Tanto v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 853

FEDERAL COURT OF AUSTRALIA

Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853

Citation:		Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853
Parties:		GUNAWAN TANTO v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number(s):		NSD 1000 of 2013
Judge(s):		SIOPIS J
Date of judgment:		21 August 2013
Catchwords:		MIGRATION – the applicant sought a reduction of the prescribed fee for making a review application to the Migration Review Tribunal – a Tribunal officer refused to grant the fee reduction application – the Tribunal found the application invalid due to the failure to pay the prescribed fee – whether the decision of the Tribunal officer is reviewable by the Tribunal.
Legislation:		Migration Regulations 1994 (Cth) Sch 2 cl 685.216(1)(b)(ii) 3001, reg 4.13(4) Federal Court Rules 2011 rr 3.11, 36.03(a)(i), 36.05
Cases cited:		Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151
Date of hearing:	20 August 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	34

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter.
Counsel for the First Respondent:	Mr H Bevan
Solicitor for the First Respondent:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1000 of 2013

BETWEEN:

GUNAWAN TANTO
Applicant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 AUGUST 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent is amended to read:  “Minister for Immigration, Multicultural Affairs and Citizenship”.

2.The application for an extension of time to file the notice of appeal is allowed.

3.The appeal is dismissed.

4.The applicant is to pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1000 of 2013

BETWEEN:

GUNAWAN TANTO
Applicant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 AUGUST 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to appeal a decision of the Federal Circuit Court of Australia, delivered on 14 May 2013, which dismissed the applicant’s application for judicial review of a decision made by the Migration Review Tribunal (the Tribunal).

2. The application for an extension of time was filed on 6 June 2013, one day outside the period within which the applicant was required to file any appeal from the decision of the Federal Circuit Court.  Such an appeal was required to be filed within 21 days after the date on which the judgment was pronounced or the order was made (r 36.03(a)(i) of the Federal Court Rules 2011). However, the Court has a discretion under r 36.05 of the Federal Court Rules to grant an extension of time within which a notice of appeal can be filed.

3. In his affidavit supporting his application for an extension of time, the applicant provided the following reason for the delay in filing his notice of appeal:

   I was not aware that there is limitation to lodge a review within twenty one (21) days and I was at a shock that the Department now wanted me to depart Australia.

4. The first respondent submitted that the application for an extension of time for the filing of the notice of leave to appeal should be refused because the appeal has no prospects of success.  However, the first respondent accepts that the delay is minimal and that he was not prejudiced by the delay.

   BACKGROUND

5. The applicant is an Indonesian national.  On 10 May 2012, the applicant applied for a Medical Treatment (Class UB) visa.  On 24 May 2012, the applicant was notified that a delegate of the Minister had refused his application for the visa.

6. In her reasons the delegate stated that by reason of clause 685.216(1)(b)(ii) 3001 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), it was an essential criteria for a grant of a Medical Treatment (Class UB) visa that the applicant be the holder of a substantive visa. The delegate observed that the department’s records showed that the applicant’s last substantive visa expired on 13 September 2000. The applicant held a Bridging Visa E (Class WE). Accordingly, the delegate refused the applicant’s application as she was not satisfied that at the time of the application, the applicant was the holder of a substantive visa.

7. On 20 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision.  On the same day, the applicant paid $770 to the Tribunal, being 50% of the $1,540 prescribed application fee required to be paid for an application for review by the Tribunal.  The applicant also applied for a fee waiver/reduction pursuant to reg 4.13(4) of the Regulations and attached bank statements in support of his application.  The applicant was seeking, in practical terms, a 50% reduction of the application fee.

8. Regulation 4.13(4) of the Regulations provides as follows:

   If the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, 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, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

9. By a letter dated 26 June 2012, an officer of the Tribunal advised the applicant that he had decided to refuse his fee reduction application.  This letter advised the applicant that he “must now pay the remaining $770 of the application fee by 19 July 2012”.  The letter went on to say that if the fee was not paid by that date, the applicant’s application for review would be allocated to a Tribunal member to determine whether a valid application for the review of the delegate’s decision had been made.

