Joshi v Minister for Immigration
[2014] FCCA 1433
•18 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOSHI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1433 |
| Catchwords: MIGRATION – Refusal of fee reduction – failure to pay visa fee – application dismissed. |
| Legislation: Migration Regulations 1994 |
| Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 Tanto v Minister for Immigration & Anor [2013] FCCA 282 |
| Applicant: | THOMAS MUKESHKUMAR JOSHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1225 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 18 March 2014 |
| Date of Last Submission: | 18 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 18 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms Gangemi as solicitor advocate |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 6 August 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1225 of 2013
| THOMAS MUKESHKUMAR JOSHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal made on 10 July 2013. In that decision the Tribunal determined that it did not have jurisdiction to review a decision of the delegate of the Minister on the basis that the applicant had not paid the prescribed fee.
The relevant provision of the Migration Act 1958 is s. 347(1)(c) which provides that an application must be accompanied by the prescribed fee in order to be a valid application. Regulation 4.13(1) of the Migration Regulations 1994 sets the prescribed fee at $1,540. However under Regulation 4.13(4) a Registrar, Deputy Registrar, or Officer of the Tribunal has power to reduce the prescribed fee by 50 per cent in circumstances of financial hardship.
In this case, the applicant lodged his application on time and also lodged an application for a reduction in fees on time (20 May 2012, see Court Book, page 39). The Tribunal administration acknowledged receipt of the material on 23 May 2012.
On 3 June 2012 the Tribunal refused the application for a fee reduction and advised the applicant that he was required to pay the $770 by 27 June. That is the $770 representing the second half of the fee as he had already paid the first half of the fee. It is apparent from the Court Book that no further correspondence was received from the applicant to the Tribunal who then proceeded to make their refusal decision on 10 July 2013.
In the refusal decision the Tribunal specifically considered whether or not in the Tribunal’s view the applicant had been given a reasonable period to pay the fee since being notified of the authorised officer’s decision that no fee reduction would be given.
It is apparent that the Tribunal does not have power to review the decision of the Registrar, Deputy Registrar, or authorised officer as to whether or not a fee reduction should be granted under Regulation 4.13. This is apparent from the reasoning in Tanto v Minister for Immigration & Anor [2013] FCCA 282 and the lack of any statutory provision that has been identified as providing for a specific review right of a fee waiver decision to either the Migration Review Tribunal, Administrative Appeals Tribunal or any other officer under the Commonwealth Executive.
The reason that the Tribunal needed to consider whether or not a reasonable period had passed is explained by the way in which the provisions operate as set out in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318. The effect of Braganza’s decision is that if a fee waiver application is made within the period allowed to lodge a review application, then the review application is valid until a reasonable period after the determination of the fee waiver application. This is an entirely practical decision. It means that there is time after the fee waiver application is made for the fee waiver application to be decided and if it is decided against a person, as was the case here, a reasonable period of time is available for the person to pay the fee. Otherwise on a purely technical reading of the provisions one would need the fee waiver decision prior to the expiration of time for lodging an application. That simply would not be workable.
Thus, the applicant’s application made with a valid fee waiver application and payment of the 50 per cent of the fee (that he would have to pay even if successful on his fee waiver application under Regulation 4.1374) was a valid application at least until the reasonable period after the determination of the fee waiver.
The fee waiver application was determined on 3 June 2013. Under s.379AA(1) of the Migration Act it is open to the Tribunal to post the decision with respect to the fee waiver, so the Tribunal administration posting the decision with respect to the fee waiver to the applicant is a valid means of notifying him of that decision. Under s.379C(4) the applicant is deemed to have received that letter within seven days of the date of the document.
The applicant is therefore deemed to have received the fee waiver decision on 10 June 2013. That decision requested that he pay by 27 June allowing him effectively 17 days to pay. The Tribunal decision was not in fact made until 10 July 2013 effectively allowing the applicant a month to pay the fee if he had sought to do so.
In determining what is a reasonable period, the Tribunal is required to look at the facts and circumstances of the particular case before it. This flows from the decision of Gray J in Patel v Minister for Immigration and Citizenship [2009] FCA 392. In that case his Honour said that a Tribunal is entitled to proceed on the basis of the statutory presumption as to the time that the applicant received the document. However, the Tribunal is also required to look at the facts and circumstances of the particular case.
On the reasoning in Braganza, Gray J found that one of the factors to take into account by the Tribunal is whether in fact the applicant had received the letter even though the statute creates a presumption that the letter had in fact been received by the applicant.
As to the effect of Braganza Gray J said:
14. Consequent upon Braganza, the Tribunal appears to have adopted a practice of allowing 14 days from the deemed receipt by an applicant of a letter informing the applicant that a decision to waive the prescribed fee has not been made. This period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza.
15. … For the purposes of the application of the principle enunciated in Braganza ... the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee. A reasonable time can never be a period determined arbitrarily. The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case.
In this case the applicant, in his supporting affidavit, sets out that he was asked to pay the balance of the fee and says that due to his severe financial condition he was not able to pay that amount. He then explains that he has a dependant wife and child of 10 months of age and that he has only been working around 20 hours per week.
The difficulty for the applicant in this case is that the only material before the Tribunal was the fee waiver refusal letter setting a time for the applicant to provide the balance of the fees, the fact that the applicant was represented by a migration agent, and nothing else. There was no material forwarded by the applicant to the Tribunal seeking a longer period of time to pay the fee given his circumstances, no material about his circumstances, nor any suggestion to the Tribunal that he had not received the letter until later.
Thus, on the material before the Tribunal it seems that the Tribunal had open to it the possibility of deciding that a reasonable period had been allowed.
It appears to me that it was certainly open and reasonable for the Tribunal to conclude that the period in this case was sufficient based upon what was actually before the Tribunal at the time.
In these circumstances I find no error in the Tribunal determining that it did not have jurisdiction even having regard to the decisions in Braganza and Patel. As the Tribunal did not have jurisdiction there is no basis for seeking orders requiring the Tribunal to proceed to hear and determine the applicant’s application or any basis for setting aside the findings of the Tribunal that it did not have jurisdiction in this case.
There is no application before me seeking judicial review of the fee waiver decision and indeed it seems likely that any application in that regard would have to be lodged with the Federal Court as there does not appear to be a specific jurisdiction in the Federal Circuit Court to seek judicial review of a fee waiver decision.
In any event, the Court Book indicates that in this case the facts and circumstances of the applicant placed before the authorised officer were taken into account. It is difficult to see on the face of the material what basis for judicial review would arise with respect to the fee waiver decision in any event.
In the circumstances I therefore dismiss the current application for review.
In this matter the Minister seeks costs. Costs ordinarily follow the event in civil litigation.
The Minister seeks less than the scale fee for this type of case seeking the sum of $5,000. It appears to me that the costs sought by the Minister, having regard to the scale are reasonable. The applicant says that he is not able to pay the costs because of financial hardship. This of itself is not a basis for the court to not make a costs order.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 4 July 2014
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