Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs

1. The application be dismissed.
2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J 1 By an application filed on 15 November 2021 (Application), the applicant seeks an extension of time in which to file a notice of appeal, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules). If granted, the applicant seeks to appeal from the decision of the primary judge of the Federal Circuit and Family Court of Australia (Division 2) dated 15 October 2021: Adhikari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 137. 2 The applicant is now 51 years old, and is a citizen of the Federal Democratic Republic of Nepal (Nepal). The applicant applied for a Medical Treatment (Visitor) (Class UB) subclass 602 (Medical Treatment) Visa (Medical Treatment Visa) on 12 January 2018. His application stated that he was receiving treatment from his doctor and psychologist as he was suffering from mental illness. Subsequent material from his treating doctor indicated that he was suffering from major depression, and was receiving medication and regular counselling sessions with a psychologist which were envisaged to continue to be required for a few more years. 3 On 26 March 2018, the Delegate refused to grant the applicant a Medical Treatment Visa, finding that he failed to satisfy the visa criteria set out in cl 602.215 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly stated that: (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to: (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and (b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and (c) any other relevant matter. (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant. The requirements described in subcl 602.212(6) were not met because the applicant at that time had not turned 50. 4 The applicant sought merits review from the Administrative Appeals Tribunal (Tribunal) on 10 April 2018. On 29 October 2019, the Tribunal issued its decision, finding that the applicant failed to satisfy cl 602.215. 5 On 28 November 2019, the applicant sought judicial review of the Tribunal's decision from what was then the Federal Circuit Court. 6 The primary judge distilled the grounds of judicial review as follows: (a) The Tribunal did not accept the applicant was telling the truth (ground 1). (b) The Tribunal acted unfairly and harshly towards him (ground 2). (c) The applicant was impaired in giving evidence and presenting arguments to the Tribunal (ground 3). (d) The Tribunal ought to have made inquiries of the applicant's treating doctor and counsellor (ground 4). (e) To the extent the Tribunal accepted the applicant's evidence about his medical condition, and his evidence of the medical treatment the applicant was receiving, it was not open to the Tribunal not to accept the applicant intends [to stay] temporarily in Australia for the purpose for which he applied for the Medical visa (ground 5). 7 The primary judge said in relation to ground 1 that the Tribunal did not find the applicant was not telling the truth; on the contrary, the Tribunal accepted the applicant's evidence: [18]. The primary judge dismissed grounds 2 and 3 as set out above, on the basis that those claims were not supported by any evidence: at [18]. 8 In relation to ground 4 as set out above, the primary judge dismissed this ground, finding that it was for the applicant to put such medical evidence before the Tribunal as he wished, and that the applicant was on notice that he would need to provide medical evidence about when his treatment would end: at [19]-[21]. 9 In relation to ground 5 as set out above, the primary judge held that no error was made out. The primary judge referred to cl 602.215 of the Regulations requiring that an applicant must have a genuine intention to stay temporarily in Australia, and that that intention must be for a particular purpose, namely the purpose for which the medical visa is granted. The primary judge said that where, as the Tribunal found in the applicant's case, there is no evidence that the time for which an applicant will receive medical treatment is limited for a time that can reasonably be estimated, it will not be possible to find the applicant genuinely intends to stay temporarily in Australia: [23]. The primary judge said that if the evidence reveals that an applicant will undertake medical treatment indefinitely, and the applicant's intention is to stay in Australia to receive such treatment, it is impossible to find that the applicant has a genuine intention to stay temporarily in Australia, because an applicant's intention would then be to stay in Australia indefinitely: [23]. 10 On 15 November 2021, the applicant filed his application for an extension of time in which to appeal from the primary judgment. On the same day, the applicant also filed an affidavit (erroneously dated 24 November 2021), which states as follows: 2. I did make application on time but due to not having lawyer and acting for myself, I lodged the application with incorrect forms & by the time I fixed the forms, the application was determined by the registry as late application. I did my best to lodge the application on time despite of my ongoing medical issue detailed in the file and the delay in the application was out of my control. 