PARMAR v Minister for Immigration and Anor

[2017] FCCA 2646

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARMAR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2646

Catchwords:
MIGRATION – Medical Treatment visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it wrongly found that it did not have jurisdiction to entertain the applicant’s application for review.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.347, 360, 474

Migration Regulations 1994, regs.4.13, 4.13A, 4.13B
Administrative Appeals Tribunal Regulations 1976
Administrative Appeals Tribunal Act 1975

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: DUSHYANT PARMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE  APPEALS TRIBUNAL

File Number: SYG 3578 of 2014

Judgment of: Judge Cameron

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Sydney

Delivered on: 21 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr B. Griffin of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3578 of 2014

DUSHYANT PARMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of India who, on 11 September 2014, lodged an application for a Medical Treatment visa. That application was made while the applicant was in Australia. On 15 September 2014 the application was refused by a delegate of the first respondent (“Minister”). On 2 October 2014 the applicant applied to the Migration Review Tribunal (“Tribunal”) a predecessor of the second respondent, for a review of that departmental decision (item 15AG of sch.9 to the Tribunals Amalgamation Act 2015) but the Tribunal found that it did not have jurisdiction to consider his application.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondents.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576 [57]).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. Section 347 of the Act set out the manner in which a valid application to the Tribunal was to be made. At the time the applicant lodged his review application with the Tribunal, it relevantly provided:

   347   Application for review by Migration Review Tribunal

   (1)An application for review of an MRT‑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 MRT‑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 MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

   (iii)  if the MRT‑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).

   …

2. Regulation 4.13 of the Migration Regulations 1994 (“Regulations”) relevantly provided:

   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.

   …

   (4)If the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, 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, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

3. The fee in reg.4.13(1) was subject to biennial increases as prescribed by reg.4.13A and 4.13B.  At the time the applicant lodged his review application, the fee was $1,604.

BACKGROUND FACTS

1. The background facts relevant to this matter were summarised by the Minister in his written submissions in the following terms which I adopt:

   3.On 12 September 2014 the applicant applied for a Medical Treatment (Visitor) (Class UB) subclass 602 visa.

   4.On 15 September 2014 a delegate of the Minister (the Delegate) refused to grant the visa …

   5.On 15 September 2014 the applicant was notified of the Delegate’s decision by email. One of the attachments to that email was an information sheet on the review process of the Tribunal, which contained information on the application process and the application fee.

   6.On 2 October 2014 the applicant lodged an application for review with the Tribunal. The application was not accompanied by the prescribed fee. Between 2 and 8 October2014 the applicant applied to the Tribunal for a reduction of the application fee.

   7.By letter dated 9 October 2014 the applicant was notified that an authorised officer of the Tribunal had decided to grant the applicant’s request for fee reduction on the basis that payment of the prescribed fee was likely to cause the applicant severe financial hardship. The applicant was asked to pay the reduced fee by 3 November 2014.

   8.On 12 November 2014 a Tribunal officer contacted the applicant by telephone to confirm that he had received the Tribunal’s letter granting him a fee reduction. The applicant told the Tribunal officer that he could not pay the reduced amount and requested further time to pay the amount. The applicant was told by the Tribunal officer that he should put his request in writing. The Tribunal received no further correspondence from the applicant.

   (References omitted)

The Tribunal’s decision and reasons

1. On 24 November 2014 the Tribunal found that it did not have jurisdiction to review the application.  Relevantly, and as summarised by the Minister in his written submissions, the Tribunal noted the following matters in this connection: 

   13.1. pursuant to s 347(1) of the Act, the review application had to be lodged with the Tribunal within the prescribed period as specified in s 347(1)(b) and reg 4.10

   13.2. any application must be accompanied by the prescribed fee in accordance with reg 4.13 of the Regulations unless a determination had been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship

   13.3. in the present case the prescribed period ended on 15 October 2014

   13.4. the fee was required to be paid within the prescribed period, or if a decision had been made under r 4.13(4), within a reasonable period after that decision.

   14. The Tribunal considered that the applicant was given a reasonable period to pay the fee (25 days) after he was notified of the authorised officer’s decision to reduce the fee. The Tribunal noted that the fee was not paid by the date of the Tribunal’s decision (46 days). In the circumstances, the Tribunal found that the application for review was not a valid application and the Tribunal had no jurisdiction in the matter.

   (References omitted)

PROCEEDINGS IN THIS COURT

1. In his amended application the applicant alleged:

   1.Tribunal made jurisdictional error.

   2.Under regulation 19(6)(c) of the Administrative Appeals Tribunal Regulations 1976, a fee may be waived if the income, day-to-day living expenses, liabilities and assets of a person are at such a level that payment would cause financial hardship.

