Domany v Minister for Immigration
[2019] FCCA 834
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOMANY v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 834 |
| 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(1), 476 |
| Cases cited: Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174 Braganza v Minister for Immigration and Multicultural Affairs [2011] FCA 318 |
| Applicant: | ANDRASNE DOMANY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1184 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:
The application for review filed on 21 December 2016 is dismissed.
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 1184 of 2016
| ANDRASNE DOMANY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Hungary. On 25 May 2016, the applicant applied for a special eligibility (class CB) visa. On 13 July 2016, the delegate to the Minister refused to grant the visa on the ground that the applicant did not satisfy the criteria set out in clause 151.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
Clause 151.212 provides as follows:
151.212
The applicant is a long residence applicant or a defence service applicant.
The delegate found that as the applicant did not meet the criteria as a long-residence applicant, and had never served with the Australian armed forces prior to 1981, the applicant did not meet the relevant clause 151.212 criteria.
On 24 August 2016 the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. Though the applicant provided credit card details in the relevant part of the application which dealt with arrangements for payment of the proscribed fee for the making of the application for review, the amount of “$0” was inserted next to the relevant part of the form relating to payment.
On 7 October 2018 the applicant was invited to comment on the validity of her application, the letter stating that the application was not a valid application because the application fee had not been paid, and further because it had not been paid before the expiration of the time limit for lodging the application.
The applicant provided a response on 17 October 2016 which suggested that she had spoken with someone who had advised her that there may not be a fee payable in respect of her application, and that if there was a change from that position the department would contact her.
On 16 November 2016, the Tribunal found that it had no jurisdiction to review the delegate’s decision. Section 347(1) 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 if the Regulations prescribed that a fee was payable in respect of the making of an application for review of the type dealt with, unless a determination had been made pursuant to regulation 4.13(4).
Regulation 4.13 of the Regulations provides 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).
The Tribunal found that pursuant to section 347(1) of the Act and regulation 4.13 of the Regulations, the application for review was required to be made within the proscribed period, and accompanied by the proscribed fee, unless a determination had been made under regulation 4.13(4) that the fee payable should be reduced on the basis of financial hardship.
The Tribunal noted that no payment had been made on or before the end of the proscribed period, which was found to be 3 August 2016. The Tribunal also found at [9] of its reasons that, as of the date of its decision, no fee had been paid and no determination had been made or requested for a fee reduction.
The Tribunal accordingly found that it had no jurisdiction to hear and determine the matter.
The applicant filed an application in this court seeking judicial review of the decision of the Tribunal handed down on 16 November 2016, such application having been filed in this court on 21 December 2016.
The application for review contained one ground which was 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.
The ground of review cannot succeed because the decision of the delegate was a primary decision, and by virtue of the provisions of section 476(2) of the Act, the Federal Circuit Court did not have jurisdiction to hear and determine such a matter. The Tribunal correctly found, in clear and concise terms, that the provisions of section 347(1) and regulation 4.13 of the Regulations had not been complied with.
The question of the payment of a proscribed fee has been dealt with in a number of cases, notably in Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174 at [102-103] where it was found by Lehane J that the payment of a proscribed fee within a proscribed period was something with which strict compliance was required (see Lehane J at [102-103].
Reference also ought to be made to the decision of the Full Court of the Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 at [51], where it was said:
[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 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 Tribunal relevantly found that it had no jurisdiction to hear and determine the application for review before it. No request for a waiver or fee reduction had been made, and the application was filed out of time.
The application for judicial review filed in this court is without merit.
It cannot be said that no other rational or logical decision-maker could not have made the same decision as the tribunal. See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ where it was said:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such concepts were respectively 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.
The applicant has failed to establish jurisdictional error on the part of the tribunal.
The application for review is without merit and is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 8 April 2019
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