FEDERAL COURT OF AUSTRALIA

Baby v Minister for Immigration and Border Protection [2019] FCA 214

ORDERS

THE COURT ORDERS THAT:

1.    The applications for an extension of time and leave to appeal are dismissed.

2.    The applicant must pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J

1    This is an application for an extension of time and leave to appeal a decision of the Federal Circuit Court made on 10 September 2018: Baby v Minister for Immigration and Border Protection [2018] FCCA 2559.

Introduction

2    The applicant is a citizen of India. He last held a substantive visa, being a Temporary Business Entry (Class UC), Subclass 459 (Sponsored Business Visitor (Short Stay)) visa, on 28 October 2010.

3    On 1 November 2016, the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). On 2 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a medical treatment visa on the basis that the delegate was not satisfied the applicant met the requirements of cl 602.213 in Part 602 of Sch 2 to the Migration Regulations 1994 (Cth).

4    On 21 November 2016, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. By a letter dated 15 March 2017, the Tribunal invited the applicant to appear at a hearing before the Tribunal on 7 April 2017.

5    The applicant failed to appear at the Tribunal hearing on 7 April 2017. The Tribunal’s decision record (or DR) dated 10 April 2017 records (at DR[4]-[5]) that the applicant did not seek an adjournment of the hearing nor contact the Tribunal to explain his failure to attend the hearing. The Tribunal found that the invitation to attend the hearing had been sent to the address provided in connection with the review and that it was satisfied that the applicant had been offered the opportunity to appear. Purportedly under s 462A of the Migration Act 1958 (Cth), the Tribunal decided to proceed to make a decision without taking further action to enable the applicant to attend a hearing. Like the primary judge, I accept that the reference by the Tribunal to s 462A was a typographical error and authority to proceed to make a determination was conferred by s 362B of the Migration Act.

6    The Tribunal went on to find as follows:

7.    The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements of cl 602.213.

8.    Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

9.    In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in this decision.

10.    In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.

11.    According to records of the Department of Immigration the applicant last held a substantive visa on 28 October 2010 and the application for the Medical Treatment visa which is the subject of this review was not lodged until 1 November 2016.

12.    As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. As he does not satisfy criterion 3001, the Tribunal does not consider it necessary to consider whether he satisfied criteria in 3003, 3004 and 3005.

7    At the time the applicant made his application for a medical treatment visa and the Tribunal made its decision, cl 602.212 and 602.213 of Sch 2 to the Migration Regulations relevantly provided:

602.212

(1)    The requirements in one of subclauses (2) to (8) are met.

…

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 deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

602.213

…

 (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.

8    Clause 3001 of Sch 3 to the Migration Regulations relevantly provided:

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) …, the relevant day, in relation to an applicant is:

…

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)    …

whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    … .

9    As noted by the Full Court in Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 (Ahmad v MIBP) at [1], the requirement that an application be lodged within 28 days of the applicant ceasing to hold a relevant visa was removed with effect from 1 July 2017. Clause 602.213 of Sch 2 to the Migration Regulations was amended with effect on 1 July 2017 by Sch 3 to the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth). Clauses 3 and 4 of that Schedule repealed cl 602.213(5) and so removed the requirement that a visa applicant satisfy cl 3001 of Sch 3 to the Migration Regulations, such that medical treatment visa applications no longer needed to be made within 28 days of the “relevant day”. However, the relevant transitional provision in Sch 12 of the Migration Legislation Amendment (2017 Measures No 3) Regulations provides that the Migration Regulations, as amended, only affect applications for a medical treatment visa made on or after 1 July 2017. Because the applicant applied for a medical treatment visa before that date (on 1 November 2016), the repeal is not relevant to this application.

10    The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 28 April 2017. The primary judge dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), following a “show cause” hearing held on 10 September 2018. Leave to appeal is required because such judgments are interlocutory: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

11    In addition, as the applicant filed his application to this Court 18 days after the prescribed period for filing such an application, he requires an extension of time pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (FCA Rules).

Federal Circuit Court

12    On 20 August 2018, the primary judge made orders listing the application for 10 September 2018 for the purposes of a “show cause” hearing pursuant to r 44.12 of the FCC Rules. Rule 44.12 of the FCC Rules permits the Court to dismiss an application if it is not satisfied that the application raises an arguable case for the relief claimed.

