SONJAYA v Minister for Immigration
[2009] FMCA 1112
•4 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SONJAYA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1112 |
| MIGRATION – Visa – Child (Residence) (Class BT) visa – Migration Review Tribunal – application for review of a decision of the MRT that it had no jurisdiction – 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 |
| Applicant: | WIBISONO SONJAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1732 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 November 2009 |
| Date of Last Submission: | 4 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2009 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms. Whittemore |
| 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 $3,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1732 of 2009
| WIBISONO SONJAYA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal. On 18th June 2009, the Tribunal found that it did not have jurisdiction in respect of an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the Applicant a Child (Residence)(Class BT) visa.
The Tribunal found that it had no jurisdiction because it found that the application was not a valid application. The reason that it made that finding was that the Applicant had not paid the Tribunal fee, nor had the Tribunal fee been waived under Regulation 4.13(4) of the Migration Regulations.
The Applicant asks the Court to quash the decision of the Tribunal, and return his application to the Tribunal so that his application for review may be determined. It has been explained to the Applicant that, in order to make those orders, the court must be satisfied that the decision of the Tribunal is effected by jurisdictional error.
Background
The background to this matter is that the Applicant applied for a Child (Residence) visa on 3rd November 2008. His application was accompanied by a formal sponsorship indicating that another person was prepared to sponsor him.
On 15th January 2009, his application for a visa was refused. On that date, a delegate of the Minister for Immigration and Citizenship wrote to the Applicant’s authorised recipient, Mr Toufic Laba-Sarkis, advising that the application had been refused.[1]
[1] See Court Book at page 28.
In the delegate’s decision record, the delegate referred to the threshold criteria in clause 802.212 of Schedule 2 to the Regulations. The delegate noted:
At the time of application, the applicant was aged 34. There has been no evidence provided to suggest that the applicant is incapacitated for work.
I am not satisfied that, at the time of application, the applicant was incapacitated for work due to the total or partial loss of their bodily or mental functions. As the applicant does not meet subclause 802.212(2), they must not have turned 25 at the time of application. As the applicant was aged 34 at the time of application, they failed to meet sub-clause 802.212(1).[2]
[2] See Court Book at page 32.
Application to the Migration Review Tribunal
On 13th February 2009, the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision. He nominated Mr Laba-Sarkis as his authorised recipient.[3] The application for review was accompanied by an application for a fee waiver.[4] Along with the application for fee waiver, the Applicant submitted copies of bank statements.
[3] See Court Book at page 37.
[4] See Court Book at pages 41 to 49.
The Tribunal wrote to the Applicant, care of his authorised recipient, on 18th February 2009. That letter contained a request to the Applicant to provide further information in support of the application to waive the Tribunal fee. The letter asked for a response in writing within 14 days of receiving the invitation, and it advised the Applicant that he would be considered to have received the letter seven working days after the date of the letter.[5]
[5] See Court Book at page 63.
The Applicant replied to that letter in a handwritten document which was undated, and a copy of which appears at page 65 of the Court Book. In that handwritten letter the Applicant reiterated his claim for a fee waiver, and drew the Tribunal’s attention to the fact that, in the past, the Tribunal had waived the Tribunal fee in respect of an earlier application.
On 18th March 2009 the Tribunal wrote to the Applicant, care of his authorised recipient, advising him that the Tribunal had decided that payment of the fee would not cause him severe financial hardship. That letter set out the Tribunal’s reasons for that decision, and advised the Applicant that he must pay the $1,400.00 application fee within 14 days of receiving the letter. Again, the Tribunal said:
As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter.[6]
[6] See Court Book at page 67.
Some five days later, on 23rd March 2009, the Applicant wrote again to the Tribunal. He set out further information about his financial circumstances, and again advised that, in 2007, the Tribunal had waived the fee in respect of his earlier application.[7]
[7] See Court Book at page 68.
The Tribunal considered that document as an additional request for a waiver of the application fee, and wrote to the Applicant, care of his authorised recipient, on 8th April 2009 advising him that the request for the review of the decision to refuse the waiver of the $1,400.00 application fee had been refused. The letter asked the Applicant to pay the $1,400.00 application fee within 14 days of receiving that letter, and again advised him that he would be considered to have received that letter seven working days after the date of the letter.[8]
[8] See Court Book at page 70.
What then happened is that on 30th April 2009 the Tribunal received a statutory declaration made by the Applicant referring to the earlier waiver of the fee by the Tribunal, advising that the Applicant did not have any further information to provide, and reiterating the request: waive the fee, because the Applicant was currently suffering severe financial hardship.[9]
[9] See Court Book at page 71.
