ZUPANCIC v Minister for Immigration

[2015] FCCA 1433

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZUPANCIC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1433

Catchwords:
MIGRATION – Application for a Medical Treatment (Visitor) (Class UB) visa – refusal– applicant suffered workplace injury while application for a further student visa was pending – applicant withdrew application for further student visa and instead applied for medical treatment visa allegedly on the advice of an officer of the first respondent’s department – application for medical treatment visa refused – visa application not made within 28 days after the applicant’s last substantive visa had ceased.

ADMINISTRATIVE LAW – Extension of time – review of Migration Review Tribunal decision – whether there was a legal error affecting the Tribunal’s decision – allegation that the denial of the visa was unfair to the applicant as he had acted in good faith and relied on the advice given by the first respondent’s department – no estoppel – no legal error – no prospects of success – application for an extension of time to bring proceedings dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations (Cth), cl.602.213 of sch.2, cl.3001 of sch.3

Federal Commissioner of Taxation v Wade (1951) 84 CLR 105
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73
Minister for Immigration Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Prodduturi v Minister for Immigration & Border Protection (2015) 144 ALD 243
Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319
SZNZI v Minister for Immigration [2010] FMCA 57
SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252
Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15

Applicant: JOSE ZUPANCIC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 885 of 2015

Judgment of: Judge Smith

Hearing date: 25 May 2015

Date of Last Submission: 25 May 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Ms A. Wong, DLA Piper Australia

ORDERS

1. The applicant’s application for an extension of time to bring proceedings pursuant to s.477 of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 885 of 2015

JOSE ZUPANCIC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant in these proceedings is a citizen of Slovenia who arrived in Australia on a Student TU visa which expired on 2 December 2012. At some time shortly after that date, the applicant applied for another student visa. However, that application had not been considered when, in October 2013, the applicant suffered a workplace injury that required a number of surgical operations.

2. On 30 April 2014 the applicant provided a police certificate to an officer of the Department of Immigration together with a medical report in connection with his injuries and treatment. The officer replied to the applicant the following day indicating that in order to obtain a student visa he would have to be enrolled in a course and to study in Australia. The officer indicated that in the applicant’s case there were three options available:

   1.You enrol to a course and provide us your new COEs, OSHC and medical check clearance; or

   2.You withdraw your current application and apply for another type of visa more suitable for your situation / or leave this country after withdraw your application; or

   3.You will not do anything and keep silent, then we will finalize this application

3. The applicant responded in turn, saying:

   As you recommended me, I applied for medical visa which is more suitable to my situation, because of my surgery and medical treatment. Couple of days ago I was personally at immigration office, where I filled in application for medical visa, and I got all needed papers from my doctor and hospital where I am treated, to fulfil application.

4. The officer responded to this message as follows:

   Thanks for the email. If you want to withdraw your student visa application, please indicate clearly by replying to this email. Please be noted that we did not recommend you anything, but only let you know the options you have for your application. Please be also aware that the application fee you paid for your student visa application is not refundable nor transferable according to the legislations.

5. The applicant then wrote to the officer indicating that he did wish to withdraw his student visa application because he had already sent documents for a medical visa to the Department “as it was recommended to me at immigration office.”

6. On 12 May 2014 the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) visa. What the applicant did not appear to realise is that it was a condition for the grant of that visa that the application for it was validly made within 28 days after the relevant day, meaning the day on which to he ceased to hold a substantive visa: sub-cl.602.213(5) of sch.2 and sub-cl.3001(c)(i) of sch.3 to the Migration Regulations 1994 (“Regulations”). The last substantive visa held by the applicant was his student visa which expired on 2 December 2012. On that basis, the application was never going to be successful.

7. On 14 May 2014 a delegate of the first respondent (“Minister”) decided to refuse to grant the applicant a visa on the basis that the application had been made more than 28 days after the relevant day. The applicant applied to the second respondent (“Tribunal”) for review of that decision.