3. I am unwell and I am receiving continuous treatment. The doctors have written in many documents that I need treatment, but the Tribunal and Court have made their one decision against the doctors opinion and rejected the application unfairly and I believe that I have merits in my Notice of Appeal. 11 In the draft notice of appeal included with his Application, the applicant sets out the following grounds of review: 1. Not enough weight was given to the medical reports, including those of my GP, Dr Peter Low, and my psychologist. 2. Details including my family members and history was not believed, nor given enough weight in the decision. This includes having my political history in Nepal and past violence experienced by my family there, not taken into account. 3. Not enough consideration was granted to my reliance upon my Son, Prabin Adhikari, and his role in both financially supporting me, and caring for me. This is only possible while I live in Australia. 4. This matter has now continued for some three years since my initial application to the Department of Immigration and Border Protection. 5. In these three years, my mental health conditions have worsened, I believe partially due to the strain of this matter, and I am now over 50 years old. 6. These matters were raised in the Administrative Appeals Tribunal hearing, but were not given consideration, and the Federal Circuit Court failed to take this error into account, therefore the decision made requires review. 12 The principles governing the exercise of the Court's discretion to grant an extension of time in which to commence an appeal pursuant to r 36.05 of the Rules were usefully summarised relevantly as follows in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O'Bryan JJ): (a) applications for an extension of time are not to be granted unless it is proper to do so, and the legislated time limits are not to be ignored; (b) there must be some acceptable explanation for the delay; (c) any prejudice to the respondent defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; (d) the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; (e) the merits of the substantial application are to be taken into account in considering whether an extension is to be granted, and leave will not be granted where there are no reasonable prospects of success on the appeal; and (f) the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, and special circumstances often arise in immigration cases, particularly where the delay is short and no injustice will be occasioned to the respondent, however the merits of the appeal will remain a relevant factor. 13 As to the extent of delay in the present case, r 36.03(a)(i) of the Rules required a notice of appeal to be filed and served within 28 days after the date on which the order or judgment was pronounced. As the primary judgment was delivered on 15 October 2021, the applicant was required to file and serve a notice of appeal on or before 12 November 2021. The Application was filed on 15 November 2021, only 3 days late. The respondent accepts that the extension of time required is short and that this weighs in support of the applicant being granted the extension he seeks. 14 As to the applicant's explanation for delay, I have set this out above by reference to the affidavit of the applicant filed on 15 November 2021. In circumstances where an applicant is unrepresented and may have some difficulty in understanding the processes of the Court and the steps to be taken to commence a proceeding in the Court, the Court has found the filing of incorrect forms to be an adequate explanation for a short to medium delay: see, for example, Kheir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1974 at [38]-[40] (Markovic J). The respondent accepts that the applicant has adequately explained the delay in commencing these proceedings. 15 As to the issue of prejudice, the respondent accepts that he will not suffer any specifically identifiable prejudice. However, the respondent submits, and I accept, that the mere absence of prejudice to a respondent is not enough to justify the grant of an extension. Accordingly, this is not a factor to which I attribute significant weight. 16 I turn then to the question of the merits of the proposed grounds of review. I do so bearing in mind the proposition stated by the Full Court in GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23] (Collier, Rangiah and Derrington JJ) that in assessing whether a proposed ground of review has any merit, the issue is to be determined at a relatively impressionistic level and, generally, ought not to descend into a complete or full determination of the point which is sought to be raised. 17 Proposed appeal ground 1 contends that the primary judge did not give "enough weight" to the medical reports which the applicant provided. No error is disclosed by that ground of review. The weight to be given to evidence before the Tribunal is for the Tribunal alone to determine. The Court does not, and constitutionally cannot, exercise any jurisdiction to engage in a merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 281-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). Further, if the ground is understood as referring to the primary judge not giving sufficient weight to medical evidence which was put before the primary judge, but post-dated the Tribunal decision, the primary judge correctly found at [25]-[26] that that evidence was not relevant to whether the Tribunal made a jurisdictional error. The question whether the Tribunal's decision was within its decision-making authority is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised, not by reference to circumstances which did not exist at the time of the decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28] (Beach, Thawley and Cheeseman JJ). 