Dahi v Minister for Immigration
[2018] FCCA 3148
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAHI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3148 |
| Catchwords: MIGRATION – Cancellation of Return Residence (subclass 155) visa – review of decision of Administrative Appeals Tribunal – where application to Tribunal not accompanied by prescribed fee – whether the Tribunal erred in finding it had no jurisdiction – no jurisdictional error – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.29 Migration Act 1958 (Cth), ss.338, 347, 348, pt.5 Migration Regulations 1994 (Cth), regs.2.55, 4.10, 4.13 |
| Cases cited: Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515 |
| Applicant: | POULAD DAHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2145 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 July 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones, Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr A Keevers, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2145 of 2017
| POULAD DAHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iran. On 17 January 2011 the applicant was granted a protection visa on the basis of his fear of harm for reason of his religion, Christianity. On 17 August 2016 the applicant was granted a Return (Residence) (class BB) Resident Return (subclass 155) visa.
By letter dated 7 December 2016 a delegate of the Minister gave the applicant notice of an intention to cancel his resident return visa on the basis of information that the applicant had returned to Iran and married a Muslim which was inconsistent with the claims that formed the basis of the grant of his protection visa. The applicant did not provide any substantive response to that notice.
On 16 February 2017 a delegate of the Minister made a decision to cancel the applicant’s resident return visa for the reasons outlined in the Notice of Intention to Cancel. The notice of the cancellation decision informed the applicant that the decision to cancel could be reviewed and that an application for merits review must be given to the Administrative Appeals Tribunal within the prescribed timeframe. That timeframe required an application to be given to the Tribunal by 8 March 2017.
On 3 March 2017 the applicant lodged an application for review with the Tribunal in an electronic form. He did not pay any fee with that lodgement. Indeed, no application fee was paid by the applicant until 24 April 2017 when the applicant’s migration agent sent the Tribunal a form with the applicant’s credit card details and the amount of the application fee.
On 16 June 2017 the Tribunal found that it did not have jurisdiction to review the decision to cancel the applicant’s visa because the application was not accompanied by the prescribed fee. The applicant argues that there was a valid application in the circumstances because the electronic form by which the applicant lodged his application incorrectly did not refer to, or allow, payment of any application fee.
Relevant statutory provisions
Section 348(1) of the Migration Act 1958 (Cth) requires the Tribunal to review a pt.5 reviewable decision if any application is “properly made under section 347” for review of that decision.
The decision to cancel a visa such as the applicant’s while the applicant is in the migration zone is a pt.5 reviewable decision: s.338(3).
Section 347 of the Act relevantly 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; or
...
(c) be accompanied by the prescribed fee (if any).
...
The period prescribed for the purposes of sub-s.347(1)(b) started when the applicant received notice of the decision and ended at the end of 7 working days after the day on which the notice was received: Migration Regulations 1994 (Cth), sub-reg.4.10(1)(b).
As the notification of the decision was dated 16 February 2017 and sent by prepaid post the applicant was taken to have received it 7 working days after this date: reg.2.55(7). For that reason, the last day on which the review application could be lodged was 8 March 2017.
Regulation 4.13 provided at the relevant time that the fee for an application for review of a decision by a Tribunal was $1,673 subject to a determination by a Registrar or Deputy Registrar of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, that there should be a reduction in the fee payable: reg.4.13(4).
The relevant facts
On 3 March 2017 the applicant went online to attempt to lodge an application for review of the decision to cancel his visa which he had received by mail. He went to the website of the Tribunal and found the page for lodging an online application.
The applicant gave evidence, which was uncontested, that he remembered that the first question on the form asked whether he was a refugee or non-refugee holder. As he had been approved for residence in Australia as a refugee he answered “refugee”.
Later in the form the applicant was asked to fill in the class and subclass of the visa that had been cancelled. He inserted “BB 155” which he copied from the decision letter sent to him by the Department of Immigration. He then answered the rest of the questions on the form and was asked to submit the application which he did. He was not asked to pay a fee.
The application form submitted electronically by the applicant was in evidence: Exhibit A, pp.40-41. There is no reference in that to the first questions said to have been asked of the applicant, concerning whether he was a refugee or non-refugee. However, the balance of the form supports the applicant’s evidence which I accept. There is no provision in the form completed by the applicant for the payment of any fee and no reference to the requirement to do so. The lodgement date was recorded on the form as “03/03/2017 13:38:04 AEDT”.
The applicant says, and I accept, that he was not sure whether there was any fee payable but thought that if there was he would be notified and told when to pay it. He says that he would certainly have paid the fee as soon as notified. I accept that evidence not only because it was uncontested, but also because when the applicant came to realise that he ought to have paid a fee, he immediately did so through his migration agent.
