FEDERAL COURT OF AUSTRALIA

SZRFS v Minister for Immigration and Border Protection [2018] FCA 1742

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time, filed on 25 June 2018, 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

(Revised from transcript)

YATES J:

Introduction

1    This is an application for an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 12 April 2018, in which the Circuit Court dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). In its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).

2    The applicant is from China. She applied for a medical treatment visa on 23 May 2017. The criteria for that visa are set out in Pt 602 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). As applied to the applicant, cl 602.213 of the Regulations required, amongst other things, that the criterion in cl 3001(1) of Sch 3 to the Regulations be satisfied. Once again, as applied to the applicant, cl 3001(1)(a) required that her application be made within 28 days after she ceased to hold a substantive visa: see cl 3001(2)(c)(iii).

3    The applicant ceased to hold a substantive visa on 22 November 2010. This meant that the applicant did not, and could not, satisfy the criterion in cl 3001(1). This is the reason why the delegate decided not to grant her a medical treatment visa. On review, the Tribunal was drawn to the same conclusion and affirmed the delegate’s decision.

The Circuit Court

4    In order to put the applicant’s application for judicial review in context, it is necessary to refer to her immigration history.

5    The applicant entered Australia on a subclass 457 visa with her mother and father. The visa expired in 2004. A subsequent visa was granted for two years from 2004 to 2006. A further visa, of the same subclass, was granted for another four years from 2006 to 2010. It expired on 22 November 2010. The applicant contends that a migration agent, who had been engaged by her father, acted fraudulently and deliberately retained the applicant’s and her parents’ passports, thereby preventing the applicant from lodging a further valid visa application. The applicant says that through the intervention of the police she and her parents were able to retrieve their passports, which then enabled the applicant to lodge an application for a protection visa. This application was ultimately unsuccessful. The applicant then sought the Minister’s intervention under s 417 of the Migration Act 1958 (Cth), but the Minister declined to intervene. The Minister’s refusal was communicated on 15 May 2017. The applicant says that this refusal gave rise to her claimed medical condition (insomnia and depression), which is now the basis for her application for a medical treatment visa.

6    The applicant advanced two contentions in her application for judicial review. The first was that the “relevant day” for the purposes of cl 3001(1) is the day on which she was able to make a valid application for a visa. Further, the “application” to which cl 3001(1) refers is not the application for the visa in question (here, the medical treatment visa) but her application for a protection visa. The primary judge rejected this contention, which ignored the plain meaning of cl 3001(1) when read with cl 3001(2).

7    The second contention was that the Tribunal failed to consider the “compelling reasons” which the applicant advanced for a medical treatment visa. The primary judge concluded that the criteria applicable to the applicant’s application for a medical treatment visa did not include a “compelling reasons” provision and that the Tribunal did not err as alleged.

8    The primary judge dealt with the applicant’s application for judicial review at the same time as he dealt with a corresponding application by her mother, who had also been refused a medical treatment visa because she could not satisfy the requirement of cl 3001(1). In this regard, the applicant’s and her mother’s circumstances were identical. They had each applied for a medical treatment visa on 23 May 2017 in circumstances where the last substantive visa held had expired on 22 November 2010.

The present application

9    The applicant requires an extension of time because an appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03 of the Federal Court Rules 2011. As I have said, the judgment of the Circuit Court was given on 12 April 2018. Therefore, the time limit for filing a notice of appeal expired on 3 May 2018. The application for an extension of time was filed on 25 June 2018 (53 days after the expiry of the appeal period).

10    The legal principles relevant to determining whether to grant an extension of time to file a notice of appeal are reflected in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186 at 11–13; (1984) 3 FCR 344 at 348–349:

    the applicant must show an acceptable explanation for the delay;

    action taken by the applicant, other than by way of making an application for extension, is relevant to considering whether an acceptable explanation has been given;

    any prejudice to the respondent caused by the delay is a material factor militating against the grant of an extension;

    the mere absence of prejudice is not enough to justify the grant of an extension; and

    the merits of the appeal are to be taken into account when considering whether an extension of time should be granted.

11    The applicant’s application for an extension of time is supported by her affidavit affirmed 25 June 2018.

12    In her affidavit, the applicant complains that, because her judicial review application was heard with her mother’s application, she was unable to inform the Circuit Court of matters that were specifically relevant to her. The applicant does not say what these matters were or how they would have been relevant to her application given the particular reason for the Tribunal’s decision, namely non-satisfaction of the requirement of cl 3001(1). Nevertheless, the applicant contends that, because of this, her application was not properly heard. The applicant says she should be given an opportunity to obtain a transcript of the hearing so that she can show what matters were not properly heard by the Circuit Court. The applicant does not explain why she was not able to obtain a transcript at the time she made her affidavit, which was over two months after the Circuit Court hearing.

13    The applicant also complains that there is no published written version of the Circuit Court’s reasons for judgment. Even though she acknowledges that reasons were given by the primary judge ex tempore at the time judgment was given, and that she was present when those reasons were given, she says that it is unreasonable for her to be expected to remember what the primary judge said. I note that the primary judge’s reasons were in fact published on 9 July 2018 after the applicant made her affidavit.

14    The applicant says she wishes to challenge the primary judge’s construction of cl 3001(1) and his Honour’s rejection of the relevance of her attempted reliance on the conduct of the allegedly fraudulent migration agent.

