KAUR v Minister for Immigration

[2017] FCCA 195

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 195

Catchwords:
MIGRATION – Visitor visa – review of Migration Review Tribunal (“Tribunal”) decision – application for extension of time to bring proceeding.

Legislation:

Migration Act 1958, ss.338, 347, 477

Migration Regulations 1994, regs.4.10, 4.13, 4.13A, 4.13B

Cases cited:
Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99
Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364

Applicant: RAKHBIR KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2437 of 2014

Judgment of: Judge Cameron

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Sydney

Delivered on: 1 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time to bring the proceedings be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2437 of 2014

RAKHBIR KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a citizen of India, applied for a Visitor (Class FA) (Tourist) subclass 600 visa on 5 March 2014.  On 20 March 2014 a delegate of the first respondent (“Minister”) refused that application on the basis that the applicant did not satisfy one of the criteria for the grant of the visa.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  On 6 June 2014 the Tribunal found that it had no jurisdiction to consider the applicant’s review application because she had failed to pay the prescribed application fee.

2. On 29 August 2014 the applicant applied to this Court for judicial review.  The application commencing the proceeding sought review of a Tribunal decision anterior to its decision on her visa application, namely, a decision to refuse her a waiver of at least part of the Tribunal’s filing fee.  The fact that the application was presented as it was is unusual in the context of migration judicial review cases brought to this Court which are generally concerned with the final decisions of review tribunals. 

3. At the hearing of this application considerable attention was paid in the context of the extension of time aspect of this case to when time began to run for the purposes of s.477 of the Migration Act 1958 (“Act”), the focus being on the date of the Tribunal’s decision that it did not have jurisdiction to entertain the application for review.  However, it is worth noting at this point that perhaps time began to run from the point when the Tribunal refused the fee waiver sought by the applicant because it is in relation to that decision that she seeks relief.

4. Because the application to this Court was filed on 29 August 2014, it was brought out of time whether time commenced to run at the making of the decision to refuse the fee waiver or whether it commenced to run when the Tribunal made its decision that it had no jurisdiction in the matter.  The applicant has applied for an extension of time within which to bring the proceeding. 

5. For the reasons which follow, the application for an extension of time within which to bring the proceeding will be dismissed.

APPLICATION FOR EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, s.477 relevantly provided:

   477Time limits on applications to the Federal Circuit Court

   (1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   (a)…

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The decision to refuse the fee waiver was dated 30 April 2014 and the Tribunal’s decision that it had no jurisdiction in the matter was made on 6 June 2014.  The applicant consequently had until 4 June 2014 or 11 July 2014 within which to bring this proceeding depending on which is the relevant limitation period. 

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicant made an application in writing for an extension of time by including such a request in her application commencing these proceedings. Further, her initiating application specified why she said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. In the circumstances of this case, that question will be determined by whether the applicant has a satisfactory explanation for the delay and whether the allegations made in the substantive application (for judicial review) have reasonable prospects of success.

Satisfactory explanation for delay

1. Because no attention was directed at the hearing to whether time ran from the refusal of the fee waiver, no attention was given to whether a satisfactory explanation existed for the failure to bring the proceedings within thirty-five days of that decision.  In the circumstances, it would be unfair to make a decision based on that failure. 

2. In relation to the delay in commencing the proceeding within thirty-five days of the Tribunal’s decision, reliance was placed on the affidavit of a person advising the applicant, a Mr Khan.  Mr Khan deposed in para.10 of his affidavit of 29 July 2014 that he had been advising the applicant in relation to her Tribunal review, but it was not until he rang the Tribunal on 17 July 2014 to inquire after the progress of the application that he was informed that a decision had been made.  He said in his affidavit that the decision was sent to him on 17 July 2014. 

3. That evidence would appear to be contradicted by the Tribunal’s file note of 13 June 2014, reproduced at page 95 of the Court Book, which was exhibit A in the proceeding.  That file note states:

   Call from the advisor [sic] stating that he doesn’t agree with the tribunal’s decision and that the RA is willing to pay half the fee.  I stated that this is too late as the tribunal has already made its decision, however as the information sheet points out, if he is unhappy with the decision and he feels that the tribunal had erred in some manner then he could appeal to the Federal court.

4. The applicant, speaking from the bar table, indicated that she was guided by Mr Khan and had very little appreciation of what was going on in connection with her Tribunal review.  I accept that.  However, the Tribunal’s file notes of 1 and 2 July 2014 reproduced at pages 96 and 97 of the Court Book respectively, indicate that the applicant spoke to the Tribunal on those days and was plainly aware of the outcome of the review.  The applicant was invited to give evidence to explain the delay between 1 July 2014 and 17 July 2014 referred to in Mr Khan’s affidavit but elected not to do so.  I draw no adverse inference from that decision but it does mean that no satisfactory explanation has been provided by her in relation to at least that period.

5. As Mr Khan was not present in court to be cross-examined on his affidavit, I draw no adverse inference against him in connection with the apparent contradiction by the Tribunal file note of what he says in his affidavit.  Nonetheless, his affidavit does not adequately address the obvious question; namely, why if he was aware on 17 July 2014 that the Tribunal had given its decision did he wait until the end of the following month to file in this Court. 

6. The picture of events on the applicant’s side of the case in June, July and August 2014 is far from clear and, in those circumstances, I cannot conclude that a satisfactory explanation has been provided for the delay in commencing this proceeding, whether time ran from the decision to refuse the fee waiver or the Tribunal’s decision to conclude that it had no jurisdiction.

