SZRFQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 116
•14 February 2022
FEDERAL COURT OF AUSTRALIA
SZRFQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 116
Appeal from: Application for an extension of time to appeal from SZRFQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2909 File number: NSD 28 of 2021 Judgment of: YATES J Date of judgment: 14 February 2022 Catchwords: MIGRATION – application for extension of time to bring an appeal from a judgment of the Federal Circuit Court Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Migration Act 1958 (Cth) ss 195, 368C, 368D, 379C
Migration Regulations 1994 (Cth) Sch 2 cll 602.212, 602.213, Sch 3 cll 3001, 3002, 3003, 3004, 3005
Migration (1993) Regulations (Cth) (repealed) Sch 6 cl 6002
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 14 February 2022 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Australian Government Solicitor (Mr J Hutton appearing) Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 28 of 2021 BETWEEN: SZRFQ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
14 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application to extend time within which to file a notice of appeal be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
This is an application for an extension of time within which to file a notice of appeal.
The applicant, who unsuccessfully applied for a Medical Treatment (Visa) (Class UB) visa, wishes to appeal from a judgment of the Federal Circuit Court of Australia given on 28 October 2020 (the Federal Circuit Court), which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision was to affirm the decision of a delegate of the first respondent, then the Minister for Immigration and Border Protection (the Minister), not to grant the visa.
Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), an appeal from the Federal Circuit Court’s judgment should have been commenced within 28 days after 28 October 2020—namely, 25 November 2020. The applicant did not commence an appeal within time. However, pursuant to r 36.05, the applicant can apply to extend the time for filing a notice of appeal.
The applicant is a Chinese national born on 11 November 1963. He was granted a substantive temporary visa (a UC-457 visa) on 22 November 2006, which ceased on 22 November 2010. He has since held a series of bridging visas, but no further substantive visa.
On 23 May 2017, he lodged his application for the medical treatment visa. The delegate refused the application because the applicant did not meet the requirements of cl 602.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). At the time the applicant applied for the visa, cl 602.213 was in this form:
602.213
(1) Subclause (2) applies if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant held a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(2) The substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(3) Subclauses (4) and (5) apply if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant did not hold a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4) The last substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
On 9 June 2017, the applicant applied to the Tribunal for a review of the delegate’s decision. The issue before the Tribunal was whether the applicant satisfied the requirements of the clause. The Tribunal reasoned that subcl (2) did not apply to the applicant because he did not hold a substantive temporary visa at the time of his application: see cl 602.213(1). As I have noted, the last substantive temporary visa held by the applicant ceased on 22 November 2010.
The question, therefore, was whether subcll (4) and (5) applied: cl 602.213(3). The applicant was in Australia at the time of his application for a medical visa and did not hold a substantive temporary visa at that time. Therefore, cll 602.213(3)(a) and (b) were satisfied. Consideration of cl 602.213(3)(c) required consideration of whether the requirements disclosed in cl 602.212(6) were not met. At the relevant time cl 602.212(6) provided:
602.212(6)
All of the following requirements are met:
(a)the applicant is in Australia;
(b)the applicant has turned 50;
(c)the applicant has applied for a permanent visa while in Australia;
(d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e)the applicant has been refused the visa;
(f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
The Tribunal found that these requirements were not met because there was no evidence that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
The Tribunal was satisfied that the last substantive visa held by the applicant was not one of the visas referred to in cl 602.213(4). The Tribunal then directed its attention to whether, as required by cl 602.213(5), the applicant satisfied the criteria in cl 3001 of Sch 3 to the Regulations which, at the relevant time, was in this form:
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i)the day when that last substantive visa ceased to be in effect; and
(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.
The Tribunal found that the “relevant day” for the purposes of cl 3001(1) was 22 November 2010—the date when the last substantive visa held by the applicant ceased: see cl 3001(2)(c)(iii).
As the application for the medical treatment visa was made on 23 May 2017, it was not made within 28 days of the “relevant day” (22 November 2010). The Tribunal therefore found that the criterion of cl 3001(1) was not met and, as that criterion was not met, the applicant did not satisfy cl 602.213. In the circumstances, it was not necessary for the Tribunal to consider whether the applicant satisfied the criteria of cll 3003, 3004, and 3005.
