Park v Minister for Immigration

[2009] FMCA 1105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1105

MIGRATION – Visa – Child (Residence) (Class BT) visa – Migration Review Tribunal – application for review of a decision of the MRT affirming a decision of a delegate of the Minister not to grant the visa – applicant over 25 at time of application and not incapacitated – application for fee waiver – fee waiver refused – application not a valid application – no reviewable error.

Migration Act 1958 (Cth), ss.347,476
Migration Regulations 1994 (Cth), Schedule 2 reg.802.212

Sadeq v Minister for Immigration & Anor [2009] FMCA 967
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
Patel v Minister for Immigration and Citizenship [2009] FCA 392
Khan v Minister for Immigration and Citizenship [2009] FCA 443

Applicant: JIN HO PARK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1529 of 2009

Judgment of: Scarlett FM

Hearing date: 3 November 2009

Date of Last Submission: 3 November 2009

Delivered at: Sydney

Delivered on: 3 November 2009

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5865.00 and I allow 6 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1529 of 2009

JIN HO PARK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Migration Review Tribunal.  The Tribunal made a decision on 29 May 2009 that it did not have jurisdiction to hear the applicant’s application for review.  The applicant was seeking review of a decision of a delegate of the Minister for Immigration and Citizenship refusing to grant him a Child (Residence) (Class BT) visa.  In his application to the court, the applicant has asked for orders quashing the Tribunal decision and ordering the Tribunal to consider and accept his review.  That application is opposed by the Minister for Immigration and Citizenship, who asks the Court to dismiss the application and make an order that the applicant pay the Minister's costs. 

2. It has been explained to the applicant that in order to make the orders that he seeks, the Court must be satisfied that the Tribunal decision is effected by jurisdictional error.  The applicant relies on three grounds where he says the Tribunal has committed jurisdictional error.  The grounds in his application are as follows: 

   (1)    The MRT misunderstood my financial hardship. 

   (2)    The MRT misapplied the law. 

   (3)The MRT ignored the evidence given. 

   The Minister for Immigration and Citizenship does not admit that there is any jurisdictional error in the Tribunal decision. 

Background

1. The background of this matter is that the applicant is a citizen of South Korea.  He has applied for a Child (Residence) (Class BT) visa.  He lodged that application on 28 July 2008.  In his application, he set out that his date of birth is 27 February 1958[1].  With his application, he lodged a form entitled Sponsorship for a Child to Migrate to Australia.  That form was completed by his sponsor who is, in fact, his son.  The applicant’s son was born on 5 February 1985[2]. 

   [1] See Court Book at page 2

   [2] See Court Book at page 17 and 18

2. The applicant also appointed an authorised recipient to receive communication for him.  That authorised recipient is Mr Toufic Laba-Sarkis.  Mr Laba-Sarkis is not a migration agent, but he has described himself as a community volunteer[3]. 

   [3] See Court Book at page 29

3. A delegate of the Minister for Immigration and Citizenship refused the application for a Child (Residence) (Class BT) visa on 14 January 2009[4]. The delegate’s reasons are set out at pages 40 and 41 of the court book in the decision record. 

   [4] See Court Book at page 37

4. The delegate referred to the prescribed criteria in clause 802.212 of schedule 2 of the regulations. Those criteria require an applicant to be a dependent child of an Australian citizen, holder of a permanent visa, or eligible New Zealand citizen and, subject to subclause (2), has not turned 25. Subclause (2) contains an exception if an applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition of “dependent child”. Such a person is one who has turned 18 and:

   (1)    is dependent on the sponsor;  and

   (2)is incapacitated for work due to the total or partial loss of the child's bodily or mental functions. 

5. The delegate noted:

   At the time of application, the applicant was aged 50.  There has been no evidence provided to suggest that the applicant is incapacitated for work.  I am not satisfied that, at the time of application, the applicant was incapacitated for work due to the total or partial loss of their bodily or mental functions[5]. 

   The Tribunal noted that the applicant did not meet either subclause 802.212(1) or 802.212(2). 

   [5] See Court Book at page 41

6. After his application was refused, the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.  That application was lodged at the Tribunal on 11 February 2009[6]. At the time of lodging the application for review, the applicant also lodged an application to waive the fee for the Tribunal hearing.  A copy of the application for fee waiver can be found at pages 50 to 58 of the court book. 

