Tanto v Minister for Immigration
[2013] FCCA 282
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TANTO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 282 |
| Catchwords: LAW REFORM – Observations on the inability of the Tribunal to summarily dismiss a review application that lacks reasonable prospects of success. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.338, 347, 348 Migration Regulations 1994 (Cth) |
| Braganza v Minister for Immigration [2000] FCA 808 Braganza v Minister for Immigration [2001] FCA 318 Braganza v Minister for Immigration (2001) 109 FCR 364 Patel v Minister for Immigration & Anor (2009) 108 ALD 151 |
| Applicant: | GUANAWAN TANTO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2455 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2013 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2455 of 2012
| GUANAWAN TANTO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal decision was made on 21 September 2012. The Tribunal found that it did not have jurisdiction in the matter. That was because the Tribunal found that the review application before it was not a valid one.
The following statement of background facts is derived from the Minister’s outline of written submissions filed on 7 May 2013.
The applicant (Mr Tanto) applied for a Medical Treatment Visa on 10 May 2012[1]. He was notified by a decision dated 24 May 2012 that the Minister’s delegate had rejected his application on the basis that he did not meet clause 685.216(1)(b)(ii)3001 of Schedule 2 of the Migration Regulations 1994 (Regulations) as he did not hold a substantive visa at the time of his application[2]. Mr Tanto was advised that he could seek review of that decision from the Tribunal and an application for review was received by the Tribunal on 20 June 2012[3].
[1] see Court Book (CB) 1-23
[2] CB 24-30
[3] CB 36-47
On 20 June 2012, Mr Tanto paid $770, being 50% of the fee (which is $1,540) of for his application[4]. He also sought, by application received by the Tribunal on 20 June 2012, a fee waiver/reduction and attached to that application was financial information (bank statements)[5]. In effect, he was seeking to have the other 50% of the fee waived.
[4] CB 48
[5] CB 49-66
On 25 June 2012, an officer of the Tribunal recorded in a filenote[6] that Mr Tanto had not provided payslips or other documentation other than bank statements. On 26 June 2012, a further filenote records that the Tribunal had decided to refuse the fee reduction application on the basis that the Tribunal officer who considered the application was “not satisfied that payment of the review application fee is likely to cause him severe financial hardship”[7].
[6] CB 77
[7] CB 76
The decision of 26 June 2012 was then notified to Mr Tanto by letter dated 26 June 2012[8]. Mr Tanto was advised in that letter that he needed to pay the remaining part of the fee by 19 July 2012, and if he did not do so, his application for review would be referred to a Tribunal member to determine whether he had made a valid application. He was also advised that if he had not paid the fee, the member might find his application invalid and that if his application was invalid, the Tribunal cannot review the decision.
[8] CB 78
By letter dated 17 July but received on 19 July 2012, Mr Tanto asked the Tribunal to reconsider waiving the remaining fee on the grounds of financial hardship and attached further bank information[9].
[9] CB 80-84
A Tribunal officer wrote to Mr Tanto by letter dated 1 August 2012 noting that “fee reductions are an administrative process within the Tribunal, and are generally not subject to review”[10]. That officer informed Mr Tanto that the material he had sent had “been deemed insufficient to warrant the reconsideration of [his] fee reduction request” and he was required to pay the remaining fee. He was also given an extension of time to 29 August 2012 to pay the fee, and again advised that failure to pay the fee could result in a Tribunal member deciding that as he had not made a valid application, in which case the decision could not be reviewed.
[10] CB 85
On 25 August 2012, Mr Tanto again wrote to the Tribunal (enclosing further bank statements) asking to be relieved of the requirement to pay the other half of the application fee and then asked for time “until mid September to organise the $770”[11].
[11] CB 87-95
By letter dated 30 August 2012, Mr Tanto was advised that the Tribunal was unable to reconsider the decision to refuse his fee reduction and noting that he had previously been granted an extension of time in which to pay the fee[12]. He was advised that his “application will be assessed for validity” and that he could “still make payment of the fee however it will be up to a Tribunal Member to decide if you have made a valid application”.
[12] CB 96
On 24 September 2012, Mr Tanto was notified that the Tribunal had decided that it had no jurisdiction to review the decision not to grant him a Medical Treatment (Visitor) Class UB visa[13].
[13] CB 97-103
The Tribunal’s decision
The Tribunal indicated that the issue it had to decide was whether the Tribunal had jurisdiction to review the decision to refuse the grant of a visa to Mr Tanto. This in turn depended upon “whether the application lodged on 20 June 2012 was an application properly made under s.347 of the Migration Act”[14].
