Singh v Minister for Immigration
[2017] FCCA 1296
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1296 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student temporary (Class TU) visa – where the Applicant did not pay the requisite fee within the prescribed period – where Tribunal held it had no jurisdiction – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 189, 338, 347, 348. Migration Regulations 1994 (Cth), regs. 4.10, 4.13. |
| Cases cited: Benissa v Minister for Immigration and Border Protection [2016] FCA 76. Braganza v the Minister for Immigration and Multicultural Indigenous Affairs (2001) FCA 318, 109 FCR 364. |
| Applicant: | NARINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 953 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 19 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 May 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.
The Application for interlocutory relief is dismissed.
Order 2 of the orders made on 10 May 2017 is discharged.
NOTATION:
A.The Minister has indicated he will not seek to remove the Applicant from Australia pending assessment of the validity of the Applicant’s protection visa application and any subsequent determination by the delegate should that protection visa application be found to be valid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 953 of 2017
| NARINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 12 April 2017 in which the Tribunal determined it did not have jurisdiction in respect of the Applicant's application for review of a decision of the delegate of the Minister for Immigration and Border Protection (‘the Minister’) dated 3 March 2017 to cancel the Applicant's student (temporary) (Class TU) visa (‘the visa’) under the Migration Act 1958 (Cth) (‘the Act’).
The Applicant seeks an order that the decision of the Tribunal be quashed and that a writ of mandamus issue directed to the Tribunal requiring it to determine the Applicant’s application according to law.
The grounds of application are as follows:-
“1. The Tribunal applied irrelevant laws and regulations.
2. Tribunal did not apply relevant laws and regulations.
3. Tribunal miscalculated the required days to lodge the application according to law.
4. Tribunal ignored regulations in dealing with the incomplete application.”
The Applicant also filed before the Court an application in a case on 10 May 2017. In that application the Applicant sought an interlocutory order restraining the First Respondent, his employees, agents or servants from removing or deporting the Applicant to his country of origin until the conclusion of the proceedings.
The application in a case was heard by the Court on the evening of 10 May 2017. The Court ordered, relevantly, that all extant applications be adjourned to this date for final hearing and that, as set out in order number 2 of the orders made 10 May 2017, the First Respondent be restrained from removing the Applicant from Australia until further order.
The First Respondent has filed a response to the substantive application dated 11 May 2017. The First Respondent seeks that the application be dismissed and that the Applicant pay the First Respondent's costs of the proceeding. The grounds as set out in the response are that:-
a)the application for judicial review has no reasonable prospects of success; and
b)the decision under review is not affected by jurisdictional error.
The Applicant relies this day on his application and an affidavit affirmed by him on 2 May 2017. In oral submissions made this day the Applicant did not raise any argument beyond that which is set out in his affidavit. The argument set out in his affidavit is as follows:-
“I, Narinder Singh, wish to inform that I had appealed the cancellation of my visa at the Administrative Appeals Tribunal (AAT) and I could not pay the fees for lodging review of visa cancellation because I was in jail and the prison staff informed me that I could pay the lodgment fees after I am released from the prison. AAT has informed me that I am able to pay lodgment review fees at the Federal Circuit Court.”
In the proceedings, the First Respondent relies on an affidavit affirmed by Mr John David Brown of 18 May 2017.
Background
The Applicant is an Indian national. He arrived in Australia on 28 February 2016. His wife had been granted a student (temporary) (Class TU) two year visa and he was granted a visa as her dependant spouse.
