Atta v Minister for Immigration & Anor and El Gindy v Minister for Immigration
[2019] FCCA 3594
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTA v MINISTER FOR IMMIGRATION & ANOR and EL GINDY v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3594 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment visa – where the husband was a secondary visa applicant – whether a legally unreasonable decision was made – jurisdictional error made out – application upheld and remitted back to the Tribunal. |
| Legislation: Migration Regulations 1994 (Cth), r.4.13, cl.602.212 |
| Cases cited: Auro v Minister for Immigration and Multicultural Affairs (2007) 164 FCR 320 |
| Applicant: | MOHAMED MAGDY MAHMOUD RASHED ATTA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2722 of 2018 |
| Applicant: | AFAF EL GINDY |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2723 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 10 December 2019 |
| Date of Last Submission: | 10 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| Solicitors for the Applicants in proceedings SYG2722/2018 and proceedings SYG2723/2018: | In person |
| Counsel for the Respondents in proceedings SYG2722/2018 and proceedings SYG2723/2018: | Mr Reilly |
| Solicitors for the Respondents in proceedings SYG2722/2018 and proceedings SYG2723/2018: | Mills Oakley Lawyers |
ORDERS
IN PROCEEDINGS SYG 2722 of 2018 and SYG 2723 of 2018:
THE COURT ORDERS THAT:
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
A writ of certiorari quashing the decision dated 7 August 2018 of the relevant Tribunal officer not to grant a fee reduction.
A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the Applicant’s application for a fee reduction according to law.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2722 of 2018
| MOHAMED MAGDY MAHMOUD RASHED ATTA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
SYG 2723 of 2018
| AFAF EL GINDY |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
This is judgment in the matter of Mohamed Magdy Mahmoud Rashed Atta v Minister for Immigration & Anor and Afaf El Gindy v Minister for Immigration & Anor. The applicant in SYG2722/2018, Mr Mohamed Atta, is a male citizen of Egypt who arrived in Australia on 13 January 2009. He applied for a Medical Treatment (Support Person) (Subclass 602) visa on 13 June 2018 as the secondary visa applicant of the other applicant before the court, being his wife, Afaf El Gindy. Both matters are being heard in this Court together as they raise similar issues.
On 9 July 2018, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy clause 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). On 31 July 2018, the applicants applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision to refuse them a visa and requested a 50 % reduction in the application fee pursuant to reg 4.13(4) of the Regulations. The applicants paid 50 % of the application fee at the time they lodged their application.
Regulation 4.13(4) states:
If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50 per cent of the amount mentioned in subregulation (1).
On 7 August 2018, a Tribunal officer, acting on behalf of the Registrar, refused the fee reduction request. The officer indicated in a letter that he had carefully considered the request but decided that the payment of the fee would not cause severe financial hardship. The officer’s letter requested the applicants pay the remaining $822 for the application fee by 21 August 2018 and put the applicants on notice that if the fee was not paid by that date, the applications would be allocated to a Member to determine whether or not a valid application had been made.
On 16 August 2018, the applicants’ representative informed the Tribunal that they were incapable of paying the remainder of the fee and indicated they would await the Tribunal’s decision. On 23 April 2018, the applications were considered by two separate Members of the Tribunal. In each case, the Tribunal noted that the application to reduce the application fee had been refused and that the applicants had been advised of this decision by letter dated 7 August 2018.
As the Tribunal had not received, as at the date of the hearing, the balance of the fee, and the applicants had indicated an intention not to pay the balance since being notified of the decision of the authorised officer, the application for review was deemed not to be a valid application and the Member deemed, in each case, that the Tribunal had no jurisdiction to hear the matter.
Grounds of Appeal
A single ground of appeal was relied upon, which is as follows:
The Tribunal was provided with evidence of financial hardship yet the refusal to accept what was paid originally is a denial of natural justice and fairness and strong evidence that the Tribunal failed or understood the financial hardship and the decision as unreasonable.
During the course of the hearing, it became apparent that it was not the Tribunal’s decision that was the subject of the appeal before the Court, which was the subject of the appeal. Rather, it was the decision of the Registrar to not reduce the application fee by 50 %.
Mr Reilly quite properly conceded on behalf of the first respondent that, in fact, the appropriate ground, agitated on behalf of the applicants, is as follows: that the decision to refuse the fee reduction was legally unreasonable. Given that the applicants are unrepresented, and in the interests of justice, I consider it appropriate to amend the ground of appeal from what was originally pleaded to the ground I have just formulated. Mr Reilly properly conceded further that as it was a privative clause, the decision of the Registrar not to reduce the fee was capable of the jurisdiction of this Court.
Applicants before the Court
The applicants appeared before the Court unrepresented but assisted by an interpreter. In their written submissions, they stated that they had provided the Tribunal with a bank statement of $41.78 in credit. They told the Court that because they are here on a medical visa at the moment, or indeed a bridging visa, whichever the case may be, they were unable to pay the balance of the Tribunal fee. Reference was made to the Court Book which indicates that Ms El Gindy suffers from multiple chronic conditions including severe asthma, hypertension, arthritis, depression and anxiety, together with heart arrhythmia.
