Message v Minister for Home Affairs
[2018] FCCA 2132
•6 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MESSAGE v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2132 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – where no fee paid with application – where fee reduction sought – where no fee paid at all – where Tribunal determined that no valid application had been commenced. |
| Legislation: Migration Act 1958 (Cth), ss.116, 338(3), 338(4), 347(1)(b)(i), 347(1)(c), 494(c)(4)(a) |
| Cases cited: Benissa v Minister for Immigration and Border Protection [2016] FCA 76 |
| Applicant: | STEVEN MESSAGE |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 16 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 11 January, 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 16 of 2018
| STEVEN MESSAGE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the second respondent given on 12 December, 2017 which found that it did not have jurisdiction to review a decision of a delegate of the first respondent to cancel the applicant’s Special Category (Class TY) (subclass 444) visa.
The applicant says that the second respondent was wrong to dismiss his proceedings on the basis that he had not paid the relevant application fee because he had applied for a fee waiver and he did not receive notice of the amount he had to pay before the time for commencing his review application had expired. Although he did not articulate his case in this way, it seems to me that his claim is that the second respondent wrongly denied itself jurisdiction to deal with the applicant’s review application and that its decision in the circumstances was wholly unreasonable.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Background
The applicant is a citizen of New Zealand. He arrived in Australia on 6 February, 2002 and was granted a Special Category (Class TY) (subclass 444) visa.
Between 2002 and 2017, the applicant was convicted of numerous offences and according to the material before me, has further criminal matters to be dealt with by a criminal court. He is currently in detention on those charges.
On 5 September, 2017 a delegate of the first respondent issued a notice of intention to consider cancellation of the applicant’s visa under s.116 of the Migration Act 1958 (Cth). The delegate considered that, given the nature and repetition of the applicant’s criminal conduct (including the extremely serious and repeated pattern of behaviour), it appeared that his presence in Australia was or may be a risk to the safety of the Australian community such that grounds for cancellation of his visa existed under s 116(1)(e)(i) of the Act. The delegate invited the applicant to comment upon those matters.
On 28 September, 2017 the applicant provided a response to the notice. However, on 29 September, 2017 the delegate cancelled the applicant’s visa pursuant to s.116(1)(e)(i) of the Act.
On 19 October, 2017 the applicant applied to the second respondent for review of the delegate’s decision. The applicant also submitted a request for a fee reduction. On the same day, an officer of the second respondent sent an email to the “Contract Compliance Manager” of the correctional centre where the applicant is held. That email provided that:
Good afternoon Mr Message
Your application for review of your visa cancellation (TY144) was received at the Tribunal today.
I acknowledge that you have submitted a request for fee reduction however it is still necessary for you to pay a fee. You are eligible to pay the reduced fee of $865.50 as you have submitted the application for fee reduction.
This fee must be paid by close of business tomorrow (20 October 2017). There is no allowance for an extension of time for this payment to be made. If this payment is not made you will lose your right of review before the Tribunal.
The Tribunal accepts payment via money order, cheque, cash, eftpos and credit card. The Tribunal can make credit card payments over the phone or via email.
Kind regards
Alan
On the same day, the Contract Compliance Manager sent an email in the following terms to the second respondent:
Alan ,
This message has been provided to prisoner Steven Message.
Regards
Mick Ohlin
Contract Compliance Manager
Mr Message did not pay the fee by the time stipulated in the second respondent’s email.
On 3 November, 2017 the second respondent wrote to the applicant inviting him to comment on the validity of his application for review. The second respondent noted that it was of the view that the application was not valid because the applicant did not pay the prescribed fee before the expiry of the time limit for lodging the application. No response was received to that letter.
On 12 December, 2017 the second respondent found that it did not have jurisdiction to review the delegate’s decision. The second respondent explained:
3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994 (‘the Regulations’), this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced to 50% of the prescribed fee on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 20 October 2017.
4. An application for review will not be valid for the purposes of s.347(1)(c) in circumstances where the applicant lodges a fee reduction request with the review application, but does not pay 50% of the prescribed fee prior to the end of the prescribed period within which the review application must be made. In the present case, an application for the Tribunal to reduce the prescribed fee was lodged with the review application on 19 October 2017. No fee payment accompanied the review application or fee reduction request.
5. On 19 October 2017, the day the review application was lodged, an officer of the Tribunal Registry corresponded by email with the Contract Compliance Manager of the Arthur Gorrie Correctional Centre (where the applicant is being held) advising of the requirement for the applicant to pay the reduced fee of $865.50 by close of business on 20 October 2017, in order to make a valid application for review. By return email correspondence on 19 October 2017, the Contract Compliance Manager confirmed the Tribunal’s correspondence had been provided to the applicant. No payment of 50% of the prescribed fee was made by the applicant before the end of the prescribed period on 20 October 2017.
