Kong and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 552
•9 June 2005
CATCHWORDS – PRACTICE AND PROCEDURE – prescribed fees – whether application fee payable – whether proceedings terminated in a manner favourable to applicant – meaning of “favourable” – distinction between proceedings terminating in a manner favourable to the applicant and the applicant’s dealings with the respondent terminating in a manner favourable to him – application fee not refundable.
Administrative Appeals Tribunal Act 1975 ss. 3(1), 3(3), 25(1), 25(4), 27(1), 29 and 29A
Administrative Appeals Tribunal Regulations 1976 rr. 19(1), 19(7), 19AA(2) and 19B
Migration Act 1958 ss. 5, 82(2), 134(1), 134(8) and 136
Repatriation Act 1920 s. 107VZB
Donovan v Repatriation Commission (1985) 58 ALR 634
DECISION AND REASONS FOR DECISION [2005] AATA 552
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/162
GENERAL ADMINISTRATIVE DIVISION )
Re SIE LING KONG
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 9 June 2005
Place: Melbourne
Decision:The Tribunal does not certify that the proceedings have terminated in a manner favourable to the applicant.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Sie Ling Kong, has asked the Tribunal to refund the application fee he paid when lodging his application to review the decision by the Minister of Immigration and Multicultural and Indigenous Affairs (“Minister”) cancelling his business skills visa. His application was dismissed by consent but he has asked me either to decide that the application fee was not payable because his business skills visa ceased to be in effect when he was issued with a visitor visa or to certify that the proceedings have terminated in a manner favourable to him. I have decided that the application fee was not refundable for two reasons. First, it was payable when it was lodged. Second, the proceedings did not terminate in a manner favourable to Mr Kong even though he obtained a favourable outcome through his negotiations with the Minister’s Department.
THE ISSUE
The issues in this case are whether the application fee was not payable or whether “… proceedings have terminated in a manner favourable to …” Mr Kong within the meaning of r. 19(7) of the Administrative Appeals Tribunal Regulations 1976 (“Regulations”).
BACKGROUND
Mr Kong paid an application fee of $606 on 28 February 2005 when he lodged an application to review a decision made by a delegate of the Minister cancelling his business skills (subclass 127) visa. His applying to the Tribunal for review meant that the Minister’s decision to cancel his business skills visa did not take effect until 28 days after the Tribunal gave its decision on the review. That is the effect of s. 134(8)(a) of the Migration Act 1958 (“Act”). Later, on 10 May 2005, Mr Kong and the Minister agreed that his application should be dismissed. They agreed that after Mr Kong had been granted a visitor visa. The effect of Mr Kong’s being granted a visitor visa was that his business skills visa ceased to be in effect once his visitor visa came into effect. That is the effect of s. 82(2) of the Act.[1] Once the business skills visa had ceased to be in effect, Mr Stratton submitted on Mr Kong’s behalf that there was no longer any subject matter left for the Tribunal to consider.
CONSIDERATION
[1] In general, s. 82(2) applies to substantive visas. Both a visitor visa and a business skills visa are substantive visas within the meaning of s. 5(1) of the Act.
When is an application fee payable?
Subject to the increases provided for in r. 19B, fees are prescribed by rr. 19 and 19AA of the Regulations. Subject to provisions relating to waiver and remission of fees, an application fee is:
“… payable for lodging with the Tribunal of:
(a)an application for review of a decision, other than a relevant taxation decision within the meaning of Part IIIA of the Act;[[2]] or
(b)an application under subsection 28(1AC) of the Act;[[3]] or
(c)an application under subsection 62(2) of the Freedom of Information Act 1982;
other than an application for review of a prescribed decision.”[4]
[2] i.e. an application in the Small Taxation Claims Tribunal
[3] i.e. an application regarding whether an applicant was entitled to a statement of reasons under s. 28
[4] Regulations, r. 19(1) and see also r. 19AA(2) in relation to applications for review of taxation decisions in the Small Taxation Claims Tribunal.
When is a person entitled to a refund of an application fee?
Subject to certain qualifications that are not relevant, a fee, described as an application fee, is payable for lodging an application for review of a decision.[5] Regulation 19(7) provides that:
“A person who has paid an application fee is entitled to a refund of the fee if:
(a)the fee is not payable; or
(b)the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.”
[5] Regulations, r. 19(1)(a)
The first basis: when is a fee not payable?
