Sadeq v Minister for Immigration
[2009] FMCA 967
•22 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SADEQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 967 |
| 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 – 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), reg.4.13 |
| 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: | YACOUB SADEQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1743 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 September 2009 |
| Date of last submission: | 22 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2009 |
REPRESENTATION
| Applicant: | Appeared in Person |
| Solicitor for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1743 of 2009
| YACOUB SADEQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case applies for review of a decision of the Migration Review Tribunal, which found that it had no jurisdiction to hear his application for review of a decision of the delegate of the Minister not to grant him a visa. The visa is a Child (Residence) (Class BT) visa.
The Tribunal found that it had no jurisdiction because, although the Applicant had made an application to the Tribunal within time, he had not paid the review fee of $1,400.00 within time, nor had he obtained a waiver of that fee. The case is essentially about the process of the application for the waiver of the review fee and whether the Tribunal fell into jurisdictional error in the way it dealt with that matter.
Background
In order to consider the application, it is necessary to go into the background in some detail, although the type of visa for which the Applicant has applied and whether or not he meets the requirements for that visa are not issues that this Court has to decide. What the Court has to decide is the question as to whether the Tribunal was in error when it found it did not have jurisdiction.
The Applicant applied for his visa on 31st July 2008. In that application he set out that he was born in Amman in Jordan on 18th April 1975. He provided a sponsorship form headed, ‘Sponsorship for a Child to Migrate to Australia’. In that document it was set out that the person who was applying as to be the Applicant’s sponsor was one Ali Inirat.[1]
[1] See Court Book at pages 17 and 18.
The Applicant also nominated an authorised recipient for the purpose of the dealings with Department of Immigration and Citizenship. The Applicant lodged a Form 956 indicating that his authorised recipient was one Toufic Laba Sarkis.[2]
[2] See Court Book at pages 25 and 26.
The Department of Immigration and Citizenship wrote to the Applicant on 14th January 2009 and advised him that his application for a visa had been refused. The letter advised the Applicant that the decision was reviewable by the Migration Review Tribunal.[3]
[3] See Court Book at pages 30 and 31.
A delegate of the Minister set out in a decision record the reason why the application had been refused. That reason is not relevant to the matter before the Court.[4]
[4] See Court Book at pages 33 and 34.
Application to the Migration Review Tribunal
The Applicant applied to the Migration Review Tribunal for review of the delegate’s decision. He did so on 11th February 2009.[5] In his application review he again nominated Mr Laba Sarkis as his authorised recipient.[6] At the same time as the Applicant lodged his application to the Tribunal for review, he lodged an application for waiver of the review fee. In that document he set out that he had no assets, no items of property, no income.[7]
[5] See Court Book at page 35.
[6] See Court Book at page 39.
[7] See Court Book at pages 42-45.
He set out in the form a claim that his expenses were paid by his friend by the name of Mohammed Maadi. In the form he showed that he owed Mr Maadi $4,000.00 for living expenses[8]. He further set out that his friends were supporting him because he was not working and he was also sick. The Applicant provided, with his application, a letter from Mohammed Maadi certifying that the Applicant had been living with him since 30th November 2007 as a sub-tenant. The letter went on to say:
The electricity, gas and telephone bills come in my name but Mr. Sadeq shared all of the bills with me, the total is $160.[9]
The Applicant also provided two pharmacy receipts showing amounts paid of $41.00 and $36.25.[10]
[8] See Court Book at page 47.
[9] See Court Book at page 51.
[10] See Court Book at pages 52 and 53.
The Tribunal wrote to Mr. Laba Sarkis, the Applicant’s authorised recipient, on 16th February 2009, enclosing a letter addressed to the Applicant asking for further information about the Applicant’s financial situation. As has been submitted by Ms Johnson, solicitor, who appeared for the Minister, this request was for specific items of information. The letter relevantly said:
The information you have provided does not satisfy me that the fee should be waived.
It would assist if you could provide the following information:
· Department of Immigration and Citizenship records show that you have been in Australia since October 1997 with no work rights. Please comment on how you have been financially supported for the past eleven years. Please also provide documentary evidence to demonstrate why the same source of financial support cannot now assist you to pay the review application fee.
· As you claim to now be financially dependent on Mr Mohammed Maadi, it is reasonable for me to consider why Mr Maadi cannot assist you pay the review application fee. Please provide bank statements for the past three months for all accounts held by Mr Maadi. Clearly mark on the statements any payments made to you by Mr Maadi as financial support.
· Mr Maadi provided a letter stating that you have paid your share of all electricity, gas and telephone bills. Since you have stated that you have no income, please explain how you made payments towards these bills. If you have an alternate form of financial support, please provide evidence to demonstrate why that source of financial support cannot assist you to pay the review application fee.[11]
[11] See Court Book at page 57.
