Fairy v Minister for Immigration & Anor (No.2)
[2017] FCCA 3095
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIRY v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 3095 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to consider application for review because the application for review was not accompanied by the prescribed fee – the applicant paid only 50% of the prescribed fee and the Registrar had not waived payment of the remaining 50% of the prescribed fee – whether validity of Registrar’s decision not to waive 50% of the prescribed fee relevant to whether Tribunal had jurisdiction to consider application for review – Tribunal correctly concluded it did not have jurisdiction – application dismissed. |
| Cases cited: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364 Fairy v Minister for Immigration & Anor [2017] FCCA 2203 Kirk v Minister for Immigration & Multicultural Affairs [1998] FCA 1174; (1998) 87 FCR 99 |
| 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: | 5 December 2017 |
| Date of Last Submission: | 5 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitors for the First Respondent: | Ms A Wong of Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| 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
On 15 September 2017 I published a judgment (earlier reasons) in this matter in which I concluded the applicant has an arguable case for the relief which he seeks in his application.[1] That conclusion resulted in my listing the matter for final hearing on 5 December 2017. In these reasons for judgment I consider the merits of the applicant’s grounds of application. These reasons, therefore, should be read with my earlier reasons.
[1] Fairy v Minister for Immigration & Anor [2017] FCCA 2203
In my earlier reasons I concluded there was an arguable case for the relief the applicant claims because I concluded there was an arguable case that the Registrar of the second respondent (Registrar) 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.[2] I also concluded that, if it were accepted the Registrar acted unreasonably and irrationally and, for that reason, the Registrar’s decision was invalid, then it was reasonably arguable the Tribunal’s decision that it did not have jurisdiction was also invalid.
[2] Fairy v Minister for Immigration & Anor [2017] FCCA 2203 at [21]
At the final hearing of this matter Ms Wong, who appeared for the first respondent (Minister), submitted that, whether or not the Registrar’s decision was unreasonable or irrational was irrelevant to whether the Tribunal had jurisdiction to entertain the application for review. And that is for the simple reason that the applicant paid only 50% of the prescribed fee and the Registrar had not waived payment of the remaining 50% of the prescribed fee. Stated another way, the jurisdiction of the Tribunal to entertain an application for review was conditional on, among other things, the application for review being accompanied by the prescribed fee; or the application being accompanied by 50% of the prescribed fee and the Registrar waiving payment of the remaining 50% of the prescribed fee; or the application being accompanied by 50% of the prescribed fee and, if the Registrar refuses to waive payment of the remaining 50% of the prescribed fee, the applicant paying the remaining 50% of the prescribed fee within a reasonable time after the Registrar refused to waive its payment. In the circumstances before me, none of these three preconditions has been satisfied.
I accept Ms Wong’s submissions. A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs[3] and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs[4] to which I referred in my earlier reasons.
[3] [1998] FCA 1174; (1998) 87 FCR 99 at 102
[4] [2001] FCA 318; (2001) 109 FCR 364 at [51]
In the circumstances before me, although the applicant tendered 50% of the prescribed fee, on 16 March 2016 the Registrar refused to waive payment of the remaining 50% of the prescribed fee and the applicant was given until 12 April 2016 to pay the remaining 50% of the prescribed fee.[5] The Registrar then extended the due date for payment of the remaining 50 % of the prescribed fee to 17 May 2016.[6] In my opinion, that was a reasonable time within which the applicant could pay the remaining 50 % of the prescribed fee. Thus, at the time the Tribunal decided it did not have jurisdiction to consider the applicant’s application for review, none of the preconditions for a valid application to the Tribunal had been met. That means the Tribunal was correct to conclude it did not have jurisdiction to consider the applicant’s application for review.
[5] CB27
[6] CB31
It may be that, if the Registrar’s decision not to waive the remaining 50% of the prescribed fee were invalid because it were found to be irrational or unreasonable, that decision may be amenable to judicial review. Whether or not that decision is amenable to judicial review, however, cannot be determined in this proceeding if for no other reason than that the Registrar is not a party to the proceeding, and no claim for relief is made against the Registrar. Given the Registrar is not a party to the proceeding, and no submissions were made about whether, if the Registrar were a party to the proceeding, this Court would have jurisdiction to review the Registrar’s decision for unreasonableness or irrationality, it is not appropriate for me to say anything about whether this Court would have had jurisdiction to review the Registrar’s decision had the applicant sought relief against the Registrar.
As I noted in my earlier reasons, the applicant relied on submissions contained in a document titled “Applicant’s Submissions”. In addition to that document, the applicant relies on a document which he handed up in Court at the final hearing of this matter. In that document the applicant responds to the Minister’s supplementary written submissions filed on 21 November 2017. The applicant submits “the Tribunal failed to apply the law properly”. The applicant referred to documents contained in the Court Book in which he explained to the Tribunal his circumstances and submitted that this showed the Tribunal had “enough evidence” about the applicant’s health and financial problems.
None of the matters on which the applicant relies demonstrates the Tribunal was incorrect to hold it did not have jurisdiction to entertain the applicant’s application for review. The applicant’s submissions are directed to the Registrar’s decision not to waive the remaining 50% of the prescribed fee. As I have already noted, it is not open to me to consider any claim for relief against the Registrar because the Registrar is not a party to the proceeding, and no claim for relief has been made against the Registrar.
I propose to order that the application be dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 December 2017
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