FEDERAL COURT OF AUSTRALIA

Guo v Minister for Home Affairs [2019] FCA 61

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent's costs 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

BANKS-SMITH J:

1    The applicant, Mr Guo, seeks an extension of time to appeal from a decision of the Federal Circuit Court on 29 May 2018: Guo v Minister for Immigration and Border Protection [2018] FCCA 1400. The primary judge dismissed Mr Guo's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister refusing to grant Mr Guo a Medical Treatment (Visitor) (Class UB) visa.

2    At the time of Mr Guo's application, Class UB contained one subclass, being subclass 602 medical treatment visas. Such medical treatment visas are for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

3    This matter first came before me on 5 November 2018. I adjourned the hearing pending the decision of the Full Court of this Court in Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 (Rares, Davies and Bromwich JJ). That decision addressed an issue common to this application, being the construction of the Migration Regulations 1994 (Cth) (Regulations) relating to medical treatment visas.

4    The decision in Ahmad confirms that the primary judge was correct to dismiss the application for judicial review and that the Tribunal correctly understood and applied the relevant law.

Background

5    Mr Guo is a citizen of the People's Republic of China who arrived in Australia as the holder of a Schools Sector (Class TU) (subclass 571) visa on 6 January 2006. That visa expired on 17 August 2008.

6    On 4 May 2016, Mr Guo lodged an onshore application for a Medical Treatment (Visitor) (Class UB) visa on the basis that he needed medical consultation with a doctor for a stomach problem.

7    Mr Guo's evidence before the Tribunal was that he required medical treatment generally and had a stomach problem. His evidence was that he had not received medical treatment in Australia for his claimed medical condition.

Legislative context

8    Section 31 of the Migration Act 1958 (Cth) (Act) provides that there are to be prescribed classes of visas, as well as other classes provided for by particular provisions of the Act. A medical treatment visa is one of the prescribed classes under the Regulations.

9    A substantive visa, as defined in s 5(1) of the Act, is a visa other than a bridging visa, a criminal justice visa or an enforcement visa. It therefore includes a medical treatment visa.

10    Medical treatment visas are subclass 602 visas in Schedule 2 of the Regulations. The criteria set out in subclass 602 were criteria that had to be met at the time that a decision was made on Mr Guo's application for the visa in order for a medical treatment visa to be granted.

11    The criteria include those specified in cl 602.213 of Schedule 2. Relevantly, cl 602.213 provided at the relevant time that:

(3)    Subclauses (4) and (5) apply if:

(a)    the applicant was in Australia at the time of application; and

(b)    the applicant did not hold a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(4)    The last substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)-Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

(emphasis added)

12    The drafting of cl 602.213(3)(c) directs attention to the terms of cl 602.212(6). That clause provides that:

Unfit to depart

(6)    All of the following requirements are met:

(a)    the applicant is in Australia;

(b)    the applicant has turned 50;

(c)    the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e)    the applicant has been refused the visa;

(f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorative disease or health condition, as evidenced by a written statement to that effect from a Medical Officer or the Commonwealth.

13    The effect of cl 602.213(3) is that:

(a)    if the applicant was in Australia at the time of the medical treatment visa application;

(b)    if he did not hold a substantive temporary visa at the time of the medical treatment visa application;

(c)    if he was not medically unfit to depart Australia within the meaning of cl 602.212(6)(f) or otherwise did not meet the requirements of cl 602.212(6); and

(d)    if the last substantive temporary visa held was not a subclass 426 or subclass 403 visa,

then the applicant was obliged to satisfy the schedule 3 criteria 3001, 3003, 3004 and 3005 in order to be eligible for a medical treatment visa.

14    Relevantly, criterion 3001 provides that a medical treatment visa application must be made within 28 days of the relevant day, being the day defined in criterion 3001(2) to be the last day the applicant held a substantive visa.

15    There is no discretion for such time period to be extended.

The legislation and Mr Guo's circumstances

16    Mr Guo's last substantive temporary visa lapsed on 17 August 2008. The Tribunal was not satisfied that Mr Guo was medically unfit to depart Australia and further, as the primary judge noted, Mr Guo had not attained the age of 50 years. Accordingly, he did not meet the requirements of cl 602.212(6). Mr Guo did not hold a subclass 426 or subclass 403 visa, being the visas described in cl 602.213(4). Accordingly, criterion 3001 applied to Mr Guo's circumstances, and its effect was that for his application for the medical treatment visa to be valid, he was obliged to have applied for the visa within 28 days after the last day on which he held a substantive visa. He in fact applied almost eight years later.

17    It follows that Mr Guo was not entitled to the grant of a medical treatment visa.

18    As Ahmad confirms (at [36]), as the visa could not be granted in Mr Guo's circumstances, even errors of fact or law before the Tribunal could not make a difference to the outcome or produce a jurisdictional error. No other result was possible other than refusal of the application.

Delegate's decision

19    The delegate refused the application on the basis that Mr Guo had applied for the visa more than 28 days after his last substantive visa ceased, in contravention of the requirement at cl 602.213(5) of Schedule 2 in force at the time of the application. For the above reasons, that decision was correct.

The Tribunal's decision

20    On 1 December 2016 the Tribunal affirmed the decision of the delegate not to grant the visa, and Mr Guo sought judicial review of the Tribunal's decision in the Federal Circuit Court. The Tribunal Again, the Full Court decision in Ahmad confirms that decision was correct.

The Federal Circuit Court

21    Before the primary judge, Mr Guo alleged that the Tribunal did not consider that he had compelling reasons for not holding a substantive visa, that his situation was out of his control and that he needed medical treatment in Australia.

22    On 29 May 2018 the primary judge dismissed the application on the basis that the finding that Mr Guo did not meet the requirements of cl 602.213 and relevantly had not made the application within the requisite 28 days meant that the refusal of the application for a medical treatment visa was clearly correct and no jurisdictional error was disclosed. The primary judge correctly held that in the circumstances where the Tribunal had found that criteria 3001 was not met and there was no discretion to consider any compelling circumstances, the Tribunal was not required to consider whether additional criteria had been met, and that in any event even if there were jurisdictional error (and there was not), relief should be refused because no different result on assessment of Mr Guo's application could possibly follow.

23    Mr Guo did not seek to appeal that decision in this Court until 22 June 2018, three days after the last date for filing, and so he requires an extension of time to appeal.

Principles for extension of time

24    In considering whether to grant an extension of time for an appeal under r 36.03 of the Federal Court Rules 2011 (Cth), the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

The proposed appeal

25    The proposed ground of appeal is to the effect that although Mr Guo did not hold a substantive visa, he had provided the delegate, the Tribunal and the Federal Circuit Court with compelling reasons and supporting documents and there was a legal error in failing to consider those matters.

26    Mr Guo did not provide written submissions. He attended before me at the hearing and I encouraged him to make oral submissions with the assistance of an interpreter, but he declined to do so.

27    It is clear that the proposed ground of appeal does not engage with the failure to meet criteria 3001 and it was not in issue that the application had not been brought within the specified 28 day period. The Tribunal had no discretion to extend the 28 day time period.

28    In the circumstances, although the period of the requested extension of time is very short, it is clear that Mr Guo's proposed appeal has no prospect of success. No error by the Tribunal in reliance upon the failure to bring the application within 28 days is established and the primary judge was right to dismiss Mr Guo's judicial review application.

29    In the circumstances, the application for an extension of time is dismissed and costs should follow the event in the usual way.

Associate:

Dated:    1 February 2019