The background of the Applicant’s history thereafter whilst residing in Australia is as succinctly set out in Mr Brown’s affidavit and as follows:-
a)on 26 January 2017 the Applicant was charged with offences allegedly committed against his wife, which included stalking, intentionally causing injury, making threats to kill, unlawful assault and unlawful assault with a weapon. Bail was refused on 26 January 2017 and the Applicant was remanded in custody;
b)on 3 March 2017 the Applicant was personally served with a notice pursuant to s.116 of the Act, that the delegate of the Minister for Immigration and Border Protection (‘the delegate’), intended to consider cancelling his visa. On that day the Applicant was interviewed by the delegate. The delegate subsequently cancelled the Applicant’s visa pursuant to s.116(1)(e)(ii) of the Act, on the basis that the Applicant may be or might or would be, a risk to the health and safety of an individual – namely, his estranged wife;
c)on 6 March 2017 the Applicant applied to the Tribunal for review of the delegate’s decision;
d)on 7 March 2017, at Dandenong Magistrates’ Court, the Applicant was convicted of recklessly causing injury and making threats to kill his wife and was sentenced to a twelve month Community Corrections Order. Thereafter he was detained pursuant to s.189(1) of the Act and was interviewed by a Department of Immigration and Border Protection (‘the Department’) officer in relation to his personal circumstances;
e)on 16 March 2017 the Applicant signed a request for removal from Australia;
f)on 28 March 2017 the Applicant applied to the Tribunal for review of the delegate’s decision;
g)on 29 March 2017 the Tribunal wrote to the Applicant acknowledging his application dated 28 March 2017;
h)on 30 March 2017 the Tribunal wrote to the Applicant advising him that his application may not be valid as it had not been lodged within the relevant time period, the application fee had not been paid within the prescribed period, and no request had been received by the Tribunal for a reduction in fee. The Tribunal invited the Applicant to respond in writing. The Applicant did so on 1 April 2017. That correspondence was relevantly as follows:-
“Dear officer,
I have been informed and received the fax/email ... I wish to inform that I had applied for a review on 6 March 2017 as I am providing a receipt of the fax dated 6 March from Port Phillip Prison. As regards to the fees, I was informed by my institution that as I am in prison, I will be able to pay my fees after I am released from prison. Till today I haven’t been released as a fact that paying fees is not an issue for me.”
i)on 12 April 2017 the Tribunal concluded that it did not have jurisdiction to hear the Applicant’s merits review application by reason of the non-payment of the requisite fee within the prescribed period. That was as set out in the Tribunal Statement of Decision and Reasons (‘the Decision Record’), which was forwarded to the Applicant on 13 April 2017;
j)on 12 April 2017 the Applicant withdrew his request for removal from Australia, (which he had signed on 16 March 2017);
k)on 9 May 2017 the Department undertook a pre-removal clearance review with the Applicant, then on an involuntary removal pathway to India, and concluded that removal of the Applicant to India did not raise non-refoulement concerns. The minute of pre-removal clearance document noted that the Applicant first arrived in Australia on 2 June 2009, holding a Class (TU) 676 visa. He departed Australia on 23 June 2009 and then returned to Australia on 28 February 2016 holding the Class (TU) 573 visa referred to at the commencement of these reasons. It is this visa that was cancelled under s.116 of the Act on 3 March 2017;
l)the Applicant was scheduled for removal from Australia on 11 May 2017;
m)the Applicant then filed his application for judicial review of the Tribunal decision in the Court on 10 May 2017. The Department notified the Applicant of its intention to proceed with the Applicant’s removal and advised the Applicant of his need to apply for an interlocutory injunction if he wished to prevent such removal. At 9.20pm on 10 May 2017 the Applicant filed an application for injunctive relief to restrain the First Respondent from removing him from Australia.
The Legislation
Section 348 of the Act is relevantly as follows:-
“MIGRATION ACT 1958 - SECT 348
Tribunal to review Part 5-reviewable decisions
(1) Subject to subsection (2), 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 that are not relevant to this matter, includes a “decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation.” The delegate’s decision to cancel the Applicant’s bridging visa while the Applicant was in the migration zone therefore is a Part 5 reviewable decision.
Section 347 of the Act is relevantly as follows:-
“MIGRATION ACT 1958 - SECT 347
Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:…
(c) be accompanied by the prescribed fee (if any). …”
The relevant Regulation as contained in the Migration Regulations 1994 (Cth) (‘the Regulations’), is:-
“REG 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 of the Tribunal 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 may determine that the fee payable is 50% of the amount mentioned in subregulation (1).”
Consideration
The difficulty for the Applicant in these proceedings is that his application for judicial review has no prospects of success. Accordingly his application must be dismissed.
