Fairy v Minister for Immigration
[2017] FCCA 2203
•15 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIRY v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2203 |
| Catchwords: MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision by Tribunal that it had no jurisdiction to determine application for review because prescribed fee not paid – whether applicant has raised an arguable case for relief – arguable case for relief raised – application adjourned for final hearing to a date to be fixed and first respondent ordered to show cause why relief claimed should not be granted. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.10A(3), 24C, 24P Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.5(1), 347(1), 348 Migration Regulations 1994 (Cth), regs.4.10, 4.13, 4.13A, 4.13B |
| Cases cited: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364 |
| Applicant: | MAULANA FAIRY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1869 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitor for the First Respondent: | Ms A Wong of Mills Oakley |
ORDERS
Pursuant to r.44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth):
(a)the proceeding be adjourned to a date to be fixed for a final hearing; and
(b)the first respondent show cause at the final hearing why an order for the relief claimed in the application should not be made on grounds 1 or 2 of the application filed in the proceeding.
Costs of the show cause hearing are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1869 of 2016
| MAULANA FAIRY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application be dismissed because it does not raise an arguable case for the relief it seeks.
By that application the applicant applies for judicial review of a decision by the second respondent (Tribunal) that it did not have jurisdiction to review a decision of a delegate of the Minister dated 16 February 2016 not to grant the applicant a Medical Treatment (Visitor) Class UB visa (Medical visa). The Tribunal so found because the applicant did not pay the prescribed fee that was payable on the making of an application for review.
Background
To have been entitled to the grant of a Medical visa the applicant had to satisfy, among other things, cl.602.213(5) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which required the applicant satisfy criteria 3001, 3003, 3004, and 3005 contained in Schedule 3 to the Regulations. Criterion 3001 required an application be made within 28 days after the “relevant day”, which in the case of the applicant, required that the application for the Medical visa be made within 28 days after the last day on which the applicant held a substantive visa. The applicant applied for the Medical visa on 11 February 2016. The last substantive visa the applicant held was a Tourist (Subclass 670) visa that ceased on 16 March 1995.
The delegate found the applicant did not satisfy criterion 3001 and therefore did not satisfy cl.602.213(3), 602.213(4), and 602.213(5) of Schedule 2 to the Regulations.
On 9 March 2016 the applicant applied to the Tribunal for review of the delegate’s decision and paid $836.50. This was half of the fee of $1,673 for making an application for review to the Tribunal as prescribed by reg.4.13(1) and reg.4.13B of the Regulations.[1] The applicant also lodged a “request for fee reduction” (Request for Fee Reduction Form) pursuant to reg.4.13(4) of the Regulations.[2] That paragraph empowered “the Registrar of the Tribunal” (Registrar) to reduce the fee payable under reg. 4.13(1) if the Registrar is satisfied that the payment of the fee “has caused, or is likely to cause, severe financial hardship” to the applicant. The Request for Fee Reduction Form required or at least suggested the applicant provide particular information relating to the applicant’s financial circumstances. The information the applicant provided in the Request for Fee Reduction Form is as follows:
a)The applicant has no dependents.
b)The applicant receives free boarding and food from the Indonesian community.
c)In response to whether he held any amounts in bank accounts or accounts with other financial institutions, the applicant stated he held a total of “0.00”.
d)In response to the question whether he had any other investments or any money that is owed to him, the applicant answered “no”.
e)In response to the request that he provide details of his fortnightly income after tax, the applicant said he received a total of “0.00”.
f)In response to the request the applicant provide details of his “usual fortnightly household expenses”, the applicant stated “0.00”.
g)In response to the question whether the applicant had any expenses or other debts, loans or financial commitments, the applicant answered “no”.
[1] Regulation 4.13(1) of the Regulation prescribes a fee of $1,540. That is subject to reg.4.13A which provides: “Despite any other provision of these Regulations, the fee prescribed by subregulation 4.13(1) is increased, in accordance with regulation 4.13B, on each biennial anniversary of 1 July 2011”. As at the date the applicant applied for review, the prescribed fee had been increased to $1,673.
[2] CB21-23
In short, the applicant claimed he lived entirely off the charity of others.
By letter dated 16 March 2016 signed “For the Registrar” by a person who appears to be an officer of the Tribunal it was stated that the decision-maker decided that payment of the fee would not cause, or be likely to cause, the applicant severe financial hardship.[3] The reasons given are as follows:
The M11 request for fee reduction form clearly lists the documentation that you are required to submit with your completed form. You have not provided sufficient documentary evidence of your current financial circumstances, such as bank and credit card statements and evidence of regular expenses.
