated that he wished to remain in Australia until 30 March 2021 to seek medical treatment for laceration of the flexor tendon on his right middle finger. On 23 April 2020, the delegate refused to grant the visa as they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment or related purposes. On 12 May 2020, the applicant applied to the Tribunal for a review of the delegate's decision. On 27 October 2021, the applicant was invited to a Tribunal hearing scheduled for 16 November 2021. On 8 November 2021, submissions and various documents were provided to the Tribunal in support of the review application. The applicant stated that he was diagnosed with Persistent Complex Bereavement and Persistent Major Depressive Disorder for which he required psychological management as well as exercise physiology for his physical injury. The applicant also stated that he sustained two workplace injuries, in January 2014 and November 2019, for which he underwent surgery and treatment. On 16 November 2021, the applicant appeared before the Tribunal to give evidence and present arguments.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 January 2022, the Tribunal affirmed the delegate's decision.THE TRIBUNAL’S DECISION The Tribunal noted that the Subclass 602 Medical Treatment visa was for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Relevantly, the Tribunal considered whether the applicant satisfied cl 602.212(2) of the Migration Regulations 1994 (the Regulations). The Tribunal had regard to the material provided to it and the applicant’s oral evidence. It noted that the period which the applicant had sought a visa for medical treatment, from 19 March 2020 to 30 March 2021, had passed and considered whether the requirement was met in relation to future medical treatment. While the Tribunal was satisfied that the applicant sought to obtain medical treatment, it was not satisfied on the evidence before it that arrangements had been concluded to carry out the treatment: cl 602.212(2)(b). The Tribunal then considered whether the applicant had a genuine intention to stay temporarily for the visa purpose: cl 602.215. As the exception provided in cl 602.212(6) was not met, the Tribunal found that cl 602.215 applied to the applicant. The Tribunal had regard to the evidence before it pertaining to whether the applicant had complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, whether the applicant intended to comply with the conditions to which the Subclass 602 visa would be subject, and other matters it considered relevant. The Tribunal found the applicant’s migration history to be unfavourable in circumstances where he had applied for numerous visas and remained in Australia unlawfully. The Tribunal considered the incentives for the applicant to return to Poland or the UK, where one of his daughters resides. While it was persuaded there were some incentives to return, it considered there were pull factors to remain in Australia. The Tribunal also took into consideration the applicant’s vague and indefinite plans for medical treatment, the fact that the treatment does not appear to have any end date and that such treatment may be available in his home country. In considering all the circumstances, the Tribunal was not satisfied that the applicant had a genuine intention to stay temporarily for the visa purpose and found that cl 602.215 was not met. APPLICATION TO THE COURT The application which commenced proceedings in this Court contained one ground pertaining to the extension of time and 14 grounds in respect of the proposed application for judicial review. The applicant also filed an affidavit which annexed a copy of the Tribunal’s decision record. It was not necessary to take this affidavit into account as the Tribunal’s decision was included in the Court Book. The Minister filed written submissions on 26 August 2025. On 1 September 2025, the applicant filed a document titled ‘Affidavit of Piotr Smyk’ (the Applicant’s Affidavit). The document did not appear to be in the format of an affidavit, it was not sworn or affirmed by a qualified witness and contained five pages of background information, medical history and submissions as to why the applicant meets the requirements of the medical treatment visa. The applicant also filed various accompanying documents relating to his worker’s compensation claim, medical reports and referral letters and PAYG statement.

Ratio Decidendi

Legal Principle Established

Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the matters that would normally be considered, which it noted were not exhaustive, when determining whether time should be extended to enable him to pursue his substantive application for judicial review. Consideration of the extension of time application The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act. Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended. The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following grounds (without alternation) in support of his application for extension of time:1.Time is needed in order for the appellant to better prepare to address the following. At the hearing, I explained to the applicant that the circumstances, which I noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the proposed grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and confirmed in Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [13]. In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a ‘reasonably impressionistic level’: MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110. As explained to the applicant at the hearing, I need only be satisfied that the grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal. The applicant was invited to make oral submissions in relation to each of the circumstances, and the Court has considered those submissions as follows. Length of the delay The applicant commenced proceedings in this Court on 23 February 2022, being one day outside the prescribed period of 35 days from the date of the Tribunal’s decision. The Court considers a delay of one day to be minimal. This factor weighs slightly in favour of granting the extension of time. Explanation for the delay The applicant said he was ignorant to the process and requested the assistance of a migration agent in lodging his application. The applicant claimed the migration agent did not take any payment and, because he did not have the financial means to engage a lawyer, the agent assisted him out of pity.