Boyjonauth v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 557
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boyjonauth v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 557
File number(s): SYG 2705 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 18 July 2022 Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in concluding that it lacked jurisdiction – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 347, 348, 476
Migration Regulations 1994 (Cth), regs 4.10 and 4.13, cl 602.215 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 8
Craig v State of South Australia (1995) 184 CLR 163
Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095
Grey v Minister for Immigration [2018] FCCA 1564
Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 151
Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174
Message v Minister for Home Affairs [2018] FCCA 2132
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tsimperlenios v Minister for Immigration & Anor [2018] FCCA 229
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 24 June 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 2705 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVI KUMARSINGH BOYJONAUTH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1.The application 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 Mauritius (Court Book (“CB”) 1 & 13). He arrived in Australia in July 2008 as the holder of a student visa. That visa ceased on 16 June 2010 (CB 22).
On 8 June 2018, the applicant applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (CB 1-11) (the “visa”). Attached to that application was a copy of the applicant’s passport (CB 13) and a completed Form 1507 document. That Form 1507 document identified (at question four) that the “medical condition requiring treatment” was “major depression, anxiety and stress disorder” (CB 12).
On 6 July 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 21-23). The delegate was not satisfied that the applicant met cl 602.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. Instead, the delegate considered that the applicant was “seeking a visa pathway and was attempting to obtain [the visa] to maintain ongoing residence in Australia” (CB 23).
The Department of Home Affairs (the “Department”) notified the applicant of the delegate’s decision in a letter dated 6 July 2018 (the “notification letter”) (CB 18-20). That notification letter was sent to the applicant by email (CB 17).
On 27 July 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 25-35). That application was sent to the Tribunal by fax on 27 July 2018 (CB 24). In his application, the applicant indicated that he would pay the application fee by money order (CB 33). The applicant also submitted a “request for fee reduction” form and a copy of a bank statement (CB 36-39).
No application fee was paid by the applicant.
On 27 July 2018, an officer of the Tribunal attempted to phone the applicant in relation to the payment of fees. Details of that call, as recorded by the Tribunal, provide as follows (CB 46):
Called PRA via phone to tell him that he needs to pay at least the reduced fee of $882 with his fee reduction request to avoid any jurisdiction issues. However PRA did not pick up, therefore left a voice message to email payment details from an M1 form to [email protected] or call 02 92765000 between 8.30 AM and %pm Mon- Friday.
-Still needs to pay $882 to accompany Fee Reduction request.
On 2 August 2018, an officer of the Tribunal again attempted to phone the applicant. Details of that call provide as follows (CB 46):
The RA has yet to make a payment for the application. Called at 9.34am and left a message to return my call. I will also send an email with a request for the payment and confirm whether he is in immigration detention as M1 form does not indicate the fact.
Later that day (2 August 2018), the Tribunal wrote to the applicant by email as follows (CB 41):
I have left a message on your mobile phone this morning because it appears that you have yet to make payment for the application.
In order for us to process your application, you are required to make either $1764 (full payment) or $882 (50% of the full payment) with Request for Fee Reduction form. We note you have lodged a Request for Fee Reduction form with your Application for Review Form on 27/07/2018.
We kindly request that you provide us with payment at the counter by coming in person or provide us with payment details (credit card) on page 9 of the Application form and send it to us via fax or email at the earliest course.
In addition, could you confirm whether you are in immigration detention as the question was left unanswered in your application form?
On 3 August 2018, the Tribunal invited the applicant to comment on the validity of his application for review (CB 42-43). Relevantly, the invitation to comment letter sent to the applicant provided as follows (CB 43):
I am of the view that your application is not a valid application as the application fee has not been paid, I note in your application for review – Migration form faxed to the Tribunal, including a request for fee reduction, you selected money order as the payment method, however you did not indicate an amount and the Tribunal has not received a money order. We attempted to contact you as soon as we became aware of this without success, and it would now appear to be too late to make payment. 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 17 August 2018. 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 17 August 2018, the applicant responded to that invitation (via fax (CB 44)) as follows (CB 45):
I refer your letter dated on 3 August 2018, request for further information in regards of my appeal application in respect of a decision to refusal to grant subclass 602 visa validity which I faxed to Tribunal including a request for fees reduction. I would like to inform you that when I tried to apply on line with fees waiver I could not apply without paying full fees. I had to fax the appeal form and could not attach the money order with it. I was preparing to give the money by hand at the counter but in the mean time I received the letter and its mentioned that it appear too late to make a payment. I would like to request you to consider the above information and allow me to pay the appeal fees with fees reduction.
