Peiris v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 167
Federal Circuit and Family Court of Australia
(DIVISION 2)
Peiris v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 167
File number(s): MLG 29 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 8 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa – whether Tribunal erred in exercising its discretion – whether Tribunal failed to consider relevant considerations – whether decision just and fair – whether Tribunal unreasonable – whether Tribunal erred in law and or fact – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 347
Migration Regulations 1994 (Cth) reg 4.13
Cases cited: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318
Brundavanam v Minister for Immigration [2013] FCCA 2298
Fairy v Minister for Immigration and Border Protection [2018] FCA 729
Gray v Minister for Immigration and Anor [2018] FCCA 1564
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Patel v Minister for Immigration and Citizenship [2009] FCA 392
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 2 March 2023 Date of hearing: 2 March 2023 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Mr Munro Solicitor for the Respondents: Mr Glass of Mills Oakley ORDERS
MLG 29 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KUDATHELEGE JAGATH PEIRIS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
8 March 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the amount of $7000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
Introduction
The applicant is a citizen of Sri Lanka. On 20 August 2018, he applied for a Medical Treatment (Visitor) (Class UB) visa (“Medical visa”). The Medical visa was supported by documents that indicated that the applicant suffers from adjustment disorder with mixed anxiety and depressive symptoms. On 6 September 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Medical visa.
On 26 September 2018, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. On 7 December 2018, the Tribunal determined that the applicant did not make a valid review application and that it had no jurisdiction to review the delegate’s decision. This was on the basis that the applicant had not paid the requisite fee to the Tribunal.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
The matter was originally listed for hearing on 2 March 2022. The applicant provided a medical certificate and requested the matter be adjourned. The Court agreed and adjourned the matter to the following day, 3 March 2022.
On 3 March 2023, the applicant appeared again and provided a medical certificate indicating he was unfit to attend work, not Court. The applicant requested the matter be further adjourned. The application was opposed by the first respondent. The Court refused the application for an adjournment (see separate judgement).
The administrative appeals tribunal decision
At paragraphs 1 and 2 of its decision record, the Tribunal provides the background to the applicant’s visa application.
Paragraphs 3 and 4 explain the legislative requirements for the application of fee waivers of review applications in the Tribunal. Regulation 4.13(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) provides that the prescribed fee that was at that stage $1,764.00 must be paid upon the filing of a review application in the Tribunal, or 50% of the filing fee must be paid if it has been assessed that paying the filing fee has caused, or would be likely to cause, severe financial hardship to the applicant. In this case the applicant had paid half the then prescribed fee of $882.00 when he lodged his application and requested a reduction on the fee due to alleged hardship.
At paragraph 5, the Tribunal states that the applicant requested that the filing fee be reduced in relation to their review application, however further information was requested to determine whether the applicant would experience severe financial hardship. The applicant had until 29 October 2018 to provide a response, however none was received. The Tribunal refused the applicant’s fee reduction application on 30 October 2018 and the applicant was given until 13 November 2018 to pay the full filing fee.
On 31 October 2018, the Tribunal received the following email, “I have read your attachment today and unfortunately, I could not reply by the time period so Please give me an extension time until next Monday to write my submissions”. At paragraph 7, the Tribunal states that nothing further was received by or on behalf of the applicant.
The Tribunal further wrote to the applicant on 14 November 2018 indicating that it formed a preliminary view that the review application was not valid as only half of the application fee had been paid and that the remainder had not been paid within a reasonable period. The applicant was given until 28 November 2018 to comment on that information.
At paragraph 9, the Tribunal states that on 27 November 2018 it received a further request for a fee reduction. The Tribunal was not satisfied that this fee reduction request addressed the information previously sought in the letters of 22 October 2018 and 14 November 2018.
At paragraph 10, the Tribunal considered that it had given the applicant a reasonable period to pay the outstanding filing fee. As the fully prescribed fee had not been paid, and no determination to reduce the fee had been made, the Tribunal found that the review application was not valid and the Tribunal had no jurisdiction in the matter.
