Deng v Minister for Immigration and Border Protection [2018] FCA 286

FEDERAL COURT OF AUSTRALIA

Appeal from:	Application for extension of time: Deng v Minister for Immigration and Anor [2017] FCCA 1580

File number:	NSD 1461 of 2017

Judge:	COLVIN J

Date of judgment:	7 March 2018

Cases cited:	Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235

Date of hearing:	7 March 2018

Registry:	New South Wales

Division:	General Division

National Practice Area:	Administrative and Constitutional Law and Human Rights

Category:	No Catchwords

Number of paragraphs:	5

Counsel for the Applicant:	The applicant appeared in person

Counsel for the First Respondent:	Ms S He

Solicitor for the First Respondent:	Mills Oakley

Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		NSD 1461 of 2017

BETWEEN:	YUE DENG Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	7 MARCH 2018

THE COURT ORDERS THAT:

1. The application for an extension of time to appeal is refused.

2. The applicant to pay the first respondent’s costs of the application to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1 In this matter I have decided that leave to appeal should not be granted and these are my reasons.

2 Mr Yue Deng has been refused a medical treatment visa with the description Medical Treatment (Visitor) (Class UB) Subclass 602. He is less than 50 years of age. He has previously held a student visa, but it was cancelled on 28 May 2010.

3 The requirements for obtaining the visa sought by Mr Deng in his circumstances were considered by Perram J in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235. They include a requirement that the application for the visa be lodged within 28 days of the “relevant day” as defined in the relevant regulations. In the present case, that is 28 days of 28 May 2010. There is no discretion to be exercised by the Minister in the case of an application that does not meet this requirement. Therefore, this Court is not able to intervene on the basis of the compassionate circumstances and other reasons that Mr Deng seeks to raise.

4 The Federal Circuit Court found correctly that Mr Deng does not meet the requirement as to when his application must be commenced and therefore his application was correctly refused.

5 Mr Deng seeks an extension of time in which to appeal to this Court. His application for leave was filed only 21 days after the expiry of the time within which to appeal. However, in order to obtain an extension of time, it is necessary for Mr Deng to demonstrate that he has an arguable case that could be advanced on appeal. In the circumstances I have outlined, he does not have an arguable case and his application must be refused.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:

Dated: 9 March 2018

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