I accept that you are likely to not have work rights and therefore receive no income; however, you state that you receive free boarding and food from the Indonesian community. You have not provided any evidence or detailed information regarding the support you receive nor any details of other expenses such as transport, health/medical etc and how they are met. Without any evidence and without an explanation as to why you are unable to provide it, I cannot verify the information you provided. As such, I am not satisfied that payment of the review application fee is likely to cause you severe financial hardship.
[3] CB27
The letter requested the applicant pay the balance of the fee for review by 12 April 2016 and attached a “payment details slip” to its letter of 16 March 2016.
On 7 April 2016 the applicant wrote to the Tribunal and stated that “I am a very sick person and I have no income and I am receiving free boarding and food from Indonesian community. I cannot ask anyone to again pay extra money to support my review”. The applicant said that he had already “included in my application” that some of the applicant’s friends have been helping him, and that he needs medication every day. The applicant asked the Tribunal again to waive the fee.
The Tribunal responded by letter dated 21 April 2016.[4] Like the 16 March 2016 letter, the 21 April 2016 letter was signed “For the Registrar” by a person who appears to be an officer of the Tribunal. The letter characterised the applicant’s letter of 7 April 2016 as a request that the Tribunal reconsider its decision of 16 March 2016. The letter stated that fee reduction decisions are an administrative process, and can only be reviewed where there has been an error in the decision making process. The letter stated the earlier decision was checked and the officer was satisfied there was no such error. The letter stated that the balance of the application fee, namely $836.50, must be paid by 17 May 2016. The letter further stated that if the balance of the fee is not paid by that date, the application for review would be allocated to a Tribunal member to determine whether the applicant made a valid application for review.
[4] CB31-32
The applicant did not pay the balance of the fee. By letter dated 6 June 2016 the Tribunal wrote to the applicant stating that it was of the view that the applicant’s application for review was not a valid application because the applicant paid only one half of the application fee. The Tribunal invited the applicant to provide by 29 June 2016 any comments he wished to make about whether the application for review was a valid application for review.[5] The applicant responded by letter dated 20 June 2016 in which he said that he had already provided his comments in his letter of 7 April 2016.[6]
[5] CB34
[6] CB35
On 28 June 2016 the Tribunal decided it did not have jurisdiction to review the applicant’s application for review. The Tribunal said that, under s.347(1) of the Migration Act 1958 (Cth) (Act), the applicant was required to apply for review within the time prescribed by s.347(1)(b) of the Act and reg.4.10 of the Regulations and the application had to be accompanied by the prescribed fee; that, because the applicant had applied for a fee waiver under reg.4.13(4) of the Regulations, the period provided for by reg.4.10 was extended to a reasonable time after the Tribunal, by its letter dated 21 April 2016, confirmed the Tribunal’s decision made on 16 March 2016 not to waive the fee; and that such reasonable period had passed without the applicant having paid the prescribed fee.
Grounds of application
The application contains the following three grounds of application:
1.The Tribunal acted contrary to the evidence on file. The request for further payment is unreasonable as the Tribunal failed to understand my critical health, my unemployment and the fact that the mandatory initial payment was made by community friends who are under no obligation to make another payment.
2.The decision to make my application invalid is unreasonable and contrary to my correspondence to the Tribunal and my explanation concerning my health and my financial hardship.
3.I invite the Honourable Court to look at my initial application as well as my letters of 7 April 2016 and 20 June 2016.
At the hearing before me the applicant, who is not legally represented, handed up a document titled “Applicant’s Submissions”. In that document the applicant states he does “not agree with the issue that the Tribunal was satisfied that a payment of $836.50 will not cause [the applicant] severe financial hardship”. The applicant said he suffered and continues to suffer health problems. The applicant also claimed the Tribunal’s decision was unfair and unreasonable because the Tribunal was aware the applicant did not have money.
The applicant also tendered a number of laboratory reports, a letter from Liverpool Hospital addressed to the applicant, two invoices, and a statement disclosing various invoices. The applicant informed me that these were not documents he had provided to the Tribunal. Ms Wong, who appeared for the Minister, objected to my receiving into evidence these documents on the grounds of relevance. I marked the documents “MFI1” and indicated I would reserve my ruling on Ms Wong’s objection, and give it in my reasons for judgment on the Minister’s application for dismissal. I rule the documents are not admissible because they are irrelevant; and they are irrelevant because they were not before the Tribunal.