The grounds of judicial review
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 7 January 2019. The grounds are as follows as they appear in the application verbatim:
1. Administrative Appeals Tribunal erred in law when exercising its discretion not to grant an opportunity to the applicant to submit the evidence and substantiate his financial position in regard to the application for fee exemption as the payment of the fee would cause the applicant severe financial hardship.
2. Administrative Appeal Tribunal erred in law in not considering the further request for fee deduction and further information as requested and in that it did not have regard to all the relevant circumstances including but not limited to matters identified in the department’s policy guidelines and as such the decision of the Administrative Appeals Tribunal was a denial of procedural fairness and breach of natural justice, relevantly including but not limited to the following:
a.That the financial position of the applicant at the time of the decision.
b.that the Applicants had satisfied all the other requirements of sec. 347(1) of the Migration Act.
c.The degree of hardship that may be caused to the Applicant and his family members.
3. The Administrative Appeals Tribunal fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances of the case and failed to review the decision.
4. The Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case;
5. The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed the second application for fee waiver with full financial position of the applicant.
The applicant’s submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. The applicant told the Court he was in Launceston, Tasmania visiting his children and had no Court papers with him. He denied that he had been served with the first respondent’s written submissions and stated that the Court Book was served on him but was not with him. Evidence by way of a copy of correspondence was produced to the Court indicating the first respondent’s written submissions had been served on the applicant in November 20022.
Noting that the applicant was aware the matter was listed for hearing, the Court does not accept that the applicant was not served with a copy of the first respondent’s written submissions and is at a loss to understand why he did not take them and the Court Book to Tasmania with him.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.
The Court reminded the applicant of his grounds of judicial review and the essential issue in the matter, being that his application for a fee reduction was refused and he did not pay the remaining fee payable within a reasonable time. As a result the Tribunal found it did not have jurisdiction to hear the matter and dismissed it.
The applicant told the Court that when he came to Australia in 2014 he and his wife had no work rights. As a result they struggled to survive and worked for cash in hand jobs. The Tribunal rejected his application for a fee reduction even though he showed the Tribunal his bank account had a zero balance. He stated he could not remember anything else as he has memory problems.
At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. He answered “No”.
The first respondent’s submissions
The respondent notes that at least half the prescribed application fee pursuant to s 347(1)(c) of the Migration Act 1958 (Cth), and reg 4.13(1) and reg 4.13(4) of the Regulations was paid at the time of the application to the Tribunal together with a request for a reduction on the fee. Once the fee reduction request was refused on 30 October 2018, the applicant was required to pay the balance within a reasonable time: (see; Gray v Minister for Immigration and Anor [2018] FCCA 1564 at [21]).
The current legislative regime only provides for a fee reduction rather than a fee waiver. In Fairy v Minister for Immigration and Border Protection [2018] FCA 729, Moshinsky J said the following:
[5] … the jurisdiction of the Tribunal to entertain an application for review was conditional on, among other things: (a) the application for review being accompanied by the prescribed fee; or (b) the application being accompanied by 50 per cent of the prescribed fee and the Registrar waiving the payment of the remaining 50 per cent of the prescribed fee; or (c) the application being accompanied by 50 per cent of the prescribed fee and, if the Registrar refused to waive payment of the remaining 50 per cent of the prescribed fee, the applicant paying the remaining 50 per cent of the prescribed fee within a reasonable time after the Registrar refused to waive its payment.
It was submitted to the Court the disposition of the matter applies under the current regime, in a similar fashion, notwithstanding the fact that the fee cannot be waived but only reduced.
It was submitted that grounds one, three and four may be considered together. In the absence of further particulars, each of these grounds may be construed as an allegation that the Tribunal denied the applicant procedural fairness, or otherwise acted unreasonably, in deciding and had no jurisdiction in circumstances where:
(a)by ground one, the applicant alleges that by not providing him with an opportunity to submit evidence in support of his fee reduction application the Tribunal erred in law
(b)by ground three, the applicant alleges the Tribunal erred in not acting in a “just and fair” matter; and
(c)by ground four, the applicant alleges the Tribunal made a decision that was “unreasonable”.
