Domany v Minister for Immigration

[2019] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOMANY v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 860

Catchwords:
MIGRATION – Application for review by tribunal filed out of time – application fee not paid – no application for fee waiver or fee reduction request made within time for filing of application – tribunal lacked jurisdiction to entertain review – application for review dismissed.

Legislation:

Migration Regulations 1994 (Cth), rr.4.13, 151

Migration Act 1958 (Cth), ss.347, 359A, 360, 476

Cases cited:

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

Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: KITTI DOMANY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1183 of 2016

Judgment of: Judge Egan

Hearing date: 23 January 2019

Date of Last Submission: 23 January 2019

Delivered at: Brisbane

Delivered on: 23 January 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Ms. L. Helsdon of Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 21 December 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1183 of 2016

KITTI DOMANY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Hungary. On 25 May 2016 the applicant applied for a special eligibility (class CB) former resident (subclass 151) visa. On 13 July 2016 the delegate to the Minister refused the grant of the visa on the basis that the applicant did not satisfy the criteria as set out in clause 151.212 of schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 151.212 outlined the criteria to be met at the time of the application and provided as follows:

   151.212

   The applicant is a long residence applicant or a defence service applicant.

2. The delegate found that the applicant did not meet the criteria as a long resident applicant and further that the applicant had never served with the Australian armed forces prior to 1981. 

3. On 24 August 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.  It was noted at question 27 of the application made to the Tribunal that though credit-card details had been provided, no payment based upon such credit-card details was authorised.  Indeed, the amount authorised for payment was recorded as “$0”. 

4. On 7 October 2016, the applicant was invited to comment on the validity of her application for review. It was asserted in that correspondence that the application was not a valid application because the application fee had not been paid, and further that the application fee was not paid before the expiration of the time limited for lodging the application.

5. On 17 October 2016 the applicant provided a response to that invitation, claiming that she had spoken to a person prior to lodging the application and that that person had allegedly indicated to her that there may be no fee payable for the review, and for her to mark “zero” next to the application fee after filling in the bank details.  It was further asserted by the applicant, that such person had indicated that, if there was a problem, the department would contact her. 

6. On 16 November 2016, the Tribunal found that it had no jurisdiction to review the delegate’s decision. Section 347(1) of the Migration Act 1958 (Cth) (‘the Act’) provides that 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.

   Regulation 4.13 of the Regulations prescribed that a fee was payable in respect of the making of an application for review of the type here dealt with, unless a determination had been made pursuant to regulation 4.13(4).

7. Regulation 4.13 of the Regulations provided as follows:

   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.

   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).

8. It was noted by the Tribunal at [3] of its reasons that the prescribed fee had not been paid as at the end of the prescribed period, such period having ended on 3 August 2016.  (See [6] of Tribunal decision.)  The Tribunal further found that as at the date of its decision, no fee had been paid, and no determination had been made or requested for a fee reduction ([9] of Tribunal decision). Accordingly the Tribunal found that it had no jurisdiction in the matter ([10] of Tribunal reasons). 

9. On 21 December 2016 the applicant filed an application for judicial review of the decision of the Tribunal handed down on 16 November 2016.  The grounds of the application for review filed on behalf of the applicant were as follows:

   1. To review the decision made by the department of immigration, use wrong section of the Act on my special-eligibility visa (CB) 151.

10. It is not clear, what “(CB) 151” was. 

11. It was found by the Tribunal, that it had no jurisdiction to hear and determine the application before it. Pursuant to section 476(2) of the Act, it was submitted on behalf of the first respondent that the Federal Circuit Court did not have jurisdiction to review the decision of the delegate, as it was a primary decision.

12. It is clear from the facts of the matter before the Court, that a precondition to the Tribunal having jurisdiction to review the delegate’s decision was the payment of the appropriate fee in time.  It is also clear that the applicant had fundamentally failed to ensure that either the prescribed fee had been paid, or that it was paid within the prescribed period.  This was not a case where the applicant had applied for a reduction in the prescribed fee, rather it was more fundamentally an issue of non-payment of the requisite fee.

13. In such circumstances, because the Tribunal had no jurisdiction to consider the application for review, it did not have any procedural fairness obligations pursuant to the provisions of section 360(1) of the Act to hear from the applicant (see Benissa v Minister for Immigration and Border Protection [2016] FCA 76 at [32] – [36] inclusive). Nor was the Tribunal required to put any adverse information to the applicant pursuant to the provisions of section 359A of the Act in circumstances where it lacked jurisdiction. Accordingly, it could not be said that the Tribunal had breached any procedural fairness obligation owed by it to the applicant. Reference is made to the decision of Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 where, in circumstances analogous to the present, it was said at [51]:

    [51] In our view, this argument should be accepted.  The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of a prescribed fee in accordance with regulation 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, section 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.

14. No jurisdictional error has been demonstrated on the part of the Tribunal.

15. It cannot be said that no other rational or logical decision-maker could not have made the same decision. [1]

    [1]        See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per

    Crennan and Bell JJ.

16. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    ...

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification

17. The application for review is without merit and is accordingly dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  8 April 2019