FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1789

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application for extension of time and leave to appeal filed on 11 May 2018 be dismissed.

3.    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 judgments of the Federal Circuit Court of Australia (the Circuit Court) given on 17 April 2018 and 3 May 2018.

2    On 17 April 2018, the Circuit Court dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision, which was made on 3 March 2017, affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (formerly, the Minister for Immigration and Border Protection) (the Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). The Circuit Court dismissed the application for judicial review under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the FCC Rules) because the applicant failed to appear at the hearing that had been listed for that day.

3    On 3 May 2018, the Circuit Court dismissed the applicant’s application to reinstate the judicial review proceeding.

4    The judgments given on 17 April 2018 and 3 May 2018 are interlocutory in character. An appeal to this Court against such a judgment can only be brought with the Court’s leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

5    An application for leave to appeal must be filed within 14 days after the date on which the relevant judgment was pronounced. The present application was filed on 11 May 2018. At that time, an extension of time was not required in order to seek leave to appeal from the judgment given on 3 May 2018, although an extension of time was required in order to seek leave to appeal from the judgment given on 17 April 2018. I will treat the present application as one to seek leave to appeal from the judgment given on 3 May 2018, and to seek an extension of time and leave to appeal from the judgment given on 17 April 2018.

Background

6    The applicant applied for the medical treatment visa on 7 December 2016. The criteria for the visa were set out in Pt 602 of Sch 2 to the Migration Regulations 1994 (the Regulations). Clause 602.213 applied to the applicant who was in Australia at the time the visa application was made. As the applicant did not hold a substantive visa at the time of his application, and was not medically unfit to depart Australia, additional criteria for the visa applied. The additional criteria included the requirement of cl 3001(1) in Sch 3 to the Regulations. As applied to the applicant, that requirement was that his application for the medical treatment visa be lodged within 28 days after the last day on which he held a substantive visa (the relevant date). In the applicant’s case, the relevant date was 15 March 2011. As he had applied for the medical treatment visa on 7 December 2016, the applicant did not satisfy the requirement of cl 3001(1). This requirement was mandatory and absolute in the sense that, if not met, it could not be overcome by reference to discretionary considerations peculiar to the applicant or his circumstances.

7    The Minister’s delegate refused the applicant’s application for the medical treatment visa because he did not, and could not, satisfy cl 3001(1). On review, the Tribunal came to the same finding. I note that, even though the applicant had been informed of the date and time of the Tribunal hearing, and had informed the Tribunal that he would attend the hearing, the applicant failed to appear at the appropriate time. The Tribunal proceeded in his absence, as it was entitled to do.

8    Being dissatisfied with the Tribunal decision, the applicant applied to the Circuit Court to review it. The hearing of his application was listed for 17 April 2018. The applicant was informed of the date and time of the hearing. When the matter was called on for hearing, the applicant did not appear. The primary judge summarily dismissed the proceeding for want of appearance. The applicant applied to reinstate the proceeding, but, at the hearing on 3 May 2018, the primary judge was not persuaded that it would be appropriate to do so. In coming to that conclusion, the primary judge accepted that there would be no prejudice to the Minister if the proceeding were to be reinstated. The primary judge also accepted that the delay in bringing the reinstatement application was short. However, the primary judge found that the applicant’s explanation for his non-appearance on 17 April 2018 was inadequate and that his prospects of success in the judicial review application, based on the grounds he was seeking to advance, had negligible prospects of success, and that it would be futile, in any event, to remit the matter for reconsideration by the Tribunal. The reason for the latter conclusion was that the applicant did not, and could not, satisfy the requirement of cl 3001(1).

9    The primary judge’s reasons show that she systematically and carefully considered each of the grounds that the applicant wished to raise in his application for judicial review in the context of written submissions which he had filed. The applicant did not seek to elaborate orally on those submissions at the reinstatement hearing.

The present application

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; (1984) 3 FCR 344:

    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 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    With regard to granting leave to appeal from interlocutory judgments, the relevant principles are identified in Décor 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.

12    The applicant’s application for an extension of time and leave to appeal states the following grounds, which are also reflected in his draft notice of appeal:

1.    The learned judge erred in law and therefore fell into jurisdictional error by not affording the Applicant procedural fairness or natural justice insofar as:

i)    Summarily dismissing his review application;

ii)    Not conducting or allowing a full and final hearing.

