Riggio v Minister for Immigration

[2016] FCCA 938

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIGGIO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 938

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) – delegate of first respondent cancelled applicant’s Bridging E (Class WE) General (Subclass 050) visa – applicant applied to Tribunal for review of delegate’s decision within prescribed period – applicant did not during the prescribed period pay the prescribed fee or apply for a waiver of 50% of the prescribed fee – whether in those circumstances Tribunal had jurisdiction to entertain application for review – whether applicant’s not having been informed of the need to pay any fee is relevant to whether the Tribunal had jurisdiction to entertain applicant’s claim – the Tribunal did not have jurisdiction to entertain applicant’s application for review.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(g), 189, 338, 338(3), 338(4), 339(1), 340,

347, 347(1)(c), 348

Migration Regulations 1994 (Cth), rr.2.43(1), 2.43(1)(p)(ii), 4.10, 4.10(1)(b), 4.13, 4.13(1), 4.13(2)(a)

Cases cited:
Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 218; (2001) 109 FCR 364
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Kirk v Minister for Immigration & Multicultural Affairs [1998] FCA 1174; (1998) 87 FCR 99

Applicant: GIUSEPPE RIGGIO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3542 of 2015

Judgment of: Judge Manousaridis

Hearing date: 20 April 2016

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms D Watson of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The name of the second respondent be amended to Administrative Appeals Tribunal. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3542 of 2015

GIUSEPPE RIGGIO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Italy, seeks judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) to cancel the applicant’s Bridging E (Class WE) General (Subclass 050) visa (Bridging visa).

Background

1. The Minister granted the Bridging visa to the applicant in response to an application the applicant made on 24 August 2015. In his application, the applicant stated he had made arrangements to depart Australia on 10 September 2015, but that he “currently need to attend court on the 4 sept 15”, and that he has “purchased a ticket to depart on the 10/9/15”.[1]

   [1] CB4

2. On 3 September 2015 a delegate of the Minister cancelled the applicant’s Bridging visa pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (Act). That paragraph provides that the Minister may cancel a visa if he or she is satisfied that a “prescribed ground for cancelling a visa applies to the holder”. The grounds for the purposes of s.116(1)(g) of the Act are prescribed by reg.2.43(1) of the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me is the ground specified in reg.2.43(1)(p)(ii), which provides:

   [I]n the case of the holder of a Subclass 050 (Bridging(General) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:

   . . . .

   (ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country….

3. The delegate found that the applicant “was remanded in custody” because of charges dated 3 and 4 September 2015 under the Crimes Act 1900 (NSW).[2]

   [2] CB15

Applicant’s application for review

1. On 11 September 2015 the applicant lodged an application for review of the delegate’s decision. The applicant lodged the application by fax from the Silverwater Correctional Complex (Silverwater). The applicant, who is not legally represented, informed me that he accepts he had been arrested on 2 September 2015, placed into custody at Silverwater on 3 September 2015, and held in a correctional facility until 12 November 2015. The applicant also informed me that he accepts that on 12 November 2015 he was released from the correctional facility at which he was held, but was immediately transferred into immigration detention where he is still held.

2. The application to the Tribunal was not accompanied by the payment of the prescribed fee.[3] On the day the Tribunal received the applicant’s application for review, an officer of the Tribunal became aware the applicant had not paid the prescribed fee.[4] The Tribunal officer attempted to call the contact person at the correctional facility from which the applicant had sent his application to advise that person that the applicant had to pay the prescribed fee or at least had to pay half the prescribed fee and lodge a fee reduction form. The Tribunal officer left a message for the contact person to call back. There is no evidence any person from the correctional facility had returned the Tribunal officer’s call.

   [3] CB63

   [4] CB52

3. There is in evidence a copy of the application the applicant faxed to the Tribunal on 11 September 2015.[5] The fax header on the application form that is in evidence indicates that the Tribunal received 18 pages of the application, but that page 8 containing section G was not included in those 18 pages. After the hearing, the applicant provided to the Court an affidavit to which he annexed a copy of the application the applicant says he did provide to the Tribunal.[6] That copy includes page 8 which includes section G. That section nominates an email address as the applicant’s preferred method of communication with the Tribunal.

   [5] CB31-49

   [6] Affidavit of G Riggio, 25.04.2016, annexure GR2

4. After I became aware of the applicant’s affidavit, I requested that it be provided to the solicitor for the Minister with a request that the solicitor obtain instructions about whether the Tribunal had received section G of the application. The Minister’s solicitor responded that she was instructed that the Tribunal did not receive section G. I find that the Tribunal did not receive section G of the application. I base that finding entirely on what is shown in the fax header of the application that is in evidence. As I have already noted, the fax header records that the Tribunal received 18 pages of the application, but that those 18 pages did not include page 8, which contained section G. I arranged for the inquiry to be made of the Minister’s solicitors to eliminate the possibility that the application had been resent. The applicant does not depose that he had sent the application or any part of the application to the Tribunal more than once.

