Smyk v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1545

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. By application, filed on 23 February 2022, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 18 January 2022. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Medical Treatment (visitor) (class UB) visa (the visa).

1. The following background is derived from information the Court Book and the Minister's submissions and is not in dispute.
2. The applicant is a citizen of Poland. He arrived in Australia on 11 December 2009 as the holder of a visitor visa, which ceased on 15 December 2009. The applicant applied for and was granted various student visas, on which he remained in Australia between 15 December 2009 and 15 June 2015.
3. On 15 June 2015, the applicant lodged a temporary work (Subclass 457) visa. He was granted a Bridging A visa in relation to that application. The Subclass 457 visa application was refused on 21 December 2017 and the associated Bridging A visa ceased on 18 January 2018. The applicant remained unlawfully in Australia until 25 March 2020.
4. On 25 March 2020, the applicant applied for the visa, subject of these proceedings. In his application, he stated that he wished to remain in Australia until 30 March 2021 to seek medical treatment for laceration of the flexor tendon on his right middle finger.
5. On 23 April 2020, the delegate refused to grant the visa as they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of medical treatment or related purposes.
6. On 12 May 2020, the applicant applied to the Tribunal for a review of the delegate's decision.
7. On 27 October 2021, the applicant was invited to a Tribunal hearing scheduled for 16 November 2021.
8. On 8 November 2021, submissions and various documents were provided to the Tribunal in support of the review application. The applicant stated that he was diagnosed with Persistent Complex Bereavement and Persistent Major Depressive Disorder for which he required psychological management as well as exercise physiology for his physical injury. The applicant also stated that he sustained two workplace injuries, in January 2014 and November 2019, for which he underwent surgery and treatment.
9. On 16 November 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
10. On 18 January 2022, the Tribunal affirmed the delegate's decision.

1. The Tribunal noted that the Subclass 602 Medical Treatment visa was for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
2. Relevantly, the Tribunal considered whether the applicant satisfied cl 602.212(2) of the Migration Regulations 1994 (the Regulations). The Tribunal had regard to the material provided to it and the applicant's oral evidence. It noted that the period which the applicant had sought a visa for medical treatment, from 19 March 2020 to 30 March 2021, had passed and considered whether the requirement was met in relation to future medical treatment.
3. While the Tribunal was satisfied that the applicant sought to obtain medical treatment, it was not satisfied on the evidence before it that arrangements had been concluded to carry out the treatment: cl 602.212(2)(b).
4. The Tribunal then considered whether the applicant had a genuine intention to stay temporarily for the visa purpose: cl 602.215. As the exception provided in cl 602.212(6) was not met, the Tribunal found that cl 602.215 applied to the applicant.
5. The Tribunal had regard to the evidence before it pertaining to whether the applicant had complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, whether the applicant intended to comply with the conditions to which the Subclass 602 visa would be subject, and other matters it considered relevant.
6. The Tribunal found the applicant's migration history to be unfavourable in circumstances where he had applied for numerous visas and remained in Australia unlawfully. The Tribunal considered the incentives for the applicant to return to Poland or the UK, where one of his daughters resides. While it was persuaded there were some incentives to return, it considered there were pull factors to remain in Australia. The Tribunal also took into consideration the applicant's vague and indefinite plans for medical treatment, the fact that the treatment does not appear to have any end date and that such treatment may be available in his home country.
7. In considering all the circumstances, the Tribunal was not satisfied that the applicant had a genuine intention to stay temporarily for the visa purpose and found that cl 602.215 was not met.

1. The application which commenced proceedings in this Court contained one ground pertaining to the extension of time and 14 grounds in respect of the proposed application for judicial review.
2. The applicant also filed an affidavit which annexed a copy of the Tribunal's decision record. It was not necessary to take this affidavit into account as the Tribunal's decision was included in the Court Book.
3. The Minister filed written submissions on 26 August 2025.
4. On 1 September 2025, the applicant filed a document titled 'Affidavit of Piotr Smyk' (the Applicant's Affidavit). The document did not appear to be in the format of an affidavit, it was not sworn or affirmed by a qualified witness and contained five pages of background information, medical history and submissions as to why the applicant meets the requirements of the medical treatment visa. The applicant also filed various accompanying documents relating to his worker's compensation claim, medical reports and referral letters and PAYG statement.
5. The parties appeared before the Court at the hearing on 9 September 2025. The applicant appeared in person and was assisted by an Interpreter in the Polish and English languages. Ms M. Prefontaine of the Australian Government Solicitor appeared on behalf of the Minister.
6. The Court Book was tendered into evidence at the hearing and was marked Exhibit CB.
7. In respect of the Applicant's Affidavit and accompanying documents filed on 1 September 2025, the Minister objected to these being into evidence on the basis they were not before the Tribunal when it made its decision and did not support the applicant in identifying jurisdictional error in the decision.
8. As the Applicant's Affidavit included submissions which resembled the proposed grounds of judicial review, to the extent relevant, I will take those parts of the affidavit into account as submissions in support of the application.
9. As for the accompanying documents, I accept the Minister's reasons for the objection. The documents were not before the Tribunal when it made its decision and are therefore not relevant to the proceedings before the Court. The accompanying documents are inadmissible and will not be taken into account.
10. Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the matters that would normally be considered, which it noted were not exhaustive, when determining whether time should be extended to enable him to pursue his substantive application for judicial review.

