De Souza v Minister for Immigration

[2016] FCCA 939

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE SOUZA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 939

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.347

Applicant: JULIANA FERREIRA REGAL CASTRO DE SOUZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 15 of 2016

Judgment of: Judge Vasta

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Brisbane

Delivered on: 18 April 2016

REPRESENTATION

The Applicant appearing on her own behalf

Counsel for the Respondent: Ms Wheatley

Solicitors for the Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 12 January 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 15 of 2016

JULIANA FERREIRA REGAL CASTRO DE SOUZA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application by the applicant, Juliana Ferreira Regal Castro De Souza for a review of the decision of the Administrative Appeals Tribunal.  The matter came here.  There were no grounds of the application at all and when it came before me in March, I set it down for a show cause hearing today rather than set it down for a proper hearing.

2. The gravamen of the complaint made is that the Tribunal didn’t hear her application. As has been said in argument today, the only way in which a Tribunal can hear a matter is if it is properly before the Tribunal. Section 347 of the Migration Act 1958 (Cth) states:

   “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).”

3. The prescribed fee in this case was a sum of $1,673.00.  And what the Applicant did was pay half of the prescribed fee and made an application for a reduced fee.

4. On 4 November 2015, the Tribunal wrote to the Applicant and said that her application for a reduced fee was not successful and that she had fourteen days in which to pay the remaining part of the fee.  The letter said that if such a fee was not paid within the time, then it may be that the matter will be found to have been an invalid application. The letter reads as follows:

   “You must now pay the remaining $836.50 of the application fee by 18 November.  If the remaining $836.50 of the fee is not paid by the due date, your application for review will be allocated to a member to determine whether you have made a valid application.  If you do not pay the fee, the member may decide you have not made a valid application.  If your application is invalid, we cannot review the decision.”

5. Now, that was sent under the cover of an email dated 4 November 2015 which read:

   “Dear Mrs Juliana Ferreira Regal Castro De Souza,

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. 

   Please read the attached correspondence carefully, noting that we may require a response for you before a certain date. 

   If you have any questions or experiencing problems opening the document/s attached to this email message, please contact us immediately at…”

6. On an internal file note, it seems that on the 20 November 2015, the Tribunal realised that the Applicant hadn’t paid the money that she was supposed to.  So therefore on 23 November 2015, another letter was sent, saying that:

   “Dear Mrs Juliana Ferreira Regal Castro De Souza,

   INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – MRS JULIANA FERREIRA REGAL CASTRO DE SOUZA

   A fee reduction refusal letter was emailed to you on 4 November 2015 with the due date of 18 November 2015 to pay the remaining $836.50 of the application fee, no payment has been received. I am of the view that your application is not a valid application as you have only paid half of the application fee, the fee has not been reduced and you have not paid the remainder of the fee within a reasonable period.  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 7 December 2015.  Your application, with any comments you make, will be then referred to a member to make a decision on your application…”

7. That letter was sent under the cover of an email which again read:

   “Dear Mrs Juliana Ferreira Regal Castro De Souza,

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. 

   Please read the attached correspondence carefully, noting that we may require a response for you before a certain date. 

   If you have any questions or experiencing problems opening the document/s attached to this email message, please contact us immediately at”

8. It seems then, at 4.59 pm that day, 23 November 2015, the Applicant telephoned and the note says:

   “The RA telephoned to say that she does not understand what to do next as she was told that it would be okay if she paid only half the fee.  I explained that a letter was sent to her on 4 November explaining that she was required to pay the rest of the fee and the consequences of not doing so. She said she did not understand the letter.  I advised her to respond to the case officer’s latest letter in writing and then her case will be allocated to a member who will decide if her application is valid.”

9. In effect, the person from the AAT was simply reiterating exactly what was in the letter.  The Applicant replied to that email at 5.16 pm, saying:

   “H Iris,

   When I when to apply for tribunal review in Brisbane, the lady on the counter told me I could pay half of the fee and she gave me a paper that are saying that my review has made and I just need to wait for a email from you guys to see what will be the next step.  On November 4 I received an email from the tribunal department but I didn’t say that it was PDF at the end of the page, that’s why I didn’t reply on the same day or give you guys a call back. 

   I didn’t know that I needed to send more information about the reduced fee. 

   What I need to do for continues with my case?  Can I still send my bank statement of any other information that you need to proceed with my case? Or I need to pay the other half of the fee?  I never been true of any situation like this in Australia. 

   Could you please advise me what I need to do for the tribunal continue with my case. 

