Aul v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 407
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aul v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 407
File number: PEG 309 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 2 May 2024 Catchwords: MIGRATION – cancellation of a Bridging visa – decision of the Administrative Appeals Tribunal – whetherthe Tribunal erred by construing s 347(1) of the Migration Act 1958 (Cth) (the “Act”) as requiring the application fee to be paid within the prescribed period – whether the Tribunal made a jurisdictional error by construing s 347(1) of the Act as requiring at least 50% of the prescribed fee to be paid within the prescribed period – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116, 347, 348, 360 & 476
Migration Regulations 1994 (Cth), regs 4.10 & 4.13
Cases cited: Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318
BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20
El Mourani v Minister for Immigration and Citizenship [2010] FCA 289
Fairy v Minister for Immigration [2018] FCA 729
Grey v Minister for Immigration [2018] FCCA 1564
Hanna v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 604
Jahangir v Minister for Immigration and Border Protection [2019] FCA 245
Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126
Message v Minister for Home Affairs [2018] FCA 2132
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884
Ong v Minister for Immigration and Citizenship [2010] FCA 1259
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 26 April 2024 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms H Hofmann Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOOSEP AUL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The application (as amended on 27 March 2024) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Estonia (Court Book (“CB”) 15-16). He first arrived in Australia in 2015 as the holder of a Working Holiday (Class TZ) (Subclass 417) visa (the “working holiday visa”) (CB 66 & 76).
The working holiday visa was cancelled on 1 November 2017 and the applicant sought judicial review of that decision. On 3 August 2018, a delegate of the first respondent (the “Minister”) granted the applicant an “associated … Bridging Visa E” in relation to those judicial review proceedings (the “first bridging visa”). The delegate was not aware that the then Federal Circuit Court of Australia (the “FCCA”) had already affirmed the decision to cancel the applicant’s working holiday visa (CB 76).
On 14 August 2018, the applicant applied for a Combined Partner (Class UK) (Subclass 820) / (Class BS) (Subclass 801) visa (the “partner visa application”) (CB 14-33). On 6 September 2018, the applicant was granted a further Bridging Visa E in connection with his partner visa application (the “second bridging visa”) (CB 37-40). Department records indicate that the applicant lodged a permission to work application on 8 January 2023 in relation to the second bridging visa (even though the applicant already had working rights) (CB 42). Working rights were again granted on 24 January 2023 (CB 41-42).
The applicant was charged with and convicted of a number of criminal offences from 2022 to 2023 (CB 57-61). He received fines and a term of imprisonment of 10 months for those convictions (CB 50).
On 10 October 2023, the Department of Home Affairs (the “Department”) issued two Notices of Intention to Consider Cancellation (“NOICC”) documents in relation to the first and second bridging visas (with the NOICC issued in respect of the first bridging visa issued pursuant to s 116(1)(a) of the Migration Act 1958 (Cth) (the “Act”) (see CB 76-79) and the NOICC issued in respect of the second bridging visa issued pursuant to s 116(1)(g) of the Act, see CB 50-52).
Later that same day (also on 10 October 2023), a delegate of the Minister cancelled both the first and second bridging visas (CB 80 & 62, respectively).
Because the applicant’s partner visa application is yet to be finally determined, the applicant was transferred to immigration detention upon his release from prison.
This judgment relates only to the cancellation of the second bridging visa.
Relevantly, on 11 October 2023, the applicant sought review of the delegate’s decision (relating to the second bridging visa only) by the Administrative Appeals Tribunal (the “Tribunal”) (CB 93-106). The application form was dated 10 October 2023 (CB 104) and the applicant did not complete the “Part I – Payment details” section of the form but did include his signature. He also wrote the words “In Prison” on the form (CB 103).
Later that same day (being on 11 October 2023), an officer from the Tribunal wrote to the prison where the applicant was incarcerated at the time of his application to the Tribunal and “urgently request[ed] a phone call with [the applicant]” to discuss his application (CB 107).
On 12 October 2023, an officer from the Tribunal spoke with the applicant by telephone. The Tribunal’s case notes indicate as follows (CB 142):
I spoke with Mr Aul by telephone via the Prison Farm and he confirmed:
•He intended to have the UK 820 associated BVe cancellation reviewed;
•he did not want the TZ 417 associated BVe cancellation reviewed;
•he would arrange payment before 19/10/2023 (the last date to validly lodge an application for review);
•he requested fee reduction consideration; and,
•he agreed to have his correspondence sent to the Prison Farm for the duration of the review.
Following that telephone conversation, the Tribunal sent an email to the applicant with information in relation to his review. Relevant to the matter before the Court is the following information in relation to the payment of fees (CB 115):
Fee payment
A reduced fee payment of $1687.00 is required to be made to the tribunal by no later than 19th October 2023.