[14] CB 99; [4]
The Tribunal noted that the decision to reject the application for a visa was an “MRT-reviewable decision” within the meaning of s.338 of the Migration Act 1958 (Cth) (Migration Act) and it was not a decision in relation to which the Minister had issued a conclusive certificate under s.348. Thus, it was open to Mr Tanto to seek review of that decision by the Tribunal, subject to s.347 of the Migration Act, which sets out the requirements for an application for review, one of which is that it be accompanied by the prescribed fee (if any)[15].
[15] CB 99; [5]-[7]
The prescribed fee, as identified in regulation 4.13(1) of the Regulations is $1,540 and that fee must also be paid in the prescribed period[16].
[16] CB 99; [7]
By regulation 4.13(4), the Registrar or a Deputy Registrar or other officer of the Tribunal may determine that the fee be reduced to 50% (ie, $770) if satisfied that payment of the fee has caused or is likely to cause severe financial hardship to the applicant[17]. Where an application for reduction of the fee has been made within the prescribed period, the application for review is valid if the fee is paid within a reasonable time after the decision[18]. The Tribunal further noted: “As a matter of policy, the tribunal generally regards 14 days as a reasonable period but considers requests for additional time if the applicant does not consider 14 days to be reasonable in the particular circumstances”[19].
[17] CB 99, [8]
[18] referring to Braganza v Minister for Immigration (2001) 109 FCR 364
[19] CB 99 [8]
The Tribunal went on to make findings as follows:
a)The decision in relation to which review was sought was an “MRT-reviewable decision” and the prescribed fee is $1,540[20];
b)before the expiration of the prescribed period, Mr Tanto had paid half the fee and sought waiver of the remaining amount and that application had been refused, with Mr Tanto being advised that he was required to pay the remaining amount by 19 July 2012[21];
c)Mr Tanto had been granted an extension of time until 29 August 2012 in which to pay the fee. On 28 August, he requested reconsideration and on 30 August 2012, the Tribunal wrote to him informing him that that request was declined and as the date for payment had passed, his application would be assessed for validity[22].
[20] CB 100, [10]
[21] CB 100, [11]
[22] CB 100, [12]
The Tribunal concluded that Mr Tanto had been given a reasonable period to pay the remainder of the fee since being notified of the fee reduction decision. As the remaining fee had not been paid, the application was not a valid application and thus the Tribunal had no jurisdiction.
The judicial review application
These proceedings began with a show cause application filed on 26 October 2012. Mr Tanto continues to rely upon that application. There are two grounds in the application:
1. The Tribunal overlooked my financial hardship.
2. The Tribunal decision to refuse the request for reduction fee is unreasonable. The Tribunal ignored the evidence before it.
I have before me as evidence the court book filed on 21 January 2013.
I also received as an exhibit[23] “Tribunal Guideline 11” concerning reduction of review application fees.
[23] Exhibit R1
Both parties made written and oral submissions.
Consideration
Two things should be noted from the outset. The first is that it is apparent from the delegate’s decision that Mr Tanto could not qualify for the class of visa he sought because he did not hold a substantive visa at the time he applied for the medical treatment visa. The Minister’s delegate records[24] that Departmental records show that Mr Tanto’s last substantive visa expired on 13 September 2000. Mr Tanto told me from the bar table that he has been in Australia since 2000 and that he arrived on a tourist visa. I infer that it was that visa which expired on 13 September 2000. He has apparently remained in Australia since that time on bridging visas.
[24] CB 30
I invited Mr Tanto to explain to me how he had proposed to deal with the difficulty presented by the delegate’s decision. He was not able to do so. Assuming the delegate was correct, and I have no reason to think that she was not, the absence of a substantive visa at the time of the medical treatment visa application would seem to present an insuperable obstacle to Mr Tanto. This supports the proposition that his review application before the Tribunal was doomed to fail if it had been considered on a substantive basis.
The Tribunal does not have any power to summarily dismiss a review application, for example, because it does not have reasonable prospects of success. If it had such a power, the complex machinations concerning fee waivers and the like might have been avoided.
Secondly, it is plain from Mr Tanto’s written and oral submissions that he is aggrieved by the decisions by Tribunal officers not to waive the balance of the filing fee in his case. He appears to have expected some reconsideration of those decisions by the Tribunal member. However, that expectation indicates a misunderstanding of the way in which fee reductions are dealt with by the Tribunal.