Consideration of the extension of time application

1. The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
2. Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:

(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.

1. The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following grounds (without alternation) in support of his application for extension of time:
   1. Time is needed in order for the appellant to better prepare to address the following.
2. At the hearing, I explained to the applicant that the circumstances, which I noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the proposed grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and confirmed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [13].
3. In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a 'reasonably impressionistic level': MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110. As explained to the applicant at the hearing, I need only be satisfied that the grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
4. The applicant was invited to make oral submissions in relation to each of the circumstances, and the Court has considered those submissions as follows.

1. The applicant commenced proceedings in this Court on 23 February 2022, being one day outside the prescribed period of 35 days from the date of the Tribunal's decision. The Court considers a delay of one day to be minimal. This factor weighs slightly in favour of granting the extension of time.

1. The applicant said he was ignorant to the process and requested the assistance of a migration agent in lodging his application. The applicant claimed the migration agent did not take any payment and, because he did not have the financial means to engage a lawyer, the agent assisted him out of pity.
2. The Minister submitted that a self-represented litigant's ignorance of the time limit, in most circumstances, is not a satisfactory explanation: MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4]. Nevertheless, the Minister acknowledged that the delay was only for one day.
3. While I accept the explanation for why the application was lodged one day late, I also consider it was the applicant's responsibility to follow up with the person assisting him to ensure the application was filed within the prescribed period. This factor weighs slightly against granting the extension of time.

1. The applicant made no submissions in respect of this circumstance. The Minister properly acknowledged that they would not suffer prejudice by the grant of an extension of time. However, as submitted by the Minister, the mere absence of prejudice does not of itself provide a sufficient basis to grant of an extension of time. I consider this factor to be neutral.

1. I have considered, at a reasonably impressionistic level, whether any of the proposed grounds in the application for judicial review have any reasonable prospect of success.
2. The applicant's fourteen grounds of review contain background information, unparticularised complaints about the Tribunal's decision and submissions as to why he satisfies the criteria for the visa. They are as follows (without alteration):
   1. My name is Piotr Kazimierz Smyk and I am a Polish citizen.
   2. I came to Australia on 11 December 2009 on a Visitor (Subclass 651) visa. I have subsequently also held Student and Bridging A visas.
   3. On 25 March 2020, I lodged an application for a Medical Treatment (Subclass 602) visa and my application was refused by a delegate of the Minister for Home Affairs on 23 April 2020.
   4. I subsequently applied to the Administrative Appeals Tribunal (Tribunal) for a review of the Departmental decision and on 18 January 2022, the Tribunal affirmed the decision for me not to be granted the Medical Treatment visa (Decision). I seek a review of the Tribunal's decision dated 18 January 2022.
   5. On 28 January 2014, whilst working in a factory, I sustained an injury to my right index finger and underwent surgery as a result. On 19 November 2019, I sustained another injury at work to the same hand, suffering a flexor tendon laceration to my right middle finger. I again underwent surgery, however, I continue to experience pain and restricted movement in my right hand as a result of the injuries. I have been unable to work since. This incapacity has severely affected me psychologically and I have been consulting with a psychologist and psychiatrist for mental health treatment.
   6. I have been diagnosed with Persistent Complex Bereavement and Persistent Major Depressive Disorder by Dr Brian Potter, psychiatrist, as a result of the physical injuries to my hand and resultant situational stressors.
   7. I wish to remain in Australia temporarily in order to continue with my psychological and psychiatric treatment until I am well enough mentally to travel.
   8. In its Decision to refuse me the grant of a Medical Treatment visa, the Tribunal says it has taken into consideration my migration history, the lack of incentives for me to return to Poland, the availability of treatment in other countries and the absence of a treatment plan or end date for me in Australia. I wish to address these points.
   9. During my stay in Australia, I have always abided by the conditions of my visas and lived life here like any model citizen. I have contributed to the Australian economy through work and have always attempted to make positive contributions to the Australian society. I have always considered Australia a second home during the time that I have lived here. However, I have predominantly been alone in Australia, with my ex-wife and two daughters being overseas. During these times of hardship, I have dearly missed them and realised the importance of having family member stay in Australia since 2009 has always been anchored by a reason, name and a partner at one stage. However, now the only reason for my stay is to continue to receive treatment and once I am well enough physically and emotionally, there is no other incentive for me to remain in Australia beyond the expiration of my visa. On the other hand, I have not seen my daughters for a very long time and as soon as I am well enough, I wish to depart Australia to spend more time with my children and return to work in my own country. Therefore, any subsequent stay in Australia would be temporary and for a short period only. 1 submit that there are currently more compelling reasons for me to return to my country than remain in Australia, however, I am not in a position to travel if I am not psychologically and physically fit.
   10. Given the nature of my health issues are mainly psychological/psychiatric at this stage, I do not consider it surprising that there is no definite treatment period outlined by my treating doctors. I am currently working with them in order to outline a practical treatment plan and route to recovery to enable me to leave Australia soon, however, psychological healing is not as clear cut as physical ailments for example. I am making an effort every day to get better and bring back some normality to my life, however, as one can anticipate that is a process that will require some time.
   11. In relation to the availability of treatment in a country outside Australia, whilst I acknowledge that is possible, I submit that it would be neither practical nor beneficial in my case. I have been working with my treating psychiatrist and psychologist for a while now and we have built a rapport which is so crucial in such treatment. Starting my treatment with different health professionals in another country all over again would be detrimental to the progress I have made thus far and would retraumatise me. In addition, my treatment in Australia is currently being paid for by my employer's insurance company, at no extra cost to me. If I leave my treatment in Australia mid-way, there will be no financial support available to me overseas to continue my treatment and I will continue to suffer both mentally and physically if the treatment is stopped so abruptly due to my visa issues.
   12. More than anyone else, I myself would like to get physically and psychologically well because I have been out of work and my life has been in disarray for a long time now. I want to get healthy for myself and bring my life back on track. I want to be fit enough to see my daughters and return to my country. Leaving Australia now in the middle of my treatment would have disastrous effects on my health and wellbeing. Therefore, I request to be able to stay for medical treatment for a short period of time until I am well enough to travel.
   13. For the above reasons, I request this Court to set aside the Tribunal's Decision.
   14. I can provide further evidence and submissions to the Court as needed.