Payment can be made by:
•Telephone (credit card option) 1800 228 333
•In person (credit or debit card) at Perth Registry, Level 13, 111 St Georges Tce Perth
•By returning the attached credit card deduction form (completed)
Payments made by telephone or in person must be made during office hours - 9am to 5pm
On 17 October 2023, several documents were returned to the Tribunal on behalf of the applicant (CB 121-128). Included with those documents was a completed “Request for Fee Reduction” form (CB 124-126).
On 19 October 2023, the applicant phoned the Tribunal regarding the documents he had provided. The Tribunal’s case notes record details of that conversation as follows (CB 143):
PRA phoned, id checks conducted.
Calling to confirm his documents have been received. Confirmed they had.
Calling to clarify fee payment required. Confirmed fee reduction would be granted, however to have lodged a valid application for review, the remaining fee must be paid by the end of the prescribed period (7 working days for a visa cancellation) which is calculated to be 19/10/2023.
He understood.
No fee payment was made by or on behalf of the applicant.
On 20 October 2023, the Tribunal invited the applicant to comment on the validity of his application. That invitation letter relevantly provided as follows (CB 130):
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 050 (Bridging (General)) visa.
I am of the view that your application is not a valid application as you did not pay the application fee before the expiry of the time limit for lodging the application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 3 November 2023. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 25 October 2023, the applicant sent a letter to the Tribunal responding to the Tribunal’s invitation letter. In that letter, the applicant asked the Tribunal to “grant [him] an extension to pay the application fee until some time after [he would be] released on 22/11/2023” (CB 134).
On 23 November 2023, the Tribunal determined that it did not have jurisdiction in relation to the applicant’s matter (CB 137-139).
On 21 December 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was supported by an affidavit sworn by the applicant on 20 December 2023 (and filed in this Court on 21 December 2023). The application for judicial review was filed pursuant to s 476 of the Act.
On 25 March 2024, the applicant obtained legal assistance and an updated notice of address for service was filed with this Court.
On 27 March 2024, an amened application and written submissions were filed on behalf of the applicant.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision.
The Tribunal’s decision is three pages in length and spans 13 paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.The applicant lodged an application for review of a decision of a delegate of the Minister for Home Affairs, dated 10 October 2023, to cancel the applicant’s Bridging E (Class WE) visa under the Migration Act 1958 (the Act).
2.The review application form was lodged with the Tribunal on 10 October 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
3.Pursuant to s 347(1) of the Act and reg 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 reg 4.10, and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on . The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
4.On 20 October 2023 the Tribunal forwarded a natural justice letter to the applicant that addressed the non-payment of the relevant prescribed fee. The Tribunal advised as follows:
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 050 (Bridging (General)) visa.
I am of the view that your application is not a valid application as you did not pay the application fee before the expiry of the time limit for lodging the application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 3 November 2023.
5. The relevant correspondence was delivered to the addressee.
6.On 26 October 2023 the applicant wrote to the Tribunal and advised he was in Karnet Prison Farm in WA, sought an extension time to pay the prescribed fee until sometime after he was released on 22 November 2023 and would be released on 22 November 2023 when he could access external bank accounts and seek legal advice.
7.Section 347 of the Migration Act set out the requirements for a Part 5- reviewable decision to be validly made. One of these requirements an application for review must be accompanied by the prescribed fee (or at least 50% of the prescribed fee if accompanied by a fee reduction request) – see specifically s347(1)(c).
8.Pursuant to Regulation 4.10(1)(b), the prescribed period is 7 working days after the day on which notification of the primary decision to cancel is received. As per the information in Chapter 4 of the Procedural Law Guide:
Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. The MRD of the Tribunal has no power to extend the time limit. If an application is received outside the time period, the Tribunal has no jurisdiction.
9.Provided the prescribed period has not lapsed, the fee may be paid subsequent to the submission of the application form and, assuming all other requirements are met, the date the review application is validly made will be the date the fee is paid.
10.In this case, the application was lodged on 10 October 2023 and the prescribed period ended after 19 October 2023. The applicant’s request for an EOT to make payment was received in response to the NJ letter on 25 October (checked into CaseMate on 26 October). As this request was received outside the prescribed period, there is no scope to consider the request.
11.Even if the applicant had submitted an EOT before 19 October 2023, the Tribunal would only be able to grant an EOT to the last day of the prescribed period.
12.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 not a valid application and the Tribunal has no jurisdiction in this matter.
DECISION
13.The Tribunal does not have jurisdiction in this matter.