13    The applicant appeared in person at the hearing before the primary judge and indicated to the primary judge that he was seeking an adjournment of two weeks to file submissions. That application was opposed by the Minister. The primary judge refused the adjournment on the basis that it was not in the interests of justice that he do so, noting that the applicant had had ample time to file submissions since 28 April 2017 (when he filed the application) and 22 May 2017 (when orders were made by the Registrar) and 20 August 2018 (when the primary judge made orders listing the show cause hearing): J[8]-[9].

14    The primary judge set out the grounds of the application for judicial review of the Tribunal’s decision at J[10] (as written):

1.    The Tribunal failed to exercise its jurisdiction. It was error for the Tribunal to assess the application without allowing applicant to present his arguments.

2.    My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

3.    The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.

15    With regard to the first ground, the primary judge found (at J[6]-[7]) that, on the face of the material before the Court, the applicant had been given an opportunity to attend the Tribunal hearing under the statutory regime because the letter inviting him to attend had been sent by email to the email address which he provided. Although the applicant asserted that he did not receive the email, the primary judge found that that does not identify any error in the Tribunal proceeding to determine the matter under s 362B of the Migration Act, and there was “no legal unreasonableness” in it doing so. The primary judge made findings (at J[11]-[12]) having regard to ss 360A, 362B, 379A(5)(b) and 379C of the Migration Act that “[n]o arguable case of legal unreasonableness” arises in the circumstances and “[n]o arguable case of jurisdictional error” was disclosed by the ground.

16    With regard to the second ground, the primary judge noted that the applicant’s assertion that no attempt had been made to contact him “does not sit neatly” with his submission that he was informed by someone else not to attend. The primary judge found (at J[13]-[14]) that, on the face of the material before the Court:

(1)    The applicant was properly invited to attend the hearing and it was open to the Tribunal to proceed to determine the matter on the material before it; and

(2)    The applicant provided the delegate’s decision to the Tribunal. That decision identified information about the expiry of the applicant’s last substantive visa, as well as the date of the application for the visa. The Tribunal was not obliged to put this information to the applicant as it was information which the applicant had provided to the Tribunal in his application for review. There was no information identified which would enliven any obligation under s 359A of the Migration Act in these circumstances.

As a result, his Honour found no arguable case of jurisdictional error was made out by the second ground.

17    With regard to the third ground, the primary judge (at J[15]) found that the Tribunal correctly identified the relevant mandatory criteria and there had been nothing identified that reflects any misinformation or misapplication of the relevant criteria by the Tribunal. His Honour found that no arguable case of jurisdictional error was disclosed.

18    As a result of the findings outlined above, at the conclusion of the hearing the primary judge was satisfied that it was appropriate to dismiss the application on a “show cause” basis under r  44.12 of the FCC Rules.

Application to this court

19    On 11 October 2018, the applicant filed in this Court an application for an extension of time and leave to appeal from the decision of the Federal Circuit Court as well as a supporting affidavit sworn by the applicant that day.

20    The application sets out the following grounds (as written):

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the medical visa appeal application.

2.    The Hon. Judge Street dismissed the application without considering the legal and factual errors contained in the decision of AAT.

21    The affidavit supporting the application did not contain a draft notice of appeal. It recited the litigation history, noting that the applicant had not been represented by a solicitor or barrister in the proceedings before the primary judge. It did not give a reason for the delay in filing the application.

22    A draft notice of appeal was received by the Court on the date the application was filed. The draft notice of appeal sets out the following grounds (as written):

1.    The Federal Judge failed to consider that the the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Act;

2.    the Tribunal failed to exercise its jurisdiction: it was an error for the Tribunal to assess the application without allowing applicant to present his arguments; and

3.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

23    The Minister opposed both applications.

24    The Minister filed written submissions and appeared by his legal representative. The applicant did not file written submissions and appeared in person at the hearing. The Court was assisted by an interpreter.

Principles applicable to an application for extension of time

25    Rule 35.13(a) of the FCA Rules provides that an application for leave to appeal must, absent orders to the contrary, be filed within 14 days after the date on which judgment was pronounced. As the primary judgment was delivered on 10 September 2018, the applicant was required to file his application for leave to appeal on or before 24 September 2018. Instead, the applicant filed his application 18 days after the prescribed period had elapsed. As a result, the applicant requires an extension of time in which to lodge the application for leave to appeal.

26    On an application for an extension of time, the Court will ordinarily consider the length of the delay, the explanation for it, whether the grant of an extension would unduly prejudice the respondent, and the prospects of successfully prosecuting the appeal if the extension were to be granted. The Minister does not claim to be prejudiced by the delay, but there is no explanation for it and the Minister says that proposed grounds in the notice of appeal lack merit so that an extension of time should be refused.