18 Proposed appeal ground 2 contends that the Tribunal and/or the primary judge "disbelieved" the applicant's evidence, and failed to afford weight to his "political history in Nepal and past violence experienced by [his] family". No error can be made out on that ground. As the primary judge observed at [18], the Tribunal did not find the applicant was not telling the truth and, indeed, accepted the applicant's evidence. Matters regarding the applicant's political history and past political violence were not taken into account by the Tribunal as they were simply irrelevant to the question whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, namely medical treatment, as required by cl 602.215 of the Regulations. In this respect, the position may be contrasted with the applications for a protection visa which had previously been made by the applicant. 19 Proposed appeal ground 3 contends that the Tribunal and/or the primary judge erred by failing to give "enough consideration" to the applicant's reliance upon the financial and other support provided by his son. No error is disclosed on this basis. The Tribunal was aware of the support which the applicant's son gave him, and referred expressly to that in its reasons. However, the Tribunal concluded that this support, and his son's presence in Australia as a permanent resident, provided a strong incentive for the applicant to remain in Australia indefinitely. In circumstances where the applicant was not medically unfit to depart Australia, as defined by cl 602.212(6) of the Regulations, the relevance and weight to be afforded to the support provided by the applicant's son was a matter for the Tribunal alone. The Tribunal did not overlook this material, and the primary judge did not err by failing to find jurisdictional error on this basis. The ground amounts to no more than an invitation to the Court to engage in impermissible merits review. 20 As to proposed appeal grounds 4-6, taken together these grounds appear to allege that the applicant indicated to the Tribunal that his mental health condition had worsened as a result of the passage of three years since his initial application for a Medical Treatment Visa, and that he believes this to have occurred due to the strain of this matter, but these matters were not taken into account. The applicant also notes that he is now over 50 years old. None of these matters disclose an appealable error in the primary judgment. The Tribunal was conscious of the applicant's claims regarding his mental health, and expressly referred to those claims in several passages in its reasons. Those claims formed the basis of the Tribunal's decision, and were not rejected by it. In relation to the additional evidence which the applicant put before the primary judge regarding the claimed deterioration in his mental health in the period since the Tribunal's decision, the primary judge correctly stated that that material was not relevant to whether the Tribunal made a jurisdictional error because the letters in question were not created before the Tribunal made its decision, and therefore could not have been before the Tribunal when it made its decision: [26]. I have referred above to the decision of the Full Court in EGZ17 at [28] to that effect. Accordingly, any deterioration of the applicant's mental health condition since the Tribunal decision is incapable of exposing error in that decision at the time it was made. The primary judge's treatment of that additional evidence was therefore without error. Similarly, it is immaterial that the applicant has now attained the age of 50. Although he may now satisfy cl 602.212(6) of the Regulations, he could not do so at the time of the Tribunal decision. Accordingly, the Tribunal did not err by finding that the applicant was not medically unfit to depart Australia, as required by that subclause, and the primary judge did not err by failing to find an error on that basis. 21 Accordingly, none of the proposed appeal grounds are of sufficient merit to warrant the grant of the extension of time sought. There is no realistic prospect of any appeal based on those grounds succeeding. Accordingly, the application for an extension of time should be dismissed. 22 An additional hurdle for the applicant is that the proposed grounds of appeal raise new grounds not run before the Tribunal below, although some of them may be regarded as overlapping with those which were put to the primary judge. The applicant would need leave to rely upon these grounds for the first time on appeal: see Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [105]-[106] (Colvin and Halley JJ). Given the view that I have expressed as to the lack of merit in the proposed grounds of appeal, it is not necessary to deal separately with this issue. 23 Accordingly, the application is dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.