Alzanahreh v Minister for Immigration
[2009] FMCA 1094
•29 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALZANAHREH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1094 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal has no jurisdiction when application fee has not been paid or waived – exercise of Tribunal’s discretion at intermediate stage to refuse fee waiver and to proceed to decision. |
| Migration Act 1958, ss.347, 348, 357A Migration Regulations 1994, reg.4.13 Federal Magistrates Court Rules 2001, r.44.12 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 SZNPQ v Minister for Immigration & Citizenship [2009] FMCA 767 |
| Applicant: | YASIN ALZANAHREH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1888 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 October 2009 |
| Date of Last Submission: | 29 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to rule 44.12 of the Rules, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1888 of 2009
| YASIN ALZANAHREH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 28 July 2008 the applicant filed a Child (Residence) (Class BT) visa. This was refused by a delegate of the Minister on 14 January 2009. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The Tribunal concluded that it did not have jurisdiction to entertain the applicant’s application as it found that the application for review had not been properly made under s.347 of the Migration Act 1958 (“Act”). The applicant now seeks judicial review of that Tribunal decision.
Arguable case authorities
The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.
At a hearing to determine whether an order to show cause should be made, the order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court if the applicant does not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
Background
Section 347 of the Act sets out the requirements for a valid application to the Tribunal for review. Relevantly for these proceedings, s.347(1)(c) provides that an application for review of an MRT-reviewable decision must, amongst other things, be accompanied by the prescribed fee, if any. Regulation 4.13(4) of the
Migration Regulations 1994(“Regulations”) provides that the fee may be waived if the Tribunal is satisfied that the payment of the fee has caused, or is likely to cause, severe financial hardship to an applicant.
On 11 February 2009 the applicant applied to the Tribunal for review of the delegate’s decision. Accompanying that application was an application for waiver of the $1,400 application fee.
On 12 February 2009 the Tribunal wrote to the applicant requesting that he provide additional information in support of his application for the fee waiver. Significantly, the Tribunal said in its letter:
It would assist if you could provide the following information:
· Bank statements for the last six months for all accounts held by you.
· Department of Immigration and Citizenship records indicate that you have been in Australia since March 2000 with no work rights. Please comment on how you have been financially supported for the past nine years. Please comment on how you have been financially supported for the past nine years. Please also provide documentary evidence to demonstrate why that same source cannot now assist you to pay the review application fee.
· As you claim to now be financially dependent on Mr Tony Asfour it is reasonable for me to consider why Mr Asfour cannot assist you to pay the review application fee. Please provide blank statements for the past three months for all accounts held by Mr Asfour. Clearly mark on the statements any payments made to you as financial support.
The applicant responded by letter dated 22 February 2009.
On 18 March 2009 a Tribunal officer wrote to the applicant and advised him that his request for fee waiver had been refused. The Tribunal gave the following reasons for its decision:
· In your fee waiver application you stated that you are unemployed, you have no income and your fortnightly expenses are $300. You also stated in your fee waiver application that you have no bank accounts and you have been supported by your friend Mr Tony Asfour. Subsequently, on your response to the Tribunal letter sent to you on 19/02/2009, your provided statements for three bank accounts. Your ANZ Progress Saver Account statement shows deposits totalling $1038 between October 2008 and January 2009.
· Your ANZ Progress Saver Account statement shows that periodic transfers of $10 per month into this account from another savings account. This indicates that you may have access to funds in another, undeclared bank account.
· Based on all the information available in relation to the fee waiver application, I am not satisfied that the payment of the fee has caused or likely to cause severe financial hardship to you.
The applicant was given fourteen days from receipt of that letter to pay the prescribed application fee.
On 3 April 2009 the Tribunal received further written submissions from the applicant together with a further request that the application fee be waived. By letter dated 14 April 2009 a Tribunal officer wrote to the applicant informing him that his request for fee waiver had again been refused, stating the following:
· You have not submitted statements for at least the past three months for all bank accounts held by you in Australia. Close examination of the statements you have provided reveal that you also have an account “Y Alzanaahreh Savings” and an unknown account numbered 410206968. Without all the evidence of your current financial circumstances I am unable to find that payment of the review fee is likely to cause you severe financial hardship.
· Account activity on your ANZ account number 552088821 is inconsistent with the claims made in your fee waiver application. The statement indicates no activity since November 2008 which is inconsistent with your claim to have $300 in fortnightly living expenses. The ability of someone with no work rights to maintain savings of $936.32 over a period of time suggests to me that you have access to another source of funds and that payment of the review fee is unlikely to cause you severe financial hardship.
The letter also advised the applicant that he had fourteen days from its receipt within which to pay the prescribed application fee.
On 19 May 2009 the applicant provided further information and repeated his request for a fee waiver. By letter dated 27 May 2009 the Tribunal advised the applicant that his further request for a waiver of the application fee had been considered and refused. The Tribunal also advised the applicant that he had twenty-one days from receipt of that letter to pay the prescribed application fee, otherwise his application for review would be invalid.