I appreciate your consideration of my request to extension of time and look forward to a favourable response in due time.
On 21 August 2018, the Tribunal determined that, because the application fee had not been paid, the application for review was not valid and, as such, the Tribunal had no jurisdiction in relation to the matter (CB 53-55).
On 24 September 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is three pages in length and spans 9 paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration, dated 6 July 2018, to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
2.The review application form was lodged with the Tribunal on 27 July 2018. 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 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 27 July 2018. 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.
4.Before the prescribed period expired, on 27 July 2018 the applicant asked the Tribunal to reduce the prescribed application fee. He was then contacted by telephone on same day and advised he needed to pay at least the reduced fee with his application for a reduction to avoid any jurisdictional issues.
5.On 2 August 2018 the Tribunal wrote to the applicant and again advised he needed to make payment of at least half the prescribed fee before his application for a fee reduction could be considered. He was asked to contact the Tribunal immediately.
6.On 3 August 2018 the Tribunal wrote to the applicant and advised his application for review would be considered to be not a valid application as the prescribed fee had not been paid. He was asked to make comments as to whether a valid application had in fact been made by 17 August 2018.
7.On 17 August 2018 the applicant wrote to the Tribunal and requested additional time in which to make payment of a reduced fee to allow his application for review to proceed. No payment was included with this request.
8.The Tribunal is satisfied the applicant sought a fee reduction on 27 July 2018. The applicant has not paid the application fee to enable consideration of that request. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.
DECISION
9.The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 24 September 2018 contains three “grounds of review”, as follows (without alteration):
l.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.
In support of his application, the applicant deposed an affidavit on 21 September 2018 (filed on 24 September 2018). That affidavit states (without alteration):
1.I applied for Subclass 602 visa, the delegate of the Minister refused to grant my visa on the ground that I did not meet the criteria of the visa and the Tribunal member did not consider my application for review because Tribunal does not have jurisdiction in this matter.
2.The Tribunal decision was unjust and was made without giving me the opportunity to present my arguments and denied me natural justice. Herewith I attached AAT decision.
On 17 December 2021, procedural orders were made by this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 24 September 2018, a Court Book numbering 55 pages (marked as Exhibit 1) and the Minister’s written submissions filed on 10 June 2022.
The applicant appeared before this Court on 24 June 2022 without legal representation. The Court confirmed with him that he had a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 (“Bala”) at [7].
As is now common practice in this Court, to assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that his main concern “is that the Tribunal stated that it did not have jurisdiction”. He explained that he had applied for a medical visa and provided all of the required documentation and queried whether there “was somewhere else he ought to have gone to seek assistance instead”.
The applicant’s oral submissions will be discussed further below.
CONSIDERATION
As outlined above, the applicant’s “grounds of review” state (without alteration):
l.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.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.
The affidavit filed by the applicant in support of that application further states (without alteration):
1.I applied for Subclass 602 visa, the delegate of the Minister refused to grant my visa on the ground that I did not meet the criteria of the visa and the Tribunal member did not consider my application for review because Tribunal does not have jurisdiction in this matter.
2.The Tribunal decision was unjust and was made without giving me the opportunity to present my arguments and denied me natural justice. Herewith I attached AAT decision.
The applicant’s grounds of review are not entirely clear and lack particulars. While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach (noting the reasoning in Bala) is to read the applicant’s grounds of review as broadly as possible and consider for itself whether any arguable case of jurisdictional error arises on the materials before it: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Read broadly, both the applicant’s grounds and the information in the applicant’s affidavit suggest that the applicant takes issue with the Tribunal’s ultimate determination that it did not have jurisdiction to review the applicant’s matter. Further, when the Court asked the applicant to summarise his concerns, the applicant confirmed that his main concern was that the Tribunal “erred in concluding that it lacked jurisdiction to review his case”.
This issue will be considered by the Court below.
Legislative provisions
In this matter, the Tribunal found that the application for review filed by the applicant was not a “valid application” and that, as such, the Tribunal had no jurisdiction.
In order to assess whether the Tribunal was correct in that finding, it is necessary to first outline the relevant legislation applicable in this matter.
Section 347 of the Act outlines the requirements for a valid application for review of a “Part 5-reviewable decision” and, relevantly, provides 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).