   [6] See Court Book at page 42

7. The Tribunal wrote to the applicant on 12 February 2009 acknowledging receipt of the application.  As requested in section F of the application to the Tribunal, the Tribunal forwarded this letter to the applicant care of Toufic Laba-Sarkis, at his postal address in Burwood.  The Tribunal wrote again on 26 March 2009.  That letter told the applicant that the information did not satisfy the Tribunal that the fee should be waived. 

8. The letter asked the applicant to provide the following further information: 

   (1)A statement showing when and where he last held and operated a bank account. 

   (2)Details of when he last worked and how much he was paid, along with a copy of a tax assessment notice. 

   (3)A statutory declaration from his son to whom he claimed he owed the sum of $20,000. 

   (4)A statement from the applicant showing what that money was used for. 

   (5)Any further information the applicant wished to provide. 

9. The Tribunal’s letter of 26 March contained within it a time limit for providing the information.  The letter said: 

   Please provide a response in writing within 14 days of receiving this invitation.  As this letter has been posted, you will be considered to have received this letter seven working days after the date of the letter.  We will then make a decision on the fee waiver based on the information we currently have and any further information you provide[7]. 

   The Tribunal did not receive a reply to its letter within the time limit provided. 

   [7] See Court book at page 63

10. Accordingly, the Tribunal refused the request for a waiver of the fee.  In a letter dated 22 April 2009, the Tribunal gave this reason to the applicant: 

    You did not provide all the information requested with your application for fee waiver.  On 26 March 2009, the Tribunal wrote to you requesting further information by 20 April 2009.  To date you have not responded to this request or contacted the Tribunal[8]. 

    [8] See Court Book at page 65

11. The Tribunal's letter asked the applicant to pay the $1400 application fee within 14 days of receiving the letter.  Again, the letter told the applicant that he would be considered to have received it seven working days after the date of the letter.  The Tribunal, on 29 May 2009, found that it did not have jurisdiction in the matter.  The Tribunal noted that the applicant had asked it to waive the prescribed application fee on 11 February 2009, and went on to say: 

    An authorised Tribunal officer decided on 21 April 2009 to refuse the request for fee waiver because the officer was not satisfied that the payment of the fee would cause the applicant, or is likely to cause him, severe financial hardship.  The Tribunal wrote to the applicant on 22 April 2009, advising him of this decision and requesting that the prescribed application fee be paid within 14 days of receiving the Tribunal’s letter.  This made the last date for payment of the fee 15 May 2009.  The applicant was informed that if the fee was not paid the Tribunal may decide that the review application was invalid[9]. 

    The Tribunal noted that the applicant did not contact the Tribunal and no payment had been received. 

    [9] See Court Book at page 73

12. The Tribunal found that the applicant had been given a reasonable period to pay the prescribed application fee since being notified of the decision to refuse to waiver it.  Because the prescribed application fee had not been paid, nor had it been waived, the application for review was not a valid application.  Accordingly, the Tribunal found that it had no jurisdiction in the matter. 

13. The applicant commenced proceedings in this court on 26 June 2009 by filing an application and an affidavit in support.  His application claims that the Tribunal misunderstood his financial hardship, misapplied the law, and ignored the evidence given.  The applicant subsequently filed, on 2 September 2009, an affidavit setting out a number of matters. 

14. In his affidavit, the applicant states that since his work permit was taken away from him, he had been supported by his son for approximately two years.  He claimed that in his application for fee waiver, he had clearly stated that his living expenses were met by his son and that his son’s business had collapsed.  He went on to make this claim in paragraph 4 of his affidavit: 

    On 30 May 2009, I gave information to the Tribunal to establish the financial hardship of my son.  The information was posted to the Tribunal on that day with a statutory declaration.  The decision was made on 1 June 2009, which indicates that the statutory declaration and the information which I attached to the court were not received at the time of the decision.  I still believe that the Migration Review Tribunal ignored my financial circumstances and even though I was given, according to their decision, a reasonable time to pay the fee, I was not give a reason as to why the fee should not be waived[10]. 

    The applicant annexed to his affidavit a number of financial documents, and a copy of a statutory declaration declared 30 May 2009. 

