Begum v Minister for Immigration - [2020] FCCA 2391

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGUM v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2391

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal lacking jurisdiction due to non payment of the prescribed fee – interlocutory dismissal of show cause application – refusal of an extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.339, 347, 348, 477

Migration Regulations 1994 (Cth)

Cases cited:

Atta v Minister for Immigration & AnorandEl Gindy Minister for Immigration & Anor [2019] FCCA 3594

Benissa v Minister for Immigration [2016] FCA 76

Braganza v Minister for Immigration (2001) 109 FCR 364

Jahangir v Minister for Immigration [2019] FCA 245

Kirk v Minister for Immigration (1998) 87 FCR 99

Kumar v Minister for Immigration [2015] FCA 898

Tabet v Minister for Immigration (1997) 75 FCR 446

Applicant:

ZEENATH BEGUM

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3436 of 2019

Judgment of:

Judge Driver

Hearing date:

27 August 2020

Delivered at:

Sydney

Delivered on:

27 August 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3436 of 2019

ZEENATH BEGUM

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Ms Begum, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 18 October 2019. The Tribunal found that it did not have jurisdiction in the matter due to non-payment of the prescribed review application fee. The show cause application to this Court was filed outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Ms Begum seeks an extension of time under s.477(2).
Background facts relating to this matter are set out in the ministers’ outline of submissions from paragraphs 2 to 6, which I adopt.
Ms Begum is a citizen of India who on 21 February 2019 applied for a medical treatment visa.[1] On 18 March 2019 the Minister’s delegate (delegate) refused to grant the visa.
[1] CB 1
On 26 March 2019 Ms Begum applied to the Tribunal for review of the delegate’s decision.[2] In her application she sought a 50 per cent reduction of the prescribed fee for the application as permitted under regulation 4.13(4) of the Migration Regulations 1994 (Cth) (Regulations). Ms Begum otherwise appears to have paid at the time of application 50 per cent of the prescribed application fee.[3]
[2] CB 27
[3] in cash, see CB 35
On 10 April 2019 a Tribunal officer on behalf of the Registrar made a decision to refuse Ms Begum’s request for a fee reduction.[4] In the statement of reasons the officer stated that Ms Begum was required to pay the outstanding 50 per cent ($822) within 14 days (24 April 2019) or the review application would be allocated to a Tribunal member to determine whether a valid application had been made.
[4] CB 52
On 18 October 2019 the Tribunal found that it did not have jurisdiction in the matter.[5]
[5] CB 61
At [4] of its reasons, the Tribunal noted Ms Begum’s request to reduce the prescribed fee, and the Registrar’s decision refusing that request. The Tribunal considered that Ms Begum had been given a reasonable period to pay the fee since being notified of the Registrar’s decision, however noted the fee had not been paid. The Tribunal found therefore that the application for review was invalid.
On 23 December 2019 Ms Begum commenced proceedings in this Court, seeking an extension of time to challenge the Tribunal’s decision.