The following Monday, 6 March 2017 an officer of the Department wrote to the applicant noting receipt of the application but asking for copies of the letter received from the Department of Immigration. The email indicated that the applicant could send it by email to [email protected]. That was clearly an error as the last two letters of that address relate to the United Kingdom; however the error was rectified the following day when the same officer of the Department emailed the applicant indicating that if there were any difficulties that he should contact the Tribunal on the email address [email protected].
In the 7 March 2017 email, the officer wrote to the applicant on behalf of the Registrar incorrectly referring to the application for review of a decision to refuse to grant the applicant a resident return visa. Once again, this error was rectified later in the same day by a letter acknowledging an application for review of a decision to cancel the applicant’s resident return visa. In that letter the officer indicated that the validity of the application had not yet been assessed and that the applicant would be advised if it appeared that the application may not be valid.
On 23 March 2017 the applicant’s migration agent wrote to the Tribunal indicating that they had just been appointed to act for the applicant and asking that any future correspondence be sent to them.
On 18 April 2017 an officer of the Department noted that the application had been lodged without an application fee and that that fact had not been picked up. A note kept by the officer indicated that it appeared that the applicant was now out of time to make the payment. By email of 20 April 2017 the applicant’s migration agent was informed of this and invited to make comments about the validity of the application.
On 24 April 2017 the applicant’s agent wrote to the Tribunal by email enclosing a submission as to the validity of the application as well as a form giving payment details by reference to the applicant’s credit card number and expiry date.
In his submissions, the applicant’s agent wrote:
On 16 February 2017 a Notice of Cancellation of Mr Dahi’s 155 visa was sent to him by mail. The Notice advised that Mr Dahi could apply to the AAT for merits review of the decision, providing the application was given to the Tribunal within the prescribed timeframe, which was stated to be 7 working days after he was taken to have received the Notice. It was further explained that he was taken to have received the notice 7 working days after its date. The last day of the timeframe was therefore 8 March 2017.
The Notice went on to state that an application to the AAT could be lodged at various Registries of the Tribunal, the addresses of which were supplied, and could also be sent by fax or email, or lodged online at a particular URL.
It was also stated that further information about the merits review process was available on the Tribunal’s website. The Notice did not specifically mention a fee for the application.
Mr Dahi accessed the Tribunal’s online application form on 3 March. The first question he was asked was: “Kind of visa related to the decision to be reviewed”. Two options were available: “non-refugee visa” and “refugee visa”.
Mr Dahi chose the second option. This was perfectly understandable, given that his permanent residence in Australia arose from the fact that he had been recognised as a refugee. He may have been mistaken on the technical point that the visa that was cancelled was not a “refugee visa” as such. The mistake however should have been easily rectifiable, as below.
The next question was “Select the decision to be reviewed”. He correctly answered “visa cancellation”.
He was then asked to enter the visa class and subclass. He again did this correctly (BB 155).
At this point a properly programmed online system would have flagged an error. A subclass 155 visa does not come within the definition of a Protection visa. Through what can only be described as a serious programming fault, the Tribunal’s computer system allowed Mr Dahi to continue with the application unaware of any problem. When he reached the end, he was asked if he wished to submit the application, which he did. That was the end of the application process. No fee was requested.
Clearly the computer system had treated Mr Dahi’s choice of “refugee visa” as meaning that he was applying for review under Part 7 of the Act, despite the fact that he specifically stated that the visa in question was a subclass 155, meaning that the review came under Part 5. Due to the computer’s failure to detect the error, Mr Dahi was not required to pay a fee. In fact, even if he had known that a fee was payable, the online application process would not have allowed it.
...
Resolution
This case is of course different to both Braganza and Anand. It is also different to Kirk v Minister for Immigration & Multicultural Affairs [1998] FCA 1174, where a cheque given in payment of an application fee and subsequently dishonoured led to the application being invalid. The distinguishing point in this case is that the, due to the Tribunal’s error, no fee was requested. There is no difference between what happened to Mr Dahi and a hypothetical case of someone who lodges a paper application at the Registry and is incorrectly informed by a staff member that no fee is payable. It would be unconscionable to say that it is the applicant who must suffer for the faulty programming of the Tribunal’s online application system.
In our submission, Mr Dahi lodged a valid application for a Part-5 review on 3 March which the Tribunal should commence to process as soon as he is permitted to pay the prescribed fee of $1,673.
We are instructed that Mr Dahi is prepared to pay the fee of $1,673 for a Part 5 review immediately, and a credit card payment form is attached for this purpose.
(Emphasis in original)
Tribunal’s decision
On 16 June 2017 the Tribunal made a decision to the effect that it did not have jurisdiction in the matter.
