Grey v Minister for Immigration

[2018] FCCA 1564

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1564

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – where no fee paid with application – where fee reduction sought – where no fee paid at all – where Tribunal determined that no valid application had been commenced.

Legislation:

Migration Act 1958 (Cth), ss.116, 338(3), 339(1) and 345

Migration Regulations 1994 (Cth): reg.4.13

Cases cited:

Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364

Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174

Parmar v Minister for Immigration [2018] FCA 502

Applicant: NEHA WIREMU TURUMANU GREY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1186 of 2017

Judgment of: Judge Jarrett

Hearing date: 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Brisbane

Delivered on: 8 June 2018

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 1 December 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the Application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1186 of 2017

NEHA WIREMU TURUMANU GREY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of New Zealand who initially arrived in Australia in August of 2000. 

2. He has been in Australia using a Special Category Temporary (Class TY) (subclass 444) visa which has, from time to time, been renewed. The last time he was granted such a visa was in October, 2014. On 10 July, 2017 a delegate of the first respondent issued a notice of intention to consider cancellation of the applicant’s visa under s.116 of the Migration Act 1958 (Cth) and the applicant was invited to comment on that consideration. He did not provide any comments or submissions. On 25 August, 2017 a delegate of the first respondent determined to cancel the applicant’s visa pursuant to s.116(1)(e)(i) of the Act.

3. On 7 September, 2017 the applicant applied to the second respondent for a review of the delegate’s decision.  The application required payment of a fee, although the applicant could also apply for a reduction of that fee by 50 percent.  He submitted a request for a fee reduction.  He also sought an adjournment of his hearing while some outstanding criminal charges he was facing were finalised.  There is ample evidence that demonstrates that he did not pay either the full application fee or the reduced application fee, pending approval of his fee reduction application. 

4. Between 8 September and 12 September, 2017 the second respondent, by its employees, tried to bring to the applicant’s attention that he needed to pay the application fee or a reduced application fee.  He was told about the possible consequences if he did not do that.  There was correspondence on 12 September, 2017 to the applicant which informed him that if the application fee or at least the reduced fee was not paid by the close of business on 14 September, he would lose his right of review before the Administrative Appeals Tribunal.

5. The applicant must have received that information, because on 13 September, 2017 he requested an extension of 30 days in which to pay the reduced application fee.  There was some further correspondence from the second respondent to the applicant, the upshot of which was that the applicant was required to pay something by the close of business on 14 September, 2017. 

6. On 14 September, 2017 there was some correspondence from the applicant whereby he requested an extension of time or at least direction to the appropriate person who could grant him the extension of time, but the second respondent, through its staff, advised the applicant that that was not possible.  He was requested to make a payment. 

7. There was no payment and on 19 September, 2017 the Tribunal wrote to the applicant and advised him that it was of the view that his application was not valid because he had not paid the application fee before the expiry of the time limited for lodging the application.  He was given the opportunity to make comment about that.  Lawyers acting for the applicant responded on 12 October, 2017 but in substance, all they did was to confirm that the applicant had not paid the reduced application fee.  They provided something of an explanation for why no fee (reduced or full) had not been paid. 

8. The Tribunal decided, on 1 November, 2017 that it did not have jurisdiction to review the delegate’s decision.  It did not think that its jurisdiction had not been properly engaged.  It formed that view because the fee had not been paid, or at least 50 percent of the fee had not been paid, the application had not been properly commenced and the Tribunal’s jurisdiction therefore not engaged.  The applicant seeks review of that decision in this Court.

9. The written submissions for the first respondent usefully set out the way in which this application needs to be considered. Section 338(3) of the Act deals with decisions to cancel visas held by non-citizens who are in the migration zone at the time of the cancellation. Those types of decisions are Part 5 reviewable decisions except in limited circumstances, which are of no relevance to this application. The delegate’s decision made on 25 August, 2017 to cancel the applicant’s visa was a Part 5 reviewable decision for the purposes of s.338(3) of the Act.

10. If one wishes to review a Part 5 reviewable decision, then s.345 of the Act provides that the application must be made in the approved form. It must be given to the Tribunal within the prescribed period and it must be accompanied by the prescribed fee, if any. The prescribed period, for present purposes, was seven business days after the applicant was notified of the delegate’s decision.

11. Regulation 4.13 of the Migration Regulations 1994 (Cth) provides for fees and the waiver of fees for an application for review of a decision by the Tribunal. At the relevant time, the fee was $1540, but an applicant could apply to reduce that fee by half. But there is nothing in the regulations that suggests that there would be no fee at all for such an application.

12. By this application, the applicant contends that there has been a “denial of the very existence of jurisdiction”.  He asserts that there has been a breach of the hearing rule of natural justice.  He says that the decision was “seriously illogical, irrational and unreasonable” and that there has been a “disregarding of relevant considerations and paying regard to irrelevant considerations”.