The Regulations confer a power on the registrar or deputy registrar, or other authorised officer, to consider requests for fee reductions. That is an administrative function. The Tribunal Guideline 11 makes this clear. I do not think it would be open to a Tribunal member in considering a review application to perform a function specifically conferred by the Regulations on an officer of the Tribunal rather than a member of the Tribunal. This is consistent with [25] of Guideline 11, which states:
A review applicant cannot apply to the tribunal for a review of a fee reduction decision. If it appears that there was an error in the decision-making process, such as not having regard to relevant material, the case should be referred to a District Registrar for consideration.
This was also made clear to Mr Tanto in the Tribunal’s letter dated 30 August 2012[25]. That letter relevantly states:
As fee reductions are an administrative process within the Tribunal, they are generally not subject to review. As there was no administrative error made in the assessment of your application for a fee reduction, the Tribunal is unable to reconsider the decision made to refuse your fee reduction request.
[25] CB 96
Mr Tanto does not challenge in this Court the administrative decisions of the Tribunal officers about which he is aggrieved. He challenges the decision of the Tribunal to reject his review application as invalid. That is not to say that the Tribunal, in considering the validity of a review application, is entirely impotent in relation to fee reductions.
The Tribunal can, and ordinarily should, take into account what has happened in relation to requests for fee reductions in order to consider whether the review application is a valid one. Hypothetically, the Tribunal might discover some error in the administration’s consideration of the request. Such an error, if discovered, might hypothetically lead to the Tribunal to find that the review application is a valid one. Alternatively, if the Tribunal felt that some further consideration should be given to the administrative question of a fee reduction, the Tribunal could invite that further consideration by a district registrar consistently with Guideline 11.
The Tribunal did neither of those things because it saw no need to. The Tribunal dealt with the issue at [10]-[13] of its decision[26]:
The tribunal finds that Mr Tanto is seeking review of an MRT-reviewable decision covered by s.338(2) and that the prescribed fee for this application is $1,540.
Mr Tanto asked the tribunal to reduce the prescribed application fee on 20 June 2012, being before the prescribed period expired. Mr Tanto paid half (i.e. $770) of the prescribed application fee on that date. An authorised tribunal officer decided on 26 June 2012 to refuse the request for reduction of the prescribed application fee because the officer was not satisfied that the payment of the fee would cause Mr Tanto, or is likely to cause him, severe financial hardship. The tribunal wrote to Mr Tanto on 26 June 2012 advising him of this decision and requesting that the remainder of the prescribed application fee be paid by 19 July 2012.
At Mr Tanto’s request, an extension of time was granted until 29 August 2012. Mr Tanto was informed that if the remainder of the prescribed application fee was not paid, the tribunal may decide that the review application was invalid. On 28 August 2012, Mr Tanto requested the tribunal reconsider his application to reduce the prescribed application fee. On 30 August 2012, the tribunal wrote to Mr Tanto informing him that the tribunal is unable to reconsider the decision made to refuse his fee reduction request. This letter further informed Mr Tanto that as the due date of payment of the remainder of the [prescribed] application fee had passed, his application will be assessed for validity, and that if the remainder of the prescribed application fee is paid, it will up to the Member to decide if he has made a valid application. To date, the remainder of the prescribed application fee has not been paid.
The tribunal finds that Mr Tanto has been given a reasonable period to pay the remainder of the prescribed application fee since being notified of the fee reduction decision. As the remainder of the prescribed application fee has not been paid the application for review is not a valid application and the tribunal has no jurisdiction in this matter.
[26] CB 100
The question for me to resolve is whether the Tribunal fell into any jurisdictional error in making its decision. The authorities make clear that there will be circumstances where some intervention by the Tribunal is necessary. However, those circumstances are confined.
The statutory provisions and the authorities bearing on their interpretation are reviewed in the Minister’s submissions. I agree with those submissions.
Did the Tribunal err in deciding it did not have jurisdiction to hear the application?
In order for an application for review of an MRT-reviewable decision to be validly made, by s.347(1), that application must be made on the prescribed form[27]; must be made within the prescribed period[28]; and must be accompanied by the prescribed fee (if any)[29].
[27] s.347(1)(a)
[28] s.347(1)(b)
[29] s.347(1)(c) and regulation 4.13
There is no issue about ss.347(1)(a) or (b): the only issue in this case is whether s.347(1)(c) has been satisfied.
It seems clear that without the payment of the prescribed fee (or a decision made under regulation 4.13(4) that only 50% of that fee is payable), s.347(I)(c) is not satisfied. There is thus no valid application and it follows that the Tribunal did not have jurisdiction to undertake a review of what would otherwise be a reviewable decision within the meaning of s.338(2).