The applicant wrote once more to the Tribunal on 12 June 2009 but provided no additional information in support of his application for a fee waiver. On 18 June 2009 the Tribunal replied to the applicant advising him that he had until the close of business on 26 June 2009 to pay the prescribed fee. In its decision record, dated 8 July 2009, the Tribunal found that as the application fee had not been paid by the applicant or waived by the Tribunal, the application for review which the applicant had lodged with the Tribunal was not a valid one and thus the Tribunal had no jurisdiction in the matter.
Proceedings in this Court
In his application the applicant pleads the following grounds.
(1)The Tribunal failed to understand financial hardship.
(2) The Tribunal failed to apply the law correctly.
(3) The Tribunal denied me natural justice.
In making his case for constitutional writs in this way the applicant invites the Court to set aside the Tribunal’s finding that it had no jurisdiction by reason of errors in its approach to a request for a fee waiver.
Decision on lack of jurisdiction
While the application might also be understood to assert that the Tribunal’s decision that it lacked jurisdiction was itself affected by the errors alleged in the application, such an allegation could not succeed. The evidence makes it plain that the applicant did not pay the required fee when he filed his review application with the Tribunal. The evidence also makes it plain that the Tribunal never waived the application fee as it could have done under reg.4.13. In light of those facts, the application which the applicant filed with the Tribunal was not a “properly made” application for the purposes of s.348 of the Act with the result that the Tribunal had no jurisdiction to embark on a review of the delegate’s decision. For that reason, the Tribunal’s decision was correct according to the criteria of ss.347 and 348 of the Act.
Antecedent discretionary decisions
However, in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, the High Court left open the possibility that a Tribunal’s ultimate decision might be vitiated by miscarriage of discretion at an intermediate stage of the review process. Even so, whether or not a Tribunal decision could be set aside for jurisdictional error on such a basis the facts of this case do not support a conclusion that the Tribunal’s discretion miscarried, either in its decision to refuse the fee waiver or in its decision to proceed to determine the jurisdiction question.
The first ground pleaded in the application regarding the alleged failure of the Tribunal to understand financial hardship invites the Court to review the Tribunal’s conclusion that it lacked satisfaction that the payment of the application fee would be likely to cause severe financial hardship to the applicant. In judicial review proceedings such as these, it is not open to the Court to question the state of satisfaction reached by the Tribunal merely because it might have a different view of the facts than the one reached by the Tribunal. In the context of this review, the Court can only proceed to review the Tribunal’s decision on the basis of the second and third grounds pleaded in the application.
Fee waiver
In that context I turn first to consider the Tribunal’s decision on the fee waiver application. It is apparent from the material in the Court Book that the Tribunal had adequate reasons for not being satisfied that the applicant was entitled to a fee waiver. These reasons are most clearly set out in the Tribunal’s fee waiver recommendation memoranda of
14 April 2009 and 25 May 2009. Moreover, the applicant was given more than one opportunity to convince the Tribunal of his alleged entitlement to the fee waiver and the Tribunal adequately explained to the applicant the problems it had with the submissions which he had made to it.
I find that the Tribunal’s conduct in this connection neither mistook the matters it had to consider nor denied the applicant procedural fairness. That is to say, the exercise of the Tribunal’s discretion was not based on a denial of natural justice to the applicant nor on a failure to correctly apply the law. In this regard it should be noted that as the Tribunal had not commenced to conduct a review (SZNPQ v Minister for Immigration & Citizenship [2009] FMCA 767 at [64]ff) and thus there was no decision “under review”, div.5 of part 5 of the Act has no application to this matter. In particular, the application of the common law natural justice hearing rule was not excluded by reason of s.357A(1) as the applicant’s request for a fee waiver was not governed by any of the provision of div.5 of pt.5.
Proceeding to decision
I now turn to the Tribunal’s decision to proceed to determine the validity of the application and thus its jurisdiction to conduct a review based on the application which had been filed. The applicant’s continuing failure to place convincing evidence before the Tribunal to substantiate his claimed entitlement to a fee waiver and the Tribunal’s various invitations to him to pay the application fee, together with its consideration of his further requests for a waiver, had to come to an end at some point. That point was reached when the applicant failed adequately to respond to the Tribunal’s letter of 27 May 2009 either by paying the application fee or by submitting further evidence in support of the application for a fee waiver.
In its letter of 27 May 2009 the Tribunal said:
Accordingly, for your application for review to proceed, you must now pay the $1400 review application fee within 21 days of receiving this letter. As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter. If the fee is not paid within 21 days, your application for review will be invalid due to non-payment of the prescribed fee and we will not considered your application further. (emphasis included)
True to its word, the Tribunal proceeded accordingly. The applicant has not demonstrated that this decision represented a miscarriage of discretion by reason of an error of law or denial of natural justice.
Conclusion
In this case, it is clear that the applicant’s action is certain to fail. His claim for judicial review cannot succeed because the Tribunal was correct to conclude that it did not have jurisdiction and it has not been demonstrated that there was any miscarriage of discretion at an intermediate stage such that the Tribunal’s decisions was ultimately affected by jurisdictional error on that account.
I am satisfied the applicant’s application does not present an arguable case for relief and thus it will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 November 2009
0