For this reason, the Tribunal affirmed the decision under review.
THE FEDERAL CIRCUIT COURT
The applicant sought judicial review of the Tribunal’s decision. The applicant was not legally represented and had drafted the grounds of the application himself, without professional assistance. The primary judge observed (at J[9]):
9… The grounds of the application lodged with the Court run to some three and one half pages in length and contain some 20 separate paragraphs. The application appears to be a jumble of both grounds of judicial review and submissions. They are less than clear.
The Minister crystallised these propositions into three grounds, which the primary judge accepted to be an accurate summary of the grounds in contest:
1.The Tribunal should have taken into account the applicant’s attempts to obtain a protection visa after his last substantive visa ceased, in identifying the relevant date.
2.The Tribunal should have considered that the applicant was unable to make an application for a substantive visa at the time the applicant’s subclass 457 visa ceased, because a rogue migration agent had possession of the applicant’s passport and had been fraudulent in his attempts to make an application for a protection visa on the applicant’s behalf.
3.There are compassionate and compelling circumstances which meant that the applicant satisfied criterion 3004 of Schedule 3 to the Regulations.
The primary judge was not satisfied that, by reference to these grounds, the applicant had established jurisdictional error in the Tribunal’s decision.
As to the first ground, the fact that the applicant was not granted a protection visa had no bearing on the fact that he did not hold a substantive temporary visa at the time he applied for the medical treatment visa. It also had no bearing on the determination, for the purposes of cl 3001(2)(c)(iii), of the last day when the applicant held a substantive visa.
As to the second ground, the alleged fraud was not fraud on the Tribunal or in connection with the medical visa application. In any event, no evidence was provided to support the allegation.
As to the third ground, as cl 3001(1) was not satisfied, there was no need for the Tribunal to consider the additional criteria specified by cl 602.213(5), including cl 3004.
The primary judge also perused through the Tribunal’s decision for jurisdictional error, not articulated by the applicant, but could not find error.
The primary judge therefore dismissed the application for judicial review, with costs.
THE APPLICATION FOR AN EXTENSION OF TIME
The application to extend time is supported by an affidavit made by the applicant on 14 January 2021. In that affidavit, the applicant affirms that:
(a)he was not able to prepare a notice of appeal due to his ongoing medical conditions, including “significant and continuing pain”;
(b)when his pain is bad, he is not able to travel to see a solicitor or to seek legal advice and that, for this reason, he was “not able to put in any preparation into my Notice of Appeal”;
(c)there are days when his pain is so severe that it causes nausea and he “cannot attend to my legal proceedings”; and
(d)on other days, his pain is less severe and he is “able to attend (his) legal proceedings”.
The applicant’s draft notice of appeal is expressed as follows (errors in original):
Grounds of appeal
1.The Judge Humphreys (“the Trial Judge”) of the above mentioned orders in proceeding SYG 3237/017 did not properly interpret Schedule 3 of the Migration Regulation 1994 (The Regulation).
2.The Trial Judge erred in making the Order number 2 namely, dismissing the Appellant’s application for judicial review in the Federal Circuit Court and thereby erred in making Order number 3 orders costs against the Applicant.
3.The Trial Judge failed to making finding based on Procedural Fairness and failed to give due consideration to relevant matter and gave consideration to irrelevant factors.
Error in Law in relation to Order number 2
4.The Trial Judge maintained to incorrectly interpret the meaning of the ‘relevant day’ as set out in Schedule 3, Criteria 3001(1).
Section 15AA of the Acts Interpretations Act 1901 requires that in interpretation of a provision of an act, that interpretation should best achieve the purpose of that act.
The Appellant argues that the purpose of the relevant section of the Migration Regulation Act 1994 and therefore the Visa Application in question, is to allow the visa applicant, who requires medical treatment, to be properly treated.
The Regulation is silent on whether, and how, relevant circumstances surrounding the ‘relevant day’ are to be considered by the Court.