   Thank you

   Juliana Castro De Souza”

10. Whilst this was sent, it has been described as disingenuous by Counsel for the Respondent.  The fact is that the letter itself that was sent, and what was said by the person from the AAT made it clear that the application had been refused and that she needed to pay the rest of the fee.  Her excuse that she didn’t see that there was a PDF at the end of the page on 4 November 2015 and that’s why she didn’t reply again seems disingenuous when one looks at the content of that.  There is, it would seem strange upon that that she would still continue to talk about sending bank statements or other information, considering that the application had been refused, and it was quite clear that the Tribunal staff were of the view that she hadn’t made a valid application.

11. So she knew to pay the remaining fee.  She phoned the next day on the 24 November 2015 and the note simply says that:

    “RA called to check if the email she sent on 23/11 has been received, I confirmed receipt of her email, also advised that her case will be allocated to a member who will then make a decision on the validity of her application.”

12. The member did make a decision on 15 December, saying that the member felt that the tribunal did not have jurisdiction because the prerequisites under s.347 had not been met. It seems to me that that is a totally proper decision and there was nothing that the Tribunal can do, considering that the fee had not been paid.

13. The Applicant sent to the Court a letter which was, in effect, her outline of submissions and this was received by the Court on 24 March 2016.  She explained what had happened and significantly she says this:

    “…

    On 23 November 2015

    When I received the email sent by Mrs Iris Wang, I could not understand what was happening, because first my application had been accepted/ considered after day I get an email stating that the application had not been accepted.  At this time I accessed the email of the day 04.11. 2015 and found there was an attachment, and this attachment was a fee to be paid, the other half of the fee.  There was an error in the process. 

    When I read the email, I immediately called to Mrs Iris Wang, for clarification, but she was not at the time, already had gone. 

    I explained about my situation to the receptionist who answered me and she informed me that I would have to pass any information via email. 

    I asked earnestly if I could speak to someone to have more information than, she passed to Mr. Fabrice Screwed, this connection was around 12pm the day 11. 23. 2015.  Mr Fabrice Screwed explained that they couldn’t do anything for me, and who will decide my case in point would be the member. 

    I was desperate, I cried, I begged that I not lose this application, and he informed me that I would have to answer the email to Mrs Iris Wang and wait for a response from her. 

    I did what Mr Fabrice indicated me, I sent the email to Mrs. Iris Wang, days after I tried to contact by phone but the receptionist informed me that I would have to wait for the response of the Member and that nothing could be done. 

    16 December 2015 –[Notification of decision]

    I received an email notifying me of the Court that their decision was not to review my case. Without much justification. 

    They said they could not review my case because it would not have paid the requested day. 

    Going back a little bit, on 23/11/2015, I called the Administrative Appeals Tribunal asked what could be done so I continue with my case open. More not had been any “agreement” or “help” from them to me. 

    Ai any time I was told it would have to pay a fee because it had received an email stating the appeal had been accepted and agreed to the fee reduction. 

    I called, I asked help, did what I asked and did not review my case because of a charge that they had adopted me.  I considered unfair decision from them because my conduct has always been proactive and seeking a solution. 

    How not getting a fairdecision of the Administrative Appeals Tribunal of Review, I decided to appeal to the Federal Court for I hope my case is resolved and I can return to a normal life in australia. I am in the country for more than 3 years and never infringe any rule or condition imposed by the immigration or any other organ.  I would ask that Minister, would review my situation to be just me. 

    Best regards

    …” (errors in original text)

14. Now, there are some matters with that.  Having a look through the file, the Applicant was never told that her application had been accepted or agreed or that the fee reduction had been agreed to, so there was nothing there.  The Applicant today before me tells me that when she did make the call, she was told not to pay the other half of the money.  Now, that is a claim that has not been made before.  It was not in the original application to this Court.  It was not made before me on 7 March 2016 when I reviewed this matter and it was not made in the correspondence in writing on 24 March 2016, but was made for the first time.

15. It was obviously quite important as to why that money wasn’t paid. Whilst not specifically saying so, the Counsel for the respondent suggests that this was a recent invention. Given the material before me, it will be hard to rebut such a submission. But even if that were the case, it would seem to me that the application that the correspondence was, in no uncertain terms, that she had to pay the fee. The fact is that, as the authorities note, the fee has to be paid for the application to be valid. If the fee isn’t paid, under s.347, the application can’t be valid and the Tribunal has no other alternative but to find as they did in this case.

16. In all the circumstances, I am of the view that there has been no jurisdictional error established and I dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  29 April 2016