Li v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal be dismissed.
2. The applicant pay the first respondent's costs of the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 The applicant has applied for an extension of time and leave to appeal from orders of the Federal Circuit Court of Australia. The applicant's application was filed approximately 55 days out of time. 2 The procedural background to the application is as follows: (a) On 5 August 2016, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). (b) On 9 August 2016, a delegate of the first respondent (the Minister) refused the application. (c) The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision. (d) The applicant was invited under s 360 of the Migration Act 1958 (Cth) to appear before the Tribunal on 5 December 2016 at 9.00 am. (e) The applicant did not appear at the hearing at 9.00 am on 5 December 2016. In these circumstances, the Tribunal decided to dismiss the application without further consideration of the application or the information before the Tribunal. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 362C(5) of the Migration Act. He was also advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. (f) On 12 December 2016, the applicant applied for reinstatement of his application. (g) On 20 December 2016, the Tribunal decided to refuse the application for reinstatement and to confirm the decision under review. The Tribunal stated that, on 12 December 2016, it had received an email from the applicant in which he stated that he did not attend the hearing on 5 December 2016 due to his poor health and that he attached a medical report. The Tribunal stated that the attachment was not, in fact, a medical report, but rather a doctor's referral for a blood test dated 10 December 2016. The Tribunal stated that it had not been provided with any medical evidence in relation to the applicant's health on 5 December 2016 or why this prevented him from attending the hearing on that date. In these circumstances, the Tribunal was not satisfied that the application should be reinstated. (h) The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. (i) On 22 September 2017, the Federal Circuit Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001: Li v Minister for Immigration & Anor [2017] FCCA 2326 (the Reasons). Rule 44.12(1)(a) provides that, on the hearing of an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. 3 Before turning to the application for an extension of time and leave to appeal, it is convenient to summarise the Reasons. 4 The primary judge outlined the factual background to the matter. He noted, at [4] of the Reasons, that the delegate refused the application for a medical treatment visa on the basis that the applicant failed to satisfy criterion 3001 in Sch 3 to the Migration Regulations 1994 (Cth), which he was required to satisfy pursuant to cl 602.213 of Sch 2 to the Migration Regulations. The reason the applicant failed to satisfy criterion 3001 was that he did not lodge his medical treatment visa application within 28 days of his last substantive visa ceasing on 15 August 2013. (In relation to the criteria for a medical treatment visa, see generally Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235.) 5 The primary judge described, at [7], the hearing invitation sent to the applicant by the Tribunal. The primary judge referred, at [8], to the fact that the Tribunal received a delivery failure message in relation to the email it had sent to the applicant with the hearing invitation. The Tribunal then sent the applicant a letter by post, enclosing a copy of the hearing invitation. The primary judge described the further correspondence between the Tribunal and the applicant, including the applicant's application for reinstatement, at [9]-[11] of the Reasons. 6 The primary judge outlined the Tribunal's decision to refuse the application for reinstatement. The primary judge then set out, at [14] of the Reasons, the applicant's grounds for seeking judicial review. These were as follows: 1. The Tribunal made jurisdictional error when making its decision to dismiss my application. 2. The Tribunal ignored the fact that I have done the reinstatement of my application. 3. The Immigration Department refused my medical treatment visa on the ground of clause 602.213, however, I do provide evidence showing I had met the criteria of 602 visa. 7 The primary judge considered these grounds at [18]-[24] of the Reasons. The primary judge noted that the applicant's difficulty (in seeking to challenge the Tribunal's refusal to reinstate the proceeding) was that he did not provide any material medical details to the Tribunal when seeking reinstatement of his application. The primary judge concluded, in respect of each ground, that it did not raise an arguable case for judicial review. The primary judge stated at [22]-[24]: 22. Mr Li's first ground is a bare assertion of jurisdictional error by the Tribunal, and does not raise an arguable case for the [relief] claimed in its current form. 23. Mr Li's second ground asserts that the Tribunal ignored Mr Li's reinstatement application. That assertion must fail at a factual level. The Tribunal clearly took Mr Li's email of 12 December 2016 to be a reinstatement application, and its attachment to be evidence in support of that application, but was not satisfied on the material provided that it was appropriate to reinstate the matter. This ground also does not raise an arguable case for the [relief] claimed. 24. Mr Li's final ground takes issue with the delegate's decision. However, this Court does not have jurisdiction to review any alleged error in the delegate's decision, as the delegate's decision was a "primary decision" as defined in s.476(4). In any event, the substance of the third ground is an expression of Mr Li's disagreement with the delegate's findings, and seeks impermissibly to challenge the merits of that decision. (Footnotes omitted.) 