AMENDED APPLICATION TO THIS COURT
The amended application for judicial review (filed on 27 March 2024 on behalf of the applicant in this matter) contains three grounds of review as follows:
1. The Applicant was denied procedural fairness.2.The Second Respondent (Tribunal) made a jurisdictional error by construing s 347(1) of the Migration Act 1958 (Cth) (Act) as requiring the application fee to be paid within the prescribed period for applying for review.
3. The Tribunal made a jurisdictional error by:
3.1construing s 347(1) of the Act as requiring at least 50% of the application fee to be paid within the prescribed period; and
3.2overlooking the Applicant’s request for a reduction in the application fee.
The matter proceeded to a final hearing on 26 April 2024. The applicant was represented at that hearing by Mr Hamish Glenister (“Mr Glenister”) from William Gerard Legal Pty Ltd. The Minister was represented at the hearing by Ms Hannah Hofmann (“Ms Hofmann”) of counsel. The Court thanks both Mr Glenister and Ms Hofmann for their considerable assistance with this matter.
The materials before the Court include the amended application filed on behalf of the applicant on 27 March 2023, a Court Book numbering 144 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the applicant on 27 March 2024 and written submissions filed on behalf of the Minister on 12 April 2024.
CONSIDERATION
Relevant legislative provisions
Before considering the amended grounds of review raised in this matter, it is useful to first set out some of the relevant legislative provisions (as in force at the time of the Tribunal’s decision in this matter, being on 23 November 2023) recant to this matter.
Section 347 of the Act includes information in relation to what is required to make a valid application for review of a Part 5-reviewable decision and (at the time of the Tribunal’s decision) relevantly provided as follows:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i)if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii)if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii)if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
Section 348 of the Act explains the Tribunal’s obligations where an application for review is properly made and (at the time of the Tribunal’s decision) relevantly provided as follows:
348 Tribunal to review Part 5‑reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
Regulation 4.13 of the Migration Regulations 1994 (Cth) (the “Regulations”) provides information about fees and waivers for Tribunal reviews and (at the time of the Tribunal’s decision) relevantly provided as follows:
4.13 Tribunal review—fees and waiver
(1)Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $3,000.
Note:The fee in subregulation (1) is subject to increase under regulation 4.13A.
(2) No fee is payable on the following:
(a)an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act;
(b)an application, made by a non‑citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies.
(3)If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.
(4)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% of the amount mentioned in subregulation (1).
These provisions, to the extent that they relate to the Tribunal’s decision in this matter, will be discussed further below.
Parties’ submissions
The Court notes that ground one (which alleged that the applicant was denied procedural fairness) was abandoned on 27 March 2024 with the filing of the amended application on behalf of the applicant.
On that basis, neither party advanced any submissions in relation to ground one.
As outlined above, grounds two and three provide as follows:
2.The Second Respondent (Tribunal) made a jurisdictional error by construing s 347(1) of the Migration Act 1958 (Cth) (Act) as requiring the application fee to be paid within the prescribed period for applying for review.
3. The Tribunal made a jurisdictional error by:
3.1construing s 347(1) of the Act as requiring at least 50% of the application fee to be paid within the prescribed period; and
3.2overlooking the Applicant’s request for a reduction in the application fee.
The parties’ submissions in relation to grounds two and three are summarised below.
Applicant’s submissions
Ground two
Mr Glenister submitted that the application fee to the Tribunal did not have to be paid within the prescribed period (relying on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46).
However, Mr Glenister also acknowledged (in written submissions) that this Court was bound to come to the opposite conclusion (citing Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”); Ong v Minister for Immigration and Citizenship [2010] FCA 1259; El Mourani v Minister for Immigration and Citizenship [2010] FCA 289 and Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99).
Mr Glenister also submitted, however, that the cases in the line of judgments (above) is “incorrect” and that the phrase “accompanied by” is not linked to the prescribed period in which an application must be lodged.
In oral submissions before this Court, Mr Glenister reiterated that he conceded that this ground would “not be capable of resolution in the applicant’s favour” given that this Court is currently bound by the case law provided.
Ground three
In written submissions, Mr Glenister relied on Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (“Braganza”) and submitted that the applicant in this case “had done something about the prescribed fee within the prescribed period by virtue of his request for a fee reduction [made] on 17 October 2023”.
Further, Mr Glenister noted that the Tribunal had “effectively stated that at least 50% of the application fee had to be paid within the prescribed period”, which was “inconsistent with the … construction of s 347(1) of the Act” in Braganza. Mr Glenister also submitted that the “Tribunal made a jurisdictional error in concluding that it had no jurisdiction in circumstances where the [a]pplicant’s fee reduction request had not been determined by the Registrar of the Tribunal in accordance with reg 4.13(4) of the [Regulations]”.
