Sung v Minister for Immigration
[2020] FCCA 1300
•25 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUNG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1300 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction due to late payment of the prescribed lodgement fee – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Braganza v Minister for Immigration (2001) 109 FCR 364 Kirk v Minister for Immigration (1998) 87 FCR 99 Kumar v Minister for Immigration [2015] FCA 898 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Singhv Minister for Immigration [2020] FCAFC 31 |
| Applicant: | MING-CHANG SUNG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2775 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2020 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Mr X Goffinet of Sparke Helmore by telephone |
ORDERS
The application filed on 28 October 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2775 of 2019
| MING-CHANG SUNG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Sung, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 8 October 2019. The Tribunal found that it had no jurisdiction in the matter. Background facts relating to this matter are set out in the Minister’s initial written submissions filed on 29 April 2020.
On 4 March 2019, Mr Sung, a citizen of China (Taiwan), applied for a student visa (the visa).[1]
[1] Court Book (CB) 1-16
On 14 May 2019, a delegate of the Minister (delegate) refused to grant the visa on the basis that the delegate was not satisfied that Mr Sung met clause 500.217 of Schedule 2 to the Migration Regulations 1994 (Regulations). On the same day, the delegate sent a letter by email notifying Mr Sung of its decision.[2]
[2] CB 29-36; the letter was an effective notification for the purposes of s.66(2)(d)(ii) of the Migration Act 1958 (Cth) (Migration Act) having regard to Federal Court’s decision in Singhv Minister for Immigration [2020] FCAFC 31 at [11]-[24]
On 27 May 2019, Mr Sung applied to the Tribunal for review of the delegate’s decision.[3] On 28 May 2019, the Tribunal sent an email to Mr Sung’s authorised recipient notifying her that the application had been lodged on a form designed for protection reviews only and stating that if Mr Sung wished to review the delegate’s decision, an M1 form was to be completed and returned to the Tribunal.[4] That email stated that if no fee reduction request was received, payment must be authorised for the full fee of $1,764.[5]
[3] CB 37-40
[4] CB 41
[5] CB 41
On 6 June 2019, Mr Sung’s representative sent an email to the Tribunal which attached the completed M1 form dated 6 June 2019, and stated that Mr Sung “paid that fee” and provided the “account detail”.[6] Notwithstanding that statement, at question 27 of the completed M1 form, Mr Sung indicated that the amount of $1,764 was to be paid by Eftpos (in person) and provided the details of a credit card in the name of Sheng Ju Canice Chen.[7] On 6 June 2019, the Tribunal sent an email to Mr Sung’s representative acknowledging that an application for review was made by Mr Sung on 27 May 2019.[8] On 11 June 2019, the application fee was processed by Eftpos and received by the Tribunal.[9] The receipt indicates that it was processed at 10:32am and that the payer was Sheng-Ju Canice Chen.[10] This was one week after the prescribed period had ended.
[6] CB 46-58
[7] CB 56
[8] CB 42-45
[9] CB 59
[10] CB 59
On 10 September 2019, the Tribunal invited Mr Sung to comment on the validity of the application for review and identified that it was of the view that the application was not a valid application as Mr Sung had not paid the application fee before the expiry of the time limit for lodging the application.[11] Mr Sung was invited to provide comments in writing by 24 September 2019.[12] On 12 September 2019, Mr Sung’s representative sent an email responding to the invitation to the Tribunal.[13] On 8 October 2019, the Tribunal found it did not have jurisdiction in the matter.[14]
[11] CB 61-63
[12] CB 63
[13] CB 64
[14] CB 69
Tribunal decision
The Tribunal identified that the review application form was lodged with the Tribunal on 27 May 2019.[15]
[15] CB 69, [2]
The Tribunal recorded that pursuant to s.347(1) of the Migration Act and regulation 4.13 of the Regulations, the application had to be given to the Tribunal within the prescribed period as specified in s.347(1)(b) and regulation 4.10 and accompanied by the prescribed fee unless a determination had been made under regulation 4.13(4) that the fee should be reduced on the basis of financial hardship.[16]
[16] CB 69, [2]-[3]
