Federal Court Rejects Visa Appeal Due to Time Limit Violation

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [2018] FCA 1800 Appeal from: Application for extension of time and leave to appeal: [APPELLANT] v [NAME] [2018] FCCA 1856

File number: NSD 1338 of 2018

Judge: PERRAM J

Date of judgment: 19 November 2018

Catchwords: MIGRATION – application for extension of time and leave to appeal from Federal Circuit Court – whether Court erred in dismissing appeal on show cause basis from Administrative Appeals Tribunal – where Applicant applied for medical treatment visa outside prescribed time limit

Date of hearing: 19 November 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 4

Counsel for the Applicant: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS NSD 1338 of 2018

BETWEEN: [APPELLANT] Applicant

AND: [APPELLANT] FOR IMMIGRATION AND [NAME] PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGE: PERRAM J DATE OF ORDER: 19 NOVEMBER 2018

THE COURT ORDERS THAT:

1. The application for extension of time and leave to appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application for an extension of time for an application for leave to appeal from orders made by the Federal Circuit Court on 11 July 2018. [ADDRESS] ordered that Mr [APPELLANT]'s proceedings be dismissed because he had no arguable case for relief and did this on a show cause basis. His proceeding in the Court below sought to quash a decision of the Administrative Appeals Tribunal affirming an anterior decision of a delegate of the Minister refusing to grant him a Medical Treatment (Visitor) (Class UB) visa. Mr [APPELLANT] missed the deadline for his application for leave to appeal to this Court by two days and I would not regard that as a significant dispositive matter. 2 However, he still needs leave to appeal because a dismissal at a show cause hearing is deemed to be interlocutory. Mr [APPELLANT]'s appeal has, in my view, no prospects of success and I decline to extend the time to apply for leave to appeal. The Tribunal's conclusion that he was not eligible for the visa was unquestionably correct. One of the eligibility criteria for the visa is that an applicant must apply for the visa within 28 days of the last day upon which the visa holder held a substantive visa. Mr [APPELLANT]'s last substantive visa expired on 30 October 2012 and he applied for the Medical Treatment visa on 16 June 2016. He is, therefore, not eligible for this kind of visa. Even if error was shown in the processes of the Tribunal, the relief would be refused in that circumstance. 3 In the Federal Circuit Court, four errors were alleged and each was rejected by the judge. First, no procedural unfairness was found in the Tribunal's non-consideration of the medical evidence in circumstances where Mr [APPELLANT] was not eligible for the visa. Secondly, the Tribunal had not misconstrued one of the eligibility criteria requiring that an applicant had turned 50 years of age and there was no doubt that Mr [APPELLANT] had not reached that age. Thirdly, the fact that his condition had deteriorated after his substantive visa had expired was irrelevant to the 28-day time limit prescribed in the eligibility criteria which did not permit that to be taken into account. Fourthly, the Tribunal had not acted unreasonably in not considering his medical condition when he was not eligible, on any view, for the visa. 4 Each of these considerations was plainly correct and the application for an extension of time is therefore refused with costs I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 19 November 2018