BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 515
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 515
File number(s): SYG 707 of 2018 Judgment of: JUDGE LAING Date of judgment: 29 June 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it lacked jurisdiction – where applicant’s visa was cancelled under s 109 of the Migration Act 1958 (Cth) – where Tribunal review application filed without requisite fee – where fee not paid within prescribed time – where migration agent was mistaken as to the requisite fee – whether the Tribunal had jurisdiction to review decision – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 109, 338, 347, 348
Migration Regulations 1994 (Cth) regs 4.10, 4.11, 4.13, 4.13A, 4.13B
Cases cited: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; 109 FCR 364
Dahi v Minister for Home Affairs [2019] FCA 784
Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99
Park & Anor v Minister for Immigration & Anor [2016] FCCA 4
Pioneer Glass Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 1; 304 FLR 310
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446
Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 9 June 2022 Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Counsel for the Respondents: Ms N Maddocks Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 707 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTLICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.The applicant has leave to rely upon the amended application filed on 18 May 2022.
2.The application be dismissed.
3.The applicant pay the first respondent’s costs, fixed in the amount of $7,328.
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 LAING
The applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 26 February 2018. The Tribunal found that it had no jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister) dated 16 November 2017 to cancel the applicant’s Return (Residence) (Class BB) (subclass 155) visa under s 109 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant arrived in Australia as an unauthorised maritime arrival on 13 January 2010. The applicant participated in a Refugee Status Assessment interview on 15 March 2010, then applied for a protection visa on 12 April 2010. On 15 April 2010, the applicant was granted a protection visa.
On 23 July 2015, the applicant applied for and was granted a Return (Residence) (Class BB) (subclass 155) visa (visa).
On 7 June 2017, the Department of Immigration and Border Protection (as it was) issued a Notice of Intention to Consider Cancellation (NOICC) of the visa. After the NOICC was returned to sender, it was subsequently emailed to the applicant on 11 July 2017.
On 20 July 2017, the applicant’s migration agent provided a response to the NOICC on behalf of the applicant.
On 16 November 2017, the Delegate decided to cancel the applicant’s visa pursuant to s 109 of the Act. The Delegate considered that the applicant had not complied with s 101 of the Act, finding that incorrect information had been provided in relation to his protection visa application. The applicant was notified of the decision by email sent to his representative that day.
At 11.33 am on 27 November 2017, the applicant’s representative lodged an application for review to the Tribunal. At 12.07 pm that day, the representative sent an email to the Tribunal attaching a form containing payment details in respect of the application. The form included the following information:
(a)in response to the question, “How will you pay your application fee?” the box for “[c]redit card” was selected;
(b)the details of a visa credit card were given, including the cardholder’s name (which was that of the applicant’s migration agent);
(c)the signature of the cardholder was provided; and
(d)in a box next to the word “Amount”, the figure of $1,673 was written.
On 28 November 2017, the Tribunal invited the applicant to comment on the validity of his application for review. The invitation stated, relevantly, that the Tribunal was of the view that the application was not valid on the basis that the applicant had not paid the correct fee. It stated that the correct application fee was $1,731, and that the last day to make the correct payment was 27 November 2017. The applicant was invited to provide any comments in writing by 12 December 2017.
By email dated 29 December 2017, the applicant’s migration agent responded to the invitation to comment on behalf of the applicant. The response acknowledged that the incorrect fee amount of $1,673 had been provided due to human error on the part of the migration agent, and that the applicant was unaware of the fee change as of 1 July 2017. An updated extract from form M1 (Design date 12/17) was attached to the response, providing payment details for the amount of $1,731.
On 11 January 2018, a Tribunal Registry Officer emailed the applicant’s representative stating that the payment of $1,731 could not be processed “as the amount of $1673.00” had “already been paid and receipted”. Authorisation was requested in respect of the $58 balance. A form authorising the payment of this amount was provided by the applicant’s representative on 12 January 2018.
On 26 February 2018, the Tribunal determined that it lacked jurisdiction in the matter.
THE TRIBUNAL’S DECISION
The Tribunal noted that, in accordance with s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994 (Cth) (Regulations), the application for review of the Delegate’s decision was required to be:
(a)provided to the Tribunal within the prescribed period, as specified in s 347(1)(b) and reg 4.10; and
(b)accompanied by the prescribed fee, unless a determination had been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship.
The Tribunal noted, incorrectly, that the prescribed period in the present case ended on 7 December 2017. The last day to make the correct payment was in fact 27 November 2017, being 7 working days from the date on which the applicant received notification of the Delegate’s decision (reg 4.10 of the Regulations).