…
(5)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
Regulation 4.10(1) of the Regulations sets out the time period within which the application for review must be lodged at the Tribunal for this matter and, relevantly, provides as follows:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(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; or
…
Regulation 4.13 of the Regulation sets out the applicable fee payable in relation to the lodgement of an application for review filed with the Tribunal and details the circumstances in which fees may be partially waived. At the time of the lodgement of the application for review by the applicant in this matter, reg 4.13 relevantly provided:
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 $1,764.
NoteThe fee in subregulation (1) is subject to increase under regulation 4.13A.
…
(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 Tribunal is required to review a decision when a valid application for review is made. This requirement is set out in s 348 of the Act 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.
Whether the Tribunal erred in concluding that it lacked jurisdiction
Section 348 of the Act provides that the Tribunal has jurisdiction to review an application in relation to a “Part 5-reviewable decision” (ie, the delegate’s decision in this matter), only in circumstances where “an application is properly made under section 347” of the Act. As outlined above, s 347 of the Act provides that an application for review must be “accompanied by the prescribed fee (if any)”: s 347(1)(c) of the Act.
Here, the applicant applied to the Tribunal for review of the delegate’s decision by filing an application in the “prescribed form” with the Tribunal by fax sent to the Tribunal on 27 July 2018 (CB 24-35). At question 27 of that application form, the applicant selected “money order” in response to the question “[h]ow will you pay your application fee?” (CB 33). With that application, the applicant also requested a fee reduction (CB 36-38) and provided a copy of his bank statement (CB 39).
As outlined above, reg 4.13(4) of the Regulations provides that a Registrar of the Tribunal “may determine that the fee payable is 50 [per cent]” of the fee payable. In this case, the total prescribed fee payable was $1,764. The 50 per cent discounted fee is thus $884.
Unfortunately, the applicant did not make payment of either the prescribed fee (being $1,764) or 50 per cent of the prescribed fee (being $884).
In its reasons for decision, the Tribunal referenced two decisions in support of its finding that it lacked jurisdiction in relation to the matter: Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174 (“Kirk”) and Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 8 (“Braganza”).
These decisions were discussed by Justice Edelman in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 as follows:
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.
As correctly submitted by the Minister (at [20]-[24] in written submissions filed in this Court on 10 June 2022), the regulatory scheme referenced in the authorities cited above differs to the scheme relevant to the present matter. Kirk and Braganza were decided at a time when the Regulations provided for a waiver of the prescribed fee in full (not simply a 50 per cent fee reduction as stated in the Regulations applicable in this matter).
The Minister also correctly identifies the propositions that remain relevant from Kirk and Braganza as follows (at [24]):
(a)payment of the prescribed fee (where one is payable) is a mandatory requirement for a “valid” application for review to be filed with the Tribunal; and
(b)where a fee waiver is sought by an applicant, the application for review may be considered in circumstances where the fee is either eventually waived or paid within a “reasonable time” after the application for wavier is rejected by the Tribunal.
By analogy, the Minister argued, when considering the regulatory scheme applicable in the present matter, when an applicant seeks a 50 per cent fee waiver, that application for review may be considered in circumstances where 50 per cent of the prescribed fee is paid within the prescribed period and, if the request for fee reduction is refused, the remainder of the fee is paid within a reasonable period after the refusal.
Judge Manousaridis in this Court supported the above analysis in Tsimperlenios v Minister for Immigration & Anor [2018] FCCA 229 (citing his previous judgment in Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095) as follows:
71.The third submission the applicant made at the hearing on 16 February 2017 before me is that the Tribunal acted unreasonably in refusing the applicant’s request for fee reduction. I considered a similar claim in Fairy v Minister for Immigration & Anor (No.2). I there noted that the decision refusing a request to reduce fees was a decision made, not by the Tribunal, but on behalf of the Registrar of the Tribunal. I further held that whether or not the Registrar acted unreasonably in rejecting an application for the reduction of the fee was irrelevant to whether the Tribunal had jurisdiction to hear an application for review. I so held for the following reasons (references omitted):
A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs to which I referred in my earlier reasons.
This analysis was further supported by Judge Jarrett in this Court in Message v Minister for Home Affairs [2018] FCCA 2132 (“Message”) (in which His Honour cites his judgment in Grey v Minister for Immigration [2018] FCCA 1564 (“Grey”)) as follows:
20.The first respondent argues that the facts of this matter are different to those in Kirk and Braganza. The first point of distinction is said to be the legislative scheme because there is no longer a power in the Regulations to waive the fee entirely, only to reduce it. Next, it is argued that an applicant must pay either an application fee or a reduced application fee within the prescribed period. Finally, it is not in dispute that even though the second respondent had granted the reduction of the prescribed fee, it was not paid by the expiry of the prescribed period.