Material was provided in terms of the request for a fee reduction that showed that the applicants spent $50 on utilities, $65 on food, $40 on car or transport expenses, $90 on health and medical, education or childcare and $50 on other expenses, being a total of $295 per fortnight. A statutory declaration was provided by a Mr AlaaEIDin El Gindy, who indicated that he was supporting his sister and brother-in-law in the amount of $400.00 Australian per month. They indicated that they were unable to work and were totally reliant upon others for financial support, and it was submitted that the decision to not reduce the application fee was, in all the circumstances, legally unreasonable.
Mr Reilly, appearing on behalf of the first respondent, submitted that the Tribunal correctly applied regulation 4.13(4), noting that the conclusion that the payment of the fee would not cause severe financial hardship, was open for the reasons given. It was submitted that in Auro v Minister for Immigration and Multicultural Affairs (2007) 164 FCR 320 (“Auro”), Collier J at paragraph [31] stated that it was for the applicant to make their case for fee reduction and it was open for the officer to hold that the applicants had failed to do so.
There was no extreme illogicality in the reasoning of the officer such as to establish legal unreasonableness (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at paragraphs [59] to [61]. Further, Mr Reilly submitted that emphatic disagreement with the officer’s decision was not sufficient to make out illogicality (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraph [124]). For completeness’ sake, Mr Reilly submitted, regarding the Tribunal’s decision, that it had no jurisdiction to review the matter, as the fee had not been paid was plainly correct.
Consideration
As discussed above, I am of the view that the Court is required, in this matter, to review the decision of the Registrar not to reduce the fee rather than the decision of the Tribunal to dismiss the application because of the correct fee not being paid. Given the proper concession by Mr Reilly and the decision in Auro, I am satisfied that the Court has jurisdiction to look behind the matter that was originally pleaded and deal with the issue of whether or not the decision of the Registrar not to reduce the fee was reasonable.
In the letter from the Registrar dated 7 August 2018, the Registrar indicated that they had decided that:
The payment of the full fee would not likely cause you, or be likely to cause you, severe financial hardship.
Although not required to, the Registrar provided reasons. It was noted that the applicants declared they were not working and relied upon money from the applicant’s brother of $400 per fortnight to pay expenses, mainly medical costs. An amount of $165 was also listed as support from the applicant’s brother and the husband’s income, Mr Atta. It was noted that the applicants had declared fortnightly expenses in the amount of $295. The Registrar noted that the applicants had not provided evidence for the income, nor had they provided evidence to support a fortnightly household expenses, which I have outlined above, and that the applicants had not provided the complete financial picture of their current financial circumstances.
It was indicated while the criteria for the grant of a Medical Treatment Visitor visa does not include a capacity to pay a review fee, the person seeking a Medical Treatment visitor visa are expected to meet costs associated with travel and stay in Australia if a visa were to be granted. It is anticipated that such persons would ordinarily be in circumstances in which payment of the full fee would not cause severe financial hardship. I pause here to indicate that I have inserted the word “not cause severe financial hardship” being the word “not” because the sentence does not make sense without the addition of that word.
Mr Reilly agreed with that amendment. The Registrar concludes with the following:
With all the above information, I am of the view that the payment of the full review would not cause you, or be likely to cause you, severe financial hardship.
I have to determine whether or not the decision of the Registrar was legally unreasonable. The fact that in general, a person would be capable of paying a fee if they were seeking a medical visa is not, in my view, a matter that can be taken into account in every case. Each case needs to be looked at on its merits and the fact that there may be an anticipation that persons who would ordinarily be able to pay a fee cannot be used as a ground in every matter to refuse to waive a fee.
I am reasonably satisfied that the applicants are not working and are, for all intents and purposes, reliant upon a pension income from Egypt and from support from the applicant wife’s brother-in-law. There is a statutory declaration supporting that the applicant’s brother-in-law provides an amount of $400 per month. The stated financial expenditure, which is set out in the application, is not excessive. It provides relatively modest amounts for household expenses, including food, utilities, transport and medical.
There was also evidence of a debt to the Commonwealth that is being paid off at $50 per fortnight, or at least $50 per week; I am not sure. That would appear to relate to legal costs for other litigation. It is of no interest to me how that debt was accrued other than there is clear evidence of a debt being outstanding and being paid off. The applicants have suggested to me that in other cases, fee waivers have been granted, and stated from the bar table that the application fee was either reduced or waived in terms of the application to this Court.
Those are matters that, whilst I may be prepared to accept them, cannot impact on this particular matter. I have to determine whether or not the decision of the Registrar was legally unreasonable. Based on the information before me, it is clear that evidence was provided of a very modest income with a very low amount of $40 approximately in the bank. There appeared to be an assumption on the part of the Registrar that if the applicants were applying for a medical visa, they should have the capacity to pay the entire fee.
It is obvious that the applicants are in receipt of financial assistance from the applicant’s brother and it is not for me to speculate where the $1600-odd came from that enabled them to pay the 50 % of the application fee. I am satisfied that the Registrar took into account a matter that they should not have taken into account, that being a generalisation that persons applying for a medical visa would ordinarily be in circumstances in which the payment for the full fee would not cause severe financial hardship.
I have taken into account the evidence provided in relation to their income and disbursements and I am satisfied that the decision was subject to legal unreasonableness. In the circumstances, I propose to allow the application and remit the matter back to the Tribunal for further consideration.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 24 December 2019
3
2
2