Okeke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1311
•11 June 2021
Federal Circuit Court of Australia
Okeke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1311
File number(s): BRG 436 of 2020 Judgment of: JUDGE EGAN Date of judgment: 11 June 2021 Catchwords: MIGRATION – Application for Skilled Visa – Applicant failed to pay the full prescribed fee with application for review to Tribunal – requirement for fee or reduced fee to be paid within the prescribed period – payment made outside prescribed period – finding by Tribunal that it had no jurisdiction to hear and determine the application – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) rr 4.10, 4.13, 189.214(2).
Migration Act 1958 (Cth) ss 66(2)(d)(ii), 347.
Cases cited: Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 34 Date of last submission/s: 8 June 2021 Date of hearing: 8 June 2021 Place: Brisbane Applicant: Mr Anthony Okeke Solicitor for the First Respondent: Ms Parer of Clayton Utz Second Respondent Submitting appearance save as to costs ORDERS
BRG 436 of 2020 BETWEEN: ANTHONY OKEKE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
11 June 2021
IT IS ORDERED THAT:
1.The Application for Review filed on 30 July 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Nigeria who arrived in Australia in 2015 hoping to work as a Network and Systems Engineer. At the time of the Court hearing, the applicant was a prisoner incarcerated in the Arthur Gorrie Correctional Centre.
On 30 July 2016, the Applicant applied for a Skilled Independent (Permanent) (Class SI) Visa. On 10 March 2020, a delegate of the Minister refused to grant to the applicant the visa on the basis that the Applicant’s assessed score was less than the applicable pass mark required for the grant of the visa pursuant to the provisions of r. 189.214(2) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
Regulation 189.214(2) of the Regulations provided as follows:
“(2) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note: Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.”
On 31 March 2020, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. With such application, the applicant lodged a fee reduction request form, without providing any evidence of payment of, or payment details for, the prescribed fee. [1]
[1] Court Book (‘CB’) pp. 394 – 398 inclusive.
On 31 March 2020, the Tribunal wrote to the Applicant confirming receipt of the applicant’s application. [2] Within such letter, the Tribunal noted that the applicant’s fee reduction request was incomplete, stating that the applicant had failed to provide payment details for the payment of the requested 50% fee reduction amount, and that he had also failed to provide any documentation in support of his request. The letter provided as follows:
“Dear Mr Anthony Onyeka Okeke
You lodged an application earlier today requesting a review of a notification of refusal of application for a Skilled Independent (Permanent) (class SI) Skilled - Independent (subclass 189) visa.
The Tribunal notes that you lodged a request for a 50% fee reduction with the application form. Unfortunately you have not completed Part I - Payment details (page 9 of the application form) to nominate a payment method or authorise the Tribunal to deduct the 50% fee reduction amount of $893.50. The Tribunal also notes that you have not included any supporting documents with this form.
Please note the reduced application fee must be paid within 21 calendar days after the day on which you are taken to have received the notification of decision. The Tribunal has been unable to contact you to obtain your authority and payment details to process this application fee as you have not included a contact telephone number in the application form.
If it is your intention to pay the reduced fee of $893.50 within 21 calendar days after the day on which you are taken to have received the notification of decision please reply to this email and advise how you will pay this application fee or resend the application form and ensure that you fully complete Part I - Payment details authorising the Tribunal to process the application fee.
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely”
[2] CB p. 400.
Pursuant to the provisions of s. 347(1) of the Migration Act 1958 (Cth) (‘the Act’), r 4.10(1)(a) and r. 4.13(4) of the Regulations, a valid application for review to the Tribunal must be made within the prescribed period of 21 days, and was to be accompanied by payment of the prescribed fee.
Section 347(1) of the Act relevantly provided that an application for review of a decision of the delegate must be given to the Tribunal no later than twenty-eight (28) days from the date of the applicant’s notification of the decision, and that it must be accompanied by payment of the prescribed fee. Section 347(1) provided as follows:
“347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑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 Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).”