However, in oral submissions before this Court, Mr Glenister again conceded that, based on the decision in Hanna v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 604 (“Hanna”) (relied upon by the Minister in written submissions filed with the Court), this ground would also be incapable of resolution in the applicant’s favour and the “applicant would have to take these arguments to another [Court]”.
Mr Glenister accepted that this Court was bound by the decision in Hanna, which, in Mr Glenister’s submission, “very clearly” states that at least 50% of the fee must be paid (and goes much further than that to say that 100% of the fee must be paid) within the prescribed period if a fee reduction request has not been determined within that period.
Mr Glenister also made a formal submission that Hanna was wrongly decided but acknowledged that this Court was nonetheless required to decide the current matter against the applicant.
Minister’s submissions
Ground two
Relying on the decision in BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20 (“BXS20”), Ms Hofmann submitted that “compliance with the requirements in s 347 [of the Act] is necessary to trigger the duty of the Tribunal to conduct a review” and that the “Tribunal was correct in finding that the prescribed fee must be paid within the prescribed period”.
Ground three
Ms Hofmann submitted that the decision in Braganza ought to be distinguished largely because it was decided when reg 4.13(4) of the Regulations provided for a waiver of the entire fee (rather than the 50% reduction currently contemplated as a result of amendments to the relevant legislation). This means that the failure on the part of an applicant to pay the prescribed fee can no longer be cured by the grant of a fee waiver.
Ms Hofmann submitted that the line of cases considering reg 4.13(4) (post amendment) should be followed (being Hanna; Grey v Minister for Immigration [2018] FCCA 1564 (“Grey”); Message v Minister for Home Affairs [2018] FCA 2132; Fairy v Minister for Immigration [2018] FCA 729 (“Fairy”) and Jahangir v Minister for Immigration and Border Protection [2019] FCA 245 (“Jahangir”)). Ms Hofmann further submitted that those cases establish that at least 50% of the prescribed fee must be paid within the prescribed period in order for the Tribunal’s jurisdiction (to hear and determine a matter) to be enlivened.
Finally, Ms Hofmann submitted that, on the basis of the above, the Tribunal correctly construed s 347(1) of the Act as requiring the applicant pay at least 50% of the prescribed fee within the prescribed period.
Ms Hofmann accepted that the Tribunal had erred by overlooking the applicant’s request for a reduction of the prescribed fee. However, given that the applicant had not paid at least 50% of the prescribed fee within the prescribed period (as the Minister submits is required to enliven the Tribunal’s jurisdiction), Ms Hofmann submitted that such an error was “merely administrative and not jurisdictional”.
The Court’s Consideration – Ground two
As outlined above, ground two provides as follows:
2.The Second Respondent (Tribunal) made a jurisdictional error by construing s 347(1) of the Migration Act 1958 (Cth) (Act) as requiring the application fee to be paid within the prescribed period for applying for review.
Relevant authorities
It is useful to first set out the relevant authorities in relation to this ground of review.
Benissa
In Benissa, Justice Edelman (then of the Federal Court of Australia) (the “Federal Court”) considered whether an appellant was entitled to be invited to a Tribunal hearing (pursuant to s 360 of the Act) in circumstances where that appellant had failed to pay the prescribed application fee.
In determining that case, Justice Edelman first determined whether the Tribunal had jurisdiction, having regard to s 347 of the Act and reg 4.13 of the Regulations. His Honour relevantly stated that:
18.Regulation 4.13A provides that the fee prescribed by reg 4.13(1) is to be increased on each biennial anniversary of 1 July 2011. Regulation 4.13B provides that the calculation of the increase is to be determined by reference to the latest All Groups Consumer Price Index number. As I have mentioned, the Federal Circuit Court explained that the fee associated with an application at the time of Mr Benissa’s application was $1,602 and the Tribunal had reduced that fee to $802.
19.In Kirk v Minister for Immigration and Multicultural Affairs(1998) 87 FCR 99, Lehane J considered a similar provision then existing in the Migration Act. The provision in that case, s 339, required that the application for review to the Tribunal be accompanied by a prescribed fee which was $200. The applicant’s application was accompanied by a cheque which was dishonoured on presentation. The applicant’s solicitor delivered another cheque outside the 28 day period provided for in s 339. Justice Lehane considered the effect of s 339(1)(c) which provided that “an application for review of an internally reviewable decision must be accompanied by a prescribed fee (if any)”. His Honour applied the earlier decision of Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 where Mansfield J held that s 339 was a mandatory provision requiring strict compliance. Justice Lehane concluded that the Tribunal had no jurisdiction to review because the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee.