The Tribunal’s letter asked the Applicant to provide a response in writing within 14 days. The Applicant did not provide a response in writing within that period of time, however a copy of the covering letter to Mr Laba Sarkis, dated 16th March 2009 was delivered to the Tribunal by hand on 9th April 2009. On that letter had been written the words in handwriting:
Please grant an extension of time until 30 April 09.[12]
[12] See Court Book at page 59.
The Tribunal’s letter of 16th March 2009 contained the letter advising the Applicant that his fee waiver had been refused because he had not provided further information as requested in the letter of 16th February (NB the letter says “16 February 2008” but it should have said “16 February 2009”). However, upon receiving the written request for an extension of time the Tribunal granted an extension until 30th April 2009 as requested.[13]
[13] See Court Book at page 62.
On 16th April 2009, within the time allowed, Mr Laba Sarkis, in his role as the Applicant’s recipient, submitted a statutory declaration by the Applicant. That statutory declaration referred to the letter from Mohammed Maadi relating to his contribution of $160.00 per week. It went on to say:
My maternal cousin Ali has been supporting me financially. He is married with one son and currently not working.
My cousin is same as my age.
I have never been granted permission to work.
I ask the Tribunal to accept that I suffer financial hardship.[14]
The Applicant resubmitted the original letter from Mr Maadi and the two chemist receipts.
[14] See Court Book at page 64.
The Tribunal wrote to Mr Laba Sarkis again on 16th April 2009 in a letter which was marked ‘posted 17.04.09’ containing a further letter to the Applicant. That letter set out certain information from the Department of Immigration and Citizenship to the effect that the Applicant had had no work rights since March 2000, but he had previously provided to the Department details that he had worked at various restaurants between 2000 and 2006, notwithstanding that he had not been granted permission to work.
The Tribunal, in this letter asked for further specific items of information. They were in summary:
(a)Bank statements for the past six months for all accounts held by the Applicant.
(b) Income tax assessment notices for the period 2000 – 2006.
(c) Documentary evidence of the amount of financial support the Applicant receives from Ali Inirat and comments on why the financial support he receives is not available to assist him to pay the review fee.
(d) A comment on why the Applicant required financial support from Ali Inirat from 2005 when in the period 2005 to 2006 he was employed as an Executive Chef at La Mela, Italian restaurant.
That letter required a Response in writing within 14 days of that letter, that date being 16th April 2009, although, as I said, posted on 17th April 2009. The Applicant did not provide a reply to that letter within 14 days. On 12th May 2009 the Tribunal forwarded a further letter to Mr Laba Sarkis on behalf of the Applicant. That letter informed the Applicant that his request for a waiver of the $1,400.00 application fee had been refused. The letter set out the reasons:
I have carefully considered your request and the information about your financial position, and I have decided that payment of the fee would not cause you severe financial hardship. The reason for my decision is as follows:
· On 16 April 2009, a Tribunal officer contacted you requesting further information in support of your fee waiver application. You have not responded to this letter. The information on the Tribunal file is not sufficient to find that payment of the review application fee is likely to cause you severe financial hardship.[15]
[15] See Court Book at page 72.
Mr Laba Sarkis wrote to the Tribunal a letter dated 8th June 2009, which was stamped ‘received 10th June 2009 by the Tribunal.’ That letter enclosed two ATM receipts showing the bank balances of two accounts which Mr Laba Sarkis said the Applicant had told him where opened on 19th March 2009. The letter went on to ask:
The applicant is a highly skilled person but does not have permission to work. In the past he responded to a letter explaining that his financial situation is poor and he has been dependent financially on Mohammed Maadi. I ask you to take into consideration the evidence given and discuss his case with the Registrar to see if it is possible to waive the fee because of the financial hardship.[16]
[16] See Court Book at page 73.
The letter contained two copies of ATM printouts showing an available balance of $92.00 for one, with the word “Commonwealth” written on it by hand, and $40.00 for the other with the word “Queensland Bank” written on it by hand.[17]
[17] See Court Book at pages 74 and 75.
The Tribunal signed a decision on 24th June 2009 and forwarded a copy of that decision to the Applicant’s recipient the following day. The Tribunal found it did not have jurisdiction in the matter. In its decision record the Tribunal set out:
The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 11 February 2009 is an application properly made under s.347 of the Act for review of the delegate’s decision.[18]
[18] See Court Book at page 80.
The Tribunal went on to find that the Applicant was seeking a review of an MRT-reviewable decision covered by s.338(2), and that the prescribed fee was $1,400.00. The Tribunal then set out the history of negotiations between the Applicant and the Tribunal over the question of payment of the review fee or the obtaining of a waiver.
