Singh v Minister for Immigration
[2012] FMCA 971
•17 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 971 |
| MIGRATION – Application for review of Migration Review Tribunal decision – applicant failed to pay the fee prescribed at time of lodgement of review with Tribunal – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss. 347, 476 & 477 Migration Regulations 1994, reg 4.13 Commonwealth Constitution, s.75(v) |
| Khan v the Minister for Immigration and Citizenship (2009) FCA 443 Craig v The State of South Australia [1995] HCA 58 |
| Applicant: | AMANDEEP SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 117 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 17 October 2012 |
| Date of Last Submission: | 17 October 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 17 October 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr d’Assumpcao |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the time prescribed by s.477(1) of the Migration Act 1958 for the filing of this review is extended so as to allow the application to have been filed on 19 June 2012.
That the application for judicial review is refused.
That the Applicant do pay the First Respondent’s costs of and incidental to these proceedings fixed in the amount of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 117 of 2012
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) of 15 May 2012. The application itself is out of time by a day and I did not hear from Mr d’Assumpcao about this, but because the period is so brief, I propose to permit, pursuant to s.477 of the Act, an extension of the time for the filing of the application so as to facilitate the matter proceeding today and I will order accordingly in relation to that.
The review application before me is in relation to a decision of the Tribunal related to the applicant’s application for a student visa, Class TU.
The delegate of the Minister refused to grant the visa on 14 December 2011 and that led to the application to the Tribunal on 30 December 2011. Section 347 of the Act sets out the requirements for an application to the Tribunal. Subsection 1(c) provides that the application must be accompanied by the prescribed fee (if any) and the prescribed fee, in this case, was the sum of $1,540. At the time of the filing of the application, the applicant tendered one half of that amount and sought a waiver of the other half.
The letter of 6 February 2012 gave him until 29 February 2012 to pay the balance of the fee. The Tribunal considered the application for the partial fee waiver, in this case, pursuant to the power to do so in the Regulations; Regulation 4.13(4) authorised the Registrar or Deputy Registrar or another officer of the Tribunal to determine that the fee on an application for review should be reduced to 50 per cent of the amount payable if he or she is satisfied that the payment of the fee has caused or is likely to cause severe financial hardship to the applicant.
The reason assigned by the Tribunal for not permitting the waiver was that the applicant had received financial support from his parents, in fact, that circumstance was indicated in the fee reduction application itself and the Tribunal proceeded upon the basis that his parents were able to assist him in paying the remainder of the review fee. The Tribunal took the view then that the fee not having been paid within the time required by that letter, there was no valid application before the Tribunal and accordingly, the application was dismissed upon the basis that the Tribunal did not have any jurisdiction to make the order reviewing the delegate’s decision.
This Court has the same power of review in relation to migration decisions as is possessed by the High Court under s.75(v) of the Commonwealth Constitution but the power is only, of course, in relation to migration decisions. Migration decision is a term of art in the Act and generally speaking, migration decisions, with some rare exceptions, are either privative clause decisions or purported privative clause decisions and the consequence of that is that for a review of this kind to succeed in this Court, the applicant must demonstrate that the decision of the Tribunal, in this case the Migration Review Tribunal, was vitiated by jurisdictional error.
Jurisdictional error is a concept best explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58. So the question is whether there is any error going to jurisdiction, whether the decision of the Tribunal to consider that it had no jurisdiction to entertain the review of the delegate’s decision was a decision made in want of or in excess of jurisdiction.
The grounds for review in the application itself simply assert that the Tribunal did not provide the applicant with an opportunity to put forward his case and so I suppose, implicit in that, even though it is not identified, implicitly the submission is that the Tribunal fell into jurisdictional error in considering itself in not having a jurisdiction to hear the application because of the failure to pay the balance of the prescribed fee.
A like matter was before Besanko J in Khan v the Minister for Immigration and Citizenship (2009) FCA 443. That was a case that again involved an application where the fee had not been paid but not an application for a fee waiver, as such but an application that a credit card authorisation was given but despite repeated attempts by the staff of the Tribunal to arrange for the payment to be made by use of the credit card provided by the applicant, the fee was not paid and the Tribunal took the view that in those circumstances, it did not have a jurisdiction to hear the application.
There was some argument, not material to the matter before me, in that case as to whether the Tribunal was obliged to follow up with the applicant the fact that the credit card had been rejected and the Tribunal, the Federal Magistrate and Besanko J took the view that there was no reversal of responsibilities associated with that. The obligation on the part of the applicant remained throughout to ensure that the application was accompanied by the prescribed fee, but on the fundamental issue as to the Tribunal proceeding upon the basis that because the prescribed fee was not paid or did not accompany the application there was not a valid application and therefore, the Tribunal had no jurisdiction, its decision to proceed in that way was upheld as appropriate by both the Federal Magistrate and by Besanko J on the appeal.
There is no doubting that s.347 sets out the formal requirements for an application for review to the Tribunal and one of them is that their application is accompanied by the prescribed fee. The applicant’s application at the time of lodgement was not accompanied by the prescribed fee; it was accompanied by a half payment. True it is that he completed a document which sought a waiver of the balance but the obligation remained throughout to ensure that the prescribed fee was paid.
That is the view I take of the matter and because I take that view of the matter, I do not really need to get into the issue as to whether or not the applicant received the letter in relation to the rejection of his fee waiver application. The letter of 6 February2012 was sent to the address nominated by Mr Singh in the application before this court as his residential address; there is no disputing it was his residential address. There is no affidavit material before me to indicate any particular reason why the letter would not have been received but I do not think I need to get into those issues because it was for Mr Singh to ensure that the application was accompanied by payment of the prescribed fee or that he was excused from that requirement by virtue of the operation of the regulations; he did not do so.
In those circumstances, the Tribunal, on 14 May 2012, proceeded to determine that there was no valid application before it and there is nothing that Mr Singh has put to me today that indicates, in my view, that the Tribunal fell into error in proceeding on the basis it did let alone fell into jurisdictional error, and in these circumstances, the application for judicial review will be refused.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lindsay FM.
Date: 23 October 2012
0