21.The first respondent argues that the decision in Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095 at [4], supports the argument that the applicant’s review application should have been accompanied by at least 50% of the prescribed fee:
4.A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs to which I referred in my earlier reasons.
22.I also accepted the first respondent’s argument in Grey v Minister for Immigration & Anor (above):
[22]…. I am satisfied that payment of the prescribed fee or at least 50 per cent of the prescribed fee, given that the regulations no longer permit a full waiver of the entire fee, is a necessary precondition to the invocation of the second respondent’s jurisdiction to review a decision of a delegate of the first respondent. Here, there was no payment. Here, the preconditions were not met. The Tribunal’s decision was correct. There is no illogicality, irrationality or unreasonableness about it in the legal sense. Accordingly, the application for review must be dismissed.
23.The decisions in Kirk and Braganza have been followed subsequently in the Federal Court: e.g., Benissa v Minister for Immigration and Border Protection [2016] FCA 76; Kumar v Minister for Immigration and Border Protection [2015] FCA 898; Ong v Minister for Immigration and Citizenship [2010] FCA 1259; El Mourani v Minister for Immigration and Citizenship [2010] FCA 289
…
24.However, on reflection, whether he was provided with that notice or not is not to the point. As the authorities to which I have referred to above indicate, payment of the prescribed fee or at least 50% of the prescribed fee is a necessary precondition to the invocation of the second respondent’s jurisdiction to review a decision of a delegate of the first respondent. Here, there was no payment within the time prescribed for lodging the application for review.
This approach was most recently followed by Judge Egan in this Court in Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 151 (“Hanna”) as follows:
8.A Judge of this Court has previously considered the same factual scenario as was before this Court, in the present matter, in Grey v Minister for Immigration [2018] FCCA 1564 and Message v Minister for Home Affairs [2018] FCCA 2132. In each case, it was held that payment of at least 50% of the prescribed fee within the prescribed period was a necessary precondition to this Court having jurisdiction to hear and determine the application for review. Those decisions were not, on their face, plainly wrong.
9.In the light of the above, this Court is not persuaded that it should accede to the applicant’s submission that the principle of comity, in the circumstances of this matter, ought not to apply.
10. There was no payment within time.
As outlined above, the Regulations no longer permit a waiver of the prescribed fee in full. Instead, applicants are able to seek a reduction of the prescribed fee in the amount of 50 per cent. The applicant did so here.
As confirmed by Grey (referenced above), payment of the prescribed fee or at least 50 per cent of the prescribed fee is a necessary precondition to enliven the Tribunal’s jurisdiction to review a matter.
Further, as detailed in Message, Grey and Hanna, payment of the prescribed fee or at least 50 per cent of that fee must be paid within the prescribed period (in this case, within 21 days after the day on which notice of the delegate’s decision is received).
The applicant here was notified of the delegate’s decision by email on 6 July 2018 (CB 17-20). By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to him by email – that is, at the end of the day on 6 July 2018. The prescribed period in this matter thus expired on 27 July 2018.
The applicant here did not make any payment within the prescribed period (or, in fact, at all).
The preconditions to the invocation of the Tribunal’s jurisdiction were thus not met.
On the basis of the above, the Court is satisfied that the Tribunal was correct to determine that it did not have jurisdiction to review the matter.
No jurisdictional error arises in this regard.
Otherwise
At [31] in written submissions filed on 10 June 2022, the Minister identified an error in the Tribunal’s reasons. Relevantly, [8] in this Tribunal’s reasons provides (emphasis added):
The Tribunal is satisfied the applicant sought a fee reduction on 27 July 2018.The applicant has not paid the application fee to enable consideration of that request. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.
This statement is incorrect. No decision was made in this matter in relation to the fee reduction request.
The Court does not, however, consider that this amounts to a jurisdictional error.
As outlined above, the applicant did not pay the prescribed fee (or 50 per cent of that fee) within the prescribed period (by 27 July 2018). The Tribunal thus had no jurisdiction to review the matter. The incorrect description of the circumstances surrounding the fee reduction does not assist the applicant. Once the prescribed period had expired, and the prescribed fee had not been paid by the applicant (or at least 50 per cent of the prescribed fee), the Tribunal lacked jurisdiction to consider the matter.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 24 September 2018 fail to identify any error on the part of the Tribunal. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 July 2022
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