The Tribunal noted that the Application for a Waiver had been refused and that the fee had been due on 4th June 2009, and that had no payment had been received. And the Tribunal set out:
The Tribunal finds that the applicant has been given a reasonable period to pay the prescribed application fee since being notified of the decision to refuse to waive it. As the prescribed application fee has not been paid, or waived, under regulation 4.13(4), the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.[19]
[19] See Court Book at page 83.
Application for Judicial Review in this Court
The Applicant commenced proceedings in this Court on 22nd July 2009 seeking a review of that decision, and set out three grounds. They are:
1. The Tribunal erred in law by ignoring the evidence of financial hardship.
2. The Tribunal failed to accord natural justice to me.
3. The Tribunal failed to waive the review fee.
The Applicant has not filed any written outline of submissions, but he has attended Court to make oral submissions. The Applicant was accompanied by his wife, whom he married in June 2009. He asked the Court’s permission for his wife to sit with him at the bar table, and to assist him, as he was not legally represented. That permission was granted.
The Applicant speaks English reasonably well, although has been provided with the assistance of an interpreter in the Arabic language. The Applicant submitted that by refusing to waive the fee the Migration Review Tribunal did not apply the law.
He told the Court he had been assisted financially by his friends and cousins, and he referred the Court to his statutory declaration at page 64 of the Court Book, and to the copies of the printouts from the automatic teller machine, showing the balances of his two bank accounts.[20]
[20] See Court Book at pages 74 and 75.
The Applicant spoke very highly of his authorised recipient for correspondence for the Tribunal proceedings, Mr Taufik Laba Sarkis, whom he described as having been like a father to him in this country. The Applicant spoke very highly of his cousin, Mr Ali Inarat, who is the sponsor for his application. The Applicant said that his cousin had supported him, “Like a father.”
It is clear that the Applicant has a high regard for both of the gentlemen to whom he referred. The Applicant told the Court that he was recently married, and that his wife had been assisting him. The Applicant submitted that he had financial hardship, and that the Tribunal had not made that finding, by ignoring the evidence that he had provided.
Against this, Ms Johnson, who appeared for the Minister, submitted that the Applicant’s claim that the Tribunal had ignored his financial hardship, and the evidence of it, had not been made out. She submitted that the Tribunal had made specific requests for information, which the Applicant had not provided.
She further submitted that the Tribunal did consider the documents provided by the Applicant in support of his claim, but essentially assessing whether an applicant’s financial situation amounted to financial hardship, for the purpose of waiving a review application fee, was a matter of fact for the Tribunal.
The submission was that once the fee waiver had been refused, and once the payment had not been made by the due date, then the Tribunal had no jurisdiction. I have also been assisted by the written submissions prepared by Ms Johnson on behalf of the Minister, which set out the law and the facts in some detail, and I have taken that document into account.
The situation at law is that s.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 the Tribunal is satisfied that payment of that fee has caused, or would cause financial hardship to the review application.[21]
[21] See Migration Regulations 1994, reg.4.13(4).
If the application 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. I am referred to the decision of Braganza v Minister for Immigration and Multicultural Affairs[22], which is a decision of Wilcox, Weinberg and Stone JJ. Their Honours held that:
Where an applicant for a visa makes an application for a 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, s.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.[23]
[22] (2001) 109 FCR 364
[23] See at [51].
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[24].) In that case, which was an appeal from the Federal Magistrates Court, Gray J held, at [15]:
For the purposes of the application of the principle enunciated in Braganza, however, the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee. A reasonable time can never be a period determined arbitrarily. The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case. If, in a particular case, the person to whom the letter is addressed has not received it in fact, that is one of the circumstances that must be taken into account in determining whether a reasonable time has in fact elapsed.
[24] [2009] FCA 392
It is not the case in the matter under review that the Applicant had not received the notification that the fee waiver had been refused; quite the reverse, in fact. There had been an ongoing correspondence between the Applicant’s authorised recipient, on behalf of the Applicant, and the Tribunal, about whether or not the waiver should be refused. The Court must, of course, look at the reasonableness of the time allowed to pay the application fee, in the light of the circumstances.
In the letter of 12th May 2009, which was posed on 13th May 2009, the Tribunal said:
You must now pay the $1400 application fee within 14 days of receiving this letter. As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter. If the fee is not paid by the due date your application for review will be allocated to a Tribunal Member to determine whether you have made a valid application. If you do not pay the fee, the Member may decide you have not made a valid application. If your application is invalid the Tribunal cannot review the decision.[25]
[25] See Court Book at page 72.