5. Although the application the Tribunal received did not include an email address, the Tribunal found an email address after making enquiries of records maintained by the Department of Immigration and Border Protection.[7] On 22 September 2015 the Tribunal sent to that email address a letter addressed to the applicant in which the Tribunal invited the applicant to comment on the matters the Tribunal identified in the letter.[8] That letter stated:

   [7] CB54

   [8] CB64-65

   I am of the view that your application is not a valid application as you did not pay the application fee before the expiry of the time limit for lodging the application [sic] However, this is a matter which must be determined by a Member.

   ….

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 6 October 2015.

6. On 6 October 2015 the Tribunal received a response from a person who described herself as the applicant’s sister. The email began as follows:  

   Important: I am the sister of Joseph Riggio, my brother is held c/o Silverwater and is unable to respond in person. Checking his email, I saw your communication and, in agreement with him, I am responding, thinking it important communication and today being the last day to respond.

7. The email then explained why the applicant had not paid the prescribed fee:

   On the website I consulted, when I sent the request to review, it said that for the bridging visa E-BE (subclass 050-051) there were no costs for the demand for BE if I had known that there was no charge would.

   Unfortunately I do not know the law well and I have a paralegal immigration, I believe therefore that is has make an error of assessment of the procedure.

   I am trying to contact an immigration agent to help me and see if I can do something to remedy these errors.

8. According to a file note made by an officer of the Tribunal, on 23 November 2015 a migration agent contacted the Tribunal by telephone “on behalf of the applicant to ask what is happening with this case”.[9] The Tribunal officer advised the migration agent that “the Tribunal has not yet made a decision, however the recommendation to the Member is that the Tribunal does not have jurisdiction to review the decision”. The Tribunal officer also recorded that the “migration agent advised that the applicant had been accused of a crime, however he was found innocent. He ahs [sic] now been transferred from Silverwater Prison to Villawood Detention Centre”.

   [9] CB69

Tribunal’s decision

1. The Tribunal, in effect, found that the application for review was not properly made because, contrary to s.347(1)(c) of the Act, it was not accompanied by the prescribed fee. Relying on the decision of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs,[10] the Tribunal also found that the applicant was required to pay the prescribed fee within the prescribed period within which the applicant was required to make his application for review of the delegate’s decision to cancel his Bridging visa. The Tribunal found that the prescribed period ended on 14 September 2015.

   [10] Kirk v Minister for Immigration & Multicultural Affairs [1998] FCA 1174; (1998) 87 FCR 99

2. Having found that the applicant did not pay the prescribed fee within the prescribed period, the Tribunal concluded it did not have jurisdiction to determine the applicant’s application for review of the delegate’s decision to cancel his Bridging visa.

Grounds of application

1. The application for review contains one ground of application:

   The Tribunal erred in finding that it did not have jurisdiction.

2. The applicant, who, as I have already said, is not legally represented, also relied on written submissions he handed up in Court. In addition, the applicant made oral submissions that did not relate to the ground of review or to the matters referred to in his written submissions. The convenient way to deal with the application, therefore, will be for me to deal consecutively with the ground stated in the application, the submissions contained in the applicant’s written submissions (AWS), and the oral submissions the applicant made to me at the hearing.

Did the Tribunal have jurisdiction?

1. Whether or not the Tribunal correctly concluded it did not have jurisdiction to consider the applicant’s application for review turns on the provisions of the Act that govern the Tribunal’s exercise of jurisdiction.

2. The starting point is s.348 of the Act which provides that “if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision”. The expression “Part 5-reviewable decision” is defined in s.338 of the Act and, subject to a number of exceptions not relevant here, includes a “decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation”.[11] The delegate’s decision in this case to cancel the applicant’s Bridging visa while the applicant was in the migration zone, therefore, is a Part-5 reviewable decision.

   [11] Migration Act 1958 (Cth), s.338(3)

3. One then turns to s.347 of the Act to identify what was required for the applicant’s application to the Tribunal to have been one that was properly made. Relevant to the application before me is s.347(1)(c) which provides that an “application for review of a Part 5-reviewable decision must . . . be accompanied by the prescribed fee (if any)”. The fee for making an application to the Tribunal is prescribed by reg.4.13(1) of the Regulations to be $1,540. Sub regulation 4.13(1), however, is subject to reg.4.13(2)(a) of the Regulations, which provides that no fee is payable for “an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act”. Subsection 338(4) of the Act identifies two primary decisions, one of which is a “decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation”.