Principles applicable to an application for leave to appeal

27    The decision for which the applicant seeks leave to appeal is a decision by the primary judge under r 44.12(2) of the FCC Rules as to whether he is satisfied that the application “raised an arguable case for the relief claimed”. Appeals against such decisions are subject to the same principles as apply to discretionary decisions, thereby requiring the identification of errors of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17] and SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [22]-[23]. As noted in Samsung Electronics Co Limited v Apple Inc at [18]-[19]:

18    The questions traditionally asked when considering whether leave to appeal should be granted have been repeatedly phrased in terms of:

(a)    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)    whether substantial injustice would result if leave were refused supposing the decision to be wrong.

See: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 per Sheppard, Burchett and Heerey JJ. The discretion conferred by s 24(1A), it was there said, was an “unfettered discretion” conferred in “unqualified terms”.

19    The very width of the discretion and the prudence in not seeking to confine the manner in which it is to be exercised is a necessary corollary of the myriad of interlocutory decisions which may be made – ranging from interlocutory decisions affecting the substantive rights of parties (and effectively being final orders) to matters of practice and procedure (including decisions to extend time, the granting or refusal of adjournments and the filing of evidence). The different character of interlocutory decisions which may be made and the different factual and forensic circumstances in play when such decisions are made nevertheless have occasioned a different emphasis from one judgment to another upon one particular factor or factors rather than others.

28    There is a material difference between an exercise of discretion on a point of practice or procedure (on which a “tight rein” must be kept) and an exercise of discretion which determines substantive rights. The Minister accepts that where, as here, an interlocutory decision effectively determines a substantive right or dismisses a proceeding, leave to appeal will usually be granted if any doubt attends the decision under review, relying on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43]. The Minister submits that there is no doubt attending the primary judge’s decision in this case.

Consideration

29    I am satisfied that this application should be dismissed with costs. The applicant provided no acceptable reason for the delay in filing his application in this Court, explaining only that he did not know the timeframe. The proposed grounds of appeal have no meaningful prospect of success as, in my view, the primary judge correctly dismissed the application for judicial review for the reasons that he gave and no jurisdictional error attends the Tribunal’s decision.

30    The proposed grounds of appeal lack particulars, save that ground two directly addresses the question of whether the Tribunal was correct in its decision to proceed to determine the applicant’s application for review of the delegate’s decision without offering him a further opportunity for a hearing. The Application Book contains a copy of the application made to the Tribunal and of the letter via email sent to the applicant on 15 March 2017 to which was attached the invitation to attend the hearing. I perceive no error by the Tribunal in its decision to proceed to make a decision under s 362B of the Migration Act when, on 7 April 2017, the applicant failed to attend the hearing to which he had been invited in the manner which he had said he could receive communications in response to question 25 of the application for review. Section 379A(5)(b) of the Migration Act specifies email to an address provided to the Tribunal by the recipient in connection with the review as one of the methods by which the Tribunal may give a document to a person. Section 379C(5) deems the person to have received the document at the end of the day on which it was transmitted. The statutory pre-conditions to the Tribunal making its decision had therefore been satisfied, whether or not the applicant in fact received the invitation, and nothing had been brought to the Tribunal’s attention which would have made it unreasonable for it to proceed to make a decision.

31    Further, the Tribunal was obliged to affirm the delegate’s decision because cl 3001 of Sch 3 to the Migration Regulations was not met, the applicant having filed his application for a medical treatment visa more than six years after his last substantive visa expired, not within the required 28 days. As found by the Full Court in Ahmad v MIBP at [36], any legal or factual error by the Tribunal could not have made a difference. There was therefore no point in making further attempts to invite the applicant to a hearing.

32    At the hearing today, the applicant mentioned that he had made a protection visa application following the expiry of his temporary business visa, but I accept the Minister’s submission that there is nothing in cl 602.613 or cl 3001 which would make that relevant. The applicant made no other submission in support of his application. He did mention that he was getting married in early March 2019. It is not clear whether he was seeking an adjournment of these proceedings to allow that to happen before a decision was made on his applications to this Court, but if that is what he meant, there is no appropriate basis on which an adjournment (which is opposed by the Minister) should be allowed.

Conclusion

33    The applications for an extension of time to appeal and leave to appeal should be dismissed with costs.

Associate:

Dated:    25 February 2019