    [10] See Applicant’s affidavit filed on 2 September 2009

15. The applicant made oral submissions to the court with the assistance of an interpreter in the Korean language.  He confirmed that he had received the correspondence from the Tribunal.  He said that he went to the community volunteer, meaning Mr Laba-Sarkis, with his son, and completed a statutory declaration.  He said that he had posted it to the Migration Review Tribunal.  He also said that he now had no family in Korea, and that his family lived in Australia. 

16. He said that he would be persecuted if he returned to Korea.  He also said that his application would enable the Minister to intervene in his case.  When asked why he had taken so long to complete the statutory declaration, the applicant told the court that, maybe, there had been a miscommunication with Mr Laba-Sarkis, or maybe he had misunderstood the Tribunal's letters. 

17. Appearing for the Minister, Ms Crittenden, solicitor, submitted that the applicant had not provided any evidence that he had sent this material to the Tribunal, and there was nothing on the Tribunal file answering the description of the statutory declaration that the applicant had said that he had sent about 30 May 2009.  Indeed, there was no evidence that the applicant had sent any correspondence to the Tribunal, aside from his application for review and application for fee waiver. 

18. In any event, the material sent by the applicant on his account was sent too late for the Tribunal to consider it before it made its decision.  In oral submissions, Ms Crittenden told the court that matters raised by the applicant relating to persecution in Korea and a proposed application to the Minister for intervention were irrelevant to the matters which the court has to decide. 

19. The matter before the court is one that has had to be considered recently in a decision called Sadeq v Minister for Immigration & Anor[11].  In that decision, at paragraphs [31] to [33], I set out what I consider to be the relevant law. 

    (31)The situation at law is that section 347 of the Migration Act sets out the requirements for an application for review by the Migration Review Tribunal. The application must be made in the approved form. It must be given to the tribunal within the prescribed period and must be accompanied by the prescribed fee. All of that is set out in subsection 347(1) of the Act. However, the Tribunal has the power, under the regulations, to waive the application fee if tribunal is satisfied that payment of that fee has caused or would cause financial hardship to the applicant.

    (32)      If the applicant seeks waiver of the fee within the prescribed period, then the application will be a valid application provided the application fee is either waived or if it is paid within a reasonable time after the fee waiver request has been refused. 

    [11] [2009] FMCA 967

20. I am referred to the decision of Braganza v Minister for Immigration and Multicultural Affairs[12], which is a decision of Wilcox, Weinberg and Stone JJ.  Their Honours held: 

    Where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with regulation 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, subsection 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[13].  However, if the Tribunal refuses the application for waiver of the fee, the Tribunal must give the applicant a reasonable period of time to pay the application fee in light of the applicant’s particular circumstances (see, in particular, Patel v Minister for Immigration and Citizenship[14].) 

    [12] (2001) 109 FCR 364

    [13] See at [51]

    [14] [2009] FCA 392

21. In the matter under review, the applicant applied for a waiver of the fee.  The Tribunal wrote to the applicant at the address for correspondence that he had given, asking him to provide further information to support his application.  That letter was dated 26 March 2009.  I am satisfied from annexure A to the affidavit of Jaimee Dinihan sworn 1 September 2009, that this letter was sent to the applicant by registered post on 27 March 2009. 

22. The letter asked the applicant to provide the information within 14 days of receiving the letter and informed him that he would be considered to have received the letter seven working days after the date of that letter.  Thus the applicant had until 20 April 2009 to provide the information.  It is conceded that he did not do so. 

23. On 26 April 2009, the Tribunal wrote to the applicant advising him that his application for waiver of the fee had been refused.  The letter asked the applicant to pay the application fee within 14 days of receiving the letter.  Again, it was explained to the applicant that he would be considered to have received the letter seven days after its date.  Thus, he was given until 15 May 2009 to pay the fee.  It is conceded that he did not do so. 

24. The matter was allocated to a Tribunal member after that date and the Tribunal decided on 29 May 2009 that, as the fee had neither been paid nor waived, the Tribunal did not have jurisdiction because it was not a valid application. 