10. By a letter dated 17 July 2012, the applicant asked the Tribunal to reconsider waiving the remaining portion of the fee on the basis of financial hardship and provided further bank statements.

11. By a letter dated 1 August 2012, an officer of the Tribunal informed the applicant as follows:

    You previously requested a fee reduction, which was refused on 26 June 2012.  Please note that fee reductions are an administrative process within the Tribunal, and are generally not subject to review.

12. The letter went on to state that the documents which the Tribunal had received from the applicant on 19 July 2012 had been deemed insufficient to warrant reconsideration of his request for a fee reduction and he was still required to pay the remaining fee.  The applicant was given a further extension of time to 29 August 2012 to pay the remaining $770 and was advised that no further extensions would be granted.  The applicant was also advised that if the fee was not paid by the due date, his application for review would be allocated to a Tribunal member to determine whether the applicant had made a valid application to review the delegate’s decision.

13. On 25 August 2012, Mr Tanto again wrote to the Tribunal asking to be relieved of the obligation to pay the further $770.  He went on to say:

    If you are unable to waive it I ask the Tribunal to give me a further chance until midSeptember to organise the $770.

14. By a letter dated 30 August 2012, an officer of the Tribunal wrote to Mr Tanto saying that the decision in respect of his application for the fee reduction could not be reviewed because it was an internal administrative decision and those decisions were not generally subject to review.  The letter went on to say that as the fee had not been paid by the due date, namely, 29 August 2012, his application would be assessed for validity.  The letter went on to say:

    Please note you may still make a payment of the fee however it would be up to a Tribunal member to decide if you have made a valid application.

15. By a decision dated 24 September 2012, the Tribunal found that it did not have jurisdiction to determine Mr Tanto’s application for review as the prescribed fee had not been paid within a reasonable period of time after he had been notified of the decision of the Tribunal officer not to waive the remaining $770 of the prescribed fee.

    THE FEDERAL CIRCUIT COURT

16. On 26 October 2012, the applicant filed an application for judicial review in the Federal Circuit Court.  The application contained two grounds:

    1.The Tribunal overlooked my financial hardship.

    2.The Tribunal’s decision to refuse the requestion for a reduction fee is unreasonable.  The Tribunal ignored the evidence before it.

17. On 14 May 2013, the primary judge dismissed the application, finding that the Tribunal’s decision was free from any jurisdictional error.  The primary judge held that the Tribunal did not err in deciding it did not have jurisdiction to hear the application given that the applicant was given a reasonable time to pay the fee after his reduction application was refused.

18. In the course of his reasons, the primary judge made the following observations about the substantive merits of the applicant’s visa application:

    22.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 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.

    23.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.

19. In relation to the applicant’s complaint about the Tribunal officer’s refusal to reduce the fee, the primary judge said that the Regulations conferred the power to make that decision specifically upon the Tribunal’s registrar or deputy registrar or officer authorised by the registrar.  The primary judge found that in those circumstances, this was not a power which was open to be exercised by a member of the Tribunal.

20. The primary judge also adopted Tribunal 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.

21. However, the primary judge said (at [29]) that the Tribunal ordinarily should take into account what had happened in relation to a fee waiver/reduction application because it might disclose some error in the “administration’s consideration” of the application.  This, said the primary judge, may hypothetically lead to a finding that the review application was valid; or it may lead to a referral of the matter to the district registrar for review in accordance with Guideline 11.  The primary judge said that the Tribunal had done neither of those remedial “things”, because it saw no need to.

22. The primary judge then went on to consider whether the Tribunal had erred in its assessment of whether the applicant had been given a reasonable time to pay the fee, after being notified of the decision to refuse his application for a fee waiver/reduction.  The primary judge referred to the decisions of Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (Braganza) and Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151 (Patel) and determined that the Tribunal had not fallen into jurisdictional error in determining that the applicant had been given a reasonable time to pay the prescribed fee after his original application and subsequent applications had been refused.