1. At the hearing, I explained to the applicant in some detail the types of errors that can constitute jurisdictional error in the Tribunal's decision or process, and the limited role of the Court in reviewing the Tribunal's decision. In view of these explanations, I asked the applicant what he believed the Tribunal 'did wrong' when conducting a review of his case.
2. The applicant said at the time he was attending physiotherapy sessions because of the limited use of his right hand. He said he was also seeing a psychologist, had severe depression and was on medication. I noted that the matters raised by him appear to have been taken into account by the Tribunal in its reasons. When asked if there was any specific information that was before the Tribunal which had not been considered, the applicant said he wanted time to consider the material in the Court Book. With the assistance of the Ms Prefontaine, solicitor for the Minister, the applicant was guided through the documents in the Court Book. The applicant agreed that they were the documents he had provided to the Tribunal.
3. For reasons that follow, I am not satisfied that any of the proposed grounds or matters raised by the applicant at the hearing enjoy any reasonable prospect of success if time were extended.
4. As submitted by the Minister, grounds one to seven merely provide background information about the applicant, his medical history and why he wants to remain in Australia. They do not provide a basis for contending jurisdictional error.
5. Grounds eight to twelve seek to respond to matters in the Tribunal's decision that the applicant takes issue with, including its findings about the applicant's lack of incentive to return to his home country, availability of treatment in his home country and the absence of a treatment plan or end date for him to be in Australia. The grounds, taken at their highest, do no more than express disagreement with the Tribunal's evaluation of the evidence and its conclusions.
6. Assessment of the claims and evidence was a matter for the Tribunal. I am unable to identify any potential illogicality or irrationality in the Tribunal's consideration of the evidence. Nor is there a basis for suggesting that the Tribunal's decision was legally unreasonable. The Tribunal's reasons were detailed, and its findings and conclusions with respect to the requirements in cl 602.212(2) and cl 602.215 were open to it on the evidence before it. Mere disagreement with the Tribunal's reasons does not, of itself, provide a basis for contending jurisdictional error.
7. Ground thirteen is a request for the Court to set aside the Tribunal's decision. However, as explained to the applicant at the hearing, the Court's power to quash the Tribunal's decision arises only in circumstances where jurisdictional error can be established. None of the proposed grounds raised by the applicant enjoy any prospect of establishing jurisdictional error in the Tribunal's decision.
8. Ground fourteen states that the applicant can provide further evidence and submissions. However, as explained to the applicant, the Court is generally unable to have regard to evidence that was not before the Tribunal at the time it made its decision. In any event, this is not a proper ground of alleged error.
9. The matters raised by the applicant at the hearing about his circumstances at the time of the Tribunal's decision do not disclose any error by the Tribunal. The Tribunal considered the evidence before it regarding the treatment the applicant was receiving, however, it was unable to be satisfied that arrangements had been concluded to carry out the treatment. The Tribunal's reasons do not disclose any failure on its part to consider the evidence before it regarding the treatments the applicant was receiving. I am not satisfied that the additional grounds raised by the applicant at the hearing have any merit.
10. None of the proposed grounds of review have any prospect of success. This factor weighs heavily against granting the extension of time.

1. Having considered and weighed the relevant factors, I am not satisfied that it is necessary in the interests of the administration of justice to extend time in this case.
2. For these reasons, the application for an extension of time must be dismissed.

1. The Minister sought an order that the applicant pay the Minister's costs fixed in the sum of $4,000. The applicant submitted he would be unable afford this amount. However, as explained to him, financial hardship is generally not a basis for the Court not making a costs order. I am satisfied that in this case costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard interlocutory migration matter, I am satisfied that the costs sought in this matter are reasonable and will so order.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1]The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.