FEDERAL COURT OF AUSTRALIA

Li v Minister for Home Affairs [2018] FCA 1759

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 6 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    The applicant seeks an extension of time and leave to appeal under r 35.14 of the Federal Court Rules 2011 from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 9 May 2018, which dismissed an application to set aside under r 16.05 of the Federal Circuit Court Rules 2001 (FCC Rules) an order previously made by the Circuit Court. A judgment of this kind is interlocutory in nature and an appeal to this Court against such a judgment can only be brought with the Court’s leave: s 24(1A) Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be filed within 14 days after the date on which the relevant judgment was pronounced. In the present case, the application for leave to appeal was filed 14 days out of time, on 6 June 2018; hence the need for an extension of time.

Background

2    The brief facts are that the applicant, who is a citizen of the People’s Republic of China, applied on 12 May 2015 for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). He indicated that he wished to remain in Australia for medical treatment until 14 November 2015. A delegate of the first respondent, the Minister for Home Affairs (the Minister) refused to grant the visa. The applicant applied to the Migration Review Tribunal (now the second respondent, the Administrative Appeals Tribunal (the Tribunal)) for a review of the delegate’s decision. Following a hearing on 25 September 2015, the Tribunal, on 30 September 2015, affirmed the decision under review. The essential reason for that refusal was that the applicant failed to satisfy the requirements of cl 602.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The effect of cl 602.213 was that, as the applicant was in Australia at the time of his application, did not hold a substantive temporary visa, and was not medically unfit to depart Australia, he was required to meet the so-called Sch 3 criteria including, importantly, the criterion in cl 3001(1) of Sch 3 to the Regulations that his application be lodged within 28 days of the last day on which he held a substantive visa. The applicant last held a substantive visa on 31 October 2013. Therefore, his application for a medical treatment visa was made more than 18 months after the relevant date. For this reason, he could not satisfy the essential legal requirement of cl 3001(1).

The Circuit Court

3    On 30 October 2015, the applicant sought judicial review of the Tribunal’s decision. On 31 March 2016, a Registrar of the Circuit Court set down the application for final hearing on 17 June 2016. The applicant did not appear on that date and his application was dismissed pursuant to r 13.03C(1)(c) FCC Rules.

4    On 16 March 2018, the applicant filed an application in a case pursuant to r 16.05 FCC Rules seeking to set aside the order of 17 June 2016, a period of some 21 months after the dismissal order had been made. The primary judge was not persuaded that such an order should be made.

5    First, his Honour found that the delay of 21 months was significant. The applicant provided no explanation or evidence explaining the delay, despite being given the opportunity to do so. The primary judge reasoned that this alone was sufficient to dismiss the application in the case.

6    Secondly, the primary judge found that the applicant’s explanation for his non-attendance at the hearing listed on 17 June 2016 was not satisfactory. In this connection, the applicant’s explanation was that he had “mistakenly remembered the wrong date”. The applicant proffered this explanation even though he was on notice that the hearing had been listed for 17 June 2016.

7    Thirdly, the primary judge noted that, in the period between 17 June 2016 and 16 March 2018, the applicant had been in regular contact with the Minister’s Department and had received various bridging visas on the basis that he was making acceptable arrangements to depart Australia. The primary judge further noted that there was nothing from the applicant to indicate that he continued to require medical treatment some 36 months after he applied for the medical treatment visa, it being remembered that the applicant had only sought the visa until 14 November 2015.

8    Fourthly, the primary judge was not satisfied that there was any merit in the applicant’s substantive application for judicial review. The primary judge noted that the Tribunal’s decision was inevitably correct. The applicant simply could not satisfy the criteria that applied to his application, specifically the requirement of cl 3001(1).

9    Fifthly, the primary judge noted that the Tribunal had no discretion in relation to the application of the relevant criteria. This was not a case where compelling or compassionate circumstances were relevant.

10    In the result, the primary judge concluded that it was not in the interests of justice to set aside the order made on 17 June 2016. It would be futile to do so because the applicant’s substantive application could not succeed.

