Siva v Minister for Immigration and Border Protection

Background 7 Mr Siva is a male citizen of Singapore. He was born in 1975 and is now 41 years old. He arrived in Australia on a student visa on 13 February 2013 and left Australia on 12 March 2014, three days before this visa was due to expire. He returned to Australia on 24 March 2014 on a tourist visa. He departed Australia on 8 June 2014 and returned on 22 June 2014, again on a tourist visa, that visa having an expiry date of 22 September 2014. 8 The tourist visa with the expiry date of 22 September 2014 was the last substantive visa held by Mr Siva. Following its expiry, Mr Siva has held various bridging visas, although he was an unlawful non-citizen from 29 October 2014 to 2 June 2015.

The application for Medical Treatment Visitor (Class UB) visa. 9 On 27 June 2015 Mr Siva applied for a Medical Treatment Visitor (Class UB) visa ("medical treatment visa"). According to the decision record of the Administrative Appeals Tribunal ("Tribunal") dated 6 November 2015, at the relevant time Class UB contained only one class, being Subclass 602 (medical treatment). 10 According to the FCCA judge, in his visa application Mr Siva said that he was a victim of fraud by an Australian migration agent, as a result of which he was suffering from depression and was under stress. 11 The criteria for the grant of a medical treatment visa is set out in Pt 602 of Sch 2 to the Migration Regulations 1994 (Cth). 12 Relevantly, clause 602.213(3) provided that clause 602.213(5) applied if: (1) the visa applicant was in Australia at the time of application; (2) the applicant did not hold a substantive temporary visa at that time; and (3) the requirements described in clause 602.212(6) were not met in relation to the applicant. 13 One of the requirements described in clause 602.212(6) is that the visa applicant has turned 50 years of age. Since Mr Siva has not reached that age, the requirements described in clause 602.212(6) were not met in relation to Mr Siva and clause 602.213(5) applied to his visa application. 14 Clause 602.213(5) contained additional criteria for the grant of the visa, being that the applicant satisfied Schedule 3, criteria 3001, 3003, 3004 and 3005. 15 Criterion 3001 was that the visa application was validly made within 28 days after the relevant day. The relevant day was defined by clause 3001(2), which provided relevantly: (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of : (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully; 16 In this case, the relevant day was 22 September 2014. 17 On 28 July 2015 a delegate of the Minister for Immigration and Border Protection ("Minister") refused to grant Mr Siva the medical treatment visa, under s 65 of the Migration Act 1958 (Cth). In summary, the delegate found that clause 602.213(5) applied to Mr Siva's application but that he did not meet Schedule 3, criteria 3001, because the visa application was not made within 28 days of the "relevant day". 18 Mr Siva then applied to the Tribunal for a review of the delegate's decision. In a decision dated 6 November 2015 and handed down on 9 November 2015, the Tribunal affirmed the delegate's decision, finding that Mr Siva did not satisfy criterion 3001. 19 In its statement of decision and reasons, the Tribunal made the following observations about Mr Siva's visa application: [7] In his application he [states] that he is seeking medical treatment visa as he has depression as a consequence of his visa statement. He said he is under stress … [8] At a hearing he explained that he has sought the assistance of a migration agent named Mr Prasad and this person then cheated him out of his money. He wants to remain in Australia, as his children aged 10 and eight are coming here soon to be with their mother. He is divorced from her …

FCCA proceeding 20 On 1 December 2015 the applicant filed an application with the FCCA seeking judicial review of the Tribunal's decision. 21 At the request of the Minister, the matter was listed on 20 May 2016 for a hearing pursuant to r 44.12 of the FCCA Rules on the basis that the application did not raise an arguable case for the relief sought. Rule 44.12 provides: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 22 Mr Siva appeared on his own behalf at the hearing of the FCCA. 23 The reasons of the FCCA judge record that Mr Siva confirmed that he relied on the grounds stated in his initiating application for review, which were: In the decision by Tribunal member, the reason for refusal was mainly stated as "just because he has been taken advantage of by someone doesn't mean than this will result in his being granted some form of visa to remain in Australia." (Paragraph 11 AAT decision) Particulars Tribunal erred in that: 1. Application was made to grant medical treatment visa for undergoing stress, depression and medical conditions due to the migration fraud which has leads to the visa cancellation. 2. The applicant meets the character requirement under PIC 4001, 4002, 4003 and 4004. 3. Applicant meets the requirement of criterion 3004 on the following basis which was not considered by the Tribunal member in his decision. a) The applicant ceased to hold a substantive visa after 1 September 1994. b) The applicant is not the holder of substantive visa because his previous visa refusal was a factor beyond the applicant's control; The applicant was a victim to migration fraud and the factors were beyond the applicant's control. c) The applicant need to remain in Australia for medical treatment to improve the health condition which allow the applicant to return to Singapore. d) The applicant intends to comply with conditions subject to which the visa is granted. 4. The applicant also satisfies criterion 3005. 24 After hearing argument, including a submission from Mr Siva that his children were now in Australia, the FCCA judge dismissed the application with costs pursuant to r 44.12(1)(a). The FCCA judge found (at [29]) that the decision record of the Tribunal made clear the failure of Mr Siva to meet some of the criteria for the medical treatment visa. Accordingly, at [30], the FCCA judge concluded that the findings made by the Tribunal were open to it on the material before it and for the reasons it gave. Her Honour concluded that Mr Siva's complaints were in the nature of a disagreement with the decision of the Tribunal and sought impermissible merits review, which the Court could not undertake.

Extension of time for leave to appeal 25 The relevant considerations in deciding whether to grant an extension of time for leave to appeal are the reasons for the delay and whether the application for leave to appeal has such prospects of success as not to render the extension of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802. See also WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

Leave to appeal 26 The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish: (1) that in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the appellate Court; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400 at [2]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]-[44] per French J (as he then was) (Beaumont and Finkelstein JJ agreeing); Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. 27 These considerations are cumulative so that leave to appeal will not be granted unless both limbs are made out. Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127 at [12]; [2016] 237 FCR 276.

Consideration 28 In this case the Minister contended that Mr Siva's application must be refused because the FCCA decision does not disclose any appellable error, and Mr Siva has not identified any appellable error. Accordingly, to grant an extension of time for leave to appeal and leave to appeal would be an exercise in futility. 29 At the hearing today Mr Siva explained that his children are in Australia and he does not want to leave them behind. The prospect of leaving them behind will make him more depressed. Mr Siva also submitted that there was no one left for him in Singapore. Unfortunately, those matters are not relevant to the case before the Court. 30 The grounds stated in the draft notice of appeal do not disclose any appellable error on the part of the FCCA judge. 31 Mr Siva has not identified any error on the part of the FCCA judge, and none is apparent on the face of the judgment. As Ms Hillary, the solicitor who appeared on behalf of the Minister, submitted, the proposed grounds of appeal go no higher than disagreeing with the decision of the FCCA judge. Where the FCCA decision is not attended by sufficient, or any, doubt to warrant reconsideration and where the appeal has no prospect of succeeding, it would be futile to grant the extension of time for leave to appeal. 32 It is therefore unnecessary to consider the reasons for Mr Siva's delay in seeking leave to appeal.

Conclusion 33 Accordingly the application for an extension of time and leave to appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.