Taylor v MIMIA - [2005] FMCA 281

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 281
Decision Date: 15 March 2005

CaseChat Overview and Summary

In the case of Carlyle Jeffrey Taylor and Others v Minister for Immigration and Multicultural Affairs, the applicants, who are Sri Lankan citizens, sought a review of the decision of the Migration Review Tribunal (MRT) to refuse their grant of Class AO (Residence) subclass 806 (Family – Special Need Relative) visas. The Federal Magistrates Court was tasked with determining whether the application made by the applicants was valid, and if not, whether the Tribunal could embark on a review task. The applicants argued that the MRT did not have jurisdiction to decline their application due to the non-payment of the prescribed fee, and that the Tribunal's officers should have considered a fee waiver. However, the court found that the statutory requirement for the application to be accompanied by the prescribed fee was mandatory, and the failure to comply with this requirement meant that the application was not properly made, and thus not valid.

The court held that the Tribunal only had jurisdiction to review an application that was properly made under section 347 of the Migration Act 1958. Section 347(1)(c) stipulates that an application for review must be accompanied by the prescribed fee, if any. The applicants had until January 10, 2002, to make an application to the Tribunal for review, and the prescribed fee needed to be paid by this date. 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, nor was any waiver of the prescribed fee sought. The court found that the applicants did not provide any evidence to suggest that an officer of the Tribunal should have concluded that an application for fee waiver was required or that they should have considered whether to exercise the power to waive the fee on their own volition.

The Federal Magistrates Court concluded that the applicants' argument that the Tribunal's officers should have considered a fee waiver was not supported by the legislation. The Regulations require that an officer is satisfied that the payment of the fee has caused or is likely to cause severe financial hardship, but 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 court found that 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 was dismissed with costs.

Orders