Huang 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 27 November 2018 and accompany the orders set out above. 2 The applicant seeks an extension of time to file a notice of appeal from the decision and orders of a judge of the Federal Circuit Court of Australia made on 12 April 2018 dismissing the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal, (the Tribunal), not to grant to the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). 3 The applicant is a citizen of China. He entered Australia unlawfully almost eight years ago. His entry was unlawful because his passport was fraudulent. It followed that the visa purportedly granted with respect to the fraudulent passport was of no effect. About two months after his unlawful arrival, on 16 March 2011, the applicant then lodged an application for a Protection (Class XA) visa. That application was refused by a delegate of the first respondent (the Minister), on 10 May 2011. The applicant then applied for review to the then Refugee Review Tribunal, which affirmed the Minister's delegate's decision on 29 August 2011. 4 Crucially, for current purposes, the applicant's last bridging visa expired on 26 September 2011. From that date, the applicant remained in Australia unlawfully. On 14 February 2017, the applicant applied for the medical treatment visa pursuant to s 65 of the Migration Act 1958 (Cth). On 2 March 2017, a delegate of the Minister refused to grant the applicant the medical treatment visa because he did not satisfy cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations). The applicant then sought review of the delegate's decision before the Tribunal by application dated 20 March 2017. The applicant appeared at a hearing before the Tribunal in June of that year to give evidence and present arguments. On 23 June 2017, the Tribunal affirmed the decision to refuse the applicant the medical treatment visa. 5 By the terms of the relevant clauses of Schedule 2 to the Migration Regulations, the Tribunal was bound to refuse the applicant a medical treatment visa for the reasons it gave and which I shall now briefly explain. It follows that the applicant's application for extension of time must be refused. 6 The insuperable difficulty that the applicant faces in this case is that by virtue of the Migration Regulations then relevantly applicable, he was never eligible to apply for a medical treatment 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. 7 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 treatment 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 his application for a medical treatment visa within 28 days after "The last day when he held a substantive visa". The last substantive visa that the applicant held was a bridging visa which expired on 26 September 2011. His application for a medical treatment visa, having been made on 14 February 2017, was therefore made approximately five and a half years late. 8 There is no provision in the Migration Regulations for the Tribunal or any court to grant an extension of that 28 day period, nor is there any discretion vested in the Tribunal to waive the Schedule 3 criteria: Matar v Minister for Immigration and Border Protection [2017] FCA 1314 at [16] (per Yates J). 9 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 a medical treatment visa. 10 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.