Jahangir v Minister for Immigration
[2018] FCCA 902
•22 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAHANGIR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 902 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction – non payment of the lodgement fee – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.338, 347, 348, 357A, 359A, 360, 424A Migration Regulations 1994 (Cth) |
| Cases cited: Benissa v Minister for Immigration [2016] FCA 76 Braganza v Minister for Immigration (2001) 109 FCR 364 Kirk v Minister for Immigration (1998) 87 FCR 99 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 SZEYK v Minister for Immigration [2008] FCA 1940 |
| Applicant: | MUHAMMAD UMAR JAHANGIR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2147 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2018 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2147 of 2017
| MUHAMMAD UMAR JAHANGIR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant, Mr Jahangir, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 June 2017. The Tribunal found that it lacked jurisdiction in the review application before it.
The background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 6 April 2018.
On 6 February 2017 a delegate of the Minister (delegate) refused to grant Mr Jahangir a medical treatment (visitor) (class UB) visa.[1]
[1] Court Book (CB) 16
On 27 February 2017 Mr Jahangir lodged an application for review in the Tribunal.[2] The delegate’s decision was a “Part 5-reviewable decision” as defined in s.338(2) of the Migration Act 1958 (Cth) (Migration Act). An application for review of the delegate’s decision was required to be made to the Tribunal within 21 days of the delegate’s decision.[3] That is, the application for review was made on the last day by which the application needed to have been lodged.
[2] CB 19
[3] Section 347(1) of the Migration Act and regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations)
In answer to Question 27[4] on the application form, Mr Jahangir nominated by way of ticking the relevant box that he would pay the application fee by money order. It does not appear though that any money order was attached to the application form (at Question 29, the relevant box indicating that a money order was attached to the form was not ticked[5]).
[4] CB 27
[5] CB 29
Accompanying the application form was a form entitled “Request for Fee Reduction”.[6] Under regulation 4.13(4) of the Regulations, the Registrar of the Tribunal has power to reduce the prescribed fee required to be paid with an application to the Tribunal.
[6] CB 30
As at 27 February 2017 Mr Jahangir had paid none of the prescribed fee.[7]
[7] CB 33
On the same day an officer of the Tribunal contacted Mr Jahangir and informed him that he needed to pay an application fee of $836.50 (50% of the prescribed fee) the same day.[8] Further telephone calls to Mr Jahangir on 6 March 2017 by the Tribunal went through to a voice message.[9]
[8] CB 34
[9] CB 36
On 6 March 2017 the Tribunal sent Mr Jahangir a letter acknowledging that his application had been received.[10] The letter stated that the validity of the application had not yet been assessed. As at 6 March 2017 no payment appeared to have been provided to the Tribunal.[11]
[10] CB 38
[11] CB 40
On 29 March 2017 the Tribunal invited Mr Jahangir to comment on the validity of his application for review by 12 April 2017.[12]
[12] CB 43
On 30 March 2017 Mr Jahangir contacted the Tribunal and said he was not able to provide even 50% of the application fee due to financial hardship. He also informed the Tribunal that he had been able to borrow money from a friend and he would pay the $836.50 and also provide a response to the natural justice letter.[13] On 3 April 2017 Mr Jahangir sent an email to the Tribunal requesting that he be permitted to pay “my fee” in two instalments and asked the Tribunal to “let me know”.[14]
[13] CB 44
[14] CB 45
On 22 June 2017 the Tribunal determined that the review application was invalid, and consequently that it had no jurisdiction to review the delegate’s decision.
The current proceedings
These proceedings began with a show cause application, lodged on 10 July 2017. That is the only application before me. It is supported by a short affidavit filed with it.
The only other evidence I have before me is the court book, filed on 28 August 2017.
This matter came before me at an interlocutory stage on 13 April 2018. At that time, it appeared to me that the legal issues in this case were somewhat novel. I dispensed with the need for a show cause hearing and listed the matter for a final hearing today.
I invited further submissions and issued a certificate, pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth), for Mr Jahangir to receive pro bono assistance. A practitioner was appointed pursuant to that certificate and, I understand, has provided Mr Jahangir with certain advice. However, the lawyer has withdrawn from the proceedings.
Having reviewed the circumstances, I told Mr Jahangir at the outset of today’s hearing that subject to any further application he wished to make, he would need to deal with the matter himself today. He told me that he was ready to proceed.
He also told me that previously, an issue in his mind was whether the minimum 50% fee required by the Tribunal had or had not been paid by a friend who had been assisting him. Mr Jahangir has recently been able to find out from his friend that, in fact, nothing was paid.
In those circumstances and having the benefit of an explanation by me of the legal issues, Mr Jahangir stated that he had no further submissions to make.
The relevant legislation is dealt with in the Minister’s submissions.
Section 347(1) of the Migration Act provides:
(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; … and
(c) be accompanied by the prescribed fee (if any).
Section 348(1) of the Migration Act provides:
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.
Regulation 4.10 of the Regulations provides for the time for lodgement of applications to the Tribunal:
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
(a)if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act--starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; …
Regulation 4.13 of the Regulations provides:
(1)Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,540.
…
(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 financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).
Regulation 4.13A provides that the amount of $1,540 be increased biannually in accordance with the calculations in regulation 4.13B.