   3.The Tribunal did not show the reasons in decision why they have not accepted as valid application when there is provision to take account a compassionate for delay payment.

   4.After given time by Tribunal but the applicant cannot make payment that means the applicant do not have money so in this case the Tribunal consider his application.

   5.Section 360(1) the Tribunal must invite applicants to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review.

   6.Nature of justice was not delivered in my matter.

Jurisdiction of Tribunal

1. I will shortly turn to the individual allegations made in the amended application, but it should be said that those allegations and the applicant’s address to the Court did not truly address the basis of the Tribunal’s finding, which was that it had no jurisdiction. 

2. The basis of the Tribunal’s finding was that although the applicant had sought, and been granted, a reduction of the filing fee for his review application to the Tribunal, he had failed to pay the reduced fee within a reasonable time.  Because the fee was not paid, the criteria for the making of a valid review application to the Tribunal were not fully satisfied.  What that meant was that the applicant had not made a valid application for review, with the consequence that the Tribunal did not have jurisdiction to review the delegate’s decision in his case. 

3. In his address to the Court, the applicant argued that the Tribunal should have reduced his filing fee further than the 50 per cent reduction which it had ordered. However, at the relevant time, the Tribunal’s power to reduce the filing fee associated with review applications made to it was limited to a 50 per cent reduction. It had no power to reduce the fee any further. Consequently, although the applicant may well have been unable to pay the filing fee, that cannot affect the correctness of the Tribunal’s decision. It reduced the filing fee as far as the Regulations permitted it. It gave the applicant a reasonable time within which to pay the filing fee and yet the fee was not paid.

4. In those circumstances, the Tribunal was correct to conclude that it did not have jurisdiction to undertake the review he sought. 

5. Turning now to the various allegations made in the amended application.

Ground One

1. The first ground of the amended application was un-particularised and given no particular substance.  The applicant’s address to the Court really did not go beyond arguing that the Tribunal should have reduced the filing fee further than it did, without addressing the Tribunal’s inability to do so.  The first ground of the amended application therefore did not identify an arguable case of error on the Tribunal’s part.

Ground Two

1. The reference to reg.19(6)(c) of the Administrative Appeals Tribunal Regulations 1976 is misconceived.  First, there was no such regulation at the time the applicant lodged his application with the Tribunal.  Secondly, the Administrative Appeals Tribunal (“AAT”) and its regulations were not relevant to the review in question.  In 2014 decisions on applications for medical treatment visas were reviewable only by the Tribunal. 

2. Thirdly, although the Tribunal has been subsequently replaced by the AAT that does not mean that the Administrative Appeals Tribunal Regulations 1976 applied retrospectively to the applicant’s review before the Tribunal. Indeed, AAT reviews of such decisions are still relevantly governed by the Act, rather than by the Administrative Appeals Tribunal Act 1975 and any regulations made under it.

3. The second ground in the amended application therefore disclosed no arguable case of error on the Tribunal’s part. 

Ground Three

1. Contrary to the allegation made in the first part of this ground, the Tribunal did provide reasons for its decision concerning why it had no jurisdiction in the applicant’s case.  In relation to the latter part of this allegation, for the reasons already given, the Tribunal had no power to reduce the filing fee beyond 50 per cent.  For these reasons, again, no arguable case of error has been made out.

Ground Four

1. The fourth ground of the amended application appears to refer to the applicant’s inability to pay the reduced filing fee allowed by the Tribunal.  However, this allegation as drawn makes no sense, and certainly does not identify a recognisable error which might have been committed by the Tribunal.

Ground Five

1. As the Tribunal had no jurisdiction to entertain the applicant’s review application, it had no hearing-related obligations to him, which means that it did not have any obligations to the applicant under s.360(1) of the Act.

Ground Six

1. The final ground of the amended application appears to allege a denial of natural justice without identifying what that was.  In addresses, the applicant suggested that the Tribunal was biased in some way, but did not particularise or substantiate that in any useful manner.  As the Tribunal had no jurisdiction to undertake a review, there was no denial of natural justice in relation to any Tribunal hearing. 

2. As far as the application for fee waiver is concerned, it appears that the Tribunal considered the matters which the applicant put to it and extended him assistance as far as it could.  That is to say, even if there had been some denial of natural justice to the applicant in the fee waiver process, he suffered no practical unfairness because the fee he had to pay had been reduced as far as the Tribunal could reduce it.

CONCLUSION

1. None of the matters which the applicant has raised in his amended application, or in his address to the Court, have identified an arguable case of error on the Tribunal’s part.  Consequently, the application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  3 November 2017