El Mourani v Minister for Immigration
[2009] FMCA 1268
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL MOURANI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1268 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding that it had no jurisdiction to undertake review – Child (Residence) (Class BT) visa for a dependent child – waiver of application fee refusal – non payment of prescribed fee – no reviewable error – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.338, 347, 348, 474 Migration Regulations 1994 (Cth), reg.4.13(4), 4.14, cl.802.212 |
| Hamad v Minister for Immigration & Multicultural Affairs [2006] FMCA 1510 Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125 Young Jung Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695 |
| Applicant: | FADI EL MOURANI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1966 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person with the assistance of an Arabic interpreter. |
| Counsel for the Respondents: | Ms A Nanson (Solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 14 August 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1966 of 2009
| FADI EL MOURANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application to review a decision the Migration Review Tribunal (“the Tribunal”) made on 22 July 2009, where it found that it had no jurisdiction to review the applicant’s matter before it. A brief overview of the matter follows.
The applicant, who is a citizen of Lebanon, applied to the Department of Immigration on 21 January 2008 for a Child (Residence) (Class BT) visa as the dependent child of Wadih Mourani. A delegate of the Minister refused that application because it found that the applicant was not under 25 years of age at the time he lodged his application, and he had not provided evidence that he was incapacitated for work. Therefore, it found that he did not meet the visa criteria under cl.802.212 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 20 February 2009, the applicant applied to the Tribunal for review of the delegate’s decision. At the same time, he also applied for a waiver of the Tribunal’s application fees. A series of correspondences took place between the applicant and the Tribunal which resulted in the Tribunal refusing to waive the application fee on 3 April 2009 after consideration of the evidence the applicant provided in support of the waiver. The applicant did not pay the fee by successive due dates and the applicant’s case was referred to a Tribunal member for decision.
On 22 July 2009, Tribunal member Amanda MacDonald found that the applicant’s application to the Tribunal lodged on 20 February 2009 had not been properly made under s.347 of the Migration Act 1958 (Cth) (“the Act”). He had not complied with s.347(1)(c) which states:
(1) An application for review of an MRT‑reviewable decision must:
…
(c) be accompanied by the prescribed fee (if any).
Neither had it been waived under reg.4.14(4) of the Regulations.
On 14 August 2009, the applicant applied to the Federal Magistrates Court for review of the Tribunal decision. The first respondent opposed the application for an order to show cause on the ground that the applicant had not raised an arguable case for the relief claimed: r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). Consequently the application was listed for hearing under r.44.12.
Relevant law
The Tribunal in its decision sets out the relevant law with supporting authorities in respect to this issue:
5. The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 348 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Child (Residence) (Class BT) visa under s.65 of the Act is covered by s.338(2).
6. Section 347 sets out the requirements for an application for review. Section 347(1)(a) requires an application to be made in the approved form and s.347(1)(b) requires an application to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and start when the applicant is notified of the decision.
7. Section 347(1)(c) requires an application to be accompanied by the prescribed fee (if any). The prescribed application fee (where payable) is $1 400: r.4.13(1) of the Regulations, and must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99.
8. However, r.4.13(4) provides that the Registrar, or a Deupty Registrar, or another officer of the Tribunal authorised by the Registrar, may determine that the fee on an application for review should not be paid if he or she is satisfied that the payment of the fee has caused, or is likely to cause, severe financial hardship to the applicant. Where the applicant has asked the Tribunal to waive the prescribed application pursuant to r.4.13(4), and has made that request within the prescribed period, the application for review is valid if the prescribed application fee is either waived or paid within a reasonable time after the fee waiver request has been refused: Braganza v MIMA (2001) 109 FCR 364. As a matter of policy, the Tribunal generally regards 14 days as a reasonable period but considers requests for an additional time if the applicant does not consider 14 days to be reasonable in the particular circumstances.
Consideration
The application filed by the applicant on 14 August 2009 lists three grounds.
Ground one – MRT failed to justify its decision
The task of the applicant in these circumstances is to demonstrate to the Court that the Tribunal had made an error in law in reaching the decision. The Court must decide the matter on a matter of law and not on humanitarian or compassionate grounds. However, I am aware of the extremely difficult circumstances the applicant finds himself in. Under s.348(1) of the Act the Tribunal is required to review a decision of the MRT only if an application is properly made under s.347 for a review of a MRT-reviewable decision. The issue for the Tribunal was:
The Tribunal’s jurisdiction arose if an application properly made under s.347 of the Act for review of an MRT – reviewable decision. (CB 138 at [5])
The Tribunal found that the application for review filed on 20 February 2009 was not accompanied by the prescribed fee under the Act and the Regulations, noting that:
a)The applicant sought review of a MRT-reviewable decision covered by s.338(2) of the Act and that the prescribed fee for this application was $1,400.