The Applicant did not pay the application fee. The time for the fee to be paid was 4th June 2009. The Tribunal then quite clearly told the Applicant that if he did not pay the fee by the due date there was a serious danger that a Tribunal would determine that he had not made a valid application, which in fact is what happened. It has been put by Ms Johnson for the Minister and in my view, correctly, that it was for the Applicant to make the required payment by the due date and there was no obligation on the Tribunal to pursue the payment of the fee.
I am referred to the decision of Khan v Minister for Immigration and Citizenship[26]. That decision was an application for an extension of time within which to file and serve a notice of appeal from the decision of a Federal Magistrate. In considering that matter, Besanko J considered whether the proposed appeal in that case had any realistic prospects of success. His Honour considered the reasoning of the Federal Magistrate who said at first instance:
[26] [2009] FCA 443
[17] The applicant has to make the payment but the Tribunal is not obliged to pursue it.
[18] I think that reasoning is correct, and that conclusion means that, even if an extension of time is granted, the Federal Magistrate’s conclusion that the application should be dismissed would be upheld.
Turning to consider the Applicant’s grounds of review, he first of all says:
The Tribunal erred in law by ignoring the evidence of financial hardship.
The Applicant most certainly did provide some evidence to the Tribunal. That evidence came in the form of:
i)a letter from Mohammed Maadi;
ii)two pharmacist receipts for amounts of $41.00 and $36.25;
iii)his statutory declaration declared on 15th April 2009;
iv)a letter from Mr Nabasakus to the Tribunal dated 8th June 2009; and
v)the ATM printouts showing the balance of the Applicant’s two bank accounts as at $92.00 and $40.00.
Conclusion
The Tribunal, in my view, considered the Applicant’s evidence. It considered his application for a fee waiver and the statements made in that and the documents supplied in support. The Tribunal wrote to the Applicant on 16th February 2009 asking for further information and referring to the application for a waiver and to the letter from Mr Maadi[27]. The Tribunal granted the Applicant an extension of time. The Applicant took advantage of the extension of time to submit the statutory declaration and to re-submit the letter from Mr Maadi and the pharmacy accounts.
[27] See Court Book at page 57.
However, the Tribunal wrote to the Applicant on 16th April 2009 requesting further specific information, which was not provided. The Applicant did not provide bank statements. He did not provide income tax assessments. He did not provide comments about his previous employment or his financial support from Mr Inirat. There was a letter from Mr Laba Sarkis on 8th June 2009 after the time given by the Tribunal to pay the fee had expired, containing the two ATM printouts. As the time to pay the fee had expired, the Tribunal did not have jurisdiction and it was not therefore in a position to consider the ATM printouts.
In any event, they did not comply with the request for information sent by the Tribunal because they were certainly not bank statements. The position under s.347 of the Migration Act is that a valid application must be one that is accompanied either by the prescribed fee or for which the fee has been waived provided the application for the fee waiver has been made within the prescribed time. Once the application for waiver of the fee has been refused, the Tribunal must allow a reasonable time according to the circumstances of the Applicant for the payment of the fee. In my view, the Tribunal allowed a reasonable time.
There is certainly nothing to indicate that a period of 14 days after the receipt of the letter was not in the circumstances reasonable. The Applicant’s complaint about the Tribunal is that it did not grant the waiver. Whether or not to waive the filing fee was a matter for the Tribunal to consider upon the evidence provided. It was a matter of fact and a question of fact is solely for the Migration Review Tribunal to decide. The Applicant’s other ground is that he was denied natural justice. He has provided no evidence to support that claim and it is hard to see how in fact he was denied natural justice.
In my view, the Tribunal considered the information he provided and asked him for further information, which he did not provide. The Tribunal considered and granted a request for an extension of time to provide information. In my view, there is nothing to show any denial of natural justice. Once the request to waive the fee had been refused, and in my view no error has been shown in the Tribunal’s approach to refusing the waiver of the fee, the Applicant was obliged to pay the review fee within a reasonable time. The Tribunal allowed a reasonable time and there is no error in my view in the time allowed by the Tribunal.
When the fee was not paid by the due date, the application failed to meet the requirements of section 347 of the Act. Thus, it was not a valid application and the Tribunal had no jurisdiction to hear it. In my view, there is no jurisdictional error and the Tribunal decision is a privative clause decision as defined by s.474 of the Act. It follows, therefore, that the application must be dismissed.
In my view, this is a matter where costs would follow the event. The Applicant has been unsuccessful in his claim and it is normally the situation that an unsuccessful applicant would be required to pay the Minister’s legal costs. I am satisfied that an order for costs should be made in favour of the First Respondent. The amount sought is $3,600.00. That is a figure significantly below an amount provided by the scale in the Federal Magistrates Court Rules. It is an appropriate figure in the circumstances.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 2 October 2009
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