The Tribunal found that the fee was required to be paid within the prescribed period, relying upon Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99 (Kirk) (or, if a determination was made under reg 4.13(4), within a reasonable period after that determination: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; 109 FCR 364 (Braganza).
The Tribunal noted that it did not receive authorisation for payment of the balance of the full amount of the prescribed fee until 29 December 2017, after the prescribed period had ended. It concluded that the application for review was not valid and that it had no jurisdiction in the matter.
RELEVANT LEGISLATION
Section 338(3) of the Act applied in the present case, which provided (subject to non-relevant exceptions) that:
(3)A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a Part 5-reviewable decision…
Section 347(1) of the Act relevantly provided:
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…
(c) be accompanied by the prescribed fee (if any).
Section 348 relevantly provided:
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…
The following provisions of the Regulations also relevant:
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:…
(b)if the Part 5‑reviewable decision is mentioned in subsection 338(3) or (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received…
4.11 Giving the application to the Tribunal
(1)An application for review by the Tribunal must be given to the Tribunal by:…
(e)transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
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 $1,540.
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).
4.13A Biennial increases in fees
Despite any other provision of these Regulations, the fee prescribed by subregulation 4.13(1) is increased, in accordance with regulation 4.13B, on each biennial anniversary of 1 July 2011.
4.13B Calculation of increase
(1)If, in a relevant period, the latest CPI number is greater than the earlier CPI number, a fee is taken to increase, on 1 July immediately following the end of the period, in accordance with the formula:
Fee x Latest CPI number
------------------------------
Earlier CPI number
where:
earlier CPI number is the CPI number for the last March quarter before the beginning of the relevant period.
latest CPI number is the CPI number for the last March quarter before the end of the relevant period.
(2)If, apart from this subregulation, the amount of a fee increased under subregulation (1) would be an amount of dollars and cents, the amount is to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.
(3)Subject to subregulation (4), if at any time, whether before or after the commencement of this regulation, the Australian Statistician publishes for a particular March quarter a CPI number in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this regulation.
(4)If, at any time, whether before or after the commencement of this regulation, the Australian Statistician changes the reference base for the Consumer Price Index, then, for the purposes of the application of this regulation after the change is made, regard must be had only to numbers published in terms of the new reference base.
(5)In this regulation:
CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.
fee means:
(a) a fee prescribed by subregulation 4.13(1); or
(b)the fee in force at the end of the relevant period if regulation 4.13A applies.
relevant period means any of the following periods:
(a) the 2 year period commencing on 1 July 2011;
(b)after that period—each 2 year period commencing on a biennial anniversary of 1 July 2011.
PROCEEDINGS BEFORE THIS COURT
On 16 March 2018, the applicant commenced the current proceedings. An amended application was filed on 18 May 2022 relying upon the following grounds:
1.The Administrative Appeals Tribunal "The Tribunal" erred in deciding that it has no jurisdiction to review the matter , the Tribunal decided that it has no jurisdiction because the prescribed fees was not paid within the prescribed time set by the legislation , however , the Tribunal asked for the remaining of the balance to be paid, accordingly, the full fees were paid to the Tribunal, the Credit card details were provided to the Tribunal at the time of lodgement , the Tribunal erred in not considering the reasonableness of it decision (Pioneer Glass Pty Ltd v Minister for Immigration &Anor (2016) and Park & Anor v Minister for Immigration &Anor (2016).
2.The term "prescribed fee" in s 347(1)(c) means the amount in reg 4.13(1), ie $1,540. It follows that the applicant tendered to the Tribunal more than the prescribed fee within the prescribed period.
3.Even if the ''prescribed fee" is the ''fee in force" within the meaning of reg 4.13B(5), it is not evident that the fee in force in November 2017 was $1,731 as asserted by the Tribunal at CB 114. If the Minister is not able to prove to the court that the prescribed fee or fee in force in November 2017 was $1,731, then the Tribunal fell into jurisdictional error in assuming otherwise.
4.Whether an application for review is "accompanied by the prescribed fee" within the meaning of s 347(l)(c) is a question of fact and degree. In the present matter, payment of 96.6% of the fee within the prescribed time and the balance within a reasonable time after being asked to do so is sufficient to satisfy the meaning of "accompanied by".
5.Section 347 upon its proper construction does not prevent the Tribunal from reviewing an MRT reviewable decision merely because the application for review, given to the Tribunal within the prescribed period, was not accompanied by the prescribed fee.
The Minister did not oppose leave being granted for the applicant to rely upon the amended application.
