Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 151
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 151
File number(s): SYG 1243 of 2021 Judgment of: JUDGE EGAN Date of judgment: 9 March 2022 Catchwords: MIGRATION – Application for Medical Treatment Visa – non-payment of applicable fee within time – whether principle of comity should apply or not – no jurisdictional error established – application dismissed. Legislation: Migration Regulations1994 (Cth) rr. 4.10 and 4.13.
Migration Act 1956 (Cth) s. 347.
Cases cited: DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135.
Grey v Minister for Immigration [2018] FCCA 1564.
Message v Minister for Home Affairs [2018] FCCA 2132.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 23 February 2022 Date of hearing: 7 March 2022 Counsel for the Applicant:
Solicitor for the Applicant:
Counsel for the First Respondent:
Solicitor for the First Respondent:Mr O Jones
Mr S Issa
Mr G Johnson
Ms M Kelly
ORDERS
SYG 1243 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSEPH HANNA
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 MARCH 2022
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 10 February 2022 be dismissed.
2.The Applicant pay the First Respondents’ costs of and incidental to the Application for Review, fixed in the amount of $7853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a citizen of the Republic of Lebanon. He has had a long history of failed migration applications since his arrival in Australia in
On 22 April 2021, the applicant applied for a Medical Treatment (Visitor) (Class UB) Medical Treatment (Subclass 602) Visa. On 12 May 2021, the applicant’s application was refused. [1]
[1] Exhibit 1. – Court Book – p 31
By Regulation 4.10(2)(b) of the Migration Regulations1994 (Cth), the applicant had 7 days after receiving notice of the refusal decision to lodge an application for review of such decision pursuant to the provisions of s. 347 of the Migration Act 1958 (Cth) (the Act). Section 347(1) relevantly provided as follows:
“347 Application for review of Part 5 – reviewable decisions
(1)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, being a period ending not later than:
(i)if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or
(ii)if the Part 5- reviewable decision is covered by subsection 338(5), (6), (7) or (8) – 70 days after the notification of the decision; or
(iii)if the Part 5- reviewable decision is covered by subsection 338(9) – the number of days prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).”
On the question of fee reduction, r. 4.13(1) and (4) relevantly provided 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 $1,826
(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 hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).”
(applicable sum inserted)
As to the relevant events which transpired up to and subsequent to the 21 May 2021 required application lodgement date, the Tribunal, at [7] – [22] inclusive of its reasons, detailed the bases upon which it was determined that the application for review made by the applicant was not a valid application, and that the Tribunal had no jurisdiction to consider it. A useful chronology was set out at [23] of the reasons of the Tribunal as follows:
“[23] In summary, a chronology of the relevant events includes:
a. The review application was lodged on 12 May 2021
b. The correct M2 was used, but the applicant provided inconsistent information in the form, indicating that the decision to be reviewed was for a subclass 602 visa and then, further on in the form, that he had an application for a bridging visa refused or cancelled
c. The form did not generate a request for a fee to be paid before the application was completed because it interpreted the application as one for an applicant in detention whose bridging visa had been refused or cancelled; such applicants are not required to pay an application fee
d. The errors, relating to incorrect information entered by the applicant, and the Tribunal form interpreting that the applicant had a bridging visa refused or cancelled, were identified manually after the application was made online
e. On Wednesday 18 May 2021, the applicant was notified that he needed to pay a fee for the application (because he had lodged an application for review of the refusal of a subclass 602 visa, not a bridging visa)
f. Fee reduction request was received, in writing, on 21 May 2021
g. The credit card provided by the applicant to pay the fee, on 21 May 2021, was declined when payment was attempted twice
h. An alternative credit card number was provided, after the prescribed seven day period had ended, at 5:42pm on 24 May 2021
i. The next day, Tuesday 25 March 2021, a screenshot of the completed form for payment of the $913 fee, including the alternative credit card details, was received by the Tribunal at 2:57pm
j. A letter was sent to the applicant on 31 May 2021 informing him that it appeared he had not lodged a valid application because the fee had not been paid within seven working days, by 21 May 2021
k. A written response was received on 5 June 2021 and the information provided has been considered”
It was submitted on behalf of the applicant that though the principle of comity would ordinarily require that decisions of another Judge involving the same or similar facts ought to be followed unless considered plainly wrong, such principle was subject to an exception in circumstances where an applicant was unrepresented or where difficult questions of law arise.
The question of comity has been considered by this court in DVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135 at [23] - [24] where it was said:
[23]First, though it is well accepted that for reasons of judicial comity a judge should usually follow a decision of another judge of the same Court, there is an exception where a judge is of the view that an earlier decision of another judge, based upon the same, or substantially the same facts, was plainly wrong. When considering just such a circumstance involving a judge of the Federal Circuit Court making findings contrary to the reasons of another judge of that Court involving the same factual scenario, the Full Court of the Federal Court in BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 per Allsop CJ, Moshinsky and O’Callaghan JJ at [62] – [63] said as follows:
“[62] Secondly, we do not accept the submission based on the line of cases to the effect that a judge should follow the judgment of another judge of the same court unless persuaded it is clearly wrong. It may be accepted that, for reasons of judicial comity, a judge of a court should usually follow a decision of another judge of the same court unless the judge is of the view that it is plainly wrong. The practice has been expressed in different ways on different occasions: see, for example, the cases discussed by French J (as his Honour then was) in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [74]- [76] (recently applied by Perry J in Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963 at [15]- [16]). It is unnecessary for present purposes to express a view on the different formulations that have been adopted in the cases, and it is undesirable to adopt any rigid formulation. It is sufficient to refer, by way of example, to the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204:
The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.
[63] In the course of considering the Tribunal’s reasons for decision, the primary judge referred to the judgment of Judge Riley and to the reasons for decision of the Tribunal on the question whether the consequences of a past act could engage the complementary protection criterion: see the primary judge’s reasons at [30]-[42]. The primary judge expressed his agreement with the reasoning and conclusions of the Tribunal, and provided reasons for forming this view. Although not expressed in these terms, it is apparent that the primary judge formed the view that Judge Riley’s reasoning and conclusion on the point were wrong, for the reasons the primary judge gave. It was therefore open to the primary judge to depart from the judgment of Judge Riley on the issue, consistently with the practice described above.”
[24]This Court is not constrained, in the circumstances of this matter, from not following the reasons of another Judge of this Court where such reasons are considered by the Court to be plainly wrong. The Court also respectfully adopts the approach of Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153, at [1] – [32].”
A Judge of this Court has previously considered the same factual scenario as was before this Court, in the present matter, in Grey v Minister for Immigration [2018] FCCA 1564 and Message v Minister for Home Affairs [2018] FCCA 2132. In each case, it was held that payment of at least 50% of the prescribed fee within the prescribed period was a necessary precondition to this Court having jurisdiction to hear and determine the application for review. Those decisions were not, on their face, plainly wrong.
In the light of the above, this Court is not persuaded that it should accede to the applicant’s submission that the principle of comity, in the circumstances of this matter, ought not to apply.
There was no payment within time.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[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.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Application for Review is without merit and is dismissed. The Court will hear the parties as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 March 2022
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