4. In Kirk v Minister for Immigration & Multicultural Affairs,[12] Lehane J held that the requirement of s.339(1) of the Act (as it then stood) that an application for “an internally reviewable decision” “must be accompanied by the prescribed fee (if any)” was essential to engage the reviewer’s duty under s.340 of the Act (as it then stood) to review the relevant decision, and that the prescribed fee had to be paid within the prescribed period. Kirk should be read with the Full Federal Court’s decision in Braganza v Minister for Immigration and Multicultural Affairs.[13] In that case, the applicant lodged his application for review together with a request that that the prescribed fee be waived. The Tribunal refused the application for the waiver of the prescribed fee, but then decided it had no jurisdiction to consider the application for review because the applicant had not paid the prescribed fee within the prescribed period. The Full Federal Court in Braganza distinguished Kirk. The Full Court there held that, where an applicant for a visa applies for a waiver of the prescribed fee within the prescribed period, and that application is refused, the Tribunal will not be denied of jurisdiction if the applicant pays the prescribed fee within a reasonable time after the Tribunal refused the application for a waiver.

   [12] [1998] FCA 1174; (1998) 87 FCR 99

   [13] [2001] FCA 218; (2001) 109 FCR 364 (Wilcox, Weinberg and Stone JJ)

5. As noted by Edelman J in Benissa v Minister for Immigration and Border Protection,[14] and as reflected in his Honour’ decision in that case, the decision in Kirk, with the qualification in Braganza, has been applied on numerous occasions to s.347(1)(c) of the Act which requires that an “application for review of a Part 5-reviewable decision must . . . be accompanied by the prescribed fee (if any)”.

   [14] [2016] FCA 76 at [21]

6. Unless the exception provided for by reg.4.13 of the Regulations applies to the applicant in the case before me, therefore, the applicant was required to pay the prescribed fee within the prescribed period by which the applicant was required to lodge an application for review of the delegate’s decision. Reg.4.10 of the Regulations prescribes the periods by which an applicant must apply for the review of a Part 5-reviewable decision. The prescribed periods differ according to the kind of decision an applicant applies to be reviewed. Relevant to the case before me is s.338(3) of the Act which includes as a Part 5-reviewable decision a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation. Under reg.4.10(1)(b), the prescribed period for such decisions 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.

7. A question that arises, then, is whether the exception provided for by reg.4.13 of the Regulations applied to the applicant. That turns on whether, at least during the relevant prescribed period, the delegate’s decision was a “decision of a kind referred to in subsection 338(4) of the Act”; that is, whether it was a decision “to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation”. In my opinion, the delegate’s decision to cancel the Bridging visa was not a decision of the kind referred to in s.338(4) of the Act. The applicant was not in immigration detention at the time he lodged his application for review. The applicant was held on remand in a correctional facility, and remained in a correctional facility until 12 November 2015. The exception provided for by reg.4.13 of the Regulations, therefore, does not apply. It follows, therefore, that, subject to my considering the AWS and the applicant’s oral submissions, the Tribunal correctly concluded it did not have jurisdiction to review the delegate’s decision.

8. If, contrary to what I have found, the applicant were in immigration detention at the time he lodged his application for review, the delegate’s decision would have been a decision of the kind identified in s.338(4)(b) of the Act. Under reg.4.10(2)(a) of the Regulations, the prescribed period for making an application for review of such decisions 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. Thus, if the applicant were in immigration detention at the time the delegate cancelled the Bridging visa, the applicant would have been required to lodge his application two working days after 3 September 2015, being the day on which he received notice of the delegate’s decision. In those circumstances, the Tribunal also would not have had jurisdiction to determine an application for review because the applicant lodged his application for review outside that prescribed period.

The applicant’s written submissions

1. The AWS makes three submissions. The first is that the New South Wales Police acted as the delegate of the Minister when holding the applicant in the correctional facility. The basis of that submission is the contention that s.189 of the Act imposed on the Minister an obligation to detain the applicant as soon as the delegate had cancelled the Bridging visa.

2. The intended relevance of these submissions is unclear. Perhaps the applicant intends to submit that he was in fact in immigration detention at the time he lodged his application, and that the exception provided for by reg.4.13 of the Regulations applied to the applicant. There is no evidence on the basis of which I could accept the New South Wales Police acted as the delegate of the Minister and that, therefore, the applicant was in immigration detention.

3. Even if, however, the applicant was in immigration detention, for the reasons I have already given, the applicant would have been required to apply to the Tribunal two working days after he received noticed of the delegate’s decision. The applicant, however, applied to the Tribunal more than two days after he received notice of the delegate’s decision. Thus, even if the applicant were in immigration detention at the time he applied to the Tribunal, the Tribunal would still not have had jurisdiction to review the delegate’s decision.