4.As there is a void in the current statutory interpretation laws of this country in relation to whether circumstances surrounding the ‘relevant day’ are to be properly considered in order to best achieve Section 15AA of the Acts Interpretation Act 1901.
5.Judge Humphreys erroneously in his Judgment of 28 October 2020 has narrowly interpreted the ‘relevant day’ as set out in paragraph 24 of the Judgment.
6.Alike at paragraph 26 of the Judgment, Judge Humphrey’s finding in favour of the First Respondent’s submission on that point failed to give due consideration to Section 15AA of the Acts Interpretations Act 1901.
7.Judy Humphris was silent as to the current law on how relevant circumstances prior to the ‘relevant day’ is ought to be considered.
8.It is therefore the Appellant’s first ground of appeal that the Trial Judge erred by failing to consider the relevant circumstances surrounding the ‘relevant day’, in accordance with Section 15AA of the Acts Interpretations Act 1901.
Lack of procedural fairness
9. Judge Humphris failed to give consideration to relevant factual matters.
10. The circumstances leading up to the ‘relevant day’ were relevant considerations which Judge Humphrey failed to adequately consider.
The substantive grounds on which the applicant seeks to rely appear to be that
the primary judge:
(a)did not properly interpret Schedule 3 to the Regulations, especially the meaning of “relevant day” in cl 3001(1);
(b)failed to make a finding with respect to “procedural fairness”;
(c)failed to give consideration to “relevant factual matters”; and
(d)gave consideration to “irrelevant factors”.
On 2 February 2021, the applicant was ordered to file a written outline of submissions no later than 10 business days before the hearing of the application to extend time.
The application to extend time was allocated to my docket on 18 June 2021. On 21 June 2021, I made an order that the application be listed for hearing on 28 July 2021. On 19 July 2021, I extended the time for the applicant to file and serve his written outline of submissions. However, on 20 July 2021 I vacated the hearing listed for 28 July 2021 because of the difficulties in holding in-person hearings due to the COVID-19 pandemic. In anticipation of the easing of restrictions, I made an order on 11 November 2021 that the hearing of the application be listed for 20 December 2021.
Unfortunately, on the morning of 20 December 2021, I was informed that a member of the Court’s staff, with whom I and members of my staff had been in recent contact, tested positive to COVID-19. The implications of that contact could not be worked out in the short term and, in those circumstances, the hearing was vacated as a precautionary measure. On 10 January 2022, I listed the hearing for 14 February 2022 at 10.15 am. The parties were advised accordingly by the New South Wales Appeals Unit on 11 January 2022. Further, on 10 February 2022, the New South Wales Appeals Unit sent an email to the parties confirming the listing on 14 February 2022 at 10.15 am and asking for appearances.
When the matter was called on for hearing on 14 February 2022, the applicant did not appear. However, as previously requested by the applicant, an interpreter was present in Court. I stood the matter down for a short period to see whether contact could be made with the applicant. On resumption, I was informed by the Minister’s solicitor that telephone contact had been made with the applicant who, through the interpreter, advised that he was aware that his application had been listed for hearing on 14 February 2022 at 10.15 am, although he was not aware of the email of 10 February 2022. The applicant said that he was out of Sydney and isolating because the person he was living with had tested positive to COVID-19.
On receiving this information, I requested the Minister’s solicitor to contact the applicant again with a view to ascertaining whether the hearing could proceed by audio-visual link or by telephone. When the hearing resumed again, I was informed that, when the Minister’s solicitor had rung again, the applicant disconnected the call. Two further attempts were made to contact the applicant by telephone. One attempt was through my Associate’s telephone. The other attempt was through a Court telephone. On each occasion, the call was disconnected or not answered by the applicant.
In these circumstances, I decided that the hearing should proceed. The applicant was aware of the hearing, and had been so for a significant period of time. He had not informed the Court that he was not intending to attend the hearing at the appointed time. He had not requested an adjournment of the hearing. It was also apparent that he was not prepared to participate in the hearing and had, it seems, taken positive steps to avoid further contact with the Minister’s solicitor and the Court after the initial contact that morning by the Minister’s solicitor inquiring as to the applicant’s whereabouts.
The applicant has not filed a written outline of submissions.
