Dahi v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Dahi v Minister for Home Affairs [2019] FCA 784

Appeal from: Dahi v Minister for Immigration [2018] FCCA 3148
File number: NSD 2383 of 2018
Judge: DAVIES J
Date of judgment: 31 May 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Administrative Appeals Tribunal had no jurisdiction to review decision to cancel appellant’s visa – application for review not accompanied by prescribed fee – where appellant entered incorrect information on application for review – where application form did not specify a fee payable – where non-payment not identified until payment period expired – where authority that compliance with payment prescriptions mandatory – appeal dismissed
Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited:

Anand v Minister for Immigration (2013) 215 FCR 562; [2013] FCA 1050

Benissa v Minister for Immigration and Border Protection [2016] FCA 76

Braganza v MIMA (2001) 109 FCR 364

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99

Date of hearing: 13 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 25
Counsel for the Appellant: Mr L Karp
Solicitor for the Appellant: Parish Patience Bitel Immigration Lawyers
Counsel for the First Respondent: Mr M Cleary
Solicitor for the First Respondent: Sparke Helmore Lawyers

ORDERS

NSD 2383 of 2018
BETWEEN:

POULAD DAHI

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

31 MAY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DAVIES J:

  1. The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent (“the Minister”) to cancel the appellant’s Return (Residence) (class BB) Resident Return (subclass 155) visa because the application made to the Tribunal was not accompanied by the prescribed fee as required by s 347(1) of the Migration Act 1958 (Cth) (“the Act”).

    Background

  2. The appellant, an Iranian national, was granted a protection visa in January 2011 and from 17 August 2016 had a Resident Return visa.  On 16 December 2016, a delegate of the Minister made a decision to cancel the appellant’s Resident Return visa.  A letter accompanying the reasons for cancellation informed the appellant that he could apply for merits review of the delegate’s decision to the Tribunal by 8 March 2017.

  3. On 3 March 2017, the appellant completed an online application for review on the Tribunal’s website.  The first question on the application asked whether the…

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Details
Case
[2019] FCA 784
Decision Date

CaseChat Overview and Summary

In the matter of Dahi v Minister for Home Affairs, the Federal Court of Australia addressed an appeal regarding the Administrative Appeals Tribunal's (AAT) jurisdiction to review a decision to cancel a visa. The appellant, Mr. Dahi, contested the AAT's ruling that it lacked jurisdiction because the application for review was not accompanied by the prescribed fee within the stipulated period. The AAT held that it was bound by the Federal Circuit Court's (FCC) decision in Kirk, which held that strict compliance with the fee payment requirement was necessary for an application to be valid. The appellant argued that the FCC had not considered whether there was an approved form for the application, nor had it considered whether the AAT could have identified the appellant's error before the payment period expired.

The central legal issue before the court was whether the AAT had jurisdiction to review the decision to cancel Mr. Dahi's visa, given that the application for review was not accompanied by the prescribed fee. The court examined the cases of Kirk and Braganza to determine whether the absence of the fee rendered the application invalid. In Kirk, the court held that the applicant's failure to pay the fee within the prescribed period resulted in the AAT lacking jurisdiction. However, in Braganza, the Full Court held that an application for review could be entertained if a waiver application was made within the prescribed period, even if the fee had not been paid. The court in Dahi had to reconcile these cases with the particular circumstances of the appellant's case, including the timing of the non-payment identification and the absence of an approved form.

The court concluded that the AAT was correct in finding that it lacked jurisdiction to review the visa cancellation decision. While it acknowledged that it would have been preferable for the Registry to identify the appellant's error before the payment period expired, the court held that there was no legal obligation for the Registry to do so. The court reasoned that the mandatory nature of the fee payment requirement, as established in Kirk, must be strictly complied with. Although the Full Court in Braganza provided an exception for cases where a waiver application was made within the prescribed period, the court in Dahi found that the circumstances did not align with the Braganza exception. Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent.

The Federal Court's decision in Dahi underscores the importance of strict compliance with statutory requirements for fee payments in visa review applications. The court's reasoning highlights the need for applicants to ensure that all prescribed conditions are met within the specified timeframes to maintain the validity of their applications. The judgment reinforces the principle that the AAT's jurisdiction is contingent upon adherence to legislative mandates, even in the absence of explicit statutory language obligating the AAT to identify errors before the payment period expires.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal also stated that it would have been preferable if Registry had discovered the appellant’s error before the end of the prescribed period but there was no legal obligation and the failure did not make the application valid. FCC Decision The FCC held that in light of Kirk and Braganza the Tribunal was correct to hold that it did not have jurisdiction to hear and determine the appellant’s application for judicial review. Appeal At the commencement of the appeal, the Court raised with the parties the question of whether the appellant had made his application for review in the “approved form”, given that the application which he completed did not identify that any fee was payable. As neither party had given any consideration to this question, the matter was stood down for a short period of time to enable the parties to give consideration to it. Upon the hearing of the appeal resuming, the Court was informed that in the time available, the parties had not been able to determine whether there was an “approved form” nor had a copy of the actual application for review submitted online by the appellant been located. Both counsel informed the Court that the Minister did not contend that the appellant had not lodged an application in the “approved form” and the only issue for determination was whether the Tribunal lacked jurisdiction by reason of the failure of the appellant to pay the prescribed fee on an application for review of a decision to cancel his visa within the prescribed time limit for submitting an application. The starting point for consideration is Kirk. In that case, the applicant attached a cheque for the prescribed fee to his application for judicial review of the decision not to grant him a visa. The application was lodged within time but the cheque was dishonoured after the time limit for lodging the application had expired. Section 339(1) of the Act required an application for review to be “accompanied by a prescribed fee (if any)” and to be made within a prescribed period. Lehane J held that the requirements of s 339(1) were mandatory and required strict compliance, but construed the expression “accompanied by” to mean that the prescribed fee must be paid before the end of the period within which the application must be made. His Honour concluded that the Tribunal had no jurisdiction to review the application because the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee within the prescribed period for lodgement. In obiter, his Honour considered whether the power to waive the fee affected the mandatory requirements of s 399(1) and expressed the view that until a determination to waive the fee was made, the fee was payable so that it was necessary for an applicant to pay the fee within the prescribed period if a determination on the application for waiver was not made before the end of the prescribed period. In Braganza, the Full Court considered the question whether the Migration Review Tribunal (as the Tribunal then was) had jurisdiction to hear and determine an application for review of a decision in the circumstance where an application for waiver was made within the prescribed period but not determined and the prescribed fee had not been paid. The Full Court held that it was sufficient that the applicant for review had applied for a waiver of the fee within the prescribed period. The Court reasoned at [51]: The effect of doing so is to hold that, 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 Court reached that conclusion “largely” because of the inclusion of the words “if any” in s 347(1)(c). The Court also considered that s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act, stating that the legislature was hardly likely to have introduced a provision which required an application for review of an MRT-reviewable decision “to be accompanied by the prescribed fee (if any)” in conjunction with a provision which authorised the making of regulations which allowed for the waiver of any such fee, without recognising that applicants who seek waiver may not be in a position to pay the fee, even on a refundable basis, within the prescribed period. The Court reasoned that the words “if any” in s 347(1)(c) allowed for a sensible interplay with s 504(1)(b) and the regulations made thereunder.

Ratio Decidendi

Legal Principle Established

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