Regulation 4.10 of the Regulations relevantly provided as follows:
“4.10 Time for lodgement of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a) if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
(b) if the Part 5‑reviewable decision is mentioned in subsection 338(3) or (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or
(c) if the Part 5‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or
(d) if the Part 5‑reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
(2) However, the period in which an application by a detainee for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a) in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act—starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or
(aa) in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies—starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or
(b) in any other case—starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.
(2A) For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of a Part 5‑reviewable decision prescribed under subsection 338(9) of the Act is 28 days.
Note:For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.”
Regulation 4.13 of the Regulations relevantly provided as follows:
“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.
Note: The fee in subregulation (1) is subject to increase under regulation 4.13A.
(2) No fee is payable on the following:
(a) an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act;
(b) an application, made by a non‑citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies.
(3) If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.
(4) If the Registrar of the Tribunal 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 may determine that the fee payable is 50% of the amount mentioned in subregulation (1).”
On 1 April 2020, the day after the 31 March 2020 letter was sent, the applicant wrote to the Tribunal stating that the applicant was in custody, and that he would therefore need ‘some days to arrange for someone to make a payment for me over the phone.’ [3]
[3] CB p. 415.
On 7 April 2020, the Tribunal wrote to the applicant advising him that, in the Tribunal’s view, the application for review was invalid because the applicant had failed to pay the requisite prescribed fee at the time of the lodgement of the application for review within the prescribed time frame. That letter was no doubt sent because payment of the prescribed fee had not been made within a period of twenty-eight (28) days after notification of the making by the delegate of the 10 March 2020 decision, and because payment of the reduced application fee had not been made twenty-one (21) days of the date on which the applicant was taken to have received notice of the 10 March 2020 decision.
The only payment made by the applicant was the reduced application fee in the amount of $893.50, but that amount was only received by the Tribunal on 28 April 2020, [4] well after the expiration of the relevant time limits required for payment.
[4] CB p. 420.
On 26 June 2020, the Tribunal decided that because no part of the prescribed fee had been paid within the prescribed period, the Tribunal did not have jurisdiction to entertain the application for review of the decision of the delegate.
On 30 July 2020, the applicant filed an Originating Application for Review, the grounds of which were as follows:
“1. I lodged my application to the tribunal within the prescribed period.
2. I sent my application fees by mail (cheque) which the tribunal received during the peak of COVID-19 (APRIL) with community lockdown and delay with postal office.
3. S. 347(1) of the Act and r. 4.13 of the Migration Regulations 1994 provide that application had to be given to the tribunal within the prescribed period, as specified in s. 347(1)(b).
My application was received within the prescribed period as well as payments. However the Administrative appeals Tribunal did not review my application for a merit review.”
Grounds 1 and 2 do not constitute proper grounds for review, as they were each merely recitations of factual matters which the applicant claimed reliance upon.
Ground 3 of the Application for Review was a claim that by reason of the provisions of s. 347(1) of the Act, and r. 4.13 of the Regulations, the applicant had validly made application to the Tribunal for review of the decision of the delegate. It was further claimed that his application and payment were each received within the prescribed period. There is no merit to such claims.
Regulation 4.13 of the Regulations provided that to the extent that any fee reduction might be determined as appropriate by the Registrar, the fee reduction amount was to be no more than 50% of the prescribed fee.
In Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 102 – 103, when dealing with an analogous factual scenario, Lehane J said:
“Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view that it is equally essential that the application "be accompanied by the prescribed fee (if any)". The requirement that the application be "accompanied" by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be "given": similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v RemovalReview Authority [1994] 1 NZLR 73. Fisher J held also that the requirement that an appeal be "accompanied by the prescribed fee" meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice. In the present context, where s 339(1) provides that each step "must" be taken, both (giving effect to the word "accompanied") within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review.
…
In my view the applicant's submissions on that second question fail also. As I have already said, a requirement that an application be accompanied by the prescribed fee must mean, at least, that the fee be paid not later than the period within which the application must be given to the Secretary. It is wen established by high authority that when a cheque is given and accepted for the purpose of paying an amount due, the amount due win be treated as paid on the date the cheque is given provided that the cheque is met on presentation; but not otherwise.”