Although the Tribunal had a preliminary view, as expressed to the Applicant, that his application was not valid because it was not lodged within the relevant time period, and because the application fee had not been paid, the Tribunal, in it’s Decision Record (paragraph 5 therein) stated its satisfaction that the information provided by the Applicant was sufficient information necessary to properly invoke the Tribunal’s jurisdiction when referring to the application form received by the Tribunal on 6 March 2017.
The Tribunal noted the Applicant initially applied for review on 6 March 2017, before lodging a further application on 28 March 2017. The Tribunal was prepared to accept, however, that although the form received by the Tribunal on 6 March 2017 was incomplete, with many sections blank and other parts blacked out, there remained visible matters and information which the Tribunal was prepared to accept properly invoked its jurisdiction. The Tribunal noted that the prescribed period within which the review application could be made ended on 15 March 2017. As the review application was made on 6 March 2017, the Tribunal made a finding that the application was lodged within the prescribed time period.
The grounds of application of the Applicant, numbered three and four, have no bearing on this judicial review application. The Tribunal decision turned on whether the prescribed fee was paid.
The Tribunal found that it had no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
As accurately set out by the Tribunal in paragraph eight of the Decision Record, pursuant to s.347(1) of the Act and reg.4.13 of the Regulations, the Applicant’s application for review by the Tribunal was required to be lodged within the prescribed period as specified in s.347(1)(b) of the Act and reg.4.10 of the Regulations, and accompanied by the prescribed fee, unless, a determination had been made under reg.4.13(4) that the fee should be reduced on the basis of financial hardship.
The prescribed period ended on 15 March 2017. The fee was required to be paid within the prescribed period or if a determination prescribed had been made under reg.4.13(4) within a reasonable period after that determination .[1] The Applicant made no application for a fee waiver and thus was required to pay the prescribed fee within the prescribed period.
[1] Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99; Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
As said by the Tribunal in paragraph nine of it’s Decision Record:-
“The Applicant did not pay the prescribed fee when lodging his application of 6 March 2017, nor at any other time during the prescribed period. The Applicant has also not requested at any time during the prescribed period, a determination under regulation 4.13(4) that the fee be reduced, nor has any such determination been made. The application for review received on 28 March 2017 (dated 6 March 2017 and which appears to be the form that the Applicant sent an incomplete version of on 6 March) does not include the prescribed fee or any information about how the application fee will be made (sic).”
The Tribunal concluded that whatever advice may have been given to the Applicant, as claimed by the Applicant, was immaterial in the sense that a review application will be invalid if the prescribed fee is not paid. Without payment of the fee the Tribunal had no jurisdiction in the matter.
There is a considerable body of authority to the effect that the decision of the Tribunal was correct in law.
In Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (‘Bennisa’), Edelman J noted that the decision in Kirk v the Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, with the qualification of Braganza v the Minister for Immigration and Multicultural Indigenous Affairs (2001) FCA 318, (2001) 109 FCR 364, has been applied on numerous occasions subsequently.
His Honour set out in paragraph 20 of Benissa the following:-
“In Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364, the Full Court considered whether the Migration Review Tribunal had jurisdiction in circumstances in which the appellant had failed to pay the prescribed application fee, (which was then $1,400), in accordance with section 347 of the Migration Act. In that case the Applicant had lodged his application for review within the prescribed period, together with a request for fee waiver on the grounds of financial hardship. The fee waiver was denied. The Applicant asked the Tribunal to reconsider his request for a waiver and for an extension of time. The request for reconsideration of the fee waiver was refused. The Tribunal informed the Applicant that it had no jurisdiction because the prescribed fee had not been paid within the required time. The Full Court distinguished the decision in Kirk holding that where an Applicant for a visa applies for a waiver within the prescribed period section 347 does not deny jurisdiction to the Tribunal if the Applicant pays the required fee within a reasonable time after the application for waiver is rejected, (or if the fee is eventually waived).”
The Court concludes no jurisdictional error attends the decision of the Tribunal in the Tribunal’s finding that it had no jurisdiction.
There being no arguable case, the Applicant’s application is dismissed with costs following that event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 June 2017
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