15    As to the reasons why she did not file a notice of appeal within time, the applicant says that she has been suffering extensive mental health issues over the past 12 months, including episodes of depression and anxiety. The affidavit does not explain why this impeded the applicant in filing a notice of appeal within time, other than to state that the applicant tends to become extremely anxious when she needs to conduct work on her “migration matters”. There is no evidence from a medical practitioner concerning the applicant’s claimed medical condition. The applicant says further that, because she does not have work rights, she is under significant financial constraints which do not enable her to seek medical help for her condition.

16    The applicant says that she has sought advice of a migration agent/solicitor who has agreed to assist her and advise her in relation to a notice of appeal, so long as this Court grants her application for an extension of time.

17    In addition to matters relating to her health, the applicant says that she was unable to file a notice of appeal within time because she was unsure as to what she was going to do with her “migration processes”. She says that, after the Circuit Court judgment, she was unsure whether she would pursue an appeal or depart from Australia. She says that her indecision on that matter, in combination with her anxiety and depression when dealing with her “migration situation”, has meant that a significant amount of time has been wasted.

18    The applicant’s written outline of submissions is not entirely on all fours with her affidavit. The written outline advances three reasons why a notice of appeal was not filed within time. The applicant submits, firstly, that, at the time she was required to file a notice of appeal, she did not have available a copy of the Circuit Court’s written reasons. The applicant submits, secondly, that the process of drafting a notice of appeal would have caused severe detriment to her health. She goes so far as to submit that drafting a notice of appeal would have severely exacerbated her anxiety leading to self-harm or suicide. The applicant submits, thirdly, that at the time the Circuit Court judgment was given, she was not sure whether an appeal was available to her. She says that, when she became aware of the possibility of an appeal, the 21 day time limit had already passed.

19    The applicant submits that there would be no prejudice to the Minister in allowing the extension of time that is sought. She submits that her proposed grounds of appeal are meritorious. She submits that there was procedural unfairness in having her matter heard together with her mother’s matter. She submits that the Circuit Court erred in its construction of cl 3001(1).

20    The applicant’s draft notice of appeal contains a number of paragraphs. It is fair to say that they are directed to the sole contention that the primary judge misconstrued the legal requirement of cl 3001(1).

21    The Minister accepts that there would be no prejudice to him arising from an extension of time. In submissions he described the delay as “moderate”. The Minister nevertheless opposes the present application on the basis that the applicant has not provided an acceptable explanation for her delay and, more fundamentally, the applicant’s proposed appeal has no prospects of success.

22    As to the applicant’s explanation for the delay, the Minister submits that the applicant was present in person at the hearing on 12 April 2018 when the Circuit Court’s orders were made and the ex tempore reasons were given. The Minister submits that the applicant has not provided evidence of having taken steps to obtain a transcript of the hearing, or of the primary judge’s reasons prior to their publication on 9 July 2018, even though it was open for her to do so. The Minister submits that, in any event, the applicant now has a copy of the Circuit Court’s published reasons and that, even with the benefit of those reasons, has not shown why those reasons, in written form, would have been necessary to enable the applicant to file a notice of appeal in time.

23    Further, the Minister submits that the applicant has not adduced evidence of her claimed mental health issues or her claimed financial incapacity. As to the latter, the Minister submits that this does not provide an acceptable explanation for the applicant’s delay in any event. The Minister submits that, similarly, the applicant’s ignorance of the statutory time limit, her lack of legal representation and her indecisiveness do not provide adequate explanations for the delay.

24    As to the merits of the proposed appeal, the Minister submits that the applicant has adduced no evidence that her application for judicial review was not properly heard by the Circuit Court (although I note that this is not a ground stated in the draft notice of appeal). The Minister submits that the applicant has not stated what submissions she was allegedly prevented from making or how the fact that her matter was heard in conjunction with her mother’s judicial review proceeding impacted on her opportunity to represent herself. The Minister submits that the applicant’s matter and her mother’s matter, as heard by the primary judge, involved the same legal question and substantially similar factual circumstances.

25    The Minister further submits that the critical issue is the correctness of the primary judge’s findings on the legal question whether the Tribunal correctly applied cl 602.213 of Sch 2 to the Regulations. The Minister submits that the primary judge was correct to find that cl 602.213(5) required the applicant to satisfy cl 3001 of Sch 3 to the Regulations, and that cl 3001(1) required the applicant to make her application for the medical treatment visa no later than 28 days after the date she ceased to hold a substantive visa. The Minister submits that there is no doubt as to the correctness of the primary judge’s finding that the Tribunal had correctly applied cl 3001(1) and correctly found that the applicant did not satisfy this requirement.

Conclusion

26    The application for an extension of time should be refused. The applicant’s proposed appeal has no prospects of success.

27    The Tribunal correctly construed and applied cl 3001(1) to the circumstances of the applicant’s case. The primary judge did not err in concluding likewise. The construction of cl 3001(1) advanced by the applicant before the Circuit Court is untenable.

28    Further, even though not included in her draft notice of appeal, the applicant has not pointed to any material which shows she has any case that she was not afforded a fair and proper hearing before the Circuit Court. She has not pointed to any material from which it could be argued that she was impeded in any way in putting forward the matters she wished to advance in aid of her cause. The primary judge’s reasons indicate that he gave careful consideration to the matters that were advanced by the applicant. Unfortunately for the applicant, her application to review the Tribunal’s decision had no arguable basis whatsoever.

29    These conclusions are sufficient to determine the fate of the present application. It is not necessary for me to deal with the question of whether the applicant has provided a satisfactory explanation for her delay.

Disposition

30    For these reasons, the application for an extension of time will be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    13 November 2018