6. In order to afford the applicant natural justice, by correspondence dated 3 November 2017, the Tribunal Registry wrote to him inviting his comment by 28 November 2017 on the validity of the application for review, in light of the lack of payment of an application fee. At the date of this decision, no response from the applicant to this correspondence has been received by the Tribunal.
7. The Tribunal notes that the applicant was placed upon notice by correspondence on 19 October 2017 from a Tribunal Registry officer, conveyed by the Contract Compliance Manager of the Arthur Gorrie Correctional Centre, that he was required to pay 50% of the prescribed fee before the end of the prescribed period, in order to lodge a valid application in his circumstances. Additionally, correspondence from the Tribunal dated 3 November 2017 provided the applicant with an opportunity to comment upon the validity of his application for review and he chose not to respond.
8. No application fee has ever been received by the Tribunal from the applicant. Accordingly, following careful consideration, the Tribunal finds that as the applicant did not pay 50% of the prescribed fee prior to the end of the prescribed period, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
Grounds of review
The applicant specifies his grounds of review as follows:
1. A mistaken denial of the very existence of jurisdiction.
2. Disregarding relevant considerations and paying regard to irrelevant considerations.
3. Breaching the hearing rule of natural justice.
4. Making a decision that was seriously illogical, irrational and unreasonable.
5. A denial of procedural fairness.
These grounds are vague and generic. However, the applicant’s oral submissions reveal a general grievance with the approach of the second respondent and an issue of fact – namely whether he received the second respondent’s notification about having received the fee reduction in having to pay the fee by the close of business on 20 October, 2017. The applicant asserts that despite the evidence referred to by the second respondent, he was not given the relevant notification by the second respondent until 21 October, 2017 after the relevant time period had expired.
The first respondent’s written submissions set out the way in which the relevant time for the bringing of an application for review is calculated. The delegate’s decision is a Part 5-reviewable decision mentioned in s.338(3) of the Act, because it was made by a delegate, not the Minister personally and was not one to which s.338(4) applied. Subsection 347(1)(b)(i) of the Act requires the application for review to be lodged within the prescribed period. Subsection 347(1)(c) requires that the application be accompanied by the prescribed fee (if any).
The prescribed period for a Part 5-reviewable decision mentioned in s.338(3) of the Act, for the purposes of s.347(1)(b), is seven working days after the day on which the applicant receives notice of the delegate’s decision. The calculation of the prescribed period therefore turns on when the applicant received notice of the delegate’s decision.
In the present case, the delegate’s decision was dated 29 September, 2017 and appears to have been transmitted by registered post to the correctional centre in which the applicant was then held. An email was also sent to the QLD Compliance Field Operations email address notifying them that the applicant’s visa had been cancelled. Pursuant to s.494C(4)(a) of the Act, the applicant was taken to have received notification seven working days after the date of the document, being 10 October, 2017.
In those circumstances, the second respondent was correct to find that the application was lodged within the prescribed period. There is no error in this respect.
But the application was not lodged with the prescribed fee. In Grey v Minister for Immigration & Anor [2018] FCCA 1564 I summarised the authorities referred to by the first respondent in his written submissions as follows:
14. Counsel for the first respondent has usefully drawn my attention to a number of cases which potentially bear on the decision that needs to be made in this case. The starting point is Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99. That case dealt with the Regulations and the Act as it existed then. The relevant sections are now in a different form. Relevantly however, s.339(1) of the Act required the application for review to be lodged within a prescribed period and accompanied by the prescribed fee. The decision in that case was to the effect that the text of the subsection imposed a condition, strict compliance with which was necessary to invoke the jurisdiction to review.
15. The decision in Kirk has been followed on a number of occasions. The next decision to which I have been taken is Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364. There, the Full Court considered a slightly different factual issue to Kirk. It considered a situation where the application for review and the request for fee waiver had been lodged within the prescribed period and the request for the fee waiver had been rejected.
16. The applicant had asked for a reconsideration of the rejection and for an extension of time, presumably within which to pay the fee. The Tribunal refused those requests and the prescribed period having elapsed, it determined that it had no jurisdiction because the application for review was invalid.
17. The Full Court made some comments about Kirk after considering that decision and set a slightly different course. It said this:
51.…where an applicant for a visa makes an application for a waiver of prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s.347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.
18. Here, the first respondent says that this case is quite different to Braganza and Kirk because, first there is no longer any capacity to waive the fee in its entirety. Second, that must mean that something must be paid, whether it is the whole fee or half of it. Third, on the facts of this case, nothing was paid within the prescribed period. The subtext of the argument seems to be that even if the court was to follow Braganza, at least half of the fee should be paid within the prescribed period. And, if the fee waiver is ultimately rejected, a reasonable time should be permitted to the applicant to pay the balance of the fee. That argument seems to fit comfortably with the reasoning in Braganza.