By way of summary, under the regulatory scheme that applied at the time the review application was filed, it was a requirement in order for the application to be valid that it be “accompanied” by the prescribed fee. The prescribed fee was an amount of $1,673 as at the time of the application for review,[15] but subject to a 50% reduction by the Registrar of the Tribunal if satisfied that the payment of the full fee has caused, or is likely to cause, severe financial hardship to the applicant. Mr Jahangir requested a fee reduction, but even so, it remained for Mr Jahangir to lodge an application within the prescribed time period in regulation 4.10(10)(a), and for that application to be accompanied by the prescribed fee. The present regime was not one where it was available to Mr Jahangir to request that the fee be waived entirely.[16]
[15] Regulations 4.13A and 4.13B
[16] Cf Braganza v Minister for Immigration (2001) 109 FCR 364
I find that Mr Jahangir was required to pay (at least) half the prescribed fee by no later than the end of the time limit for lodging the application, that is, by 27 February 2017.[17]
[17] See Kirk v Minister for Immigration (1998) 87 FCR 99, 102-103
In short, the legal regime applying at the time Mr Jahangir sought a merits review, while enabling him to seek a fee reduction, required that he pay at least 50% of the specified fee. Mr Jahangir had sought a fee reduction but did not pay the 50% of the fee required. In view of that failure, the Tribunal was left without jurisdiction.
First ground
In the first ground Mr Jahangir asserts that the Tribunal was in error for assessing the application without allowing him to present his arguments. Implicit in Mr Jahangir’s contention is that the Tribunal owed him an obligation to invite him to a hearing to address the issues arising in relation to the decision under review. An obligation of that kind is found in s.360 of the Migration Act, however for the following reasons, the Tribunal was not in the present matter obliged to invite Mr Jahangir to appear at a hearing.
In a similar factual setting Edelman J considered the question of whether a person who has failed to pay the prescribed fee to the Tribunal (resulting in the Tribunal finding that it lacked jurisdiction) was entitled to be invited to a hearing pursuant to s.360 of the Migration Act.[18] From [21], his Honour found the applicant in that matter was not entitled to be invited to a hearing for the following reasons:
a)first, his Honour relied upon the same conclusion reached by Bennett J in SZEYK v Minister for Immigration,[19] which his Honour considered to be plainly correct;
b)secondly, his Honour found that a “decision under review” within the meaning of s.360(1) “must import authority to review. This means that the Tribunal must have jurisdiction”;[20]
c)thirdly, the requirement in s.360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments “is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review”. His Honour found that “it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter”; and
d)fourthly, submissions concerning whether the Tribunal has jurisdiction “are not matters that ‘relate to’ the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.”
[18] Benissa v Minister for Immigration [2016] FCA 76
[19] [2008] FCA 1940
[20] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77]
Having regard to the authority of Benissa, the first ground must be rejected.
Second ground
In the second ground Mr Jahangir asserts that as the Tribunal did not make any other attempt to contact him to attend the hearing, it became imperative for it to invite him to make comments on “information” under s.424A before it made its decision.
The relevant provision of the Migration Act by which the Tribunal is required to invite a review applicant to comment on certain information is s.359A(1). However, there was no obligation on the Tribunal to invite Mr Jahangir to comment under s.359A in circumstances where it did not have before it a valid application.[21]
[21] SZEYK, [34]
To the extent it could be suggested that the procedures related to questions of application validity in the Tribunal are not matters that come within the framework of s.357A, Mr Jahangir was not denied procedural fairness at common law. As mentioned above the Tribunal did invite Mr Jahangir to comment on its concern regarding the validity of the application.[22] It stated:
For an application to be considered validly made, the review applicant is required to [pay at] least half of the application fee where a request for fee reduction is lodged along with the application. Even though you made a request for fee reduction, you did not pay half of the application fee before the expiry of the time limit for lodging the application.
[22] CB 43
Mr Jahangir was invited to make comments. Mr Jahangir did not give a response. There is no suggestion that Mr Jahangir did not receive the Tribunal’s letter. The Tribunal made its decision nearly three months after it sent the invitation to comment. Mr Jahangir does not identify what additional “information” the Tribunal should have given him.
The ground does not establish error.
Third ground
In the third ground Mr Jahangir asserts that the Tribunal fell into jurisdictional error by misinforming itself as to the true nature of his evidence and thereby incorrectly dealt with the review application. Mr Jahangir does not articulate in what way the Tribunal “misinformed” itself as to his evidence. If by referring to “evidence” Mr Jahangir is referring to the Tribunal’s account of the correspondence it engaged in with Mr Jahangir in relation to his need to pay some of the application fee, no error can be made out. The Tribunal’s account recorded in its reasons is an accurate summary of the relevant exchanges with Mr Jahangir.[23] In any event, by the time the Tribunal came to make a decision in the matter, there was no other decision it could have made.
[23] See [4]-[5]; CB 49
The ground does not establish error.
Conclusion
I conclude that Mr Jahangir is unable to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. The decision is, therefore, a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. As I put to counsel for the Minister, the bulk of the work in this matter was done before the show cause hearing at which time I listed the matter for a final hearing. While the issues in the case were technical, the Minister was not required to add to submissions prepared for a show cause hearing. Mr Jahangir did not wish to be heard on the issue of costs other than to thank the Court for a cost reduction.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 June 2018
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