Ground 1
Ground 1, as developed in the written and oral submissions, essentially contended that the requisite fees had been paid within the prescribed period because the Tribunal had been placed in a position to obtain payment of the correct fee amount.
Reliance was placed by the applicant on the decision in Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744 (Vumentala). In that case, a migration agent had submitted visa applications for two clients with covering letters referring to intended payments of $165 in fees by credit card. In the applicant’s visa application form, however, the agent had failed to indicate the amount of payment after ticking the box beside the words American Express and signing the authorisation. The agent had also omitted the final digits of her American Express number, which was therefore incomplete although able to be determined through the other application form. The Court found that the completion of the credit card details on the applicant’s form had been “impliedly authorised” and that the Department had been adequately placed in a position “to require payment of the visa application charge by American Express” (at [19]).
Reliance was also placed upon the case of Pioneer Glass Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 1; 304 FLR 310 (Pioneer Glass) (which was heard with a related case, Park & Anor v Minister for Immigration & Anor [2016] FCCA 4). In Pioneer Glass, the Tribunal erred in finding that the required fee had not been paid within the prescribed period because the signature of the cardholder had not been included on the relevant form. Noting that signatures were not always required or possible (such as with telephone payments), the Court found that the applicant had “done sufficient for the Tribunal to process payment for the application and that the application should therefore have been accepted as valid” in accordance with the decision in Vumentala (at [26]-[36]).
I accept the Minister’s submissions that the cases relied upon are distinguishable from the present case. In this case, the applicant’s representative specified a particular, lower amount that he authorised to be charged against his credit card. Whilst the agent undoubtedly intended to pay the correct fee on behalf of his client, he also clearly understood the applicable fee to be an amount $58 less than what it was.
At the hearing, Mr Zipser for the applicant accepted that authorisation was required in order for the Tribunal to be placed in the relevant position to obtain the funds. However, Mr Zipser submitted that an inference should be drawn that payment of the full amount was impliedly authorised, given:
(a)the relatively limited nature of the difference between the amounts ($58);
(b)the fact that the migration agent had checked the box indicating an intention to pay by credit card; and
(c)the significant consequences if the prescribed fee was not paid in time.
A difficulty with the applicant's submissions is that the difference of $58 could mean different things to different people. Whilst some people may be relatively untroubled by the additional amount of $58, particularly in the context of the otherwise applicable consequences, for others it may be the difference between being able to meet other, necessary, expenses or not. For this reason, I would be reluctant to find that the Tribunal was implicitly authorised to charge an applicant more than a limited amount that has been specified on an application form. This is so, even accepting the significant consequences that flowed from not paying the prescribed fee within time.
Mr Zipser also suggested that it would be unfair for an application to be invalid where an agent erroneously relies on out-of-date information about the applicable fee. An affidavit by Ali Alkafaji dated 17 May 2022 was relied upon in support of a submission that this may have occurred in the present case. However, even if outdated information was located somewhere “on the internet”, as Mr Alkafaji suggests in his affidavit, this did not alter the effect of s 347. As the Minister has submitted, the strictness of that provision is explicable by the need for certainty in determining whether the necessary steps had been taken. This is so even when it might be contended to produce unjust results in individual cases: see Kirk at 103 and Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 at 455-456.
Ground 2
By ground 2, the applicant contended that the term “prescribed fee” in s 347(1)(c) was limited to the amount stated in reg 4.13(1). Mr Zipser submitted that this construction was supported by the:
(a)difficulty in otherwise calculating the applicable fee by reference to regs 4.13A and 4.13B;
(b)wording “Subject to this regulation” in the singular in reg 4.13(1);
(c)wording of reg 4.13A, which refers to the fee “prescribed” in reg 4.13(1) and does not state that the increased fee pursuant to reg 4.13B becomes the “prescribed fee”; and
(d)distinction in reg 4.13B(5) between “a fee prescribed by subregulation 4.13(1)” and “the fee in force at the end of the relevant period if regulation 4.13A applies”.
I agree with the Minister that the applicant’s construction does not correctly interpret reg 4.13 to 4.13B of the Regulations.
The starting point for statutory interpretation is the text itself, whilst, at the same time, regard is had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) at 381-382 [69]-[71]. The meaning of a provision is to be construed by "by reference to the language of the instrument viewed as a whole": Project Blue Sky at [69] (McHugh, Gummow, Kirby and Hayne JJ).
As noted above, the need for certainty forms part of the statutory purpose behind these provisions. However, the fact that fee increases may have made the prescribed fee more difficult to calculate did not render the effect of the provisions uncertain. The Court is bound to give effect to the Regulations, even where they require some mathematical application.