In this case, prior to the Tribunal making its decision that it had no jurisdiction on 7 December 2018, the applicant made his first request on 26 September 2018 when he lodged his review application. By way of letter dated 22 October 2018, the applicant was given seven days within which to respond to requests for further information. The applicant provided no further information and, by letter dated 30 October 2018, the applicant was informed that the Registrar was not satisfied payment of a fee of $1,764.00 had caused, or was likely to cause, severe financial hardship to him. On 14 November 2018, the Tribunal invited the applicant to comment on the validity of his application. On 27 November 2018, the applicant lodged the second fee reduction request. It is conceded the Registrar did not make a decision in respect of that second request, however, it in substance contained the same information as the first request and did not address any of the issues raised in the invitation to comment dated 22 October 2018 or the invitation to comment dated 14 November 2018.
It was submitted that the only differences in the responses was that the applicant included in his first request a different address and daytime phone number. Secondly, in response to question three “Do you received financial support from apartment, relative or friend? If yes, provide details of the person providing financial support and the type of amount of support received”, the first request that says “father – $1,000.00”, whereas the second request says “Yes. My father sent money for living expenses from Sri Lanka”.
In response to question four, the first request says that the applicant holds $4.00 in a Commonwealth Bank account, whereas the second request says here holds $0.00 in the Commonwealth Bank account.
In response to question six, the first request says his “father send from Sri Lanka” the amount of $1,000.00 per fortnight after tax, where is the second request says his “father send from Sri Lanka” the amount of $1,100.00 fortnightly after-tax.
In response to question seven, the first request says his fortnightly household expenses were $1,000, whereas the second request says his fortnightly household expenses were $1,100.00.
In respect to question eight, “do you have any expenses or other debts, loans or financial commitments? If yes, provide details here. The first request says “No” whereas the second request says “one day I should repay my father’s money to him”.
It was submitted the second request was not accompanied by any supporting documents and did not provide any of the information the Tribunal had request on 22 October 2018 before refusing the first request. This information, which was requested but not provided, was as follows: first “any comment you wish to make and why your parents, who are supporting stay in Australia, cannot assist with the application fee”. Second, “information about the origin of large cash deposits made into your account on five and 12 September 2018”. Third, “any further information which you wish to provide in relation to this issue”.
It was submitted that the Tribunal did not act in the legally unreasonable manner in that it was not a decision that was “sufficiently lacking rational a foundation, or an evident or intelligible justification”, or… ‘Plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within possible range of lawful outcomes’: (see; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11]).
It was submitted grounds two and five could be considered together. Each is an allegation the Tribunal erred by not considering the second request. In circumstances where an applicant makes a request from fee reduction in the Registrar is not satisfied in accordance with
reg 4.13(4) of the Regulations, the applicant must pay the remaining 50% of the prescribed fee within “a reasonable time” after the Registrar refuses the request. What is a reasonable time must be determined, in each case, according to the circumstances of the case: (see; Patel v Minister for Immigration and Citizenship [2009] FCA 392 at [15]).
In this case, there is no suggestion the applicant did not receive any of the Tribunal’s communications in respect of his fee reduction requests. He responded to some correspondence. The period of time was about five and a half weeks between the initial refusal and the Tribunal making its decision: (see; Brundavanam v Minister for Immigration [2013] FCCA 2298 at [18]-[20]). It is conceded however, the Registrar did not make any decision on the second request lodged on 27 November 2018, and the Tribunal made its decision on 7 December 2018. In its reasons the Tribunal noted at paragraph 9:
[9] on 27 November 2018, the Tribunal received further request for a fee reduction, however, the content of the request did not address the further information requested in the letter dated 22 October 2018 nor did it address the Tribunal’s letter dated 14 November 2018.