It noted, at [3], that it was “settled law that the applicant must pay the fee within the prescribed period” or within a reasonable period after determination to reduce the fee. It stated that if that was not done, the application was not valid and the Tribunal had no jurisdiction. Next, it found at [4], that the applicant had not paid the fee when he made his online application or within the prescribed period and that he “did not explicitly or implicitly ask for a fee reduction”. However, it accepted the submission that the online system did not recognise the inconsistency between the “kind of visa” and the subclass of the visa and accepted the applicant’s statement that he sought a review of a decision about a refugee visa which then allowed him to complete the online application form without paying the fee.
The Tribunal found, however, that the migration agent’s submission ignored the applicant’s error in identifying the relevant visa as a refugee visa and that while the mistake was understandable given the applicant’s immigration history, it was not a “serious programming fault” and that the outcome was likely to be “the same for a hypothetical paper application for review of a decision to cancel a refugee visa where the applicant referred to a non-refugee visa in the body of the application form”.
The Tribunal concluded that in light of those facts, and also the fact that there was no discretion concerning the validity of the application, that there was no jurisdiction and so made a finding to that effect.
Consideration
The applicant relied on the submissions made by his agent to the Tribunal (see [22] above). In addition, he submitted that it could not have been the intention of Parliament in enacting Part 5 of the Act that the right to merits review given by that Part could be subverted by administrative negligence and that a clear remedy for such negligence lies in the correct interpretation of the words “accompanied by” “in s 347(1)(c). It was argued that, as the payment was made at the earliest reasonable opportunity, that payment “accompanied” the application.
The issue in these proceedings is the duty of the Tribunal to review a decision of a delegate of the Minister to cancel the applicant’s residence return visa. There is no duty to review that decision outside the four corners of the Act and that duty, like the right to seek such a review, is circumscribed by the provisions of the Act and, in particular, pt.5 of the Act.
On the facts, the relevant question is whether the application for review made by the applicant was “accompanied by the prescribed fee (if any)”: sub-s.347(1)(c). The authorities relevant to this provision were considered by Edelman J in Benissa v Minister for Immigration & Border Protection [2016] FCA 76 at [19] – [23]. One of the decisions referred to and applied by his Honour was the decision of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99. Justice Edelman summarised that decision at [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.
The applicant argued that Kirk was wrongly decided and, being the decision of a single judge of the Federal Court in its original jurisdiction, was not binding on this Court. There are many obstacles to this argument. First, Kirk is a decision of long-standing that has been applied consistently not only in the Federal Court in appeals from decisions of this Court (see Benissa above) but also in this Court: Chitrakar v Minister for Immigration & Border Protection [2016] FCCA 3224 (upheld on appeal: [2017] FCA 533). Secondly, a decision of a single judge in the original jurisdiction of the Federal Court is binding on this Court because the Federal Court is higher in the appellate hierarchy than this Court: Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515 at [29].
The applicant’s argument must fail in light of binding authority. The cases relied on by him (Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 [a case concerning a delay in determining waiver of the requirement to pay a fee] and Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 [concerning evidence that was to “accompany” an application but which did not deal with the Tribunal’s jurisdiction]) are distinguishable and do nothing to advance his case.
In any event, I would reject the argument in the absence of binding authority. The applicant’s argument was, essentially, that it would be unduly harsh for a person to lose their right to merits review when, due to the negligence of the Department, he or she discovered the requirement for a fee too late. I do not accept that the harshness in this case was the result of any action or inaction of the Department. The applicant checked the wrong box in the form. What transpired as a consequence of that was entirely his fault. In any event, and more importantly from the point of view of statutory construction, the tight prescription of what is required to properly make an application for review, including the strict timeframe within which it must be made is inconsistent with a construction of the words “accompanied by” that goes beyond their ordinary meaning to encompass payment “as soon as an applicant becomes aware that there is a requirement to pay a fee”. That construction is inconsistent with the administrative certainty that lies behind the requirements imposed by s.347 of the Act.
I am conscious that in Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 Justice Greenwood found that s.29(7)-(10) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) conferred a power on the Tribunal to extend time for an applicant to apply for review of a pt.5 reviewable decision. However, more recently, the Full Court of the Federal Court found that his Honour was wrong and dismissed a ground of appeal based on the decision in Brown: Beni v Minister for Immigration & Border Protection [NSD 536 of 2018], transcript p.70, lines 40–44. Given that Beni is consistent with previous authority concerning the requirements of a valid application for review, and the result best reflects a coherent relationship between the AAT Act and the Act, Beni ought to be applied.
Conclusion
The application to the Tribunal was not properly made under s.347 of the Act and the Tribunal was correct to find that it had no jurisdiction to review the delegate’s decision. The application must be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 December 2018
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