Begum v Minister for Immigration and Border Protection

1. The application for an extension of time to appeal filed on 7 May 2018 be dismissed.
2. The applicant pay the first respondent's costs to be assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 These reasons for judgment were delivered ex tempore at the hearing on 28 November 2018 and accompany the orders set out above. 2 When this application was called on for hearing this afternoon, there was no appearance by, or on behalf of, the applicant. Mr Pinder appeared on behalf of the first respondent (the Minister). Mr Pinder made an application under r 36.74(1)(c) of the Federal Court Rules 2011 (Cth) that the application be dismissed for the failure by the applicant to attend this hearing. 3 Mr Pinder handed to me two letters: one dated 7 November 2018, the other dated 22 November 2018. The first of those letters was a letter from Mr Pinder's firm, Minter Ellison, informing the applicant that due to judicial unavailability this matter had been re-listed for hearing today (it having originally been listed for hearing on 21 November 2018). The second of those letters enclosed, by way of service, the Minister's submissions and list of authorities. In both letters the following appears: If you do not appear on that occasion [being today] the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions of the Federal Court Rules. 4 In my view, the applicant must, therefore, be taken to be on notice of the Minister's intention to make the application that was made this afternoon. In any event, it is appropriate that the application be refused for reasons which I will now give. 5 By her application, the applicant seeks an extension of time to appeal against an order of the Federal Circuit Court of Australia made on 12 April 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the Minister not to grant to the applicant a Medical Treatment (Class UB) visa (medical visa). 6 The applicant gave evidence to the Tribunal that the last visa she held, a visitor visa, expired on 5 July 2013. On 25 July 2016, the applicant applied for a medical visa pursuant to s 65 of the Migration Act 1958 (Cth). On 10 March 2017, the Tribunal affirmed the decision to refuse the applicant a medical visa. By the terms of the relevant regulations, the Tribunal was bound to do so for the reasons it gave and which I shall now briefly explain. It follows that the application for extension of time must be refused. 7 The insuperable difficulty that the applicant faces, or would have faced had she attended the hearing this afternoon, is that by virtue of the Migration Regulations 1994 (Cth) (the Migration Regulations then relevantly applicable, she was never eligible to apply for a medical visa. It is unnecessary to set out in detail the regulations here. The relevant regulations which appeared under the heading "Provisions with respect to the grant of subclasses of visa, subclass 602 - Medical Treatment" are clauses 602.213 at Schedule 2 of the Migration Regulations and Criterion 3001 of Schedule 3 of the Migration Regulations. 8 Schedule 3 is entitled "Additional criteria applicable to unlawful non-citizens and certain bridging visa holders." The applicant was never entitled to apply for a medical visa because clause 602.213(5) when read with Schedule 3, Criterion 3001(2)(c)(iii) means that the applicant was bound to have brought her application for a medical visa within 28 days after "The last day when she held a substantive visa." The last substantive visa that the applicant held was a visitor visa which expired on 5 July 2013. Her application for a medical visa having been made on 25 July 2016 was therefore made approximately three years late. 9 There is no provision in the Migration Regulations for the Tribunal or any court to the grant an extension of that 28 day period, nor is there any discretion vested in the Tribunal to waive the Schedule 3 criteria (see Matar v Minister for Immigration and Border Protection [2017] FCA 1314 at [16] per Yates J). 10 In those circumstances, the Tribunal and the Federal Circuit Court judge were both correct to dismiss the applicant's applications and to hold that the applicant was not, and never could have been, eligible to have applied for the medical visa. Accordingly, I order as follows: (1) The application for an extension of time to appeal filed on 7 May 2018 be dismissed. (2) The applicant pay the first respondent's costs to be assessed or agreed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.