8. In support of his application for review, the applicant provided the Tribunal with a number of documents relating to his workplace injury and his rehabilitation treatment and return to work plan. The applicant attended a hearing at the Tribunal and asked it to take evidence from two witnesses concerning his injuries. The Tribunal did not accede to that request because the relevant evidence of those witnesses only went to the applicant’s medical issues which, it said, were not in dispute. The applicant provided the Tribunal with photographs of his home country including those of his wife, son and extended family and explained that he wished to finalise his medical treatment arising from his injury and that he would then return to his family.

9. The Tribunal found that the application was not made within 28 days after the expiry of his last held substantive visa and, for that reason, cl.3001(1) was not satisfied and in turn the cl.602.213 of sch.2 to the Regulations was not satisfied. For that reason the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a visa.

Extension of Time

1. The applicant now wishes to seek judicial review of the Tribunal’s decision. In accordance with s.477 of the Migration Act 1958 (“Act”), such an application to this Court had to be made within 35 days of the date of the Tribunal’s decision. The date of the decision was the date of the written notice of the decision, namely 22 October 2014: sub-s.477(3)(b). Therefore any application under s.476 had to be made on or before 26 November 2014. The application was only made some four months later on 31 March 2015.

2. This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:

   a)an application for that order has been made in writing to the Federal Circuit Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. There was no issue that the first of these preconditions had been met.

4. In SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2). His Honour explained the matters relevant to an application under s.477(2) as follows:

   [46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   [47]The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

5. In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):

   [11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.

Reasons for delay

1. It is convenient to deal first with the reasons given by the applicant for his delay in bringing these proceedings.

2. In his application, the applicant said:

   Medical grounds. I am scheduled to have surgery in April for shoulder and another one on 03rd of June 2015 for knees. Enclosed are the other copies confirming my surgery dates. While making arrangements to lodge my case via the channels suggested by immigration assistance (Immigration Dept) my papers were never lodged by Law Society of NSW on pro bono scheme and I was informed after the due date was passed by above mentioned organisation that they can’t handle my case, in turn making me an unlawful citizen and being detained at Villawood. My grievance is caused by official immigration assistance information provided by DIMA and Law Society of NSW which never lodged my papers.

3. In an affidavit made in support of the application the applicant also gave the following reasons:

   After receiving letter from MRT (Migration Review Tribunal) dated 22nd October 2014, outlining their decision, which I consider to be reviewed as the new development in my medical record that can authenticate my claims.

   I contacted Law Society of NSW under pro bono scheme as directed by the immigration assistance for further appeals. Mr Ben from Law Society asked me to submit all papers concerning my case and they will refer the case to prospective lawers (sic). I duly lodged my papers well within my deadline in their offices on Phillip St, Sydney. Unfortunately for some reason my documents/application was not lodged as per schedule as my case was sent to Legal Aid and they declined and was again sent back to them for necessary action.

   This process of Law Society and Legal Aid took so much time that my deadline passed with me no knowledge and under the impression that my application has been lodged and I am waiting for court date to pursue my case.

   When I was called in by immigration office I presented myself in to their office with confidence thinking my case is in courts and I have legal status. I have been brought into detention centre because of the lengthy process of Law Society NSW and its sister concerns.

   On the reasons above I would like to request to grant me an extension to file for appeal and accept my attached application for necessary action and oblige.

4. At the hearing before me, the applicant tendered a letter from him to the Law Society pro bono scheme dated 24 November 2014 referring to information that had been sent to it a week earlier.

5. I accept that the applicant took reasonable steps to obtain legal representation in order to assist him with his claim for judicial review of the Tribunal’s decision. I also accept his evidence that he understood, for whatever reason, that he did not have to take any further steps in order to bring these proceedings. It is not necessary for me to determine whether that understanding was made on the basis of incorrect advice by the Law Society or simply by reason of his having misunderstood what was said to him. The fact is that there is a reasonable basis given by the applicant for his delay in bringing these proceedings.

