Taylor v MIMIA
[2005] FMCA 281
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAYLOR & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 281 |
| MIGRATION – Review of decision of Migration Review Tribunal to refuse grant of Class AO (Residence) subclass 806 (Family – Special Need Relative) visas – whether application valid – statutory requirement that application be accompanied by prescribed fee – whether non payment of fee precluded Tribunal from embarking on review task – no jurisdictional error – application dismissed – costs – Migration Act 1958 (Cth) ss.347(1); 494B; 494C; – Migration Regulations 1994 (Cth) Regs 2.16; 4.10; 4.13. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Acts Interpretation Act 1901 (Cth)
Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318
Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
Wielgus v Removal Review Authority [1994] 1 NZLR 73
Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
River Wear Comrs v Adamson (1877) 2 App Cas 743
| Applicants: | CARLYLE JEFFREY TAYLOR, ANGELA PETRONELLA TAYLOR, DYLAN JUDITH TAYLOR & TETIA LORENDA TAYLOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1472 of 2003 |
| Delivered on: | 15 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 February 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicants: | Mr C.J. Taylor appeared as a litigant in person for the Applicants |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicants pay the costs of the respondent fixed in the sum of $7,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1472 of 2003
| CARLYLE JEFFREY TAYLOR, ANGELA PETRONELLA TAYLOR, DYLAN JUDITH TAYLOR & TETIA LORENDA TAYLOR |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to section 39B of the Judiciary Act 1903 (Cth) and section 475A of the Migration Act 1958 (Cth) (the Act) to review a decision of the Migration Review Tribunal (the Tribunal) made on 24 April 2002, that decision being that an application made to the Tribunal was not a valid application. The applicants made application for constitutional writs to this court in respect of that decision by application filed 19 December 2003. The grounds on which that application is based are set out in Section A in paragraphs 1, 2 and 3 of the application and are as follows:
i)The decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction.
ii)The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
iii)The decision of the Tribunal dated 24 April 2002 is affected by jurisdictional error in that the decision that the application was ineligible was not made by a Tribunal member and was therefore not a decision of the Tribunal.
History
The applicants are Sri Lankan citizens who arrived in Australia on 14 November 1996 as the holder of Tourist (Short Stay) visas. On
1 July 1997 the first‑named applicant made application for a Class AO (Residence) subclass 806 (Family - Special Need Relative) visa on the basis that he was a "special need relative" of his mother. The second, third and fourth-named applicants, who are the wife and two daughters of the first‑named applicant, were included as dependants on the application. On 13 December 2001 a delegate of the respondent determined to refuse the application.
Part 5 – Review of decisions - of the Act provides for the review by the Migration Review Tribunal (MRT) of primary decisions. By section 347(1)(b)(i) the Act provides that an application for review must be given to the MRT within the prescribed period, being a period ending not later than 28 days after the notification of the decision.
The prescribed period is prescribed by Regulation 4.10 of the Migration Regulations 1994 (Cth). Regulation 4.10(1)(a) of the Regulations provides:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
(a) if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act - starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
Section 347(1)(a) of the Act provides that:
(1)An application for review of an MRT-reviewable decision must:
(a)be made in the approved form;
and section 347(1)(c) provides that the applications must:
(c)be accompanied by the prescribed fee (if any).
Section 348(1) provides, relevantly:
(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.
On 3 January 2002 application was made to the Tribunal for review of the delegate's decision. A cheque for the relevant application fee drawn by the first-named applicant on the Commonwealth Bank at Hampton Park was received by the Tribunal on that date. On 10 January 2002 officers of the Tribunal were advised by its bank that the cheque tendered by the applicant had been dishonoured. On 24 April 2002 a Tribunal officer, Ms Semra Alakoc, telephoned the first‑named applicant to inform him that the cheque had been dishonoured and that the application was an invalid one. On 24 April 2002 the Tribunal advised the first-named applicant by letter that as the cheque had been dishonoured the fee had not been paid and the Tribunal "has now finalised the application as not eligible and will take no further Action in this matter".
Operation of the statutory scheme
This is succinctly set out in the applicants' contentions of fact and law placed before the Court on the hearing of the matter. By operation of that scheme, the applicants concede that they were "taken" to have received the notice of a decision to refuse to grant a visa on Thursday, 20 December 2001, and thus had 21 days from that date, namely, until 10 January 2002, to comply with section 347(1). This is because:
a)Section 66(1) of the Act requires the respondent to notify an applicant of a decision to refuse to grant a visa by notifying the applicant "in the prescribed way".
b)Regulation 2.16(3) of the Regulations provides the respondent "must notify" an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
c)Section 494B of the Act specifies methods by which the Minister gives documents to a person. Subsection 494B(4) specifies a method that consists of the Minister dating the document and then, within 3 days of the date of the document, dispatching it by prepaid post. This was the method utilised to send to the applicant the letter of 13 December 2001.
d)The Act provides in section 494C when a person "is taken to have received a document” from the respondent. Subsection 494C(4)(a) provides that if a document is sent by the method in section 494B the person is taken to have received the document 7 working days after the date of the document if the document was dispatched from a place in Australia to an address in Australia.
e)Section 36(1) of the Acts Interpretation Act 1901 (Cth) provides that in calculating a period of time dating from any given act or event, the day of such act or event is not counted.
36 Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
The applicant therefore is "taken" to have received the letter dated 13 December 2001 on 20 December 2001.