On 7th May 2009, the District Registrar of the Tribunal wrote to the Applicant, care of his authorised recipient, advising that the submission received on 30th April 2009, which was contained in the statutory declaration, had been reviewed, but the application for fee waiver had been refused. The letter went on to advise the Applicant:
Accordingly, for your application for review to proceed, you must now pay the $1400 review application fee within 21 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 within 21 days, your application for review will be invalid due to non-payment of the prescribed fee and we will not consider your application further.[10]
[10] See Court Book at page 73.
The Applicant made a further submission to the Tribunal dated 26th May 2009. In that letter he set out his position and said, amongst other things:
I have no money, I have no assets, I have no income etc
If you do not waive the fee, it will be a serious problem.[11]
[11] See Court Book at page 74.
A Tribunal file note dated 28th May 2009 shows that a Tribunal officer telephoned the Applicant to explain that the submission had been brought to the attention of the District Registrar, but the District Registrar had decided not to proceed with a further review of the fee waiver decision, and that the payment of the review fee was due on 8th June 2009.[12]
[12] See Court Book at page 75.
On that day the Tribunal received a further document from the Applicant, handwritten, reiterating his claim for a waiver of the tribunal fee. In that letter the Applicant offered to pay the fee by instalments of $150.00 every month as an alternative to the fee being waived.[13]
[13] See Court Book at page 76.
A file note dated 9th June 2009 refers to this further submission, including the request to pay the fee in monthly instalments of $150.00. The file note says:
A delay of nine months to pay the fee is unreasonable, given that the review applicant has not provided the evidence requested to demonstrate severe financial hardship.[14]
[14] See Court Book at page 77.
The Tribunal then referred the matter to a Tribunal Member, who made a decision dated 18th June 2009, finding the Tribunal did not have jurisdiction in the matter.
The Tribunal’s Findings and Reasons
In the Tribunal’s findings and reasons the Tribunal set out, at paragraphs 12 to 16 inclusive of its decision, the history of the applications to waiver the Tribunal fee, and the Tribunal’s response. The Tribunal then went on to find:
Subsequently no payment has been received.
The Tribunal finds that the applicant has been given a reasonable period to pay the prescribed application fee since been notified of the decision to refuse to waive it. As the prescribed application fee has not been paid, or waived under r. 4.13(4), the application for review is not a valid application, and the Tribunal has no jurisdiction in this matter.[15]
[15] See Court Book at pages 82 – 83.
Application for Judicial Review
The Applicant then, on 21st July 2009, applied to this Court for judicial review of the Tribunal decision. The grounds of the application are as follows:
a)The MRT misunderstood my claims and financial hardship.
b)The Tribunal ignored my evidence on file.
c)The Tribunal erred in taking into consideration that it previously had not waived my fee based on financial hardship.
The application was accompanied by an affidavit annexing a copy of the Tribunal decision record. Attached to the application were copies of letters dated 27th June 2007 and 21st November 2007 relating to an earlier fee waiver application, which was successful. In respect of an earlier application for review, he is also to have been successful.
The Minister for Immigration and Citizenship has filed a Response on 13th August 2009 proposing the orders sought on the basis that:
i)the application invites the Court to undertake a review of the merits of the Tribunal’s decision referring the Court to the decisions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and also NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.
ii)the application for judicial review does not establish any jurisdictional error.
The Minister’s lawyers also filed a written outline of submissions dated 20 October 2009.
The Applicant has not filed a written outline of submissions but has attended Court today, and has made oral submissions with the assistance of an interpreter in the Indonesian language. He reiterated his claim that the Tribunal misunderstood him and did not realise that he had financial difficulties and claimed that the Tribunal had ignored the documents that he had filed, including the bank statements. He told the Court that he was not allowed to work because he does not have a work permit and claims that he only works casually when his sister or his friend need him to work.
He sought to tender an affidavit relating to the previous fee waiver, but this was objected to on the grounds of relevance and that objection was upheld.
The Applicant also offered to pay the Tribunal fee, although that would require him to borrow money. He was informed however that payment of the Tribunal fee at this stage would not assist the resolution of the matter under review as the Tribunal had already made its decision.
Ms Whittemore, solicitor who appeared for the Minister, submitted that the Tribunal did consider the various applications made for waiver of the fee. She submitted that serious financial hardship was a question of fact for the Tribunal and not a matter for a Court conducting judicial review to consider.
In comprehensive written submissions, it was pointed out that the Tribunal gave extensive consideration to the Applicant’s submissions in support of his fee waiver at his request and considered the evidence that he had provided and it gave clear and cogent reasons in each instance for its failure to be satisfied that payment of the application fee would cause the Applicant severe financial hardship.
It was further submitted as the Tribunal had refused the Applicant’s fee waiver request and the Applicant had failed to pay the application fee by 8th June 2009, that the Tribunal’s finding that the application for review was not a valid application pursuant to section 347 of the Migration Act, was free from error and there was no error in the Tribunal’s finding that it had therefore no jurisdiction of the matter.
