Tang v Minister for Immigration and Border Protection

1. The application for an extension of time to appeal be dismissed.
2. The applicants pay the first respondent's costs, 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 applicants, who are citizens of China, seek an extension of time in which to appeal from orders of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) in relation to applications by each of them for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). 2 The procedural background to the application is, briefly, as follows: (a) On 7 October 2015, each applicant applied for a medical treatment visa. (b) On 8 October 2015, a delegate of the first respondent (the Minister) refused the applications. (c) The applicants applied to the Tribunal for review of the decisions. (d) On 6 April 2016, a hearing took place before the Tribunal. (e) On the same day, the Tribunal decided to affirm the decision of the delegate. (f) The applicants applied to the Federal Circuit Court for judicial review of the Tribunal's decision. (g) On 6 November 2017, the Federal Circuit Court dismissed the application: Tang & Anor v Minister for Immigration & Anor [2017] FCCA 2773 (the Reasons). (h) On 30 November 2017, the applicants filed in this Court an application for an extension of time in which to appeal. This was approximately three days after the time for filing a notice of appeal had elapsed. 3 It is convenient to outline the reasons of the Tribunal, and the Reasons, before turning to the application for an extension of time. 4 The Tribunal identified the issue as being whether the applicants satisfied the criteria in cl 602.213 in Sch 2 to the Migration Regulations 1994 (Cth). The Tribunal explained the operation of cl 602.213 at [6] as follows: Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met. 5 The Tribunal noted that there was no dispute that each applicant was in Australia at the time of the application. The Tribunal also noted that the last substantive visa held by each applicant ceased on 31 October 2013. The Tribunal then examined if the applicants met the requirements described in cl 602.212(6) and concluded that they did not. It followed from this that, to meet the requirements of cl 602.213, the applicants needed to satisfy the requirements of criteria 3001, 3003, 3004 and 3005 in Sch 3 to the Regulations. 6 Critically, in order to satisfy criterion 3001, the application for the medical treatment visa needed to have been made within 28 days of the relevant day. The expression "relevant day" was relevantly defined as the last day that the applicant held a substantive visa. In the case of each of the present applicants, this was 31 October 2013. As their applications had not been made within 28 days of that date, the Tribunal found that they did not satisfy criterion 3001. Accordingly, the applicants did not satisfy cl 602.213. 7 I now refer to the Reasons of the primary judge. The primary judge outlined the procedural background to the proceeding in the Federal Circuit Court and summarised the decision of the Tribunal. The primary judge referred to the discussion of the criteria for a medical treatment visa in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [9]-[17] per Perram J. 8 The primary judge referred, at [8] of the Reasons, to the application filed in the Federal Circuit Court and noted that, in an attachment to the application, a distinction was drawn between what were said to be "orders sought" and what were said to be the intended "grounds" of the application. The primary judge considered all six paragraphs as grounds of review. Each of these grounds was rejected, for the reasons set out at [8]-[20] of the Reasons. The primary judge concluded that no jurisdictional error had been established. Accordingly, the application was dismissed. 9 I now turn to consider the application for an extension of time to file a notice of appeal. The application is supported by an affidavit of the first applicant dated 22 November 2017. In this affidavit, the following is stated: My appeal application for Federal Circuit Court has been dismissed and I disagree with its decision. I wish to do further review with your court and get a more fair decision. I delayed my further appeal application due to my financial hardship for the application fee which I was unable to afford within 21 days from the federal circuit court of Australia. Also I could not get help in filling out all the forms required due to my limited English. I wish the court can consider my difficult situation and accept my application for further appeal. (Errors in original.) 10 A draft notice of appeal has been provided. In this document, the following grounds are set out: I am a Chinese citizen and applied for Subclass 602 on shore without substantitive visa. I did provide to DIBP, AAT and Fedral Court with compelling reasons. AAT and Federal Court failed to consider my explaination and supporting documents to support my appeal which I believe it is a legal error. (Errors in original.) 11 The principles applicable to an application for an extension of time are well established. 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: 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. 12 In the present case, I doubt whether the affidavit of the first applicant provides an adequate explanation for the delay. However, the period of the delay is short. In these circumstances, it is appropriate to focus on the merits of the proposed appeal. 13 For the reasons that follow, I do not consider that the proposed appeal grounds have any merit. 14 As the primary judge stated at [10] of the Reasons, the difficulty that faces the applicants is that: criterion 3001 applied to their applications for the reasons the Tribunal gave; it was an objective requirement; and the Tribunal had no discretion to waive the requirement. 15 The first paragraph of the draft notice of appeal is substantially the same as the second "order sought" in the Federal Circuit Court. This was, in effect, a ground that the Tribunal did not consider the "fact" that the first applicant "had compelling reasons for not holding a substantive visa" when he applied for the medical treatment visa. The primary judge stated at [13] of the Reasons that: the Tribunal referred to the first applicant's oral evidence that he was not aware of the time limit; however, as the Tribunal (correctly) pointed out, it had no discretion; and, in these circumstances, the Tribunal was not required to take into account asserted compassionate or compelling circumstances. In my view, these reasons for rejecting this ground of review were correct. Accordingly, there is no merit in the first paragraph of the draft notice of appeal. 16 The second paragraph of the proposed notice of appeal is that the Tribunal and Federal Circuit Court failed to consider the applicants' explanation and supporting documents. This too is similar to the second order sought below and lacks merit for the reasons given by the primary judge. Further, no particulars have been provided as to the matters that are said not to have been considered. As discussed above, given the nature of the criteria for a medical treatment visa, the matters that needed to be considered were confined in scope. There does not appear to be any basis for a contention that the Tribunal or the Federal Circuit Court failed to consider relevant material. 17 In light of the above, the proposed appeal does not have merit. Accordingly, the application for an extension of time is to be refused. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the applicants pay the Minister's costs of the application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.