Consideration
The applicant contends, firstly, that the termination of the application to the MRT on 24 April 2002 by Ms Alakoc was not a determination of the application by the MRT at law. The applicants submitted that the application to the MRT can only be determined by the MRT determining the application or by the MRT determining that the application had not been properly made. The applicants submitted that the express limitation on the powers given to the officers of the MRT by section 407(3) of the Act supported the conclusion that officers do not have the power to decide on behalf of the MRT whether or not the Tribunal should review a decision or not.
I accept the submissions made on behalf of the respondent that the substantive question in the proceeding was not whether an officer of the Tribunal could make the decision to decline jurisdiction as the application was not properly made, but whether that determination was correct, that is, the validity of the application and whether the Tribunal had jurisdiction to embark on the review task. I find the Tribunal had no jurisdiction to embark on the review task and that it would be futile to remit the matter to the Tribunal if there was, as I find, no error in the determination that the application was not properly made to it under section 347(1) of the Act.
The Tribunal only has jurisdiction to review an application that is properly made under section 347. Pursuant to section 347(1)(c), an application for review "must be accompanied by the prescribed fee (if any)".
The applicants had until 10 January 2002 to make application to the Tribunal for review. I reject the submissions of the applicant that section 347(1)(c) is not a mandatory requirement.
The issue in this case does not concern one of an application for fee waiver as was the case in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318. In that case the Full Court of the Federal Court comprising Wilcox, Weinberg and Stone JJ determined that where an applicant for a visa makes an application for waiver of the prescribed fee in accordance with Regulation 4.13 of the Migration Regulations and the application is made within the prescribed period, then the application for review is valid (could be entertained by the Tribunal) provided the fee is either eventually waived or paid within a reasonable time after the application for waiver is rejected. The Full Court distinguished the decision of Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 on the basis that in the decision in Kirk no application for waiver of fees had been lodged within the prescribed period. In Kirk Lehane J considered a factual scenario where a cheque which accompanied an application for review of a primary decision was not honoured on presentation and a subsequent cheque was provided after the expiration of the relevant prescribed period under the then section 339 of the Act. His Honour said (at 102):
Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application "be accompanied by the prescribed fee (if any)". The requirement that the application be "accompanied” by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be "given": similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v Removal Review Authority [1994] 1 NZLR 73. Fisher J held also that the requirement that an appeal be "accompanied by the prescribed fee" meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice. In the present context, where s 339(1) [now s 347(1)] provides that each step "must" be taken, both (giving effect to the word "accompanied") within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review.
Similarly, in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 section 4121 of the Act was considered by the Court, that section being the equivalent to section 347(1) of the Act but applying to the Refugee Review Tribunal rather than the Migration Review Tribunal. There his Honour Wilcox J said (at [8]):
If an applicant fails to enliven the Tribunal's jurisdiction, by failing to lodge an application in the approved form, within the prescribed time or accompanied by the prescribed fee, the Tribunal has no power to carry out a review.
Having regard to the language of the relevant provisions and the scope and object of the Act, I find that it is the purpose of the legislation that a breach of 347(1)(c) means that the application was not properly made, with the consequence that the application was not valid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390). These legislative provisions are highly prescriptive in nature, albeit that in this instance the application of such mandatory provisions appears to operate harshly as against the applicants. The applicants accepted that section 347(1)(a) and (b) and 347(2) all imposed mandatory requirements. I accept the submissions made by the respondent that there is no reason at all that the legislature would have intended that a failure to comply with 1(c) would not have meant that an application was not "properly made". The words are clear and unambiguous. They impose, as said by the respondent, a requirement which is an essential preliminary to the Tribunal's jurisdiction being engaged. The respondent refers the court to general principles of interpretation which suggest that words in a statue should be given their ordinary English meaning. These principles were stated by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 (at 304):
It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Comrs v Adamson (1877) 2 App Cas 743 at 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention ... Of course, no part of a statute can be considered in isolation from its context - the whole must be considered ... There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the cannons of construction are not so rigid as to prevent a realistic solution in such a case ... However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
The applicants did not tender the prescribed fee at the time of application or at any time before the end of the period within which the application must be given to the Tribunal or at any time before the Tribunal made its decision and nor was any waiver of the prescribed fee sought.
The applicants submitted that the officers of the Tribunal erroneously concluded that Regulation 4.13(4) required an application for fee waiver; alternatively, that they erred in failing to contact the applicants to see whether such an application would be forthcoming; alternatively, that the officers erred in failing to consider whether to exercise the power given by Regulation 4.13(4) of their own volition. There is no evidence before the court to suggest that an officer may have concluded that an application was required. If the applicants wished to have the fee waived, they could have indicated same to an officer of the Tribunal. A leaflet which accompanied the delegate's letter of 13 December 2001 and which was forwarded to the applicants made reference to the fact that the fee may be waived. There is nothing in the Act or Regulations which imposes any obligation on any officer of the Tribunal to contact the applicants to see whether an application for fee waiver would be made, nor is there any obligation upon any officers of the Tribunal to consider the exercise of the power in the absence of any material. The Regulations provide that an officer may determine that a fee should not be paid. There is nothing which prescribes the imposition of such duty. The Regulations require that the officer is satisfied that the payment of the fee has caused or is likely to cause severe financial hardship. In this instance no officer was so satisfied and there was no material at all proffered by the applicants upon which an officer could be so satisfied. The Tribunal was under no legal obligation to make inquiries, nor consider whether it should exercise the power to make inquiries in relation to the applicants' application for fee waiver. Accordingly, the application must be dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 15 March 2005
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