In order to answer the question posed by the heading, I must first decide when a fee is payable. The Tribunal may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 (“AAT Act”) or another enactment.[6] The Tribunal is given:
“… power to review any decision in respect of which application is made to it under any enactment.” [7]
A “decision” is widely defined.[8]
[6] AAT Act, s. 25(1)
[7] AAT Act, s. 25(4)
[8] AAT Act, s. 3(3)
Where an enactment provides that an application may be made to the Tribunal for review of a decision, an application may be made by a person whose interests are affected by that decision.[9] The application must be made in a written form and comply with s. 29 of the AAT Act. It is not taken to be made unless the prescribed fee has been paid.[10]
[9] AAT Act, s. 27(1)
[10] AAT Act, s. 29A
When read with the provisions of the Act giving the Tribunal jurisdiction, it follows that the reference to a decision in r. 19(1)(a) must be a reference to a decision referred to in the AAT Act. A decision referred to in the AAT Act is a decision that the Tribunal has power to review. Therefore an application fee is only payable under r. 19(1)(a) when lodging an application for review of a decision that is reviewable by the Tribunal.
In light of this analysis, it is clear that a “fee was not payable” within the meaning of r. 19(7)(a) of the Regulations if a person lodged an application seeking review of a decision that was not reviewable by the Tribunal. This is often expressed in terms of the Tribunal’s not having jurisdiction and its dismissing the application. A decision in those terms would lead to a refund of the application fee on the basis that it was not payable.
In this case, the Tribunal did have jurisdiction to review the Minister’s decision cancelling Mr Kong’s business skills visa when he lodged the application. Section 136 of the Act provides that an application may be made to the Tribunal for review of the Minister’s decision under s. 134(1). The fact that Mr Kong’s business skills visa had, by the time his application was dismissed, ceased to be in effect because he then had a visitor visa does not detract from the fact that the Minister had made a decision that was reviewable. At the time Mr Kong lodged his application, the Minister’s decision had not taken effect. That came about because, even if Mr Kong had never lodged his application for review, the cancellation decision would not have come into effect until 28 days after Mr Kong was given notice of the decision.[11] The Tribunal had jurisdiction to review the Minister’s decision and so the fee was payable at the time he lodged his application. Even if reviewing the Minister’s cancellation decision became futile because of subsequent events, that does not alter my conclusion. It was a case in which the Tribunal had jurisdiction at the outset and so the fee was payable. It is not a case which comes within r. 19(7)(a) of the Regulations and the application fee cannot be refunded under that provision.
[11] Act, s. 134(8)(c)
The second basis: have the proceedings terminated in a manner favourable to Mr Kong?
In answering this question, another must first be asked. What is meant by the “proceedings” that have terminated in a manner favourable to the applicant? The word “proceeding” is defined in s. 3(1) of the AAT Act to include a number of matters that could be described as procedural matters as well as :
“(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC)” and
(c) an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
An application fee is paid in relation to proceedings referred to in (a), (b) and (c) of the definition of a “proceeding” and not in relation to those referred to in the remaining paragraphs. It follows that the “proceedings” to which r. 19(7) refers must relate to the whole of the action commenced by one of those proceedings and not to the proceedings arising under the remaining paragraphs of the definition. That is to say, the word “proceedings” used in r. 19(7) does not include what may be described as procedural proceedings or as proceedings incidental to an application for review of a decision.
What is meant by the word “favourable” in the context of the proceedings’ having terminated “in a manner favourable to the applicant”? The word was considered by Toohey J in the context of s. 107VZB of the Repatriation Act 1920 which provided that, where a decision of the Repatriation Review Tribunal (“RRT”) had been favourable to the applicant, the Repatriation Commission could submit further evidence and ask that Tribunal to rehear the proceeding. [12] Mrs Donovan had been granted a war widow’s pension but it had not been backdated as far as she had asked. Toohey J considered briefly whether a decision favourable to the applicant had to be a decision that was, in all respects, favourable. Toohey J noted that “The Shorter Oxford English Dictionary defines ‘favourable’, in relation to an answer as that which ‘concedes what is desired.”[13] He also noted that s. 107VZB presupposed that there was something in the decision that the Repatriation Commission would want to challenge. Although it was unnecessary for him to decide the matter as the case was decided on another, his Honour thought that “A decision granting a pension is … a decision favourable to an applicant and is therefore within the language of s 107VZB.”[14] That was so even though Mrs Donovan had not been conceded all that she had desired.