Prospects of success

1. At the hearing, I explained to the applicant that he also had to address whether or not there were any prospects of succeeding on the application, in other words, whether there was any legal error in the Tribunal’s decision. In this respect, the applicant relied upon the correspondence between himself and the Department which is referred to at [2] to [5] above. He said that he had relied on what the officer told him in withdrawing his student visa application and making an application for the medical treatment visa. If he had not done so, he might have been eligible for the student visa and would have been able to undertake the medical treatment that he required as result of his workplace injury.

2. The Minister submitted that the officer was only responding to an enquiry made by the applicant and did not give any advice upon which the applicant could reasonably rely. Further, even on the assumption that the applicant was somehow misled by the Department, which was not conceded, there could be no jurisdictional error in the Tribunal’s decision simply because the fact remained that the applicant could not satisfy the criteria for the grant of the medical treatment visa.

3. The real basis for the applicant’s complaint is that it is unfair to him to have been denied a visa in circumstances where he considered that he was simply following the advice of the Department of Immigration. Certainly, from the applicant’s viewpoint, the outcome of his visa application was unfair. I accept that he understood that an officer of the Department of Immigration suggested to him that a medical treatment visa was more suitable to his circumstances than a student visa. However, that was undeniably true: the applicant was not studying, he was not enrolled to study in any particular course, and there is no evidence before me to suggest that he intended to study. That might be because he was injured and his focus had changed to rehabilitation; however, it does not change the accuracy of what was said by the Department. Further, there is no suggestion that the officer of the Department with whom the applicant was in correspondence was ever aware that the applicant’s last substantive visa had expired some considerable time earlier. In light of that, even if the outcome was, speaking colloquially, unfair, the responsibility for that unfairness cannot be sheeted home to the Department of Immigration.

4. The officer of the Department made it clear in the correspondence that he had made no recommendation to the applicant. In light of that, although the applicant appeared to have been acting in good faith, his reliance upon what he was told by the Department as a recommendation by it was not reasonable in the circumstances.

5. Even if it were to be concluded that some administrative unfairness had been visited upon the applicant by reason of what was said by the officer of the Department, that would not necessarily give rise to any ground of review in this Court in respect of the Tribunal’s decision. The power of this Court is limited to the correction of jurisdictional error, that is, that the Tribunal failed to observe an inviolable limitation on its jurisdiction

6. Further, given that there is no allegation of dishonesty, the highest that the applicant’s claim can go is that there arose some type of estoppel by reason of the representations made by the officer of the Department. However, as explained by Gummow J in Minister for Immigration Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 209, there is no estoppel effective against the operation of a statute: see more recently Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319 and Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73 at [50] referring to the cases of Kurtovic, Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15 at 38, Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 at 117 per Kitto J, and Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125. In addition, it is difficult to see how the conduct of an officer of the Department could possibly have affected the exercise of jurisdiction by the Tribunal. This Court relevantly only has jurisdiction in respect of the latter: see Prodduturi v Minister for Immigration & Border Protection (2015) 144 ALD 243.

7. For those reasons, the only ground raised by the applicant has no prospects of success.

Other issues

1. In addition to the reasons for delay and the prospects of success, I have taken into account the fact that the applicant has no right to appeal from a judgment refusing to extend the period under s.477(2) of the Act. The applicant also relied on the fact that he wished to remain in Australia only in order to undertake rehabilitation from a workplace injury suffered here and that after he had done so, he wished to return to his family in Slovenia. I cannot see, however, that that consideration is relevant to the exercise of discretion under s.477(2) as, in reality, it appears only to be focused upon the genuineness of his application for the medical treatment visa growing rather than having anything to do with the proceedings before the Court.

Conclusion

1. Although I accept that the applicant has provided a reasonable excuse for the delay in bringing these proceedings, and note that he will be unable to appeal this decision, in my view, it is important that there is no prospect of him succeeding on judicial review and the consequence that there is little if any utility in granting an extension of the time within which to bring these proceedings. For those reasons, I am not satisfied that it is necessary in the interests of the administration of justice to extend the period within which an application under s.476 of the Act might be made. I dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 17 June 2015