2.    The learned judge erred in law and therefore fell into jurisdictional error by failing apply the correct test as to whether the court should have allowed the reinstatement of the matter.

13    On 19 June 2018, a Registrar of the Court directed the applicant to file and serve, by no later than 10 business days before the hearing of the present application, a written outline of the submissions on which he seeks to rely in support of the application, and in support of any appeal were the Court to grant an extension of time and/or leave to appeal. The expressed purpose for making that direction was to enable the Court to assess the application and to consider whether there is any utility in granting the extension of time and/or leave to appeal. The applicant has not complied with that direction. No written outline has been filed or served.

14    The applicant has filed an affidavit in support of his application. In that affidavit, he does not seek to explain the reason for his delay in filing an application for leave to appeal from the judgment given on 17 April 2018 although, as the Minister suggests, the implicit reason for the delay is likely to be that the applicant first sought to have that judgment set aside and his application for judicial review reinstated. In his affidavit, the applicant does not elucidate the grounds of his application or proposed appeal.

15    The Minister opposes an extension of time being granted even though he accepts that the applicant’s delay is not significant in the overall scheme of things, and even though he accepts that he would suffer no prejudice if time were to be extended. The Minister submits that the applicant’s lack of explanation for the delay is unsatisfactory but, more importantly, the application for leave to appeal is without merit and that, for this reason, an extension of time should be refused.

16    The Minister also submits that the application for leave to appeal against the judgment given on 3 May 2018 is without merit and should be refused.

17    The Minister submits that the grounds of the application for leave to appeal in each case, which as I have said are also reflected in the draft notice of appeal, do not disclose any basis to find that either judgment is attended by sufficient doubt to warrant reconsideration by this Court. He submits that, absent particularisation, it is difficult to understand how the Circuit Court failed to afford the applicant procedural fairness or natural justice, as the applicant has asserted in the first ground. In relation to the judgment of 3 May 2018, the Minister points to the fact that the primary judge afforded the applicant procedural fairness and natural justice by allowing him an opportunity to make oral submissions at the hearing on that day. However, as I have noted, no oral submissions were advanced by the applicant at that time. The primary judge did take into account the written submissions which the applicant had filed.

18    As to the second ground, the Minister submits that the Circuit Court applied the “correct law” when considering whether the application for judicial review should be reinstated. In this connection, the Minister submits that the primary judge considered whether the applicant had provided a reasonable excuse for his absence on 17 April 2018; considered the existence and nature of any prejudice to the Minister should reinstatement be granted; and considered whether the applicant had reasonably arguable prospects of success in his substantive application.

19    At the hearing today, I asked the applicant to advance submissions in support of the grounds of his application. He told me that he did not wish to say anything. Later, I asked the applicant to identify the way in which he said the primary judge did not afford him procedural fairness or natural justice; firstly, in summarily dismissing his application for judicial review on 17 April 2018; and secondly, in refusing to reinstate the proceeding on 3 May 2018. The applicant said that he could not tell me how he was not afforded procedural fairness or natural justice. I then asked the applicant to identify in what way he said the primary judge failed to apply the correct test when considering whether to reinstate his substantive application. Once again, the applicant said that he could not tell me how the primary judge failed in this regard.

Consideration and disposition

20    I accept the Minister’s submissions. The applicant has not established that the proposed grounds of appeal have any prospect of success. No error has been pointed to in the way in which the primary judge summarily dismissed the applicant’s application for judicial review of the Tribunal’s decision, and no error has been pointed to in the way in which the primary judge dealt with and considered the applicant’s reinstatement application. The applicant has not advanced any arguable case that he was not afforded procedural fairness or natural justice in connection with the making of the orders on 17 April 2018 and 3 May 2018. He has also not advanced any arguable case that the primary judge erred in the way in which her Honour dealt with the reinstatement application. More fundamentally, the applicant cannot satisfy a mandatory requirement for the grant of the medical treatment visa he seeks. Any appeal to this Court would inevitably fail, for this reason alone.

21    It follows that the application for extension of time and leave to appeal should be dismissed. Further, the applicant should pay the Minister’s costs.

Associate:

Dated:    21 November 2018