Tanto v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 190
•17 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tanto v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 190
File number(s): SYG 2458 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 17 February 2025 Catchwords: MIGRATION – judicial review – extension of time application – partially satisfactory explanation for 24 day delay – no merit in grounds of review - extension of time refused – costs ordered Legislation: Migration Act 1958 (Cth) s 477
Migration Regulations 1994 (Cth) Sch 2
Cases cited: DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704
Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 3 February 2025 Place: Parramatta Applicant: In Person Solicitor for the Respondents: Ms G. Gutmann ORDERS
SYG2458 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GUNAWAN TANTO
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
17 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for an extension of time filed on 29 October 2020 is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,900.
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 ZIPSER
INTRODUCTION
On 29 October 2020, the applicant filed an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 31 August 2020. The application was lodged 24 days out of time. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) (subclass 602) visa under s 65 of the Act.
For the reasons that follow, the application for an extension of time is dismissed.
FACTUAL BACKGROUND
In 2000, the applicant, a citizen of Indonesia, arrived in Australia.
On 20 June 2018, the applicant lodged an application for a medical treatment visa.
On 10 July 2018, the delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied the applicant met the criteria to grant the visa.
On 30 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 28 July 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 26 August 2020.
On 26 August 2020, the applicant appeared at a hearing before the Tribunal.
On 31 August 2020, the Tribunal affirmed the delegate’s decision not to grant the medical treatment visa.
TRIBUNAL’S DECISION
One criterion an applicant must satisfy to obtain a medical treatment visa was contained in cl 602.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2). The applicant sought to satisfy clause 602.212(6) which, in summary, required the applicant to be unfit to depart Australia after having applied for a permanent visa. Since the applicant had not applied for a permanent visa, the Tribunal was not satisfied the applicant satisfied clause 602.212.
Another criterion an applicant must satisfy to obtain a medical treatment visa, contained in clause 602.215 in Schedule 2, required that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal, in considering whether the applicant satisfied clause 602.215, stated that it was required to have regard to whether the applicant had complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, and any other relevant matter.
The Tribunal noted that the applicant had held a number of bridging visas since 2001 and had not substantially complied with the conditions of the bridging visas. The applicant told the Tribunal that he had no intention of departing Australia.
The Tribunal was not satisfied that the applicant would comply with the conditions attached to a medical treatment visa or that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa would be granted.
The Tribunal considered a request by the applicant to refer the case to the Department for consideration by the first respondent pursuant to s 351 of the Act which gives the first respondent a discretion to substitute for a decision of the Tribunal another decision more favourable to the applicant if the first respondent considers that it is in the public interest to do so. The Tribunal decided not to refer the case to the Department. The Tribunal noted that the applicant could still make a request directly to the first respondent.
The Tribunal affirmed the delegate’s decision not to grant the medical treatment visa.
PROCEEDINGS IN THIS COURT
Application
On 29 October 2020, the applicant lodged in this Court an application seeking judicial review of the Tribunal’s decision dated 31 August 2020 (Application). The Application was accepted for filing on the same day. The Application included three grounds as follows (as written):
1.The Tribunal Member took my evidence over the telephone and I believe that she misunderstood my case.
2.The Tribunal insisted that I breached condition 8101 because I admitted that I was working and I remember telling the Member that under the current conditions I am not willing to depart Australia.
3.I do not understand why the Tribunal failed to recommend ministerial intervention in spite of knowing that I am integrated and have spent in Australia more than 20 years.
As explained below, in light of the time limit for filing applications in s 477(1) of the Act, the applicant filed the Application 24 days after the expiry of the time limit and required an extension of time. The Application included an application for extension of time. The applicant, in response to a request in the application form to specify “why the applicant considers it necessary in the interests of the administration of justice to extend time”, wrote:
I originally submitted my case on time but the Officer Joshua requested payment $690.
I resent the Application with visa card and letter. It was returned to me because I did not include security code number of visa card.
The applicant filed an affidavit on 29 October 2020. The affidavit contained no evidence concerning the passing of time between 31 August 2020 and 29 October 2020.
On 19 November 2020, a registrar made procedural orders, including that the applicant file and serve by 4 March 2021 any amended application with proper particulars and any further affidavit or other evidence in support of the extension of time. The applicant did not file any materials in response to this order.
