KUMAR v Minister for Immigration

[2015] FCCA 1115

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1115

Catchwords:
MIGRATION – Migration Review Tribunal – Medical Treatment (Visitor) (Class UB) visa – show cause – requirement in s 347(1)(c) of the Migration Act 1958 that application for review be accompanied by prescribed fee (if any) – application to waive prescribed fee lodged within prescribed period – whether failure to pay prescribed fee within prescribed period renders application for review incompetent – no jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 r.44.12
Migration Act 1958 ss.476, 347(1)(c)

Alanzar v Minister of Immigration [2001] FCA 318
Tanto v Minister for Immigration [2013] FCCA 282

Applicant: SURENDER KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 905 of 2015

Judgment of: Judge Street

Hearing date: 30 April 2015

Date of Last Submission: 30 April 2015

Delivered at: Sydney

Delivered on: 30 April 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr E. Elliot
DLA Piper

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 905 of 2015

SURENDER KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 27 February 2015, holding that it did not have jurisdiction in respect of a review sought by the applicant of the delegate’s decision to refuse to grant a Medical Treatment (Visitor) (Class UB) visa.  That decision by the delegate was made on 22 October 2014 and the application for review was lodged on 10 November 2014 but without the prescribed fee. The time for payment of the prescribed fee ended on 21 November 2014. 

2. There was a request made to reduce the fee which was declined on 18 November 2014 and the applicant was required to pay the full fee by 11 December 2014.  The applicant requested further time to pay the fee and was given until 2 January 2015.  The Tribunal reasons note that the applicant failed to pay the fee. The Tribunal had concluded the applicant had been given a reasonable period to pay the fee since being notified of the authorised officer’s decision.  The Tribunal further concluded, in those circumstances, that the application for review was not valid and that the Tribunal had no jurisdiction.

3. The first respondent moved for an immediate show cause hearing under r.44.12 and put submissions that there was no arguable jurisdictional error in support of that argument. The first respondent relied upon the decision of (Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 and Tanto v Minister for Immigration [2013] FCCA 282). In response to the first respondent’s submissions and in response to the invitation to identify a jurisdictional error, the applicant said he could not say anything and that he did not understand the law. The Tribunal’s conclusion was correct.

4. I am clearly satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is a matter in which it is appropriate to exercise the Court’s jurisdiction under r.44.12. This is a matter in which there is no arguable jurisdictional error.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  1 May 2015