I should also note here that, after the hearing was completed, and in the course of my associate returning to the applicant MFI1, after copies had been made, the applicant informed my associate that he wished to tender further documents. My associate informed me of this request, and also informed me that Ms Wong was no longer in court. I decided to come on to the bench, even though Ms Wong was not present. I confirmed with the applicant that he wanted to provide further documents. I said it was difficult now to receive any further documents because the hearing had been completed. I asked the applicant, however, to describe the documents he said he wanted to give to me. He described two documents. One was a document the applicant said was dated 20 May 2017 and recorded an arrangement the applicant had made with a hospital to pay amounts the applicant owes to the hospital. The applicant said that the letter recorded that as at 10 May 2017 he owed the hospital $20,985. The second document was a letter dated 20 October 2016 from pathology which recorded an arrangement that the applicant repay the amount of $2,590.05. I did not view or accept the tender of the documents. If the applicant had tendered these documents at the hearing, I would have ruled them to be inadmissible because they are irrelevant; and they are irrelevant because they were not before the Tribunal.
Arguable case?
Although the application is directed to the Tribunal’s decision that it had no jurisdiction to consider the applicant’s application for review, one of the grounds is directed to the decisions made “For the Registrar” not to waive 50% of the prescribed fee. It is arguable, however, that if the decision not to waive 50% of the fee is not valid, the prescribed time for the applicant’s making the application will not have expired, which in turn means that it is arguable the Tribunal was incorrect to conclude it had no jurisdiction to consider the applicant’s application for review. That follows from what I say in the next two paragraphs.
Subject to the exception to which I will shortly refer, the prescribed fee must be paid within the prescribed period and if that fee is not so paid an application will be held not to have been properly made, and the Tribunal will not have jurisdiction to determine the application. That is the effect of the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs where his Honour said:[7]
Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application “be accompanied by the prescribed fee (if any)”.
[7] [1998] FCA 1174; (1998) 87 FCR 99 at page 102
The exception is that identified and considered by the Full Federal Court in Braganza v Minister for Immigration and Multicultural Affairs:[8]
[W]here 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 [Tribunal] is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.
[8] [2001] FCA 318; (2001) 109 FCR 364 at [51]
I then turn to the question whether the grounds stated in the application raise an arguable case for the relief it seeks. The starting point is the question the Registrar (or his or her properly appointed delegate) was required to consider in relation to the request the applicant made for the waiver of 50% of the fee, namely, whether the applicant’s being required to pay $1,673 has caused, or is likely to cause, severe financial hardship to the applicant. That question was to be considered by reference to the information the applicant was required to provide in the Request for Fee Reduction Form together with documents that form may have suggested the person making the request should provide.
The first ground of application claims the Tribunal acted “contrary to the evidence on file”, that the Tribunal’s decision was unreasonable, and that the Tribunal failed to understand the applicant’s critical health, his unemployment, and the fact that the mandatory initial payment was made by community friends who were under no obligation to make another payment. In my opinion, this ground raises an arguable case of legal unreasonableness and irrationality. On the face of the Request for Fee Reduction Form, the applicant stated he held no bank account, he had no income or expenses, and that he entirely relied on the support of the Indonesian community. It is reasonably arguable the Tribunal acted unreasonably and irrationally by expecting the applicant to provide “bank and credit card statements and evidence of regular expenses” in circumstances where the applicant stated he held no bank accounts and he had no income or expenses.
The second ground is concerned with the Tribunal’s decision that it did not have jurisdiction because the applicant did not pay the prescribed fee. It is reasonably arguable that the merits of this ground depend on the merits of the first ground. That is, if, as I have found, it is reasonably arguable the decision not to waive 50% of the fee is not valid, it is reasonably arguable the Tribunal’s decision it did not have jurisdiction to consider the applicant’s application for review is also not valid.
The third ground stated in the application is not a ground of application, but is a request that this Court consider the applicant’s application for fee waiver and his letters to the Tribunal.
Disposition
I am satisfied grounds 1 and 2 raise a reasonably arguable case for the relief the application claims. Pursuant to r.44.12(1)(b) of the FCC Rules, therefore, I propose to adjourn the proceeding for a final hearing to a date to be fixed, and order that the Minister show cause at that hearing why an order for the relief claimed in the application should not be made on grounds 1 or 2 of the application. I also propose to order that the costs of the show cause hearing be reserved.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 September 2017
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