Radzi v Minister for Immigration

[2013] FCCA 2232

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADZI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2232

Catchwords:

MIGRATION – Student (Temporary) (Class TU) visa – Migration Review Tribunal – judicial review – s.347(1)(c) Migration Act 1958 (Cth) – failure by applicant to pay prescribed fee – application for extension of time to pay fee – whether the applicant was notified by the Tribunal of the failure to pay the fee – deemed statutory notice – proper conduct by Tribunal – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.05
Migration Act 1958 (Cth), ss.65, 347, 379A, 477

Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364

Fisher v Minister for Immigrationand Citizenship (2007) 162 FCR 299

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99

Applicant: MOHAMAD RAQIM MOHAMAD RADZI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 181 of 2013

Judgment of: Judge Burnett  

Hearing date: 5 December 2013

Date of Last Submission: 5 December 2013

Delivered at: Brisbane

Delivered on: 5 December 2013

REPRESENTATION

The applicant appeared on his own behalf

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the title to the proceedings be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration and Citizenship” as the name of the First Respondent.

2. The application filed on 6 March 2013 be dismissed.

3. That the applicant pay the respondents’ costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 181 of 2013

MOHAMAD RAQIM MOHAMAD RADZI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The applicant applied for the issue of a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (“the Act”) on 14 March 2011. Shortly after this time, a delegate of the then Minister for Immigration and Citizenship refused to grant him a visa. The applicant was notified of that matter and of his rights by a letter dated 5 October 2012. On 26 October 2012 he applied for a review of the delegate’s decision. In the course of making that application, he also applied for a fee waiver. Relevantly, s.347 of the Act states that proper applications must satisfy a number of criteria, including a requirement under s.347(1)(c) that the application be accompanied by the prescribed fee.

2. The applicant has satisfied all other criteria but this, at least in a prima facie sense. He did not, however, make his fee waiver application at the material time. Accordingly, subject to its proper processing, he would otherwise have satisfied the requirements of s.347.

3. It has been determined and is now beyond contention that when an application is accompanied by a fee waiver application, and the fee waiver application is unsuccessful, the applicant has a reasonable time, after being given notice of the refusal of the fee waiver application, to pay the requisite fee. In that event, the application will be deemed to have been properly made and will therefore be an application which can be determined by the Migration Review Tribunal (“the Tribunal”).[1]

   [1] See generally the observations in Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 and also discussion in Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, although I think that the Full Court in Braganza did not fully embrace the Kirk decision.

4. As I have noted, the delegate did not accede to the application for a fee waiver.  The delegate gave notice of that matter to the applicant after an authorised Tribunal officer decided on 1 November 2012 to refuse the request for a fee waiver reduction because the officer was not satisfied that the payment of the fee would be likely to cause him severe financial hardship. The Tribunal wrote to the applicant on 1 November 2012, advising him of that decision and requesting that the remaining balance of the prescribed fee application be paid within 14 days.

5. Allowing for the time permitted, postage and administration, the last date for payment of the fee in accordance with the Tribunal’s directions would have been 26 November 2012. That did not occur and, accordingly, the applicant was informed that if the remaining $770.00 was not paid the Tribunal may decide that the review application was invalid. On 30 November, the applicant submitted a further Request for Fee Reduction form, accompanied by copies of bank statements and a car rental agreement.

6. On that day, he also advised the Tribunal in writing of his new contact details.  I should note that when he first made application for his visa in or about late 2011, he provided a residential address at 5 Pater Street, Sunnybank, Queensland, a mobile number of 0417 *** **7 and an email address of m*****[email protected].  A change of contact details document was received by the Tribunal on 30 November 2012. It noted a new residential and postal address at 12 Bensley Place, Riverhills, but otherwise the same mobile and email addresses remained operative. 

7. An authorised Tribunal officer wrote to the applicant on 5 December 2012, advising that the documentary evidence submitted on 30 November 2012 was insufficient to warrant reconsideration of his fee reduction request and he was further informed that he was therefore still required to pay the remaining balance of the application fee, and granted a subsequent extension to 2 January 2013 to pay that sum.  That particular letter was sent by registered post to his new contact address and was subsequently returned to the Tribunal unclaimed.

8. On both 2 and 3 January 2013, the Tribunal officer made several attempts to contact the applicant on his mobile phone, without success, in order to discuss the issue of the remaining fee. The applicant did not make any contact with the Tribunal between November 2012 and when the matter came before the Tribunal on 24 January 2013. The Member concluded that the applicant had been granted a reasonable time to pay the remaining balance of the prescribed application fee and that he had been given proper notice as required under s.379A(4) of the Act. The Member found that, as the fee had not been paid, the application for review was not valid and, therefore, the Tribunal had no jurisdiction.

9. The applicant now applies for judicial review of the Tribunal’s determination. The application for review was lodged on 6 March 2013, that is, outside the time provided for in s.477(1) of the Act. Prima facie, the application is incompetent. However, the Court does have the power to extend time under s.477(2). The applicant now applies for that extension.

10. The extension of time application is opposed by the respondent, principally on the basis that an extension is not necessary in the interests of the administration of justice. In the respondent’s written outline, a number of matters relevant to the extension of time application were addressed. The first point made, although I think now withdrawn, is that the applicant failed to comply with the mandatory rule under r.44.05(c) of the Federal Circuit Court Rules 2001 (Cth) to provide an explanation by way of affidavit as to the delay and why it is necessary in the administration of justice for the Court to grant an extension of time.