As appears from the draft notice of appeal, the first substantive ground relies on s 15AA of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act), which provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
This ground appears to be unrelated to the grounds of review before the Federal Circuit Court. The thread of the applicant’s contention in respect of this ground is difficult to follow. It appears to be based on acceptance of the following propositions. First, bearing in mind s 15AA, the meaning of “relevant day” in cl 3001(1) is informed by the purpose for which a medical visa is granted—which, he says, is to allow the visa applicant, who requires medical treatment, to be treated properly. Secondly, to achieve this purpose, the determination of the “relevant day” requires consideration of the circumstances surrounding the “relevant day”. Thirdly, the primary judge did not consider the circumstances surrounding the “relevant day” and, therefore, gave that expression, as used in cl 3001(1), an overly narrow, and therefore erroneous, interpretation. Indeed, according to the applicant, the primary judge failed to give “due consideration” to s 15AA when construing cl 3001(1).
The draft notice of appeal throws no light on the second, third, or fourth substantive grounds. No particulars are provided. They are simply bare allegations.
THE MINISTER’S SUBMISSIONS
The Minister submits that the applicant’s delay in instituting an appeal is significant (50 days) and has not been adequately explained. The Minister submits that the applicant’s assertion that he was unable to prepare a notice of appeal due to his “ongoing medical conditions” is not substantiated by medical evidence and does not explain, in any event, precisely why the applicant could not file a notice of appeal within time or, indeed, earlier than the date on which he filed his application to extend time.
Further, the Minister submits that there is no relevant error in the primary judge’s decision. The Minister contends that if time were to be extended, the applicant would not have any real prospects of success in the appeal he wishes to bring. Therefore, extending time would be futile.
In this connection, the Minister submits that the appeal which the applicant wishes to bring is unmeritorious for two principal reasons. First, the meaning of “relevant day” in cl 3001(1) is well-established, and s 15AA of the Acts Interpretation Act has no relevant application. Secondly, there is no discretion to waive the requirement of cl 3001(1) or to consider other circumstances in its place.
CONSIDERATION
I accept the Minister’s submissions.
The applicant’s construction of cl 3001(1) cannot be supported. Clause 3001(1) stipulates, unequivocally, that the “relevant day” has the meaning given by cl 3001(2). That meaning depends on which of cll 3001(2)(a), (b), (c), or (d) applies in the circumstances of the particular case. There is no alternative construction.
Clauses 3001(2)(a), (b), and (d) do not apply to the applicant. Clause 3001(2)(c) does apply. The applicant ceased to hold a substantive visa on or after 1 September 1994 (cl 3001(2)(c)(i)). Therefore, according to cl 3001(2)(c)(iii), the last day when the applicant held a substantive visa is the “relevant day” for the purposes of cl 3001(1). He did not make a valid application for the medical treatment visa within 28 days of the relevant day.
As the applicant’s construction of “relevant day” in cl 3001(1) is not available, it is also not a construction which is available to be “preferred”. In the circumstances, s 15AA of the Acts Interpretation Act has no relevant work to perform.
Further, regardless of the purpose for which a medical treatment is granted, it can only be granted to an applicant who satisfies the legal criteria for the visa. The applicant does not satisfy those criteria because he does not satisfy the criterion on cl 3001(1). In these circumstances, it does not matter that he might satisfy one or more of the additional criteria. The point is that he does not satisfy all the legal criteria that are required for the visa.
It follows that the primary judge did not proceed on an erroneous interpretation of cl 3001(1).
As I have noted, the second, third, and fourth grounds are not supported by particulars and the draft notice of appeal throws no light on the allegations that are made. I am not persuaded that they constitute viable grounds of appeal.
I am not persuaded that the grounds on which the applicant wishes to bring his appeal have any realistic prospects of success. For this reason alone, the application to extend time should be dismissed. In the circumstances, it is not necessary to consider the acceptability of the applicant’s explanation for delay. Even so, I am not persuaded that he has established an acceptable explanation for not having filed his notice of appeal in time.
DISPOSITION
The application to extend time will be dismissed. The applicant must pay the Minister’s costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 18 February 2022
0