4. The second submission made in the AWS is that the Tribunal could not possibly have missed the fact that the applicant’s Bridging visa had been cancelled pursuant to reg.2.43(1)(p) of the Regulations which took away the applicant’s rights to apply for further a bridging visa, and that the applicant, therefore, was bound to be moved to an immigration detention centre after his release from the correctional facilities in which he was held. Again, the intended relevance of this submission is unclear. Perhaps the applicant intends to submit that he should be treated as having been in immigration detention at the time he lodged his application for review to the Tribunal.

5. If that is the intended relevance of the submission, I do not accept the applicant was or could be treated as having been in immigration detention while he held at the correctional facility. Even if, however, the applicant could have been treated as having then been in immigration detention, for the reasons I have already given, the Tribunal would still not have had jurisdiction to entertain the applicant’s application for review.

1. The third submission contained in the AWS is that the Tribunal “failed to consider any extension of time or propose any waiver of the fee”. The intended relevance of this submission is unclear. Perhaps the applicant intends to rely on the reasoning in Braganza. That is, the applicant may be submitting that the Tribunal ought to have considered whether to waive the prescribed fee and, if it were to have decided not to waive the fee, to have granted the applicant a reasonable time after its decision to pay the prescribed fee.

2. There are a number of points that may be made about such submission. First, I do not accept the Tribunal had power to waive the prescribed fee in its entirety. Second, the evidence reveals that, on 11 September 2015, the day on which the applicant lodged his application for review, the Tribunal attempted to contact the applicant to inform him not only that he had not paid the prescribed fee, but of the applicant’s applying for a waiver of 50% of the prescribed fee. That the Tribunal’s efforts may not have reached the applicant was not due to any fault of the Tribunal. The application the Tribunal received omitted the page on which the applicant had recorded an email address. Even if the application the Tribunal received had included an email address, there is nothing to suggest that the Tribunal would have been able to contact the applicant sooner by sending an email than by attempting to telephone the contact person at Silverwater.  Third, I am not satisfied that, only because an applicant has lodged an application without paying the prescribed fee, the Tribunal is under a duty to inform an applicant that he or she may apply for a waiver of 50% of the prescribed fee. Fourth, and in any event, the applicant did not apply for a waiver of the prescribed fee and, for that reason, the reasoning in Braganza cannot apply.

3. For these reasons, there is nothing in the AWS that suggests the Tribunal was incorrect in concluding it had no jurisdiction to entertain the applicant’s application that it review the delegate’s decision to cancel the Bridging visa.

Applicant’s oral submissions

1. At the hearing before me, the applicant made two submissions. The first is that, at the time the delegate informed the applicant of his decision to cancel the Bridging visa, the delegate informed the applicant of the availability of the right to apply for review of the delegate’s decision to the Tribunal, but the delegate did not inform the applicant that it was necessary to pay any fee. The second submission is that a social worker downloaded the form which had been completed and submitted to the Tribunal, and that the social worker informed the applicant that no fee was payable in relation to application to the Tribunal to review the cancellation of a Bridging visa.

2. The applicant’s submissions are assertions of fact that were given from the bar table. I informed the parties that, for the purpose of these reasons, I proposed to assume the assertions are true but that if they could potentially adversely affect the Minister’s position, I would give the Minister an opportunity to obtain instructions on the matters the applicant asserted. As it is, however, I am of the opinion that the matters the applicant asserted, even if true, could have no bearing on whether the Tribunal was correct in concluding it did not have jurisdiction.

3. Whether or not the Tribunal had jurisdiction to entertain the applicant’s application for review depended on whether, during the prescribed period within which the applicant could have lodged an application for review of the delegate’s decision to cancel the Bridging visa, the applicant paid the prescribed fee or had applied for a waiver of 50% of the prescribed fee. The evidence is clear that, during the prescribed period, the applicant failed to pay the prescribed fee, and failed to apply for a waiver of 50% of the prescribed fee. That the applicant’s failure was due to his not having been made aware of the need for him to pay, or to apply for the waiver of 50% of, the prescribed fee cannot alter the fact that the applicant did not, during the prescribed period, pay, or apply for the waiver of 50% of, the prescribed fee and that, for those reasons, the Tribunal did not have jurisdiction to entertain the applicant’s application for review.

Conclusion and disposition

1. The Tribunal’s jurisdiction depended on the applicant paying in the prescribed period the prescribed fee of $1,504 provided for by reg.4.13(1) of the Regulations, or on the applicant’s applying during the prescribed period for the waiver of 50% of the prescribed fee. The applicant did neither of these things. It follows, therefore, that the Tribunal was correct to conclude it did not have jurisdiction to entertain the applicant’s application to review the delegate’s decision to cancel the Bridging visa. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  29 April 2016