20.In Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364, the Full Court considered whether the Migration Review Tribunal had jurisdiction in circumstances in which the appellant had failed to pay the prescribed application fee (which was then $1,400) in accordance with s 347 of the Migration Act. In that case, the appellant had lodged his application for review within the prescribed period together with a request for fee waiver on the grounds of financial hardship. The fee waiver was denied. The appellant asked the Tribunal to reconsider his request for a waiver and for an extension of time. The request for reconsideration of the fee waiver was refused. The Tribunal informed the appellant that it had no jurisdiction because the prescribed fee had not been paid within the required time. The Full Court distinguished the decision in Kirk holding that where an applicant for a visa applies for a waiver within the prescribed period, s 347 does not deny jurisdiction to the Tribunal if the applicant pays the required fee within a reasonable time after the application for waiver is rejected (or if the fee is eventually waived).
21.The decision in Kirk, with the qualification in Braganza, has been applied on numerous occasions subsequently.
22.In El Mourani v Minister for Immigration and Citizenship [2010] FCA 289, Besanko J upheld a decision of the Federal Magistrates Court that the Migration Review Tribunal did not have jurisdiction because an application for review was not accompanied by the prescribed fee as required by s 347(1)(c) of the Migration Act and the fee had not been waived under reg 4.13(4).
23.In Ong v Minister for Immigration and Citizenship [2010] FCA 1259 an appeal was brought to the Federal Court from a dismissal of an application for judicial review where the Tribunal (in that case the Migration Review Tribunal) had concluded that it did not have jurisdiction because a hearing fee had not been paid and an application for fee waiver had been refused. Justice Marshall held that since the fee had not been paid after refusal of the fee waiver application there was no proper application for the Tribunal to consider. The appellant had been given a reasonable time, in the circumstances, to pay the fee after the rejection of his fee waiver application, but he did not avail himself of that opportunity.
24.The decisions in this line of authority are not plainly wrong. The Tribunal had no jurisdiction.
BXS20
In BXS20, the Full Court of the Federal Court also considered s 347(1) of the Act and what is required to engage the Tribunal’s jurisdiction.
The Full Court relevantly found as follows:
30.Section 347 must be read with s 348. Section 348(1) provides that, if an application is “properly made” under s 347, the Tribunal must review the decision to which it relates. This indicates the sense in which s 347(1) uses the word “must”: that is, compliance with its requirements (as well as the other aspects of s 347) is necessary in order to trigger the duty of the Tribunal to conduct a review. Importantly, also, it is necessary in order to trigger the Tribunal’s power to review a decision, since the Tribunal has no function to perform in the absence of an effective application: Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394 , [20]–[21] (Perram J, Rares and Farrell JJ agreeing). Thus, although it is not inapt to describe s 347(1) as “mandatory” when viewed from the review applicant’s perspective, it is more accurate to describe it as a “jurisdictional” provision applicable to the Tribunal (in that, absent compliance, there is no power or duty to review).
31.Paragraphs (a), (b) and (c) of s 347(1) form parts of a composite requirement, all introduced by the word “must” in the chapeau and all relating in the same way — textually at least — to the condition specified in s 348(1). Reading these provisions according to their terms, there is no basis to treat some but not all of them as jurisdictional in the sense mentioned above.
…
33.Nothing in the context of s 347(1) requires it to be given a strained construction in which the words of the chapeau have different effect in relation to para (c) from that which they have in relation to para (b). The most that can be said is that making payment of a fee (of the magnitude currently prescribed in the Regulations) a prerequisite for review by the Tribunal tends to limit access to merits review, in relation to decisions that are likely to be personally very important to applicants. However, it is not to be assumed that wider availability of merits review is always Parliament’s purpose — especially in construing provisions whose central function is to define and limit the availability of such review. On the other hand, if payment of the prescribed fee were not a prerequisite for review, there would be no reason for anyone to pay the fee; and s 347(1)(c) would serve little if any purpose.
34.The proper understanding is that all of the requirements set out in s 347(1) must be satisfied in order for the Tribunal’s jurisdiction to be engaged. This conclusion requires the rejection of ground 3.
Are the decisions in Benissa and BXS20 binding on this Court?
Benissa is a decision of Justice Edelman then of the Federal Court. BXS20 is a decision of the Full Court of the Federal Court. Both are Courts of higher jurisdiction. As such, both Benissa and BXS20 are binding on this Court.
As this Court previously explained in Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884, the Court has had regard to the comments made in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 (by Black CJ, Moore and Allsop JJ), which provide as follows:
42In coming to that conclusion, the Federal Magistrate did not accept the conclusion of the single Judge in SZECD 150 FCR 53 that Li was inconsistent with Yilmaz and should not be followed. For the reasons we have given, we have come to the same conclusion. We should observe, however, that the principles of precedent required that the Federal Magistrate follow the decision in SZECD, being a decision of this Court in the appellate jurisdiction from the Federal Magistrates Court. We do not think that it was open to her Honour to regard what was said in SZECD as obiter. In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
See also the valuable guidance in this respect in the judgment of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, in particular at 177-180.