19. But the reasoning in Braganza has been the subject of some adverse comment. In Parmar v Minister for Immigration [2018] FCA 502, Dowsett J, sitting as the Full Court for the purposes of a migration appeal from a judge of this Court, considered what was said in Braganza and said this at paragraph 21:
In the course of the proceedings, I expressed some doubt concerning the assumption that non-payment of the fee led to invalidity, notwithstanding the earlier decisions which proceeded on that basis. I suggested that given the relatively liberal approach taken to s 347 in Braganza and other cases, and having regard to the wording of ss 347 and 348, consideration should have been given to the effect of the High Court’s decision in Project Blue Sky v Australian Broadcasting Corporation (1998) 194 CLR 355. It seems that such an argument was raised in Braganza, but that the Court did not have to consider it. Any argument that non-payment of the fee would not necessarily lead to invalidity may have derived some support from the similarities and differences between ss 46 and 47 of the Migration Act and ss 347 and 348. Sections 46 and 47 dealt with visa applications and the consequences of non-payment of fees for such applications. Section 46 expressly provided that payment of the fee was necessary in order that the application be valid. Further, s 45 expressly prohibited consideration of a visa application which was not a valid application. On the other hand, neither s 347 nor 348 referred to validity. Section 348 required the Minister to consider an application which was ‘properly made’ and prohibited consideration of a decision in relation to which the Minister had issued a certificate under s 339, a provision which is not presently relevant. Section 348 said nothing about applications not properly made.
20. His Honour did not decide the point about non-payment of the prescribed fee and the decision in Braganza. Whilst his Honour considered issuing a pro bono referral certificate so that the applicant might receive advice concerning the point and possibly representation at a subsequent hearing, his Honour eventually decided against that course because he determined that there was no point in permitting the application to succeed. The application for the visa was bound to fail in any event. See paragraph 24 of his Honour’s decision.
21. As the written submissions for the first respondent point out, whilst some doubt has been cast upon the decisions which tend to suggest that payment of the prescribed fee is a necessary pre-condition to the engagement of the tribunal’s jurisdiction for the reasons expressed by Dowsett J in Parmar, I am nonetheless bound by Kirk and Braganza. And those decisions have been followed on a number of occasions, both in this Court and in the Federal Court.
The first respondent argues that the facts of this matter are different to those in Kirk and Braganza. The first point of distinction is said to be the legislative scheme because there is no longer a power in the Regulations to waive the fee entirely, only to reduce it. Next, it is argued that an applicant must pay either an application fee or a reduced application fee within the prescribed period. Finally, it is not in dispute that even though the second respondent had granted the reduction of the prescribed fee, it was not paid by the expiry of the prescribed period.
The first respondent argues that the decision in Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095 at [4], supports the argument that the applicant’s review application should have been accompanied by at least 50% of the prescribed fee:
4. A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs to which I referred in my earlier reasons.
I also accepted the first respondent’s argument in Grey v Minister for Immigration & Anor (above):
[22] …. I am satisfied that payment of the prescribed fee or at least 50 per cent of the prescribed fee, given that the regulations no longer permit a full waiver of the entire fee, is a necessary precondition to the invocation of the second respondent’s jurisdiction to review a decision of a delegate of the first respondent. Here, there was no payment. Here, the preconditions were not met. The Tribunal’s decision was correct. There is no illogicality, irrationality or unreasonableness about it in the legal sense. Accordingly, the application for review must be dismissed.
The decisions in Kirk and Braganza have been followed subsequently in the Federal Court: e.g., Benissa v Minister for Immigration and Border Protection [2016] FCA 76; Kumar v Minister for Immigration and Border Protection [2015] FCA 898; Ong v Minister for Immigration and Citizenship [2010] FCA 1259; El Mourani v Minister for Immigration and Citizenship [2010] FCA 289
Initially, I was troubled by the applicant’s claim that he had not been provided with the notice given to him by the second respondent about the success of his fee waiver application and he was thereby deprived of the opportunity to pay the reduced fee before the time limit for the commencement of his review application expired. It was possible that the issue of fact identified by him – whether he had in fact been notified of the second respondent’s decision on the fee waiver when his goalers said he was – needed to be determined.
However, on reflection, whether he was provided with that notice or not is not to the point. As the authorities to which I have referred to above indicate, payment of the prescribed fee or at least 50% of the prescribed fee is a necessary precondition to the invocation of the second respondent’s jurisdiction to review a decision of a delegate of the first respondent. Here, there was no payment within the time prescribed for lodging the application for review.
Conclusion
I accept the first respondent’s argument that the second respondent correctly found that its jurisdiction was not enlivened and that the application was invalid. The decision was not illogical, irrational or unreasonable in the legal sense. The second respondent could come to no other conclusion.
The application must be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 August, 2018.
Date: 6 August, 2018
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