Regulation 4.13A provides that the “fee prescribed by subregulation 4.13(1) is increased, in accordance with regulation 4.13B, on each biennial anniversary of 1 July 2011.” Whilst the provision does not state, in terms, that the increased “fee prescribed” becomes the “prescribed fee”, that is the effect of the provision. It does not need to rely upon the words “Subject to this regulation” in reg 4.13(1) for this effect. The language of reg 4.13A makes clear that it applies “[d]espite any other provision of these Regulations”. That this is the intended effect of reg 4.13A is also supported by the note in reg 4.13, which reads “The fee in subregulation (1) is subject to increase under regulation 4.13A”.
The definition of “fee” in reg 4.13B(5) is intended to differentiate between the fee prescribed in the two year period commencing on 1 July 2011, and during each 2 year period thereafter. It is consistent with the prescribed fee changing in the manner considered above. It contemplates that the relevant fee in force will change at the end of each relevant period. The alternate use of the terms “fee prescribed” and “fee in force” in this provision does not demonstrate an intention that the prescribed fee referred to in s 347 of the Act remain fixed by reference to the initial period. For the reasons given above, that is not the effect of regs 4.13(1) and 4.13A.
It follows that I do not accept that the applicant’s interpretation is relevantly open. I therefore do not accept that the Court ought to adopt that interpretation in order to “avoid consequences that appear irrational and unjust”, as was urged by the applicant relying upon Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 350 (per Gibbs J).
For the above reasons, I am not persuaded that ground 2 ought to succeed.
Ground 3
Ground 3 contends that is not clear that the prescribed fee at the relevant time was $1,731 and that if the Minister is not able to prove this was correct, the Tribunal fell into jurisdictional error in assuming it.
The ground as stated sits uncomfortably with the applicant’s onus in these proceedings. However, the Minister has put on evidence, in the form of an affidavit of Madeleine Grace Kelly affirmed on 2 June 2022, demonstrating that the prescribed fee was $1,731 at the relevant time.
Ground 3 is accordingly unable to succeed.
Ground 4
Ground 4 contends that the words “accompanied by” have sufficient elasticity to include payment of 96.6% of the fee within the prescribed period if the balance is paid within a reasonable period.
Reference is made in the applicant’s written submissions to the case of Dahi v Minister for Home Affairs [2019] FCA 784 (Dahi). In that case, the Court rejected an argument that the term “accompanied by” had sufficient elasticity to allow payment of the prescribed fee after the prescribed period had expired. The Court held (at [23]):
These submissions cannot be accepted. Whilst it can be accepted that there is some elasticity in the meaning of the words “accompanied by”, that elasticity is with respect to the payment of the fee before the expiration of the prescribed period. In other words, provided the fee is paid within the period by which an application must be made, the application is “accompanied by” payment of the prescribed fee…
In written submissions, Mr Zipser sought to distinguish Dahi on the basis that a substantial part of the fee had been paid in this case before the end of the prescribed period.
However, the difficulty with this submission is that by the end of that period, the applicant had not paid “the prescribed fee”. He had paid part of it. In these circumstances, I do not see how the applicant could be said to have met the express requirement in s 347(1)(c) that the application “be accompanied by the prescribed fee” (emphasis added).
At the hearing, Mr Zipser conceded that he was probably unable to succeed on ground 4 before this Court due to the reasoning in Dahi. However, he maintained the ground with an “eye towards the future” (i.e. in order to preserve his client’s rights in the event of any appeal). I accept this.
However, for the reasons given above, ground 4 is unable to succeed before this Court.
Ground 5
Ground 5 contends that on its proper construction, s 347 does not prevent the Tribunal from reviewing a Part 5-reviewable decision simply because the application for review was not accompanied by the prescribed fee.
In written submissions, the applicant relied upon arguments that were made by the applicant in Braganza and that were set out at [28]-[38] of that decision.
In Braganza, the applicant succeeded in arguing that it was sufficient for him to have sought waiver of the fee within the prescribed period. It was therefore unnecessary for the Court to deal with his broader argument that Kirk was wrongly decided and that it was sufficient for him to pay the prescribed fee prior to the time fixed for hearing of the review. It is that broader argument that the present applicant relies upon under ground 5.
The broader argument is unable to succeed before this Court, which is bound by the decision in Kirk. Like ground 4, ground 5 appears to have been included with “an eye towards the future”.
CONCLUSION
For the above reasons, the application must be dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 29 June 2022
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