On 20 September 2024, a registrar made procedural orders at a listing at which the applicant appeared by phone. The orders included that “the application be listed for hearing of the application for an extension of time and, if the extension is granted, the final hearing on a date to be advised”.
In December 2024, the proceeding was listed for an extension of time and final hearing before me on 4 February 2025.
On 23 December 2024, I made procedural orders, including that the applicant file and serve the following on or before 14 January 2025:
(a)any amended application giving proper particulars of the grounds of the application;
(b)any further affidavit evidence, including affidavit evidence in support of the application for an extension of time; and
(c)a written submission.
The orders were sent to the applicant at his address for service. The applicant did not file or serve any materials in response to this order.
Hearing on 3 February 2025
At the hearing on 3 February 2025, the applicant appeared before the Court unrepresented, assisted by an interpreter in the Indonesian language. Gabrielle Gutmann from Minter Ellison appeared for the first respondent.
Although a notation to procedural orders made by a registrar on 20 September 2024 suggests the first respondent served a copy of the bundle of materials prepared and filed by the first respondent for the court proceeding (Court Book) twice (in January 2021 and September 2024), the applicant did not bring a copy of the Court Book to the hearing. At the commencement of the hearing, I ensured the applicant had a copy of the Application and the decision of the Tribunal dated 31 August 2020.
At the commencement of the hearing, I explained to the applicant the limited role of the Court in a judicial review application, and the need for the applicant to persuade the Court that there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I directed the applicant’s attention to the reasons for decision of the Tribunal. I explained the main categories of jurisdictional error.
I explained to the applicant that, since he filed the Application more than 35 days after the date of the Tribunal’s decision, he must persuade the Court to extend time for the filing of the Application. I noted that the applicant has not filed an affidavit containing sworn evidence to explain his delay in filing the Application. I stated that, if the applicant wants to persuade the Court to extend time, it is desirable that he gives evidence under oath to explain the circumstances in which the Application was not filed within 35 days of the Tribunal’s decision, but was instead filed 24 days later.
The applicant stated that he wished to give sworn evidence concerning his delay in filing the application. In the witness box, the applicant stated:
(a)At the time he sought to file an application, he was in a difficult financial position, he could not pay the filing fee, and he applied to the Court for an exemption of the filing fee.
(b)He then received a letter from a person named Joshua from the registry of the Federal Circuit Court of Australia rejecting his request for an exemption.
(c)He then wrote a letter back to Joshua protesting about the registry’s rejection of the applicant’s request for an exemption.
(d)He was then granted an exemption, following which the Application was filed.
The applicant brought to court a copy of a document which appears to be a typed letter from the applicant to “Joshua” at the NSW Registry of the Federal Circuit Court dated 28 September 2020. The applicant stated this was the letter he sent to Joshua referred to in paragraph 29(c) above. The applicant stated that, as far as he recalls, he posted the letter to Joshua on the typed date on the letter, being 28 September 2020.
The letter, which I received into evidence as an exhibit, states in part:
Dear Joshua,
It was a shock to receive my application back by post requesting to provide further evidence that I am in financial hardship.
I rely on my application for Exemption from paying court fees-financial hardship which was submitted and I confirm that everything listed in it is correct which includes my rent and other details of expenses.
I am unable to provide the requested information because I do not keep a record of it and as a matter of fact I submitted Complete Freedom transactions from St George Bank showing my income and expenses as well as a balance of $272.17 as at 18 September 2020.
I ask you in good heart to consider exercising your discretion and waive the initial fee.
…
I regret to inform you that I borrowed some money and deposited in my visa card in case you do not wish to waive the fee. I ask you to deduct the $690.00 from my credit card.
Once again I appreciate if you are in a position to accept my request to waive the fee with compassion because I stated in my application that I have financial hardship and I do not have permission to work but I am working and my work income entitles me to meet my weekly expenses such as rent, food, electricity and medication and that I have been in Australia for over 20 years and I do not have any savings or assets.
I beg you to reconsider my situation and if you are unable to accept my fee waiver I authorize you to deduct the money from my account.
I look forward to your co-operation and I do not have an email address but hope that you will be compassionate towards my request.
In relation to the applicant’s assertion in the letter that he did “not have an email address”:
(a)When the applicant filed the Application in this Court on 29 October 2020, the Application did not include an email address as a method of contacting the applicant.
