Aneja v Minister for Home Affairs
[2018] FCA 1364
•13 August 2018
FEDERAL COURT OF AUSTRALIA
Aneja v Minister for Home Affairs [2018] FCA 1364
Appeal from: Aneja v Minister for Immigration & Anor [2018] FCCA 567 File number: QUD 91 of 2018 Judge: RANGIAH J Date of judgment: 13 August 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant Medical Treatment Visa – whether Administrative Appeals Tribunal had jurisdiction to hear application under s 348 of the Migration Act 1958 (Cth) – appeal dismissed Legislation: Migration Act1958 (Cth) ss 347, 347(1)(a), 347(1)(c) and 348
Migration Regulations 1994 (Cth) r 4.10(1)(a)
Cases cited: Benissa v Minister for Immigration and Border Protection (2016) 150 ALD 276
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
Brouwer v Titan Corporation Ltd (1997) 73 FCR 241
Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559
SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410
Date of hearing: 13 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Mr J Byrnes of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 91 of 2018 BETWEEN: VIKRAM ANEJA
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
13 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)RANGIAH J:
The appellant purports to appeal against a judgment of the Federal Circuit Court of Australia delivered on 9 February 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 July 2017.
The appellant applied for a Medical Treatment (Visitor) (Class UB) Visa. On 7 April 2017, a delegate of the first respondent decided to refuse the applicant the grant of that visa.
The applicant then lodged an application with the Tribunal for review of the delegate’s decision. The application was received by mail by the Tribunal on 11 May 2017.
The Tribunal ruled that it did not have jurisdiction in the matter. It gave the following reasons:
3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 28 April 2017. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364. There is no provision for an extension of time.
4. Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, an applicant is required to be notified of the decision in the prescribed way. Regulation 2.16 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. Section 494B specifies alternative methods for giving a document to a person.
5. The material before the Tribunal indicates that Mr Aneja was notified of the decision by letter dated 7 April 2017 and transmitted by email. The Tribunal is satisfied that Mr Aneja was notified of the decision in accordance with the statutory requirements.
…
8. The Tribunal finds that Mr Aneja is taken to have been notified of the decision on 7 April 2017 as it was transmitted by email to the last email address provided by Mr Aneja to the Department for the purposes of receiving documents: ss.494B(5) and 494C(5) of the Act. Therefore the prescribed period within which the review application could be made ended on 28 April 2017.
9. As the application for review was not received by the Tribunal until 11 May 2017, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
10. In any event, additionally, the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is also not a valid application and the Tribunal has no jurisdiction in this matter.
The appellant then applied to the Federal Circuit Court, relying upon the following grounds:
1. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
2. 1. The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing applicant to present his arguments.
3. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.
(Errors in original.)
The primary judge dismissed the application. His Honour said:
9. Even a cursory glance at the grounds of review put forward by the applicant in his application for review demonstrates that this application is an abuse of process. The grounds of review nominated by him seem to bear no relationship to the reasons given by the Tribunal for dismissing his application. They seem to be pro-forma-type grounds that might have been used in other applications. None of them identify with the reasons for decision given by the Tribunal.
10. The first respondent argues that the grounds for review do not raise a jurisdictional error. I agree – they do not. But more than that, even looking at the Tribunal’s decision for myself, it is difficult, to see, indeed impossible, to see where there is any error at all in the Tribunal’s decision, let alone a jurisdictional error sufficient to warrant the setting aside of that decision and the remittal of the matter to the Tribunal.
11. I am satisfied that no jurisdictional error is established. The application for review to this Court must be dismissed.
The grounds of appeal before this court are:
1.The Federal Judge failed to consider that the the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Act;
2.the Tribunal failed to exercise its jurisdiction: it was an error for the Tribunal to assess the application without allowing applicant to present his arguments; and
3.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
(Errors in original.)
The appellant did not appear at the hearing of the appeal. Neither has he filed any written submissions.
There is authority indicating that a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision by the Tribunal that it does not have jurisdiction is interlocutory, so that leave to appeal is required: Benissa v Minister for Immigration and Border Protection (2016) 150 ALD 276 at [13]; Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 at 242; and SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [1], [15]–[23] and [68]. That alone provides a sufficient reason for dismissing the purported appeal.
In any event, there are fundamental problems with the appellant’s grounds of appeal. The grounds have not been particularised or explained. It is not possible to understand the precise matter in which the primary judge and the Tribunal are alleged to have erred.
If, however, the appellant is taken to allege that the Tribunal erred in finding that it had no jurisdiction in the matter, the appeal cannot succeed.
The Tribunal found that it lacked jurisdiction because the application was not properly made under s 347 of the Migration Act1958 (Cth). The Tribunal found that the application did not comply with s 347(1)(a) because the application was not given to the Tribunal within the prescribed period, which was 21 days from notification of the delegate’s decision pursuant to r 4.10(1)(a) of the Migration Regulations 1994 (Cth).
The Tribunal also found that the prescribed fee required under s 347(1)(c) of the Act had not been paid, nor had there been any request made that the fee be reduced. Counsel for the first respondent quite properly pointed out that there was an error by the Tribunal in deciding that no application for a fee reduction had been lodged. The applicant had in fact lodged such an application. However, the first respondent submits that the Tribunal’s error made no difference to the outcome for two reasons. Firstly, the application for the fee waiver was made outside the prescribed period, and therefore did not operate to extend the time for payment of the fee. Secondly, the Tribunal correctly found that it lacked jurisdiction because the application had not been given within the prescribed time.
As the delegate’s decision was notified to the appellant on 7 April 2017, s 347(1) of the Act, taken together with r 4.10(1)(a) of the Regulations, required the application to be lodged and the fee paid no later than 28 April 2017. The application was lodged after that date, on 11 May 2017, and the fee was not paid at all.
In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559, Flick J noted at [16] that an application received outside the time limit prescribed has been held not to be a valid application and one that the Tribunal does not have jurisdiction to review. His Honour accordingly held at [41] that the Tribunal had no power to extend time or to assume jurisdiction. In this case, the Tribunal was correct to find that it had no jurisdiction under s 348 of the Act to hear and determine the application. That conclusion is fatal to any appeal.
Further, even though the Tribunal was in error in holding that no application for reduction of the fee had been lodged, it would have been bound, in any event, to decline jurisdiction on the basis that the prescribed fee had not been paid. The application for reduction of the fee bears the date 28 April 2017 (the same date as the date on the application itself). As the application was not received by the Tribunal until after that date, I infer that the application for the fee waiver was also not received until after that date. Accordingly the application for the fee reduction was received outside the prescribed period. In my opinion, the period of time to pay the prescribed fee is not extended where the application for the fee reduction is received outside the prescribed period: see Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 at [50]–[51].
For these reasons there was no material error in the Tribunal’s decision, or in the judgment of the Federal Circuit Court.
The appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 September 2018
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