It was submitted there was no requirement for the Tribunal to wait “a reasonable time” after the second application was rejected before making its decision on the way contemplated in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (“Braganza”) at [51] where the following was said (albeit in relation to a waiver rather than a reduction):
… Where an applicant for a visa makes an application for waiver of the 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,s347(1) (c) should be read as being subject to the qualification that, provide an application for 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.
It was submitted that although the first request had been rejected, and the second request was not rejected by the Registrar, there was no evidence before the Tribunal that a Registrar was otherwise satisfied in accordance with reg 4.13(4) of the Regulations such that the Tribunal’s jurisdiction was enlivened. A precondition to the exercise of the Tribunal’s jurisdiction to review was absent. The Registrar was not satisfied in accordance with reg 4.13(4) of the Regulations in that the full fee had not been paid. It was submitted there was no requirement for the Tribunal to wait for a Registrar to determine the second request before making its decision.
It was submitted that it would be a perverse outcome and one which ought not be countenanced by the Court, if, by making the second request which was materially same as the first request, the applicant was in some way able to re-enliven the Tribunal’s jurisdiction in circumstances where the applicants review application had become invalid, by reason of first, the first request having been rejected by registrar and second, a reasonable time having passed between the first request being rejected and the Tribunal making its decision.
To the extent the applicant seeks to impugn the Registrar’s conduct in respect of either the first or second request, it was submitted the Court ought not entertain any challenge to the Tribunal’s decision based on an alleged error by the Registrar in circumstances where first, the Registrar is not a party to the proceeding. Secondly, no claim of relief is made against the Registrar and thirdly, the applicant has not sought to explain whether or how this Court has jurisdiction to review a decision made by Registrar under reg 4.13(4) of the Regulations.
In relation to the matters raised by the applicant in oral submissions it was submitted this went to the decision of the Registrar of the Tribunal not to grant a fee reduction. This was not within the jurisdiction of the Court to review.
CONSIDERATION
The facts in this matter are uncontroversial and are set out fully above. The Court is satisfied, that in order to enliven the jurisdiction of the Tribunal, the applicant was either required to pay the full fee of $1,764.00 or pay half the prescribed fee, which the applicant did, and make a successful application to the Registrar for the a reduction in the prescribed fee to 50% only.
The application for the fee reduction was unsuccessful. The Court is satisfied in these circumstances, that the applicant was required to pay the remaining 50% within “a reasonable time”. He did not make any further payment. Instead he lodged a second application for a fee reduction that did not include any new information or indeed the information that had been previously requested by the Tribunal in order to properly assess his first fee reduction application.
In these circumstances the Tribunal was entitled to do as it did, finding that it had no jurisdiction as the proper fee had not been paid. There is nothing legally unreasonable, irrational or illogical in the manner in which the Tribunal proceeded. The applicant was not entitled, as is the logical extension of his grounds, to continue to put in fee reduction applications which are then required to be assessed and reassessed by the Registrar of the Tribunal and so delay the Tribunal hearing and determining his application.
The Court is satisfied there is no merit in Grounds one, three and four. These assert legal unreasonableness in the decision of the Tribunal to proceed to determine the application to finality. The Court is satisfied the Tribunal was not required to await a determination by a Registrar as to the second fee reduction application, especially in circumstances where there was no material difference between the first and second applications. The Tribunal had waited a reasonable time for the applicant to pay the balance of the amount due. The applicant did not make any such payment. The basis for finding that the Tribunal had no jurisdiction in these circumstances was sound and involves no error.
Grounds two and five assert the Tribunal erred by not considering the second request. Based on the decision of Braganza quoted above, having waited a reasonable time, which is what is reasonable in all the circumstances of the case, for a payment to be made, the Tribunal was entitled to proceed as it did.
If the applicant asserts the Court has jurisdiction over the Registrar, then this is misplaced for the reasons set out by the first respondent set out above. Grounds two and five have no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 8 March 2023
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