11    The primary judge concluded as follows:

47    In all therefore, the delay is significant. No explanation let alone a reasonable or satisfactory one has been provided for Mr Li's non-attendance at the hearing of the substantive application, nor importantly, to explain the subsequent 21 month delay in making his AIC [application in a case]. While it is the case that the Minister does not press any prejudice if the application to reinstate were granted, the lack of any reasonable prospects of success in the grounds of the substantive application, and indeed the futility in granting the AIC, given the relevant regulatory and statutory scheme, means that the AIC must be refused. I will make that order.

The present application

12    The legal principles relevant to determining whether to grant an extension of time are reflected in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–349. Translated to the present application, those principles can be summarised as follows:

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

13    With regard to granting leave to appeal from interlocutory decisions, the relevant principles are identified in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this connection, the Court must consider whether the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal, and whether substantial injustice would result if leave to appeal were refused, supposing the primary decision to be wrong.

14    The applicant’s application for an extension of time and leave to appeal states the following grounds:

1.     AAT and Federal Circuit Court failed to Consider my explanation fort my appeal which I believe there is a legal error.

2.     I am a Malaysia Chinese who will be facing persecution by my government due to my believes

3.     AAT member and the Federal court did not well consider of my fears and persecution if return to my home country.

4.     My appeal application for Federal Circuit Court has been dismissed and I disagree with its decision since I did explained to the court and I believe it was not well considered.

15    The application is supported by an affidavit made by the applicant on 25 May 2018. In that affidavit, the applicant says that he does not agree with the Circuit Court decision which dismissed his application for judicial review and that he wants a “review” by this Court to “get a more fair decision”. He says that his delay has been caused by his financial difficulties. He says that he was unable to pay the relevant filing fee and could not get help in “filling out all the forms required” because of his limited grasp of English.

16    The Minister accepts that, other than for the public interest in the finality of administrative decision-making, there would be little prejudice to him if the Court were to grant an extension of time. He also accepts that a 14-day delay is not lengthy. Nonetheless, the Minister opposes the extension that is sought. First, the Minister submits that the applicant’s explanation for his delay is unsatisfactory. Secondly, in relation to both extending time and granting leave to appeal, the Minister submits that the proposed appeal is without merit.

17    In this connection, the applicant’s draft notice of appeal simply alleges that the applicant provided the Minister’s Department, the Tribunal and the Circuit Court with “compelling reasons” (which are not identified) and that the Tribunal and the Circuit Court failed to consider the applicant’s “explanation” (which is not identified) and “supporting documents” (which are not identified) to support his “appeal” which, according to the applicant, is a legal error. The draft notice of appeal seeks orders that the Court accept his “compelling reasons” for not holding a substantive visa at the time of his application for the medical treatment visa. The form of the orders also asserts that the Minster’s Department and the Tribunal committed a legal error by not considering his “compelling circumstances”. Expressed in these terms, the draft notice of appeal is uninformative. The Minister submits that it fails to identify any arguable case for relief.

18    Perhaps more fundamentally, the Minister submits that cl 3001(1) of Sch 3 to the Regulations imposes a mandatory requirement. At the time he made his application for the medical treatment visa, the applicant did not and could not satisfy that requirement. The Minister submits that nothing that the applicant has asserted in his application for an extension of time and leave to appeal, or deposed to in his affidavit, or asserted in his draft notice of appeal, can overcome that obstacle.

Conclusion

19    Although the delay in this case is relatively short, I accept the Minister’s submission that no satisfactory explanation for that delay has been provided. I also accept that the draft notice of appeal fails to identify any arguable case for relief. Further, the conclusion to which the primary judge came, which I have quoted above, does not reflect error. The applicant cannot satisfy the requirement of cl 3001(1). I accept that it would be futile to grant leave to appeal on the facts and circumstances before me. Accordingly, there is no utility in extending time to the applicant.

20    In the circumstances, the applicant’s application for an extension of time and leave to appeal will be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    15 November 2018