Anthony v Minister for Immigration and Citizenship [2025] FCA 1495

1. The applicant is a citizen of India who arrived in Australia in 2008 on a Subclass 676 Visitor visa that was valid for a three month stay. He unsuccessfully applied for several other visas and spent some time unlawfully residing in Australia before applying for the visa on 29 March 2018.
2. The application for the visa indicated that the applicant needed to be under medical care in Australia from 1 April 2018 to 30 June 2018. In an accompanying Form 1507, a general practitioners stated that the medical conditions requiring treatment included anxiety, depression and mood swings, and that the appellant had been prescribed an antidepressant.
3. On 13 April 2018, a delegate of the Minister refused the grant of the visa. The delegate found that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa would be granted, as required by cl 602.215 in Sch 2 to the Migration Regulations 1994 (Cth).
4. On 30 May 2018, the applicant sought an extension of time under s 477(2) to seek judicial review of the delegate's decision. On 25 May 2022, the primary judge delivered an ex tempore decision, dismissing the application with costs. The reasons for judgment were published two days later on 27 May 2022. The substance of the ultimate reason why the primary judge dismissed the application before her Honour was that there was no jurisdiction to entertain an application for direct judicial review of a decision of a delegate. Rather, the applicant needed first to seek merits review by what was then the Administrative Appeals Tribunal and only if that failed could he then seek judicial review of the Tribunal's decision. The reasons for that conclusion are addressed below.

The application for an extension of time and leave to appeal

1. By an application filed on 14 June 2022, the applicant seeks an extension of time and leave to appeal from the orders of the primary judge. The grounds set out in the application are as follows (verbatim):
   1. The Hon Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant medical visa subclass 602.
   2. The Hon. Judge Driver dismissed the application without considering the legal and factual errors contained in the decision of AAT.
2. The applicant also provided a draft notice of appeal containing the following two grounds of review (verbatim):
   1. The Hon. Judge failed to consider that the second respondent had denied the applicant procedural fairness reaching conclusions without taking evidence from applicant.
   2. The Ho. Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
3. The applicant's apparent references to the Tribunal in both the application and the draft notice of appeal seem to be intended to refer to the delegate of the Minister, given that the decision in question was made by the delegate and has not been subject to Tribunal review.
4. The applicant did not furnish any written submissions, as directed. At the hearing, he did not advance any further submissions beyond providing an explanation for his adjournment request, which had been submitted in the morning of the day of the hearing. Despite this, the applicant indicated during the hearing that he was content for this Court to proceed and consider the application for extension of time and leave to appeal itself.
5. The principles for the grant of an extension of time are well settled: see, eg, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The main consideration in this case is the merits of the purported appeal. The primary judge dismissed the application on the basis that the delegate's decision was a "privative clause decision" (within the meaning of ss 474(2) and 476(4)) that would have been reviewable by the Tribunal under Part 5 of the Migration Act if an application for that review had been made within time. As such, her Honour found that the decision was a "primary decision" within the meaning of s 476. The Federal Circuit Court therefore had no jurisdiction to review the decision: s 476(2)(a).
6. Having considered the reasons of the primary judge, I consider that her Honour was plainly correct. Putting aside the fact that the review grounds erroneously refer to the alleged errors of the Tribunal when the matter was never heard by the Tribunal, they lack any merit to warrant the grant of an extension of time because the Federal Circuit Court did not have jurisdiction to review the delegate's decision.

1. Accordingly, the application for extension of time and leave to appeal had to be dismissed with costs, as I ordered at the conclusion of the hearing.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.