The present proceedings

The show cause application was filed on 23 December 2019. It contains two grounds in support of an extension of time:
1. At the time I received the decision from the Tribunal I was very depressed and upset and did not know what to do.
2. I believe that the Tribunal made a very serious error of law in my case and now I wish to appeal the decision because I have arguable case.
It also sets out two grounds of review of the Tribunal’s decision:
1. The AAT decision of 21 October 2019 in relation to my review application lodged with the Tribunal on 26 March 2019 is legally wrong because I already borrowed the initial payment of over $800 and paid the initial fee and I have completed a form requesting fee reduction and the tribunal was aware that I did not have permission to work, I do not have any assets, and I do not have any savings and the tribunal acted contrary to the evidence before it.
2. The tribunal Member is wrong by requesting the full application fee to be met within 14 days and the Tribunal even though gave me 14 days but failed to understand and accept that I did not have the money to be provided with 14 days. Therefore the Tribunal is wrong and the decision to make my application invalid is legally wrong and the request for the balance of $882 is unreasonable and unfair.
The application is supported by a short affidavit filed with it which I received.
I also have before me as evidence, the court book filed on 3 March 2020. Ms Begum denied receipt of the court book sent to her on 3 March 2020. When, however, I explained the contents of the court book to her, she did not object to my receipt of the documents in evidence.
Ms Begum’s show cause application was filed 31 days late. The delay in this case is moderate. Ms Begum has not advanced any evidence to explain her delay in coming to court. In her show cause application and in her oral submissions today, she has claimed depression and confusion. The explanation for the delay is not very persuasive. Nevertheless, if an arguable case of jurisdictional error had been advanced by Ms Begum, I would have been minded to grant an extension of time. Ms Begum’s oral submissions focused on the issue of the non-payment of the Tribunal application fee. She is dissatisfied with the decision of the Tribunal registrar to refuse her waiver request. She considers that her request should have been granted. That is based upon her financial circumstances, as revealed to the registrar.
Ms Begum also submits that the period of 14 days stipulated for payment of the balance of the required fee was too short. The fee reduction decision is set out in a letter dated 10 April 2019 from the Tribunal to Ms Begum. The correspondence is reproduced CB 52 and 53. It is apparent from that correspondence that Ms Begum had only provided a completed fee reduction form and a bank account with a zero balance in support of her request.
There may be cases in which an implicit challenge to a fee reduction decision could be considered by this Court following a no jurisdiction decision of the Tribunal. Ms Begum took me to a decision of this Court: Atta v Minister for Immigration & AnorandEl Gindy Minister for Immigration & Anor,[6] where Judge Humphreys permitted that approach at [14]. In the present case, the show cause application on its face raises no direct challenge to the fee reduction decision. However, I am willing to accept the hypothetical possibility that, in a particular case, the Tribunal may be in error in finding that it has no jurisdiction where that decision is in turn based upon an invalid fee waiver decision. In this matter, however, I am not persuaded that there is any serious doubt about the validity of the fee waiver decision.
[6] [2019] FCCA 3594
There might have been an issue over the period of 14 days permitted for payment of the outstanding fee balance, if Ms Begum had paid that balance after the 14-day period had expired. On the present state of the authorities, in my view, Ms Begum was entitled to pay the balance within a reasonable time. While the Tribunal is bound by the outcome of a fee waiver decision validly made, in my view, it is not bound by the registrar’s decision stipulating a period for payment of the balance. In my view, the Tribunal, in an appropriate case, could decide that a payment made after the stipulated period was paid within a reasonable time. This is not that case because nothing was paid. While one may quibble over a period of 14 days, on any view, six months is a reasonable time. The Tribunal decision was made approximately six months after the fee waiver decision.
I otherwise agree with and adopt the Minister’s submissions concerning the issues arising in this case.
It is necessary first to set out the relevant statutory provisions that apply in this case.
Section 347(1) of the Migration Act provides:
(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; … and
(c) be accompanied by the prescribed fee (if any).
Section 348(1) of the Migration Act provides:
(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.
Regulation 4.10 of the Regulations provides for the time for lodgement of applications to the Tribunal:
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
(a) if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act--starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; …
Regulation 4.13 of the Regulations provides:
(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.
…
(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).
The central contention advanced by Ms Begum cannot be maintained. The Tribunal correctly applied the law in determining that it did not have jurisdiction under the Migration Act to conduct the review sought by Ms Begum.
The question the Tribunal needed to consider was whether the application for review was accompanied by the prescribed fee. In Kirk v Minister for Immigration,[7] Lehane J considered the question of whether s.339(1) of the Migration Act, a provision which provided for internal merits review of a Departmental decision, but which was otherwise in terms equivalent to the present s.347(1), imposed a condition strict compliance with which was necessary in order to invoke jurisdiction for internal review by way of payment of the prescribed fee before the end of the period by which the application needs to have been made. The circumstances in Kirk were that the applicant purported to pay the prescribed fee for his review application with a cheque but the cheque was dishonoured on presentation.
[7] (1998) 87 FCR 99
His Honour followed the reasoning of Mansfield J in Tabet v Minister for Immigration[8] in finding that the requirement for payment of the fee was a mandatory requirement which had to be strictly complied with. His Honour by reference to earlier authority interpreted the words “accompanied by” to mean that the prescribed fee needed to be paid before the end of the period by which the application was required to be made.[9] His Honour did not find the existence of a discretion in the Secretary to waive the fee to affect the mandatory nature of the requirement to pay the fee, but noted that the condition to pay the fee only applied in circumstances where the fee was payable. His Honour found:
Unless and until a determination is made, however, the prescribed fee is payable, so that if an applicant for review has applied for a determination under reg. 4.04(3) but the Secretary has made no determination before the expiry of the prescribed period, it is probably necessary for the applicant to pay the fee, relying on the prospect of a refund should the Secretary make a favourable decision.
[8] (1997) 75 FCR 446
[9] at 102
His Honour did not need to express a firm view as to the above because no application for a waiver had been made by the applicant. Justice Lehane concluded on authority that where a cheque is dishonoured, payment is taken not to have been made.[10]
[10] at 103
In the matter of Braganza v Minister for Immigration[11] the applicant had made a request within the prescribed period for waiver of the prescribed fee, and the Tribunal determined to decline the request. The applicant asked the Tribunal to reconsider its declination of his waiver request, which the Tribunal did, but by which point, the prescribed period had ended. The Tribunal proceeded to find it lacked jurisdiction as the fee had not been paid within the prescribed period.
[11] (2001) 109 FCR 364
The Full Federal Court in Braganza found that where an application for a fee waiver is made within the prescribed time, the application for review may be entertained provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. At [51] in Braganza, the Court stated:
… where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.
The Full Federal Court distinguished Kirk at [59] on the basis that no application for waiver of fees was lodged within the prescribed period, and it was unnecessary to determine the correctness of the decision having determined the appeal on the narrower argument proffered by the appellant.
It is noted that unlike the present regulatory scheme, in the scheme that was considered in Braganza, and the other cases cited above, the Registrar of the Tribunal had power to waive the entire prescribed fee, not just half of the fee. Despite the change to regulation 4.13(4) amending the fee waiver from the entire prescribed fee to 50 per cent of the prescribed fee, the Courts have continued to apply the reasoning in Braganza, by finding that once the Registrar of the Tribunal refuses the fee reduction, the applicant must pay the remaining half of the prescribed fee within a reasonable period following the Registrar’s decision. For example, in Kumar v Minister for Immigration,[12] Wigney J stated at [30]:
Mr Kumar’s case does not fall within the proviso or qualification in Braganza. Had Mr Kumar paid the prescribed fee on or before 2 January 2015, it would no doubt have fallen within the Braganza proviso and the Tribunal would have had jurisdiction to entertain the review application. But he did not pay the fee before 2 January 2015. Mr Kumar did not argue that the requirement to pay the fee before 2 January 2015 did not allow him a reasonable time. Even if he had advanced that argument, there is simply no basis for concluding that Mr Kumar was not given a reasonable time. In any event, Mr Kumar had not paid the fee before 27 February 2015, when the Tribunal ruled that it did not have jurisdiction. Mr Kumar accordingly was given effectively three months in which to pay the fee. It could not sensibly be argued that this was not a reasonable time.
[12] [2015] FCA 898
Justice Wigney opined further at [32] that it was significant in Mr Kumar’s case (and adverse to him had he sought to argue that he had been denied procedural fairness) that the Tribunal had told Mr Kumar the date by which he had to pay the fee. In Kumar, the time by which Mr Kumar had to pay was actually extended on one occasion at Mr Kumar’s request.[13]
[13] See also the judgment of Edelman J in Benissa v Minister for Immigration [2016] FCA 76 and the judgment of Allsop CJ in Jahangir v Minister for Immigration [2019] FCA 245
The Tribunal in the present case has adopted the same approach.[14] There was no error in the Tribunal’s understanding of its jurisdiction as expressed at [4] of its decision. The Tribunal was entitled to rely, as a jurisdictional fact, on the failure by the applicant to have paid the whole of the prescribed fee within a reasonable time after an officer of the Tribunal had refused his fee waiver request. The Tribunal officer had power under regulation 4.13(4) of the Regulations to determine that the fee payable is 50 per cent of the amount mentioned in regulation 4.13(1) if satisfied that the payment of the required fee “has caused, or is likely to cause, severe financial hardship to the review applicant”. That power arises in respect of the requirement under s.347(1)(c) that an application for review to the Tribunal of a Part 5-reviewable decision “must be accompanied by the prescribed fee (if any)”.
[14] see [4] of the decision record
The Tribunal member was not empowered himself to determine, or re‑determine, the fee reduction request. That was a matter for the officer authorised under regulation 4.13(4) of the Regulations. Neither was the Tribunal member in this case empowered to conduct a review of the officer’s refusal of the fee reduction request. In any event, and contrary to the applicant’s contentions, the Tribunal officer took into account her submissions regarding inability to pay the whole fee, and it was unnecessary, and indeed not part of the Tribunal’s review function, to reassess the matters advanced by the applicant to the Tribunal officer in relation to the fee reduction request.
Even if the application before the Court were to be understood not as a challenge directly to the ultimate decision of the Tribunal that it lacked jurisdiction, but to the anterior decision of the Tribunal officer to refuse the fee reduction request, Ms Begum has not raised any arguments going to the jurisdiction of the officer. It is not for the Court to reassess the merits of the fee reduction request. Ms Begum had the opportunity, and did, make submissions to the Tribunal concerning the fee reduction. She had an opportunity to submit supporting evidence, but largely failed to take advantage of that opportunity. It was open to the Tribunal officer to decide that payment of the fee would not cause Ms Begum, or be likely to cause her, severe financial hardship.
I conclude that the proposed show cause application would be doomed to failure. In the circumstances I am not persuaded that the interests of the administration of justice require the granting of an extension of time.
I will order that, under s.477(2) of the Migration Act, the application for an extension of time be refused. I refuse the extension of time application with the consequence that the show cause application is incompetent.

In consequence of the refusal of an extension of time, the Minister seeks an order for costs in accordance with the Court scale. Ms Begum did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 1 September 2020