LE v Minister for Immigration
[2010] FMCA 648
•2 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 648 |
| MIGRATION – Review of decisions – Migration Review Tribunal – visa – temporary business (long stay) visa. |
| Ong v Minister of Immigration and Citizenship and Anor [2010] FMCA 649 |
| Applicant: | VIETHA LE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 418 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 2 August 2010 |
| Date of Last Submission: | 2 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Counsel for the First Respondent: | Mr Wee |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application filed 22 March 2010 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 418 of 2010
| VIETHA LE |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First respondent
| MIGRATION REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Migration Review Tribunal (‘MRT’) on 19 February 2010. The Tribunal found that it did not have jurisdiction to review a delegate’s decision with respect to an application for a temporary business entry visa. The Tribunal’s conclusion was on the basis that a fee payable for the application to the MRT had not been paid.
The history of the matter shows that an application for a fee waiver was made at the time the application to the MRT was lodged. The Tribunal’s decision, in determining that it did not have jurisdiction, appears to be correct. No fee had been paid and the Tribunal concluded that a reasonable period of time had passed in which to allow the fee to be paid after the fee waiver application was refused.
If this application was intended to seek judicial review of the decision to refuse the fee waiver application, it is appropriate for the Court to consider that decision. The fee waiver decision was ultimately made on 7 January 2010 as set out in the letter at pages 90 to 91 of the court book. It appears clear that the Tribunal had earlier refused a fee waiver in 24 November 2009. However, from the file it also appears clear that this letter was returned to the sender and that the Tribunal had further contact from the applicant. Following such contact, the applicant was allowed further opportunity to submit material, not having been given an effective opportunity to be heard in the past.
The applicant did provide further material on 24 December 2009, although she did not address all of the matters as sought by the officer of the MRT determining the fee waiver application. The fee waiver decision recounts the circumstances of the case. It is not suggested that the decision-maker failed to have regard to relevant considerations or acted in the absence of any evidence. The decision notes a lack of documentary evidence being provided and also raises concerns about the case as put. In substance, the applicant seeks to review the merits of the fee waiver decision. It is not open to this Court to review the merits of an administrative decision-maker under the Migration Act, but only to exercise the power of judicial review.
In the circumstances of this case, I am not persuaded that there is an error that would support constitutional writs with respect to the fee waiver decision.
In any event, it appears unclear whether this Court would have jurisdiction with respect to such a decision. However, given that I have failed to find any error on the part of the decision-maker, that point becomes academic.
If, as in the case of Ong v Minister of Immigration and Citizenship and Anor [2010] FMCA 649, heard earlier today, the applicant is seeking a judicial review of the delegate’s decision, I note that the Court does not have jurisdiction to judicially review such a decision and nor does the Federal Court of Australia. Only the High Court of Australia has such jurisdiction and it is not open to me to transfer the matter to the High Court, nor has it been squarely been raised in the application. In all of the circumstances of this case, I therefore have no option but to refuse the application of the applicant.
In this application, the applicant has been wholly unsuccessful. The first respondent has succeeded and seeks costs of $5000, which are less than the scale fee. The matter has taken a fairly unremarkable course through the courts and it appears to be within the range of matters covered by the scale. Ultimately, I am persuaded that the fee sought is an appropriate fee in this matter.
In the question of whether or not the applicant should pay the first respondent’s costs, the applicant sets out that she does not have the capacity to make that payment. In matters of this type, costs ordinarily follow the event, in other words, the party who is successful in the proceedings receives costs payable on the scale from the other party. It is not the law that, because the other party does not have the funds to meet a costs judgment, that a costs order ought not to be made. In the circumstances, I therefore order that the applicant pay the first respondent’s costs, fixed at $5000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 25 August 2010
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