The situation at law is that section 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.
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 applicant. If the Applicant seeks waiver of the fee within the prescribed period, the application will be a valid application, provided that the application fee is either waived or if it is paid within a reasonable time after the fee waiver request has been refused. See Braganza v Minister for Immigration and Multicultural Affairs[16], a decision of Wilcox, Weinberg and Stone JJ. Their Honours held at paragraph 51 of that decision:
[51] 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.
[16] (2001) 109 FCR 364
However, if the Tribunal refuses the application for waiver of the fee, the Tribunal must given the Applicant a reasonable period of time to pay the application fee in light of the Applicant’s particular circumstances.[17]
[17] Patel v Minister for Immigration and Citizenship (2009) FCA 392
Considerations
The situation is in this case that the Applicant applied for waiver of the fee when he made in his application for review. The Tribunal did not accept that the Applicant had provided evidence of severe financial hardship and sought further information from him. It clearly set out a period of time within which he should provide that financial information.
When it decided on 18th March 2009 that payment of the fee would not cause the Applicant severe financial hardship, it then required him to pay the application fee within 14 days of receiving the letter and correctly set out that the Applicant would be considered to have received the letter seven working days after the date of the letter.
What the Applicant then did was make a succession of further applications for review of the decision not to grant the application for waiver of the fee. All those applications were considered and all of them were refused. In each case the Tribunal allowed the Applicant time to pay the Tribunal fee and correctly set out that he would be deemed to have received the letter seven working days after the date of the letter.
The third refusal of the application for fee waiver allowed the Applicant a longer period of time to pay the fee – 21 days rather than the period of 14 days that had previously been advised. I am satisfied that the period of 21 days – noting that the Applicant would be considered to have received the letter seven working days after the date of the letter – was reasonable in all the circumstances.
It was on 19th June 2009, one day after the date of the Tribunal decision, 18th June 2009, that the Tribunal made the decision that it did not have jurisdiction because the Tribunal fee had not been paid and the fee had not been waived.
I am satisfied that the Tribunal did not misunderstand the Applicant’s claims that he was suffering from financial hardship. It considered the material that was provided and asked him to provide further material to clarify those claims which he did not do. There is nothing to show that there was any misunderstanding on the part of the Tribunal so the Applicant’s first ground fails.
The Applicant’s second ground claims that the Tribunal ignored his evidence on file. In my view, the Tribunal did not ignore the evidence. It wrote to him on 18th March 2009 referring to matters in the original application for fee waiver and referring to the bank statement provided and asked for further information. The Applicant submitted further applications for a review of the decision not to waive the fee, and, in each case, the Tribunal considered them, and set out the reasons why it had not granted the Applicant’s request.
I am satisfied the Tribunal did not ignore the evidence provided by the Applicant, and the Applicant’s second ground has not been made out.
The third ground claims:
The Tribunal erred in taking into consideration that it previously waived my fee based on financial hardship.
It is a little difficult to ascertain exactly what error is referred to. It would appear, since the Applicant had referred the Tribunal to the fact that it had previously waived a filing fee, that the ground may be taken to mean:
The Tribunal erred in not taking into consideration that it previously waived my fee based on financial hardship.
Either way, a decision made by the Tribunal in June 2007 in respect of an application for review of a decision concerning an earlier visa, is not relevant to the matters that the Tribunal had to decide when considering the application to waive the Tribunal fee in respect of the delegate’s decision to refuse this particular visa.
Quite clearly, an application to waive a filing fee must be considered on a case by case basis relating to evidence of the Applicant’s financial situation at the time of making the application. What the position was two years earlier cannot be relevant. In any event, what the Applicant is seeking to do is engage in a review of the merits of the Tribunal’s decision not to grant his application to waive the fee.
The Tribunal’s decision that an applicant would or would not suffer severe financial hardship, which is the relevant question in determining whether or not to waive a Tribunal fee, is essentially a matter of fact. It is for the Tribunal to make that consideration, and not a Court conducting judicial review. The situation is that the Tribunal set a reasonable period of time to pay the Tribunal fee. The Applicant did not pay the fee. The Tribunal fee had not been waived.
Conclusion
Accordingly, the application was not a valid application under the provisions of section 347 of the Migration Act, and the Tribunal did not fall into jurisdictional error when it found that it had no jurisdiction to deal with the application for review.
A Tribunal has no jurisdiction to review an application that is not a valid application. The Tribunal’s decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Accordingly, orders in the nature of certiorari or mandamus, which is what the Applicant has been seeking, will not be available. It follows that the application must be dismissed, and I dismiss the application.
I am satisfied that this is an appropriate matter to make an order for costs in favour of the First Respondent. I am satisfied that the amount sought is appropriate in all the circumstances. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,300.00.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 13 November 2009
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