b)The applicant asked the Tribunal to waive the prescribed fee on 20 February 2009, being before the prescribed period expired.
c)The Tribunal wrote to the applicant on 25 February 2009 inviting him to provide further information regarding his financial circumstances within 14 days of receiving the Tribunal’s letter (the initial waiver application contained insufficient documentary evidence to support the request).
d)In response to the request, the Tribunal received written submissions from the applicant on 30 March 2009.
e)An authorised Tribunal officer decided on 3 April 2009 to refuse the fee waiver because the officer was not satisfied the payment of the fee would cause severe financial hardship.
f)The Tribunal advised the applicant on 3 April 2009 of its decision and again requested the payment of the prescribed application fee within fourteen days of receiving that letter (i.e. before 30 April 2009).
g)
No payment or contact was made by the applicant prior to
30 April 2009.
h)On 4 May 2009 the Tribunal received a further letter requesting the fee to be waived because of financial hardship.
i)The Tribunal wrote to the applicant on 14 May 2009 indicating that the further request for fee waiver was rejected and requested the prescribed application fee be paid within 14 days of its letter (i.e. 28 May 2009).
j)An authorised Tribunal officer considered all the documentary evidence in support of the fee waiver request and decided on 18 June 2009 to refuse it because the officer was not satisfied the payment of the fee would cause the applicant severe financial hardship.
k)The Tribunal wrote to the applicant on 18 June 2009 advising him of this decision and requested that the prescribed application fee be paid within seven days of receiving the Tribunal’s letter (i.e. 9 July 2009). The applicant was informed that if the fee was not paid the application for review would be invalid due to non-payment of the prescribed fee and the Tribunal will not consider the application further.
l)The applicant did not contact the Tribunal subsequently and no payment was received. The Tribunal found that the applicant had been given a reasonable period to pay the prescribed application fee since being notified of the decision to refuse the waiver. As the prescribed application fee had not been paid or waiver granted under reg.4.13(4) of the Regulations, the application for review was not valid and the Tribunal had no jurisdiction in the matter.
The obligation to pay the prescribed fee is a mandatory or essential requirement of a valid application: Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281; Hamad v Minister for Immigration & Multicultural Affairs [2006] FMCA 1510. Section 348 of the Act provides that if an application is properly made under s.347 the Tribunal must review the decision. However, in this matter the application was not properly made. It is not a question – as it was in Young Jung Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695 or Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125 – that the Tribunal had jurisdiction and could make corrections to documents which had been filed in those applications. In this matter, the Tribunal never got to that point because it never had jurisdiction in the first place. Section 347(1)(c) demonstrates the legislative purpose to invalidate any application which is not made in accordance with the terms of that sub-section.
In its decision under “Findings and Reasons”, the Tribunal set out the background to its decision and made reference to the relevant provisions of the Act and Regulations which it applied in reaching its decision.
Ground two – MRT misunderstood the financial hardship
The issue for consideration by the Tribunal was whether the application lodged on 20 February 2009 was an application properly made under s.347 of the Act. It determined that the applicant had been given a reasonable time to pay the application fee and, as it had not been paid and no fee waiver granted, the application for review was not valid. On each occasion that the Tribunal declined to grant a waiver, the applicant was advised and provided with a further opportunity to pay the prescribed fee with the appropriate time within which to make that payment. On each occasion, the applicant elected not to pay the fee. The obligation is for the applicant to supply sufficient information to establish the facts to make out his case for grant of a waiver. This opportunity was provided on three separate occasions. The decision to grant the waiver lies with the authorised Tribunal officer.
Ground three – MRT ignored the evidence on file
A fair reading of the Tribunal’s decision clearly shows that the various authorised officers considered all material submitted by the applicant in support of the fee waiver. Each of these applications in turn were rejected because the Tribunal member was not satisfied that the payment of the fee would cause the applicant or was likely to cause the applicant severe financial hardship. The details of this process which are set out above clearly indicate that the file was fully considered throughout this time.
In the circumstances it would not be appropriate to proceed to a hearing because, in my view, there is no arguable case that would overcome the discrete finding that the Tribunal did not have jurisdiction to determine the application. Accordingly I will make an order pursuant to r.44.12(i)(a) of the Rules and dismiss the application that was filed on 14 August 2009.
Conclusion
In my view the Tribunal has not been shown to have fallen into jurisdictional error and as a result the decision of the Tribunal is a privative clause decision for the purposes of s.474 of the Act. I am therefore bound by law to dismiss the application.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 December 2009
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