    THE APPEAL

23. The proposed grounds of appeal relied upon by the applicant are the following:

    1.

    
    

    The Migration Review Tribunal (the Tribunal) had evidence concerning my financial hardship and yet failed to waive the full fee and accept the reduced fee which was paid on time.

    2.While I accept and respect Justice Driver’s decision I still believe that the Tribunal failed to take into consideration my numerous correspondence and explanation concerning my financial hardship.  While I accept that I was given time to pay but I do not accept that the decision made by the Tribunal Officer then accepted by Tribunal Member was reasonable.

    3.The issue is not whether the Tribunal gave me reasonable period in which to pay the remaining amount of the fee but the fact that the Tribunal ignored my financial hardship and misunderstood my situation.

24. It was clear from the applicant’s proposed grounds of appeal and oral submissions before the Court, that his complaint is about the failure of the Tribunal officer exercising power under reg 4.13(4) of the Regulations to accept his application to reduce the fee.  I infer that the complaint is that the Tribunal erred in failing either to consider his application afresh, or to review and set aside the decision of the Tribunal officer.

25. The primary judge rejected both limbs of the applicant’s complaint.

26. Whether the primary judge erred in so doing, in my view, is not a question without some difficulty.

27. There is much to be said for the primary judge’s finding that the Regulations prescribe that the fee reduction decision is one which has to be made by a prescribed person, and that a member of the Tribunal is not included within that category.

28. Also, there is much to be said for the view that the decision of the Tribunal officer made under reg 4.13(4) is not reviewable by the Tribunal.  There appears to be no provision in the Migration Act 1958 (Cth) which provides for the review of the Tribunal officer’s decision under reg 4.13(4). (See, by contrast, r 3.11 of the Federal Court Rules in relation to the review of a registrar’s decision by the Court.)  Further, in neither Braganza nor Patel, did the Court find that it was the function of the Tribunal to conduct a review of the fee waiver decision made by one of its officers.  In each of those cases, the question related to whether the visa applicant had paid the prescribed fee within a reasonable time of the decision being made not to waive the fee.  That inquiry was necessary to establish a jurisdictional fact, namely, the prescribed period.  The determination of the prescribed fee, however, is a decision which the Regulations prescribe is to be made by others.  Neither of those cases is authority for the fact that the Tribunal has the power to conduct a review of the decision made by the registrar, the deputy registrar, or the delegate of the registrar, not to waive payment of the prescribed fee.

29. This is not to say that, despite the contents of Tribunal Guideline 11 to the contrary, the Tribunal officer’s decision and reg 4.13(4) may not be reviewable in another forum, on a different statutory basis.

30. However, I have some difficulty in discerning the basis for the primary judge’s finding that the Tribunal should ordinarily have regard to disposition by the Tribunal officer of the applicant’s fee reduction application.  There is also some difficulty in concluding, notwithstanding the primary judge’s implicit finding to that effect (see [21] above), that the Tribunal did in fact have regard to the matters the subject of the applicant’s complaint, in determining that it had no jurisdiction to hear and determine his review application.

31. Nevertheless, in my view, in light of my decision to dismiss the appeal on a different ground, and because this point was not fully argued before me, this is not an appropriate occasion to decide the point.

32. The appeal should be dismissed because it would be futile to remit the matter to the primary judge for reconsideration in light of his finding that even if the Tribunal had jurisdiction to hear the review application, that application was bound to fail on the grounds stated by the delegate of the Minister.

33. In those circumstances, even if the primary judge was to have found jurisdictional error by the Tribunal in relation to the fee reduction point, it is plain that he would in any event have denied relief on the grounds of futility.

34. Accordingly, I would extend the time to permit an appeal against the decision of the primary judge, but dismiss the appeal with costs.

I certify that the preceding thirty‑four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       21 August 2013