43Before turning to the question of the exercise of discretion to withhold relief, it is also appropriate to say something about the approach taken by the single Judge in SZECD. The conclusion that a Full Court decision should not be followed should be one left to another Full Court, even if the judge is exercising the appellate jurisdiction of the Court. The Court in Li said that Yilmaz was distinguishable. That should have been sufficient for a single Judge, if the appeal were not to be referred to a Full Court for hearing.
Lord Simon’s observations (set out above) were more recently adopted in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126.
The doctrine of precedent requires that this Court follow the rationale in both Benissa and BXS20.
Consideration
For the reasons set out above, the decisions in Benissa and BXS20 are binding on this Court and were binding on the Tribunal.
Based on those authorities, the prescribed fee was required to be paid to the Tribunal within the prescribed period.
Here, the applicant’s second bridging visa was cancelled on 10 October 2023 (CB 62).
The prescribed period within which the applicant was required to make his application to the Tribunal (pursuant to s 347(1)(b) of the Act) was seven working days after the notice of decision was received: reg 4.10(1)(b) of the Regulations. The applicant was thus required to make his application by no later than 19 October 2023.
As set out above, on 11 October 2023, the applicant in this matter sought review by the Tribunal of a decision to cancel his second bridging visa (CB 93-106).
The applicant did not pay the prescribed application fee with that application. He simply wrote on the application form (at Part I relating to “Payment details”) that he was “In Prison” and signed where indicated for a “cardholder”. The Court notes that no credit card details were provided (CB 103).
On 17 October 2023, the applicant sought a fee reduction from the Tribunal (CB 124-126). This issue will be discussed further below in relation to ground three.
On 19 October 2023, the applicant phoned the Tribunal regarding documents he had provided and to clarify the fee payment required. The applicant was informed by the Tribunal that a fee reduction would be granted and that the remaining fee was required to be paid that day (being 19 October 2023).
The applicant did not make payment of any part of the prescribed fee.
On 20 October 2023, the Tribunal invited the applicant to comment on the validity of his application. The Tribunal noted, in particular, that the application may not be “a valid application” because the applicant “did not pay the application fee before the expiry of the time limit for lodging the application” (CB 130).
On 25 October 2023, the applicant sent a letter responding to the Tribunal and asked it to “grant [him] an extension to pay the application fee until some time after [he would be] released on 22/11/2023” (CB 134).
On 23 November 2023, the Tribunal found that the prescribed fee had not been paid and ultimately determined that it did not have jurisdiction in relation to the applicant’s matter (CB 137-139).
The Court is satisfied (based on the authorities outlined above, which are binding on this Court) that the Tribunal was correct to make the findings it made. As outlined above, the prescribed fee was required to be paid to the Tribunal within the prescribed period. It was not.
No jurisdictional error arises in this regard.
The Court’s Consideration – Ground three
As outlined above, ground three relevantly provides as follows:
3. The Tribunal made a jurisdictional error by:
3.1construing s 347(1) of the Act as requiring at least 50% of the application fee to be paid within the prescribed period; and
3.2overlooking the Applicant’s request for a reduction in the application fee.
Relevant authorities
Hanna
It is useful to first set out the relevant authorities in relation to this ground of review.
As set out above, the main authority ultimately relied upon by Ms Hofmann (and conceded to be binding on this Court by Mr Glenister) is Hanna.
Having explained the decision in Braganza and noting comments made by the Full Court in BXS20 that reg 4.13 had been amended since the decision in Braganza such that it no longer provides for an outright waiver of the prescribed fee, Justice Cheeseman in Hanna explained that there had been a number of decisions from single judges in the Federal Court and decisions in the then FCCA in which it was held (or observed in obiter) that since the 2011 legislative amendments, payment of at least 50% of the prescribed fee within the prescribed period is a necessary precondition to [the Tribunal having] jurisdiction to hear and determine an application for review: Hanna at [57]. Justice Cheeseman cited and provided brief summaries of the decisions in Grey; Message; Fairy and Jahangir in that regard: Hanna at [58]-[60].
In Hanna, much like in the case currently before this Court, the appellant had not paid at least 50% of the prescribed fee within the prescribed period. The appellant in Hanna submitted that, where a fee reduction has been made within the prescribed period, there is “no fee prescribed under reg 4.13(1) [of the Regulations] on which s 347(1)(c) of the Act can operate until such time as the request is determined”: Hanna at [61].