(b)Since 29 October 2020, the applicant has not communicated to the Court that he has an email address which can be used to contact the applicant.
Someone has handwritten on the letter the numbers “17/10/20”. Ms Gutmann, in cross-examining the applicant, proposed to the applicant that these numbers referred to the date 17 October 2020, the applicant wrote these numbers on the letter, and the numbers referred to the date the applicant posted the letter to Joshua. Ms Gutmann’s submission on this point was that the applicant posted the letter to Joshua on 17 October 2020 (which was outside the 35 day period) rather than 28 September 2020 (which was within the 35 day period).
During the hearing, the applicant also made closing submissions. In relation to the delay of 24 days in filing the Application, the applicant stated some matters consistent with his oral evidence to the Court referred to in paragraph 29 above. In relation to other matters:
(a)The applicant asserted that the decision of the Tribunal was not correct.
(b)The applicant acknowledged that he told the Tribunal that he would not return to Indonesia. He told the Court that this was because of his medical condition.
(c)The applicant acknowledged that he worked in Australia.
The applicant added that he has now lived in Australia for about 25 years, he has done nothing wrong in Australia, he works and pays taxes, and he does not want to return to Indonesia.
EXTENSION OF TIME PROVISIONS
Section 477 of the Act relevantly 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.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “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” and “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”.
In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that “in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a reasonably impressionistic level”, but “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”, such as in cases where “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 plurality added that ultimately the provision “entrusts to the [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”.
CONSIDERATION
Length of delay and reasons for delay
The 35 day timeframe for the applicant to apply to the Court for judicial review of the Tribunal’s decision ended on 5 October 2020. The applicant did not apply for judicial review until 29 October 2020. He therefore requires an extension of time of 24 days.
It is not satisfactory that, prior to the day of the hearing in this Court on 3 February 2025, the applicanthad not filed or provided to the first respondent:
(a)sworn evidence concerning his delay in filing the Application; or
(b)a copy of the letter dated 28 September 2020.
This unsatisfactory conduct by the applicant limited the ability of the first respondent to consider and test the applicant’s evidence concerning his delay.
On the other hand, the applicant’s ability to speak English is limited, he has not retained a lawyer during the court proceeding and, based on information in his letter dated 28 September 2020 and evidence he gave during the hearing, he could not afford to engage a lawyer at the time he filed the Application.
On the issue of the applicant’s explanation for his delay, aided by what the applicant contemporaneously wrote in the Application concerning his reasons for delay, set out in paragraph 18 above, I accept the applicant as a witness of truth.
I accept that the applicant sent the letter dated 28 September 2020 on about the date of the letter. I also accept that the applicant did not have an email address at the time. Based on the applicant’s reference in the 28 September letter to a document showing a bank balance as at 18 September 2020, I infer that the applicant attempted to file an application in the Court with a fee exemption request between 18 September 2020 and at least a few days prior to 28 September 2020, which was within the 35 day period referred to in s 477(1).
The applicant’s explanation for the passing of time between 31 August 2020 and 29 October 2020 is not fulsome. Among other matters, he has tendered neither the “Exemption from paying court fee – financial hardship” document referred to in his 28 September 2020 letter, nor the letters from the registry of the Court to the applicant which preceded and followed the 28 September 2020 letter. He has also not provided documentary evidence to corroborate his oral evidence to the Court that he was in a difficult financial position in September 2020, or satisfactorily explained the passing of time between 28 September 2020 and 29 October 2020 and why he waited until at least 18 September 2020 before he first attempted to file an application in the Court.
In the present matter, the applicant’s explanation for his delay is partially, but not entirely, satisfactory.
Prejudice to first respondent
It is stated in the first respondent’s written submission that “there is no specific prejudice to the Minister other than the general public interest in the finality of judicial decisions”.
Merits of underlying application
Ground 1 of the Application states:
The Tribunal member took my evidence over the telephone and I believe that she misunderstood my case.
In relation to the statement that the Tribunal member took the applicant’s evidence over the telephone (rather than at a face to face hearing or by audio visual link), it is not clear whether this is a complaint by the applicant or merely an observation concerning a fact. If the statement is a complaint, I agree with the analysis in paragraph 26 of the first respondent’s written submission that:
(a)The applicant did not have a right to appear in-person before the Tribunal. The Tribunal was permitted to conduct the hearing by telephone even if this was not ideal: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525 at [28]. This was in a context where, as stated in the letter from the Tribunal to the applicant inviting him to attend a hearing, “to help slow the spread of COVID (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday 23 March 2020 and is currently closed to all visitors”.