25. The applicant claims that he forwarded a statutory declaration to the Tribunal after he had seen Mr Laba-Sarkis, the community volunteer, on 30 May 2009.  The applicant has provided no evidence to show that this document was ever posted to the Tribunal.  The Minister relies on the affidavit of Marina Sara Osmo filed on 27 October 2009 to show that the Tribunal has no report of ever having received such a document.  The affidavit of Ms Osmo says at paragraph 4: 

    I have consulted a calendar for the year 2009 and notice that 30 May 2009 was a Saturday. 

26. Thus, even if this statutory declaration had been posted to the Tribunal on the day that it was made, 30 May 2009, it could not have been received by the Tribunal until Monday, 1 June 2009.  By that time, the decision had already been made, the Tribunal decision was made on 29 May 2009.  Even if the Tribunal had received this material on 1 June 2009, the Tribunal had already decided that the application was not a valid application.  The Tribunal was functus officio; in other words, the Tribunal had completed its task and it could not go back and revoke its decision. 

27. The applicant claims that the Tribunal fell into jurisdictional error, first of all by misunderstanding his financial hardship.  The Tribunal considered the applicant’s application for fee waiver and sought further information, by way of supporting evidence, in its letter of 26 March 2009.  Quite clearly, the Tribunal did not misunderstand the financial hardship.  The applicant claimed that the Tribunal ignored the evidence given in ground 3.  Quite clearly, it did not. 

28. The applicant has claimed in his affidavit that: 

    I strongly feel that a person who does not have permission to work and does not have any earnings must be approved according to the application for fee waiver. 

29. If that is intended to support the applicant’s ground 1, it is no more than an attempt to ask the court to make a decision on the merits of the applicant’s claim for a waiver of the fee.  Merits review is not available on judicial review.  Whether or not the applicant met the requirements to show that his fee should be waived for financial hardship is a matter of fact, which is a matter for the Tribunal to decide, not the court.  The applicant’s first and third grounds have not been made out. 

30. The applicant’s second ground claims that the Tribunal misapplied the law.  In my view, this ground has not been made out either.  The Tribunal correctly set out the requirements for time limit for providing information in response to the letter of 26 March 2009.  No information at all was received within that time.  It was not until two days after the expiry of the time limit that the Tribunal wrote to the applicant advising him that his application for fee waiver had been refused.  Again, the Tribunal gave the applicant a reasonable time to pay the fee, but the applicant did not pay that fee.  It was not until the expiry of that time that the matter was referred to a Tribunal member for a decision. 

31. There is no evidence that the Tribunal misapplied the law.  Indeed, I am satisfied that it correctly found that the application was not a valid application as the fee had not been waived and the fee had not been paid.  It was not until after the Tribunal made its decision that the applicant claims to have forwarded some financial information to the Tribunal.

32. The applicant should have paid the application fee by 15 May 2009.  The Tribunal had no obligation to chase the applicant to pay the fee once it had not been paid.  As Besanko J said in Khan v Minister for Immigration and Citizenship[15]: 

    [15] [2009] FCA 443

    The applicant has to make the payment, but the Tribunal is not obliged to pursue it. 

1. The applicant has not shown that the Tribunal has misapplied the law and the applicant’s ground 2 fails. 

2. The applicant raised other matters in his oral submission to the court today. It is irrelevant that the applicant no longer has any family living in Korea. He claims that he will be persecuted if he returns to Korea, although he has not said why that is so. In any event, he is not applying for a protection visa, but a Child (Residence) (Class BT) visa, and so the claim is irrelevant. Whether this application to the court is a vehicle to enable the applicant to apply to the Minister for the exercise of a discretion under section 351 of the Migration Act is also irrelevant to the matters the court has to decide.

3. The simple facts of the matter are that the applicant applied for the waiver of the Tribunal fee.  He was asked to provide information in support of that claim within a certain period of time.  He did not do so.  After the time limit had expired, the Tribunal refused the application for waiver of the fee.  It then required him to pay the fee within a time limit.  He did not do so.  After the time limit had expired, the application was referred to a Tribunal member who made a decision that the application was not a valid application because the fee had neither been paid nor waived. 

4. On the applicant’s own case, it was not until after that had happened that he forwarded the statutory declaration containing some information.  Even if that information had been received by the Tribunal, and there is no evidence to show that it ever had been, it was too late because the decision had already been made. 

5. There is no jurisdictional error. The Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Accordingly, the application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  11 November 2009