In Braganza v Minister for Immigration[30] (Braganza), the applicant, who was seeking review of a reviewable decision, had made his application within the prescribed time and had also (within that time) sought a fee waiver on the grounds of financial hardship. His application for fee waiver had been rejected and in a telephone conversation he had with a Tribunal officer after receiving that advice, he was told he had a further week in which to pay the fee and that he could also seek to have that decision reconsidered. However, six days after that telephone discussion with the Tribunal, a letter was sent to him telling him that his application was not valid and had been “finalised as ineligible”. Before he received that letter (which he did not receive until four days after it was sent), he paid the fee, seven days after being told he had a week within which to pay it or seek reconsideration[31].
[30] (2001) 109 FCR 364
[31] Braganza, at [7]-[12]
The applicant sought judicial review of the decision that he had not made a valid application for review. That application was dismissed by a single judge of the Federal Court[32]. On appeal from that decision, the Full Federal Court held, relying on the inclusion of the phrase “if any” in s.347(1)(c), that that provision should be read as subject to a qualification that[33]:
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.
[32] [2000] FCA 808
[33] Braganza v Minister for Immigration [2001] FCA 318, at [51]
The decision in Braganza was considered and applied by the Federal Court in Patel v Minister for Immigration & Anor[34] (Patel). In his Honour's reasons for decision, Justice Gray noted what he described as an “obvious gap” created by s.347(1)(c) which is that time is running while an application for a fee reduction is being considered and there is the clear possibility that if the request is unsuccessful, the time for a valid application will have expired[35]. His Honour noted that it was for this reason that the Full Court had decided in Braganza that[36]:
the Tribunal was not deprived of jurisdiction … merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4).
[34] (2009) 108 ALD 151
[35] Patel at [13]
[36] Patel at [13], referring to Braganza at [50]-[52]
As for what is a reasonable time, Gray J noted that the Tribunal had adopted a policy allowing 14 days from the deemed receipt by an applicant of a letter informing him or her that the reduction request had been refused[37]. While his Honour indicated that this “period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza”[38], he went on to state that a “reasonable time can never be a period determined arbitrarily” and the “reasonableness of the time allowed must be determined, in each case, according to the circumstances of the case”[39].
[37] at [14]
[38] at [14]
[39] at [15]
In Patel, as it happened, the applicant had contacted the Tribunal and informed it that he had not received the letter notifying him of the decision on his fee reduction request and thus in those circumstances, the Court held that “it was not open to the Tribunal to take the view that it had allowed a reasonable time and had completed the discharge of its functions”[40].
[40] Patel at [16]
The Court held that the Tribunal had power to consider whether a reasonable time had elapsed and thus whether its decision about jurisdiction was properly made, and should have given the applicant the opportunity to be heard on the factual question, ie, of whether he had received the response from the Tribunal to his request for waiver[41]. In the circumstances, the Tribunal’s failure to do so amounted to a failure to complete its discharge of its statutory functions and thus, his Honour held that the Federal Magistrate (as he then was) had erred in not issuing mandamus[42].
[41] Patel at [17]
[42] at [20]
Was Mr Tanto given a reasonable time to pay the fee or have its reduction considered?
It follows from the decisions in Braganza and Patel, that in determining whether Mr Tanto had made a proper application for review, and in particular, whether s.347(1)(c) of the Migration Act was satisfied, the Tribunal was required to consider whether the applicant had been given a reasonable time to pay.
The Tribunal set out the history of the correspondence between the applicant and the Tribunal in relation to the fee reduction issue at [11]-[13][43].
[43] CB 100
As Gray J noted in Patel, the Tribunal has a policy on fee reductions. Paragraph 23 of Tribunal Guideline 11 provides that a “reasonable period in which to pay the remaining amount of the fee (where applicable) would ordinarily be 14 calendar days after the date the review applicant is notified of the decision”[44].
[44] Tribunal Guideline 11 is accessible at ReductionOfReviewApplicationFeesJuly2011vMar13.html. The relevant paragraph was in effect as at the date of the Tribunal decision.
Bearing in mind the observations in Patel about the need in every case to determine what is reasonable from the circumstances of the particular case, the Minister submits that Mr Tanto was clearly given a reasonable period in which to pay, in that he was given a lengthy extension of time such that the time period that elapsed between his lodging the purported application and the Tribunal’s decision that it lacked jurisdiction was over three months. I accept that submission. The Tribunal properly exercised its jurisdiction in assessing whether it had before it a valid application for the purposes of s.347.
I conclude that the decision of the Tribunal is free from any jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
In view of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Tanto indicated that he would seek to deal with the costs order sought over time. I explained to him that any need for time in meeting the costs order was something that he could take up with the Minister’s Department.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 May 2013
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