The Tribunal identified that the prescribed period started when Mr Sung was notified of the decision and that the prescribed period ended on 4 June 2019. The Tribunal found that the fee must be paid within the prescribed period and referred to Kirk v Minister for Immigration[17] in that regard. It identified that alternatively, if a determination had been made under regulation 4.13(4), that the fee was to be paid within a reasonable period after that determination and referred to Braganza v Minister for Immigration[18] in that regard.[19]
[17] (1998) 87 FCR 99
[18] (2001) 109 FCR 364
[19] CB 69, [3]
The Tribunal recorded that it wrote to Mr Sung on 10 September 2019 inviting him to comment on the validity of the application for review. The Tribunal received a response from Mr Sung’s representative on 12 September 2019 which requested the Tribunal give Mr Sung a chance to study in Australia for two years.[20] The Tribunal recorded that Mr Sung had not claimed to have paid the fee required for the application to be valid and found that the prescribed fee had not been paid, and no determination had been made or required the fee to be reduced. In those circumstances, the Tribunal concluded that the application for review was not a valid application and that it did not have jurisdiction in the matter.[21]
[20] CB 69, [4]
[21] CB 69, [5]-[6]
The present proceedings
These proceedings began with a show cause application filed on 28 October 2019. Mr Sung continues to rely upon that application. There are three grounds it in:
I have stated my reasons for not paying applicant fee in the prescribed period time. my reasons were On 12 September, Upon receipt of that information from AAT, I replied as follows: I had received 1913262 case for two days, and it was by that time, I applied for AAT on 27/5/2019, and by that time I didn’t known that payment detail, once I knew that payment detail, I’d pay the fee shortly, it was in such a case, I really felt helpless, by that time, it was quite hard for me to get to a clinic because I was seriously sick lying in bed on 20 May 2019. No one gave me a hand. I am alone in bed and suffer from illness. I pray that God will save me from the suffering of the disease.
Unfortunately the AAT, … member didn’t consider my serious and special situations and show his sympathy for me by the way of permitting me to extend time to pay my application fee in order to make my application valid. Particularly the AAT … member also should understand that it was not my purpose of not paying application fee in the prescribed period time.
I think the AAT … member failed to take my reasons into account which caused AAT … member’s decision to be believed unfair to me.
He also failed to comply with S91R Migration Act 1958 because of his bias against me, Giving arise to jurisdictional error.
I hope the Federal Circuit Court uphold justice for me, quash and remit the decision of AAT to reconsideration according to the law.
(errors in original)
This matter came before me for a show cause hearing on 13 May 2020. At that time, it was apparent that the matter require a final hearing. There were two reasons for that: the first was the highly technical nature of the Tribunal’s decision, and the second was uncertainty as to when the relevant time period commenced to run. I required additional material to be filed on behalf of the Minister directed to that issue.
I have before me as evidence in addition to the court book filed on 12 December 2019, two affidavits by Mr Sung. The first accompanied his show cause application and is uncontroversial. The second was objected to by the Minister at the show cause hearing, and I marked it for identification. At today’s hearing, I received it on the basis that it had some relevance to the question of what opportunity Mr Sung lost as a result of the Tribunal’s decision.
The Minister read a further affidavit by Mr Tom Hillyard made on 19 May 2020. That addresses the question of when Mr Sung was notified of the delegate’s decision, and by extension, when time began to run for the purposes of payment of the prescribed fee.
The Minister also filed additional written submissions on 20 May 2020 directed to that issue. I agree with those additional submissions.
Mr Hillyard’s affidavit annexes a printout of “enterprise correspondence” data held by the Minister’s Department demonstrating that the notification of the delegate’s refusal decision was sent on 14 May 2019. At page 4 of Mr Hillyard’s affidavit, it can be seen that the notification was sent to the email address provided by Mr Sung for the purpose of receiving documents.[22] Mr Sung was therefore notified in the prescribed way.[23]
[22] CB 5-6
[23] regulation 2.16(3) of the Regulations; s.66(1), s.494B of the Migration Act
As notification of the delegate’s decision was sent by email on 14 May 2019, the 21-day time period in which the applicant must lodge a valid application to the Tribunal began at the end of that day.[24] Therefore, time for the filing of the application and payment of the prescribed fee ended on 4 June 2019.