[12] Donovan v Repatriation Commission (1985) 58 ALR 634
[13] (1985) 58 ALR 634 at 638
[14] (1985) 58 ALR 634 at 638
I have looked also at the ordinary meanings of “favourable” in other
dictionaries:
“… 1 showing or giving agreement or consent. 2 pleasing; likely to win approval. 3 (favourable to someone) advantageous or helpful to them; suitable. …”[15]
“… 1. affording aid, advantage, or convenience: a favourable position. 2. manifesting favour: inclined to aid or approve. 3. (of an answer) granting what is desired. …”[16]
It seems to me that these meanings are more apt in this case than that to which Toohey J referred. I do not have to consider whether an applicant has had a favourable answer to the application so much as whether the proceedings terminated in a manner favourable to that applicant. Perhaps the result is the same but it seems to me that whether they have terminated in that way depends on whether they have terminated in a manner that is advantageous or helpful to the applicant. Putting that another way, they have come to an end and have done so in a way that advantages or helps the applicant. Advantaging or being helpful, and so favouring an applicant, does not equate with total success. Some advantage or help is sufficient.
[15] Chambers 21st Century Dictionary, revised edition, 1999
[16] Macquarie Dictionary, 3rd edition, 1997
Have the proceedings terminated in a manner favourable to Mr Kong? Mr Stratton submitted that:
“… the proceedings have terminated in a manner which is favourable to the applicant in the sense that the basis upon which the proceedings have been terminated results in our client’s visa record showing that he has never had a visa cancelled and that he is presently the holder of a substantive visa in the form of a valid visitor’s visa. These outcomes are certainly favourable to the applicant as it means that he can continued to apply for visas to Australia in the knowledge that he has never had an Australian visa cancelled.”[17]
[17] Letter from Nevett ford dated 2 June 2005
I accept Mr Stratton’s submission that Mr Kong has received a result that is favourable to him when regard is had to all of his dealings with the Minister and her Department. It does not necessarily follow that the proceedings in the Tribunal have terminated in a manner favourable to him. If they have done so, it must be because the proceedings terminated in a manner advantageous or helpful to him and not because he was able to use them as part of his wider dealings to achieve a favourable outcome for himself.
The effect of Mr Kong’s applying to the Tribunal was to defer the date on which the Minister’s decision to cancel his business skills visa came into effect.[18] That meant that, even though the Minister had made a decision to cancel Mr Kong’s business skills visa, Mr Kong held a business skills visa while the Tribunal’s proceedings remained on foot. That was an outcome that was favourable to Mr Kong in the short term but it resulted from the operation of s. 134(8) of the Act and not from the proceedings. The business skills visa remained in effect up until Mr Kong was granted a visitor visa. His being granted a visitor visa presumably came about through separate negotiations between Mr Kong and the Minister. Those negotiations might have been precipitated by his application to review the Minister’s decision cancelling his business skills visa but they were entirely separate from the proceedings in the Tribunal even if they were one of the subjects covered in informal discussions during the Tribunal’s conference procedures. They had to be. Not only did Mr Kong’s application to the Tribunal not relate to a decision relating to a visitor visa, but the Tribunal has no jurisdiction to review a decision relating to a visitor visa. Mr Kong’s being granted a visitor visa was a favourable outcome to him but it did not come about in a way that could be said to have any relevant connection with the proceedings. The proceedings did not terminate in a manner favourable to Mr Kong as the decision to cancel his business skills visa remained in place even though it had ceased to have any relevance.
[18] Act, s. 134(8) and see [2] above
Mr Kong has enjoyed a favourable outcome in arranging his affairs but that favourable outcome is as a result of the negotiations and not as a result of the application he made in the Tribunal. It cannot be said that the proceedings have terminated in a manner favourable to him. Therefore, he is not entitled to a refund of his application fee under r. 19(7)(b) of the Regulations.
For the reasons I have given, I do not certify that the proceedings have terminated in a manner favourable to the applicant.
I certify that the nineteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Heard on the Papers 9 June 2005
Date of Decision 9 June 2005
Solicitor for the Applicant Mr D. Stratton
C/- Nevett ford
Solicitor for the Respondent Ms C. Petrie
C/- Clayton Utz
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