FEDERAL COURT OF AUSTRALIA

SZRFR v Minister for Immigration and Border Protection [2018] FCA 1743

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time, filed on 31 May 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 background to this application is the same as in proceeding NSD 1093 of 2018 in which the applicant is the present applicant’s daughter. That background is set out in reasons published today as SZRFS v Minister for Immigration and Border Protection [2018] FCA 1742 (SZRFS) at [3]–[8]. I will simply note the following uncontentious facts. The applicant ceased to hold a substantive visa on 22 November 2010. This meant that she could not satisfy the legal requirement of cl 3001(1) in respect of her application for a medical treatment visa. This was the reason why the delegate did not grant the visa and why the Tribunal affirmed the delegate’s decision.

The Circuit Court

4    In the Circuit Court, the applicant sought to argue that the Tribunal had misconstrued cl 3001(1). The applicant also sought to argue that the Tribunal had committed a jurisdictional error by failing to consider her compelling circumstances for a medical treatment visa. The Circuit Court concluded that the Tribunal had not misconstrued cl 3001(1) and that there was nothing in the criteria for the grant of a medical treatment visa that allowed the Tribunal to take into account “compelling reasons” in the event that the legal criteria for the visa could not be satisfied. The Circuit Court dealt with the applicant’s case for judicial review and her daughter’s case for judicial review at the same time. Each case raised the same legal issue on the same relevant facts.

The Present Application

5    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 31 May 2018 (28 days after the expiry of the appeal period).

6    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) 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.

7    The applicant’s application is supported by her affidavit said to have been made on 7 May 2018 but apparently made on 30 May 2018.

8    In her affidavit, the applicant says that because her application for judicial review was heard at the same time as her daughter’s corresponding application, she did not have a chance to properly inform the Circuit Court of her case, and that there were questions asked of her which she did not have an opportunity to answer. In the result, she says that her case was not properly heard. She says that she needs an opportunity to obtain a transcript of the hearing on 12 April 2018 so that she can properly draft a notice of appeal regarding the “lack of evidence” she was able to provide.

9    Next, the applicant says that she was not able to draft a meaningful notice of appeal in the absence of published reasons from the Circuit Court. I note that reasons for judgment were delivered orally at the time that judgment was given and that a written version of the reasons, revised from the transcript, was not published until 14 June 2018. The applicant says it would be unreasonable to expect her to remember the reasons given orally by the primary judge based on what she had heard. The applicant says she wants to challenge the primary judge’s rejection of the relevance of her evidence concerning the activities of an allegedly fraudulent migration agent who, as I understand it, retained the applicant’s passport and impeded her, until 9 May 2011, from making an unsuccessful application for a protection visa. The applicant also says she wants to challenge the primary judge’s construction of cl 3001(1).

10    As to the reasons why a notice of appeal was not filed within time, the applicant says that she has been suffering mental health issues as well as financial hardship, with the latter contributing to the former. She says that she has been “sickly anxious” about the appeal and that, although she had tried to “complete the notice of appeal” on several occasions, she was unable to do so without crying. She says that, because of her financial constraints, she has been unable to seek medical help for her mental health issues and that she has now sought help from her daughter who has taken charge of her affairs.

11    The applicant says further that, because of her financial constraints, she has been unable to afford a solicitor or a migration agent to provide advice to her. She says that she has now sought advice from a registered migration agent who told her that she can apply for an extension of time to file a notice of appeal, and proposes to retain the agent’s services should the court grant the extension she seeks, which is 14 days.

12    On 25 June 2018, a Registrar of the Court directed the applicant to file and serve a written outline of her submissions by no later than 10 business days before the hearing of her application (in this case, 29 October 2018). No outline has been filed.

13    In submissions today, the applicant explained that she thought the appeal period was 28 days, not 21 days. She also referred to her circumstances should an extension of time not be granted. She has been in Australia for some 16 years. Her youngest daughter is an Australian citizen. If she, the applicant, and other family members were to be returned to China, this would break up her family. She referred to the mental strain this has placed on her and on her youngest daughter. She has asked for the Court’s sympathy in dealing with the matter so that she can put on a notice of appeal to challenge the primary judge’s findings.

14    The applicant’s draft notice of appeal which has been filed with her affidavit contains a number of paragraphs. These paragraphs fix on the construction of cl 3001(1) and the meaning of “relevant day” as used therein. The draft appears to be the same as the draft notice of appeal in SZRFS.

15    The Minister acknowledges that he would not suffer prejudice if an extension of time were granted. In submissions today, he described the delay as “moderate”. The Minister does, however, oppose the extension. He submits that the applicant’s explanation for the delay is not acceptable. The Minister submits, further, that the appeal has no prospects of success.

16    As to delay, the Minister submits that the applicant’s explanation has three limbs:

    the applicant did not have a copy of the written reasons or the transcript of the hearing which she says was required for her to draft a “meaningful” notice of appeal;

    the applicant lacked financial means to engage a migration agent or solicitor to advise her and assist with drafting a notice of appeal; and

    the applicant was suffering from mental health issues and was anxious and that, for this reason, unable to draft a notice of appeal.

17    The Minister notes that the applicant was present in person when the primary judge gave ex tempore, oral reasons on 12 April 2018. The Minister also notes that written reasons, revised from the transcript taken on 12 April 2018, were published on 14 June 2018. The Minister submits that the fact that the applicant did not have the Circuit Court’s reasons in written form is not, in itself, an acceptable reason for the delay. The Minister submits that the applicant could have applied for a transcript of the hearing, and of the oral reasons given on 12 April 2018, but has provided no evidence of having done so. Further, the Minister submits that, with the benefit of the written reasons that were published on 14 June 2018, the applicant has not explained how the written reasons would have assisted her in drafting a notice of appeal.

18    Next, the Minister submits that the appellant has not provided evidence of her financial difficulties or of her mental health issues. The Minister submits that, in any case, neither matter stands as an acceptable reason for the applicant’s delay.

19    As to the merits of the proposed appeal, the Minister submits that the critical issue is the construction of cl 3001(1). The Minister submits that there is no doubt as to the correctness of the conclusion of both the primary judge and the Tribunal that the applicant does not satisfy the criterion of that clause and, therefore, that she does not meet the criterion for the medical treatment visa for which she has applied.

20    To the extent that the applicant seeks to argue that she was not afforded a proper opportunity to respond to the primary judge, or to answer questions, or to advance relevant evidence, the Minister submits that the applicant has not provided any evidence to substantiate her allegations.

Conclusion

21    The application for an extension of time should be refused, for the same reasons as explained in SZFRS. The applicant’s proposed appeal has no prospects of success. The primary judge correctly found that the Tribunal correctly construed and applied cl 3001(1) to the applicant’s circumstances. Further, the applicant has not pointed to any material which shows that she was not afforded a fair and proper hearing before the Circuit Court.

22    As these conclusions are sufficient to determine the fate of the present application, it is not necessary for me to consider whether the applicant has provided a satisfactory explanation for her delay.

23    The application will be dismissed, with costs.

Associate:

Dated:    13 November 2018