[24] regulation 4.10(1)(a) of the Regulations, s.494C(5) of the Migration Act
The prescribed fee was not paid until 11 June 2019.[25] As the Tribunal correctly identified, the payment of the fee was an essential condition to invoke its jurisdiction to review.[26]
[25] CB 59
[26] Kirk at 102
It follows that the Tribunal was correct in calculating the prescribed period for payment of the prescribed fee. The Tribunal was also correct in finding that the prescribed fee was not paid within the prescribed period. It necessary followed that the Tribunal had no jurisdiction to conduct the review.
Mr Sung’s grounds go to his personal circumstances, and might have been relevant in the event of any discretion existing. The Tribunal, however, had not discretion. The Minister’s original submissions deal with those grounds.
In Mr Sung’s submission annexed to his affidavit dated 8 January 2020, he also asserted that:
If AAT thought application form was submitted on 27 May 2019, fees actually paid, so actually should be deemed valid.
Mr Sung’s assertions are misconceived.
The Tribunal had regard to Mr Sung’s submission that he did not know his “payment detail” and was attempting to get a “medical check”, as it expressly reproduced that submission in its reasons.[27] More to the point, that submission was also irrelevant to the determinative issue before the Tribunal, which was whether Mr Sung paid the required fee in the prescribed period.
[27] CB 69, [4]
Pursuant to regulation 4.10(1)(a) of the Regulations, time began to run from when Mr Sung received notice of the decision and ended at the end of the 21 days after the day on which the notice was received. Under s.494C(5) of the Migration Act, Mr Sung was taken to have received that notification on 14 May 2019, which was the end of the day on which the document was transmitted. Therefore, time for the filing of the application and payment of the prescribed fee ended on 4 June 2019.
Section 347(1)(c) of the Migration Act provides that an application for review must be accompanied by the prescribed fee (if any). At the time of the application for review, regulation 4.13 of the Regulations provided that:
(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.
…
(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).
The Tribunal correctly identified that the fee must be paid within the prescribed period in accordance with s.347(1) of the Migration Act, or within a reasonable period if a determination has been made under regulation 4.13(4) of the Regulations.[28] Mr Sung has produced no evidence to substantiate his assertion that the application fee was paid on 27 May 2019. Contrary to Mr Sung’s assertion, the fee was paid by Mr Sung a week after the prescribed period, that is, on 11 June 2019,[29] and no request had been made by Mr Sung for an extension to make that payment or for the fee to be reduced on the basis of financial hardship. It was therefore correct for the Tribunal to conclude that in circumstances where the prescribed fee was not paid in time, the application was not a valid application and the Tribunal had no jurisdiction in the matter.
[28] Kumar v Minister for Immigration [2015] FCA 898 at [29] (Wigney J)
[29] CB 59
The Tribunal had no power to unilaterally determine to waive the requirement that the fee be paid within the prescribed period to “show sympathy”. The effect of the decision in Kirk is that the prescribed fee must be paid within the prescribed period and if that fee is not paid, an application will be held not to have been properly made, and the Tribunal will not have jurisdiction to determine the application. It is well-settled that the prescribed fee is a mandatory requirement, or to adopt the language of Lehane J in Kirk at 102, “an essential condition”. In circumstances where Mr Sung did not dispute that that prescribed fee was not paid within the prescribed period, and there is no evidence that an application was made that the fee be waived because of financial hardship, the only decision open to the Tribunal was to find that it had no jurisdiction. Mr Sung’s generalised assertion that the decision was “unfair” can rise no higher than a request for impermissible merits review and cannot be sustained.[30]
[30] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 281-282
As for Mr Sung’s assertion that there was an alleged failure to comply with s.91R of the Migration Act, that assertion is misconceived as s.91R is a repealed provision which related to the meaning of persecution in the refugee context and has no application to this matter.
I conclude that Mr Sung is unable to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the applicant must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. I accept that costs of that order have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. Mr Sung did not oppose a cost order, but enquired about payment by instalments. I will not require payment by any particular time.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 May 2020
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