The appellant in Hanna also claimed that, whilst the fee reduction request is pending, “the fee” is neither the whole prescribed fee nor 50% of the prescribed fee and, on that basis, the Tribunal cannot require 50% of the fee to be paid within the prescribed period and there is thus no prescribed fee that must accompany the review application (pursuant to s 347(1)(c) of the Act): Hanna at [62].
Justice Cheeseman ultimately determined as follows:
67.The issue in this appeal is of limited compass and arises on closely confined facts. It is whether, in circumstances where a fee reduction request has been made but not determined before the end of the prescribed period, there is any “prescribed fee” under s 347(1)(c) of the Act which must accompany a review application in order to engage the Tribunal’s duty under s 348(1) of the Act to conduct a review. The only avenue by which the appellant sought to obtain relief was by contending that on a proper construction of s 347(1)(c) of the Act there was no prescribed fee when a fee reduction application was pending because it was common ground that he had not paid any fee, not even 50% of the fee, within the prescribed period. I was not referred to any authority in which this issue has been considered.
…
69.I am not persuaded by the appellant’s submissions that s 347(1)(c) of the Act should be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period. The construction of s 347(1)(c) of the Act which the appellant advances does not accord with the text of s 347(1)(c) of the Act, understood in its context, including by reference to the relevant legislative history, and with regard to the purpose of the statutory scheme.
70.The appellant’s argument seizes on the phrase “prescribed fee (if any)” in s 347(1)(c) of the Act. The word “prescribed” is defined to mean prescribed by regulation. That necessarily directs attention to the relevant regulation.
71.As a general principle, regulations made pursuant to legislation ought not be referred to in construing that legislation: Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [26]. That said, recourse may be had to regulations in order to assist in the understanding of a scheme established by legislation, so as to better interpret the legislation in light of its purpose: Ketchell at [19] citing an observation in argument by Mason J in Brayson Motors Pty Ltd (in liq) v Federal Cmr of Taxation [1985] HCA 20; 156 CLR 651 at 652 ; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [8.380] and other authorities referenced in fn 169. The decision in Braganza illustrates such an approach.
72.In BXS20, the Full Court recognised that the central function of s 347(1) of the Act is to define and limit the availability of merits review. Further, specifically in relation to s 347(1)(c), that if payment of the prescribed fee was not a prerequisite for review, there would be no reason to pay the fee and s 347(1)(c) would serve little if any purpose: BXS20 at [33].
73.The requirements necessary for the making of a valid review application prescribed by s 347(1)(a) to (c) of the Act have in substance been constant since September 1994. Section 347(1)(c) in its present form is unchanged from that which was in force in September 1994. Amendments in the intervening years to s 347(1) have been directed to changes in nomenclature, but the three jurisdictional features as to approved form, within the prescribed period and accompanied by the prescribed fee have been constant. Changes to the way in which the scheme operates have occurred through amendment of the regulations promulgated under the Act.
…
76.The effect of reg 4.13(2) is that the prescribed fee is not payable if the application is of a type described in reg 4.13(2)(a) or (b). In Braganza, the Full Court described this subregulation, which was then in the same form as it is now, as an exemption from any requirement to pay the fee as opposed to a waiver: [52]. If the application is of a kind described by reg 4.13(2)(a) or (b) then there is no prescribed fee which is required to accompany the review application for the purpose of s 347(1)(c) of the Act. This scenario informs the meaning of the phrase “prescribed fee (if any)”.
77.The effect of reg 4.13(3) is to waive the obligation to pay the prescribed fee more than once when a combined application for review of more than one decision is made under reg 4.12. There is only one prescribed fee which is required to accompany the review application for the purpose of s 347(1)(c) of the Act if the application is made in respect of two or more decisions as part of a combined review application. The corollary is that there is no application fee prescribed in respect of multiple review applications when brought in a combined application other than that which applies in respect of one of them. This is another scenario that informs the meaning of the phrase “prescribed fee (if any)”.
78.By reg 4.13(4), the Registrar of the Tribunal is empowered, upon being satisfied of the requisite degree of financial hardship, to “determine that the fee payable is 50% of the amount mentioned in subregulation (1)”. In this last scenario, it is possible that the fee payable will be only 50% of the amount in subregulation (1) but that depends on a Registrar reaching the requisite state of satisfaction under subregulation (4). In making that determination, the Registrar is empowered to determine that the fee payable is 50% of the application fee prescribed by reg 4.13(1). It is not necessary for the purpose of this appeal to determine whether as presently framed, reg 4.13(4) provides for a partial exemption or a partial waiver. In either case, for the reasons which follow, there is a prescribed fee which is payable under s 347(1)(c) of the Act and the conditional words in s 347(1)(c) of the Act “(if any)” are not engaged.