(b)In response to the hearing invitation form, the applicant indicated that he did not believe he would “experience difficulty participating in the hearing by telephone”.
(c)Accordingly, the Tribunal complied with its statutory procedural fairness obligations in respect of inviting the applicant to appear before it, and the Tribunal’s exercise of discretion concerning this procedural matter was reasonable in the circumstances.
In relation to the applicant’s complaint that the Tribunal member misunderstood the applicant’s case, the applicant does not identify which part of the applicant’s case he believes the Tribunal misunderstood. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]; citing with approval WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Ground 1 does not appear to identify a jurisdictional error in the Tribunal’s decision.
Ground 2 of the Application states:
The Tribunal insisted that I breached condition 8101 because I admitted that I was working and I remember telling the Member that under the current conditions I am not willing to depart Australia.
The complaint in ground 2 is unclear. If the complaint is that the Tribunal erred in finding that the applicant breached condition 8101, I do not accept this finding by the Tribunal involved a jurisdictional error. Condition 8101 precludes the visa holder from working. The Tribunal found at [19] and [20] that the applicant held a number of bridging visas since 2001 with condition 8101. This finding is supported by information in a document titled “Movement Details” at page 60 of the Court Book. The applicant has not challenged this finding. The applicant admitted to working: see Tribunal’s decision at [9(i)]. It follows that it was open to the Tribunal to find at [22] that “the applicant admitted working in breach of Condition 8101 which has attached to his bridging visas …”.
Ground 2 does not appear to identify a jurisdictional error in the Tribunal’s decision.
Ground 3 of the Application states:
I do not understand why the Tribunal failed to recommend ministerial intervention in spite of knowing that I am integrated and have spent in Australia more than 20 years.
The Tribunal at [9(m)] recorded a request by the applicant to the Tribunal that “if his application is not approved he would like his case recommended to the Minister because he has completed 20 years in Australia and is integrated in Australia”. In relation to this request, the Tribunal stated at [28]:
The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual =(PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
The first respondent states in its submission, with reference to DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704 at [87] and Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265 at [81], that “the Tribunal’s non-referral for Ministerial Intervention was not within the discharge of the Tribunal’s duty of review under the Act and therefore any error in determining whether or not to make the recommendation could not amount to jurisdictional error”. The first respondent’s position is supported by case law. Further, even if the Tribunal’s non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Act, the applicant has not identified any error in the Tribunal’s decision not to refer the matter.
Ground 3 does not appear to identify a jurisdictional error in the Tribunal’s decision.
In circumstances where the applicant was unrepresented, as referred to in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the Tribunal’s reasons”. I cannot identify any mistake which clearly appears in the Tribunal’s reasons. Clause 602.215 of Schedule 2 required that “the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted having regard to” matters including “whether the applicant has complied substantially with the conditions to which the last substantive visa or any subsequent visa held by the applicant was subject” and “whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject”. In light of:
(a)the applicant’s immigration history in Australia;
(b)his evidence to the Tribunal recorded in the Tribunal’s decision at [9(g)] that he does not intend to leave Australia and he plans to “stay in Australia forever”; and
(c)his multiple breaches of conditions attached to past bridging visas held by the applicant,
there was an abundance of evidence to support the Tribunal’s finding at [24] that it was “not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”.
Other matters
Section 477(2) “allows the Court to look at a myriad of facts and circumstances” (Katoa at [12]) in considering whether to extend time. I have had regard to the applicant’s submissions to the Court on topics other than his explanation for the 24 day delay.
Conclusion on application for extension of time
The Application does not raise an arguable case of jurisdictional error. In addition, the applicant’s explanation for his delay of 24 days, while partially satisfactory, is not fully satisfactory. These matters, in particular the absence of an arguable case of jurisdictional error, support a conclusion that it is not necessary in the interests of the administration of justice for the Court to grant an extension of time.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Ms Gutmann sought an order that the applicant pay the first respondent’s costs in the sum of $5,900. The applicant did not oppose this amount. This amount is reasonable. I will make this order.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 17 February 2025
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