13. The first ground of the applicant’s application is correct.  There has been a denial of the very existence of jurisdiction for the reasons given by the Tribunal.  If the Tribunal’s decision is correct, then there has been no breach of the hearing rule or any rules relating to natural justice, because the second respondent was not obliged to embark upon a hearing of the application for review at all.  Questions of illogicality, irrationality and unreasonableness will be addressed shortly. 

14. Counsel for the first respondent has usefully drawn my attention to a number of cases which potentially bear on the decision that needs to be made in this case.  The starting point is Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99. That case dealt with the Regulations and the Act as it existed then. The relevant sections are now in a different form. Relevantly however, s.339(1) of the Act required the application for review to be lodged within a prescribed period and accompanied by the prescribed fee. The decision in that case was to the effect that the text of the subsection imposed a condition, strict compliance with which was necessary to invoke the jurisdiction to review.

15. The decision in Kirk has been followed on a number of occasions.  The next decision to which I have been taken is Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364. There, the Full Court considered a slightly different factual issue to Kirk.  It considered a situation where the application for review and the request for fee waiver had been lodged within the prescribed period and the request for the fee waiver had been rejected. 

16. The applicant had asked for a reconsideration of the rejection and for an extension of time, presumably within which to pay the fee.  The Tribunal refused those requests and the prescribed period having elapsed, it determined that it had no jurisdiction because the application for review was invalid. 

17. The Full Court made some comments about Kirk after considering that decision and set a slightly different course.  It said this:

    51.…where an applicant for a visa makes an application for a waiver of 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.

18. Here, the first respondent says that this case is quite different to Braganza and Kirk because, first there is no longer any capacity to waive the fee in its entirety.  Second, that must mean that something must be paid, whether it is the whole fee or half of it.  Third, on the facts of this case, nothing was paid within the prescribed period.  The subtext of the argument seems to be that even if the court was to follow Braganza, at least half of the fee should be paid within the prescribed period.  And, if the fee waiver is ultimately rejected, a reasonable time should be permitted to the applicant to pay the balance of the fee.  That argument seems to fit comfortably with the reasoning in Braganza. 

19. But the reasoning in Braganza has been the subject of some adverse comment.  In Parmar v Minister for Immigration [2018] FCA 502, Dowsett J, sitting as the Full Court for the purposes of a migration appeal from a judge of this Court, considered what was said in Braganza and said this at paragraph 21:

    In the course of the proceedings, I expressed some doubt concerning the assumption that non-payment of the fee led to invalidity, notwithstanding the earlier decisions which proceeded on that basis.  I suggested that given the relatively liberal approach taken to s 347 in Braganza and other cases, and having regard to the wording of ss 347 and 348, consideration should have been given to the effect of the High Court’s decision in Project Blue Sky v Australian Broadcasting Corporation (1998) 194 CLR 355. It seems that such an argument was raised in Braganza, but that the Court did not have to consider it.  Any argument that non-payment of the fee would not necessarily lead to invalidity may have derived some support from the similarities and differences between ss 46 and 47 of the Migration Act and ss 347 and 348. Sections 46 and 47 dealt with visa applications and the consequences of non-payment of fees for such applications.  Section 46 expressly provided that payment of the fee was necessary in order that the application be valid.  Further, s 45 expressly prohibited consideration of a visa application which was not a valid application. On the other hand, neither s 347 nor 348 referred to validity. Section 348 required the Minister to consider an application which was ‘properly made’ and prohibited consideration of a decision in relation to which the Minister had issued a certificate under s 339, a provision which is not presently relevant.  Section 348 said nothing about applications not properly made.

20. His Honour did not decide the point about non-payment of the prescribed fee and the decision in Braganza.  Whilst his Honour considered issuing a pro bono referral certificate so that the applicant might receive advice concerning the point and possibly representation at a subsequent hearing, his Honour eventually decided against that course because he determined that there was no point in permitting the application to succeed.  The application for the visa was bound to fail in any event.  See paragraph 24 of his Honour’s decision.

21. As the written submissions for the first respondent point out, whilst some doubt has been cast upon the decisions which tend to suggest that payment of the prescribed fee is a necessary pre-condition to the engagement of the tribunal’s jurisdiction for the reasons expressed by Dowsett J in Parmar, I am nonetheless bound by Kirk and Braganza.  And those decisions have been followed on a number of occasions, both in this Court and in the Federal Court.

22. In those circumstances, I am satisfied that payment of the prescribed fee or at least 50 per cent of the prescribed fee, given that the regulations no longer permit a full waiver of the entire fee, is a necessary precondition to the invocation of the second respondent’s jurisdiction to review a decision of a delegate of the first respondent.  Here, there was no payment.  Here, the preconditions were not met.  The Tribunal’s decision was correct.  There is no illogicality, irrationality or unreasonableness about it in the legal sense.  Accordingly, the application for review must be dismissed.

    [RECORDED: NOT TRANSCRIBED]

23. Costs should ordinarily follow the event, unless there are special circumstances that suggest that application of that rule is not appropriate.  The applicant says that he cannot afford to pay the fee, but impecuniosity is no answer to the application for costs in this case. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 June, 2018.

Date: 21 June 2018