8 The primary judge also considered some issues that went beyond the applicant's grounds of review. In particular, the primary judge considered whether the applicant was correctly notified of the hearing and the dismissal decision, and whether the confirmation decision was made reasonably. The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 9 I turn now to consider the applicant's present application. 10 On 30 November 2017, the applicant filed an application for extension of time in this Court. Although the application does not include an application for leave to appeal (which is required as the dismissal of the application below was pursuant to r 44.12(1)(a) and therefore was interlocutory), the Minister's solicitor indicated at the hearing that the Minister was content for the document filed by the applicant to be treated as an application for an extension of time to seek leave to appeal and an application for leave to appeal from the orders of the Federal Circuit Court. The application was filed approximately 55 days after the date by which an application for leave to appeal should have been filed. 11 The applicant's application is supported by an affidavit of the applicant dated 12 October 2017. The affidavit relevantly states as follows: I make this statement in support of my application for an extension of time so that I can file a Notice of Appeal from the Federal Circuit Court of Australia. The Notice of Appeal was not filed in time as I had difficulty in affording the filing fee. I am applying Exemption of Court Fee. I have uploaded the supporting documents. However, the additional documentations were required so that I need more time to gather the evidence and wait for the Exemption of Court Fee approved. The grounds of my Appeal to Federal Court is that the Judge of Federal Circuit Court and the Administrative Appeals Tribunal failed to take into consideration of the material facts that the First Appellant's actual poor medical condition and future medical treatment schedule what the professional doctor had provided. (Errors in original.) 12 The applicant has provided a draft notice of appeal. This identifies the following three proposed grounds: 1. The court failed to take into the fact that the first applicant is in poor health condition in the past year 2. The court mistakenly made te judgement that the first applicant haven't meet the requirment for medical treatment visa 3. The Court failed to consider the material facts that the first applicant have undertaken medical treatment in Australia (Errors in original.) 13 The principles applicable to an application for an extension of time and an application for leave to appeal are well established. In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. 14 In relation to the application for extension of time, the explanation for the delay provided by the applicant is not, in my opinion, adequate. The affidavit does not provide detail as to when an exemption from the filing fee was sought and whether this could have been sought sooner. 15 The period of the delay, namely 55 days, is substantial. 16 In relation to the merits of the proposed appeal, in the present case it is necessary to consider that the applicant needs leave to appeal, and the merits of that application. I turn now to that issue. 17 One of the considerations relevant to the leave to appeal application is whether the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal. In my view, the grounds set out in the draft notice of appeal are without merit. The first proposed ground is to the effect that the Federal Circuit Court failed to take into account the applicant's poor health. However, the issues before the primary judge were framed by the applicant's grounds for seeking judicial review. The primary judge addressed these grounds. To the extent relevant, the primary judge did have regard to the applicant's poor health condition. The difficulty for the applicant was that, as noted by the primary judge, the applicant did not provide any material medical details to the Tribunal when seeking reinstatement of his application. 18 The applicant's second proposed ground of appeal does not reflect the basis for the decision of the primary judge. The primary judge did not need to address, and the primary judge did not address, whether the applicant met the requirements for a medical treatment visa. To the extent that the primary judge referred to the delegate's reasons for decision, this was by way of background. 19 The applicant's third proposed ground of appeal is also without merit. The fact that the applicant had undertaken medical treatment in Australia was not something that needed to be addressed in the context of the issues before the primary judge. I note for completeness that at the hearing before me the applicant said that he did attend the Tribunal on the date set out in the hearing notice, but at 9.00 pm rather than 9.00 am. However, this was not the basis upon which he sought reinstatement of his application before the Tribunal, and therefore does not provide a basis for challenging the Tribunal's decision of 20 December 2016 or the primary judge's decision. 20 It follows from the above that, in my view, the decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration on appeal. 21 In light of the above, I do not consider it to be appropriate to grant an extension of time to seek leave to appeal. Accordingly, the application for an extension of time and leave to appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the applicant pay the Minister's costs of the application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.