The case of Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 relied upon by the applicant was distinguishable from the present case because, unlike in the present case, there was there an ability under the Act for the Registrar to waive the application fee in its entirety. In the present case, to the extent that anything less than the full fee was payable, not only was 50% of the full fee payable, but such amount was required to be paid within the prescribed period. No such payment was made by the applicant within the prescribed period.
The applicant failed to convince the Tribunal that there had been satisfaction of one of the primary criteria for the submission of an application for review by the Tribunal, namely, payment of the prescribed fee. The Tribunal, in such circumstances, did not err in finding that it had no jurisdiction to hear and determine the application for review made by the applicant.
A further Ground of review raised by the applicant in his submissions filed on 2 June 2021 was that the provisions of s. 66(2)(d)(ii) of the Act had not been complied with by the Department. It was submitted that the notification of refusal of the application for the visa did not “state” the time within which the application for review was required to be made, and that, therefore, time had relevantly not commenced to run. The effect of the submission was that because the applicant had paid the sum of $893.50 on 28 April 2020, the payment was not made out of time.
Notice of refusal of the visa application, together with the decision record, was sent to the applicant by email on 10 March 2020. [5] It was conceded on behalf of the first respondent that the application for review of the decision of the delegate had been made by the applicant within the prescribed twenty-one (21) day period.
[5] CB pp. 346 – 374.
Placing reliance upon the decision of the Full Court of the Federal Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, it was submitted by the applicant that the notice of refusal of application for visa letter of 10 March 2020 sent by the Department to the applicant did not “state” the date by which the applicant was required to apply to the Tribunal for merits review of the decision of the delegate. There is no merit to such claim.
In DFQ17, the Court was there dealing with a notice of refusal letter which, under the heading “Review rights”, said as follows:
The notice of refusal of visa application sent to the applicant in the present case, under the heading “Review rights”, provided as follows:Such information as was provided to the applicant by the 10 March 2020 letter was significantly different from the information conveyed to the applicant in DFQ17. In DFQ17, there was no identification of the date from which the applicant was to calculate the twenty-one (21) day period within which the application for review had to be made. In the present case, there was such an identification. It must be taken that the applicant was under no illusion as to what the notice required, because he made the relevant application for review within the stated period.
The Court finds that the identification of the period within which the applicant was required to make application for review of the decision of the delegate, as set out in the 10 March 2020 letter, was complete and clear. The Court respectfully adopts what was said by Perram J in DFQ17 at [57] – [58] as follows:
“[57] Regardless of which of these three definitions most comfortably fits the language of s 66(2), they all have a flavour of precision, formality or definitiveness. Those meanings are consonant, so it seems to me, with the observations made by Allsop J in Zhan as to how the scheme of the Act operates in relation to time limits. The regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear.
[58]I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete (as Zhan holds) but clear as well. This required the letter of 3 February 2017 annexed below clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.”
The judgment of Perram J was not inconsistent with what was said by the High Court in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 at [40] – [42] as follows:
“[40]The obligation in s 501CA(3)(b) of the Migration Act required the Minister to invite the respondent to make representations about revocation to the Minister "within the period and in the manner ascertained in accordance with the regulations". The letter from the delegate of the Minister contained an invitation to make representations in the manner ascertained in accordance with the regulations: for instance, it provided that the representations must be in writing and in English or accompanied by an English translation, referring to reg 2.52. And it correctly referred to the 28-day timeframe for making representations, which could not be extended. But in the absence of any manner of ascertaining that 28-day period, and by incorrectly saying that the respondent was "taken to have received [the letter] at the end of the day it was transmitted [by email]" (which was 3 January 2017), the letter did not invite representations "within the period ... ascertained in accordance with the regulations".
[41]The Minister submitted that s 501CA(3)(b) did not require the Minister to specify the date by which representations must be made and he submitted that the period during which representations must be made may be left to the respondent to determine. These submissions can be accepted. But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations "within the period and in the manner ascertained in accordance with the regulations" also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister's power to revoke the cancellation decision that representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.
[42]For these reasons, an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as "28 days from the day that you are handed this document". The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.”
The Tribunal did not err when it found that it had no jurisdiction to hear and determine the application made to it for review of the decision of the delegate.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131]and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal
The Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 11 June 2021
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