11. In this case, the applicant did file an affidavit, on 3 December 2013, which in part could be said to address this mandatory requirement, that is, by reference to an annexure attached to the affidavit addressing a matter referred to in paragraph 2.  The annexure is a letter addressed to the Court by the applicant.  I infer from its inclusion in the affidavit that this is the original letter and that the letter, in fact, has not been posted to the Court, although this letter appears in letter form.  The letter requests that the Court extend time for making the review application although that time has passed, upon the following basis:

    “The first time the letter was received, I went to see a few local mp that is, Milton Dick and Bernie Ripol.  Both of them is support me to stay here permanently.  Bernie Ripol offered to help me with the visa problem with his team member. We are going through apply Distinguish Talent Visa but not allow because of I’m under a bridging visa. 

    Unfortunately, last Thursday on the 28^th February 2013, later afternoon, Bernie Ripol team member inform be its not in their power to solve this problem. 

    Since that day, I contacted a few lawyer and no other lawyer want to help and represent.  It takes a lot of time and hard work because legal representation is not my field.”

    (Errors as per original)

12. Arguably, that cobbling together of affidavits and correspondence could be seen to address the mandatory requirement to provide some explanation, irrespective of whether the explanation itself could be seen to be satisfactory.

13. Aside from that mandatory requirement, an extension of time will only be granted if an application for that order has been made in writing, specifying why the applicant considers it necessary in interests of the administration of justice to make such an order, and the Court finds that course appropriate.

14. The applicant has satisfied the first requirement by checking the relevant box in his application. I note that the reason he provides for an extension of time is that he previously sought assistance from his local Member(s) of Parliament who appear, on his version, to have abandoned him at the last minute.  That is, notwithstanding his contention, there was support by his local Member for him to be issued with a permanent Distinguished Talent (subclass 124) visa.  That then leads to the real issue in this application, which is whether or not the Court considers it necessary in the interests of the administration of justice to make an order extending time.  The factors relevant to the exercise of that discretion broadly include the extent of the delay, the reasons for it, any prejudice to the respondent, the impact upon the applicant if time is not extended, the interests of the public at large and, of course, the merits of the substantive application.  It is not contested that the delay in this instance is short. 

15. It is only a matter of six days. Nor does it seem to be seriously in issue that the basis for the delay was that the applicant appears, at least on his version, to have been abandoned at the last minute by those from whom he was seeking advice and assistance. Arguably, the prejudice to him would be significant because, as he notes, he is on a bridging visa. Therefore, he will not be eligible to apply for a permanent visa until his current bridging visa issue is resolved. This particular visa application, if successful , will go a long way toward addressing those issues. In terms of the interests of the public at large, the applicant points to his own particular circumstances, indicating that he involves himself in community work and so on. 

16. Those factors aside, there are no other particular matters that advance the applicant’s case beyond that of any other seeking an indulgence on this matter. The real issue in this instance turns to a consideration of the merits of the substantive application to determine whether the interests of the administration of justice do warrant making an order for extending time.  I note generally that the consideration of the interests of the administration of justice involves:

    “… consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”[2]

    [2] Fisher v Minister for Immigrationand Citizenship (2007) 162 FCR 299 at [35].

17. Based upon the reasons which are the subject of review, it seems to me that there are serious difficulties with this application. I have outlined the history of the application earlier. The fact remains that the Tribunal wrote to the applicant on 5 December 2012 at an address he provided to inform him that his request for a fee reduction had been rejected and further request that he make the payment of the balance due in support of the application.

18. Section 379A(4) deems the applicant have notice of documents forwarded to him at the address which he provides. This amounts to deemed statutory notice once a letter is addressed to the address provided. This is not a case where the applicant could have been mistaken about that address. It is the address noted in his change of contact details and it is the address noted on the correspondence addressed to him on 24 January 2013 and 5 December 2012. I note that it also corresponds with the address provided by him in his application which was filed on 6 March 2013, although I note that since that time he has relocated yet again. Nevertheless, it was his address, and accordingly he had received proper notice.

19. In addition, the Tribunal also sought to contact the applicant by telephone. The obligation upon the Tribunal is to afford him a reasonable time to make the payment once he is informed that his application for a fee waiver is refused.  The Tribunal, in my view, did all that could reasonably have been expected of it by attempting to telephone and write to the applicant. In respective of the former, it was under no obligation to telephone him, but plainly sought to do so in order to afford him the fairest possible opportunity to attend to the one matter which would have otherwise rendered the application valid. 

20. I do not think that the Tribunal could have done any more than it did, and in my view the Tribunal was reasonable in its provision of additional time for the applicant to satisfy the fee payment requirement provided for by s.347. I note that the applicant contends that he did not receive the letter and suggests that it was sent to a previous address after he had informed the Tribunal of his new address. However, that allegation is not supported by evidence before the Court and is inconsistent with the Tribunal’s further correspondence addressed to the address for service provided by him.

21. As was submitted by the respondent, the Tribunal’s letter of 5 December 2012 was sent to the address provided by the applicant as his point of contact. It was sent, therefore, in accordance with s.379A(4) of the Act and he was deemed to have received that letter on 14 December 2012. There was no error on the part of the Tribunal in notifying the applicant that his request for fee reduction had been refused. The Tribunal, in my view, acted reasonably in allowing the applicant, from at least 14 December 2012 to 24 January 2013, to address the matter of payment of the remaining fee.

22. Notwithstanding that reasonable allowance of time, which even accounts for some short period over Christmas when he has accepted that business hours are a little more irregular, the fact remains that more than a sufficient time was allowed by the Tribunal for the applicant to make the payment, yet he did not.  The application for review of the Tribunal’s determination therefore has little, if any, merit as no basis appears to support any allegation of jurisdictional error. That being the case, it follows, in my view, that that fact well outweighs the other discretionary considerations I have earlier addressed. The application for an extension of time is refused.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  19 December