…
80.The terms of reg 4.13(4) make it clear that the Registrar’s determination of the fee reduction request may occur before or after the end of the prescribed period. It is expressly contemplated that the determination may be made before or after payment is made -“payment of the fee … has caused, or is likely to cause, severe financial hardship”.
81.If the Registrar determines before the end of the prescribed period that the fee payable is 50% of the amount, then pursuant to s 347(1)(c) that sum would have to be paid before the end of the period. That is because payment of the remaining 50% of the prescribed fee is not required — whether as a result of an exemption or a waiver. If the fee reduction request is not determined by the end of the prescribed period, then at least textually, the whole of the amount specified in reg 4.13(1) must accompany the review application before the end of the prescribed period because there has been no abrogation of the requirement to pay 50% of the fee.
82.The textual construction is reinforced by the regulatory mechanism. In the event that the whole of the fee is paid within the prescribed period and payment of 50% of the fee is subsequently waived, there is provision in reg 4.14, Item 1 for the amount paid in excess of 50% to be “refunded”. The provision made in respect of a refund mechanism is relevant to the way in which s 347(1)(c) of the Act is to be construed as part of the statutory scheme. There is no equivalent express mechanism in the statutory scheme which expressly provides for suspension of the obligation to pay the prescribed fee during the period when an application under reg 4.13(4) is pending nor is there any prescription of the time within which payment must be made if a Registrar is not satisfied that a determination under reg 4.13(4) should be made that the fee payable is 50% of that mentioned in reg 4.13(1). This would be an odd outcome having regard to the fact that s 347(1) of the Act functions to create a defined envelope of time within which a review application must be made.
83.Based on this analysis, the text of s 347(1)(c) of the Act, when construed, as it must be, in the context of the Regulations that underpin it, is not capable of yielding the construction for which the appellant contends. That conclusion is reinforced when one has regard to the function of s 347(1) of the Act, which serves to define and limit the availability of merits review.
84.To the extent that there is any uncertainty as to the operation of s 347(1)(c) of the Act in the context of the current iteration of reg 4.13 in circumstances where at the end of the prescribed period a fee reduction request is pending, it is as to whether the amount required to accompany the review application in the prescribed period is the whole of the amount mentioned in reg 4.13(1), or alternatively at least 50% of that amount.
Is binding on this Court?Hanna
Hanna is a decision of Justice Cheeseman of the Federal Court. As noted above, that is a Court of higher jurisdiction and, as such, Hanna is binding on this Court.
The doctrine of precedent requires that this Court follow the rationale in Hanna.
Consideration
As outlined above, Hanna implies that, in circumstances where a Registrar of the Tribunal is yet to determine a fee reduction request before the end of the prescribed period, the whole of the amount specified in reg 4.13(1) of the Regulations must accompany the review application before the end of the prescribed period: Hanna at [81].
Justice Cheeseman clarified that proposition by stating that, should there be any uncertainty regarding the operation of s 347 of the Act (where the Regulations only provide for a waiver of 50% of the prescribed fee) in circumstances where a fee reduction request is still pending at the end of the prescribed period, such uncertainty would only extend to whether the whole of the prescribed fee was required to be paid within the prescribed period or, alternatively, at least 50% of the prescribed fee.
For the purpose of the matter before this Court, neither construction would fall in the applicant’s favour. That is because neither the whole prescribed fee, nor at least 50% of the prescribed fee, was paid within the prescribed period.
As set out above, the prescribed period within which the applicant was required to make his application to the Tribunal ran out on 19 October 2023: s 347(1)(b) of the Act and reg 4.10(1)(b) of the Regulations.
The applicant did not pay the prescribed application fee when he submitted his application on 11 October 2023. He simply wrote on the application form (at Part I relating to “Payment details”) that he was “In Prison” and signed where indicated for a “cardholder”. The Court again notes that no credit card details were provided (CB 103).
On 17 October 2023, the applicant provided a completed “Request for Fee Reduction” form to the Tribunal (CB 124-126).
Whilst the Tribunal did indicate that the fee reduction request would be granted (CB 143), there is no evidence before this Court to indicate that the request was granted. That is, it appears that the fee reduction request was still pending at the end of the prescribed period.
In those circumstances, and noting the comments made by Justice Cheeseman in Hanna (set out above), the applicant was required to pay the whole of the prescribed fee (or, in the event of any uncertainty, at least 50% of the prescribed fee) within the prescribed period. The applicant did not do so.
On that basis, the Tribunal was correct to require payment of at least 50% of the prescribed fee within the prescribed period.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (as amended on 27 March 2024) does not identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 May 2024
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