Reasonable prospects of success

1. The next matter which the Court must consider is whether, regardless of whether the applicant has provided a satisfactory explanation for the delay in commencing the proceeding, the substantive proceeding would have reasonable prospects of success were it to be permitted to proceed. 

Relevant legislation

1. By virtue of s.338(2) of the Act (as it stood at the time of application to the Tribunal), the decision to refuse the applicant a visa was an “MRT-reviewable decision” and could be reviewed by the Tribunal.

2. Section 347 of the Act set out the manner in which an application to the Tribunal was to be made. At the time the applicant lodged her review application with the Tribunal, it relevantly provided:

   347       Application for review by Migration Review Tribunal

   (1)An application for review of an MRT‑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 MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

   (ii)     …

   (iii)    …; and

   (c) be accompanied by the prescribed fee (if any).

   …

   (5)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

3. Regulation 4.13 relevantly provided:

   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 $1,540.

   …

   (4)If the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, 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, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

4. The fee in reg.4.13(1) was subject to biennial increases as prescribed by reg.4.13A and 4.13B.  At the time the applicant lodged her review application, the fee was $1,604.

Background facts

1. The applicant’s review application to the Tribunal was lodged on 8 April 2014.  Accompanying the review application form was a “Request for Fee Reduction” form in which the applicant indicated that she was a housewife with no means, expenses or bank accounts and that the costs of her stay in Australia would be met by her brother.  The applicant did not provide any further information or supporting documentation.  In her review application form she nominated Mr Khan, the CEO of Australian Multicultural Charity (“AMC”), as her representative and authorised recipient.  She also indicated that she would pay any application fee using a credit card in Mr Khan’s name but did not provide the credit card number or expiry date.

2. As noted earlier, the Tribunal wrote to the applicant on 30 April 2014 advising her that her request for a reduction of the review application fee had been refused because she had not provided sufficient documentary evidence to show that payment of the full fee would cause her severe financial hardship.  The Tribunal’s letter also noted:

   You must now pay the $1604 application fee by 23 May 2014.  If the $1604 fee is not paid by the due date your application for review will be allocated to a tribunal member to determine whether you have made a valid application.  If you do not pay the fee, the member may decide you have not made a valid application.  If your application is invalid, the tribunal cannot review the decision. (Emphasis included)

3. The applicant did not pay the application fee by 24 May 2014.  On 27 May 2014 the Tribunal wrote to the applicant advising her that it had formed the view that her application was not a valid application because she had not paid the application fee.  The applicant was invited to comment on the validity of her application within fourteen days.  In a response dated 28 May 2014, Mr Khan submitted that the applicant had no bank accounts or credit cards and had no means to pay the application fee.  He submitted that her brother received Centrelink benefits and was also unable to pay the fee.  Mr Khan requested that the fee be reduced by 50% and stated that any reduced fee would be paid by AMC.

4. On 6 June 2014 the Tribunal determined that it had no jurisdiction to consider the applicant’s review application because it had not been made in accordance with relevant legislation.  In reaching that decision, the Tribunal referred to Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 and Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 and stated that the review application fee had to be paid within the prescribed period for lodging an application set out in s.347(1)(b) of the Act and reg.4.10 or, if a determination to reduce the fee had been made under reg.4.13(4), within a reasonable period after that determination. The Tribunal noted that the applicant had been advised of the decision to refuse her fee reduction request on 30 April 2014 and asked to pay the fee by 23 May 2014. It therefore found that the applicant had been given a reasonable period to pay the fee after being notified of the decision to refuse her fee reduction request. As the applicant had not paid the fee, the Tribunal found that her application for review was not a valid application and that it had no jurisdiction to determine it.

Proceedings in this Court

1. In her application commencing this proceeding the applicant alleged:

   1.There has been administrative error not to withdraw fee from credit card which was provided by AMC Charity therefore application was vailed [sic] application filed in MRT.

2. The Tribunal’s error is said to be the failure to grant the fee reduction sought by the applicant.  The basis of the Tribunal’s decision is set out in its letter of 30 April 2014 and explained further in its file note of 30 April 2014, which is reproduced at CB 81.

3. It has not been suggested that the Tribunal’s decision to refuse the fee reduction request was affected by any error which would amount to an excess or deficiency in the power to make that decision.  For instance, it was not suggested that relevant considerations were not taken into account or that information which was material to the decision-making process was not considered.  In short, no basis to impugn that decision has been shown. 

4. Nor, it must be concluded, am I satisfied that there would be a reasonable prospect of such an allegation being made out.  The applicant’s task in the present hearing is not to demonstrate that she would succeed in such an argument but that she has reasonable prospects of doing so.  However, as I said, nothing was placed before the Court which would suggest that the allegation which was pleaded in the application would have such prospects.

5. The next element of the case which must be considered in this part of these reasons is whether nevertheless there are reasonable prospects of demonstrating that the Tribunal’s decision that it had no jurisdiction was affected by jurisdictional error. 

6. It is not in issue that the applicant paid no application fee, whether at the time her review application was filed, or within a reasonable time of the Tribunal’s letter of 30 April 2014.  In those circumstances, the authorities show that the Tribunal had no jurisdiction to entertain the review application which was before it.  In the circumstances, there is no reasonable prospect of the applicant demonstrating that the Tribunal’s decision that it had no jurisdiction was a decision affected by jurisdictional error. 

CONCLUSION

1. I have concluded that the applicant has neither provided a satisfactory reason for the late commencement of the proceeding nor advanced arguments which would have reasonable prospects of success in demonstrating jurisdictional error on the part of the Tribunal either in its refusal to grant the fee reduction or in its decision that it had no jurisdiction in the matter. 

2. Consequently, the application for an extension of time will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 13 February 2017