Ye v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 961
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ye v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 961
File number(s): MLG 2856 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 26 September 2024 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the prescribed filing fee was not paid within a reasonable period – where applicant also complained that the Tribunal officer’s fee refusal decision was incorrect – no jurisdictional error established, application is dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.5CB, 5F, 347, 348, 375A
Migration Regulations 1994 (Cth) rr .4.10, 4.13
Cases cited: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318
Commissioner of Taxation v Addy [2020] FCAFC 135
Fairy v Minister For Immigration & Anor (No 2) [2017] FCCA 3095
Fairy v Minister for Immigration and Border Protection [2018] FCA 729
Parmar v Minister for Immigration and Border Protection [2018] FCA 502
Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619
Tanto v Minister for Immigration and Anor [2013] FCCA 282
Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 17 April 2024 Date of last submissions: 29 August 2024 The Applicant: Appearing in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2856 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUIXIAN YE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
COMMONWEALTH OF AUSTRALIA
Third Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The application filed 24 September 2018 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
These proceedings relate to 2 administrative decisions made in the course of the Applicant’s attempt to seek review of a delegate’s decision to refuse her a partner visa.
The application before the Court seeks judicial review of the tribunal member’s decision that there was no jurisdiction to conduct the review because the tribunal’s prescribed filing fee was not paid in full within a reasonable period after the tribunal declined to reduce the fee. The grounds of the application also complain that the tribunal officer’s decision to refuse the request to reduce the filing fee was incorrect.
For the reasons that follow, the application is dismissed with costs.
APPLICATION BEFORE THE COURT
Procedural context
On 24 September 2018, the Applicant applied to this Court for judicial review which application form indicated it had been prepared by “Australian Migrants Welfare & Settlement Bureau” but was signed by the Applicant. The form including the following:
(a)Under the heading “migration decision details”, the migration decision subject of the review was described as the Tribunal’s decision of 22 August 2018 (earlier defined as the No Jurisdiction Decision); and
(b)Under the heading “grounds of the application”, the following:
1.Misleading by AAT Reception officer
2.Incorrect decision by AAT Application Fee reduction officer
3.No Just decision and communications by the associates of AAT Member, and leading to No Jurisdiction to the JUST MEMBER for My spouse Application.
(sic.)
In the course of the proceedings, the Applicant sought to rely on the following additional materials:
(a)First affidavit of the Applicant accompanying the original application, filed and deposed on 24 September 2018;
(b)Second affidavit of the Applicant, filed on 5 November 2021 and deposed on 4 November 2021;
(c)Third and Fourth affidavits of the Applicant, filed on 20 March 2024 and respectively deposed on 18 March 2024;
(d)Fifth affidavit of the Applicant, filed on 5 April 2024 and deposed on 2 April 2024;
(e)Sixth affidavit of the Applicant, sent directly to chambers on 15 April 2024 and deposed on 15 April 2024;
(f)Seventh affidavit of the Applicant filed 12 August 2024 deposed 6 August 2024;
(g)Affidavit of Mr Jackson Yip (the Applicant’s brother) filed on 12 August 2024 and deposed on 6 August 2024; and
(h)Correspondence in support of her application sent directly to chambers on 27 March 2024 and on 25 March 2024.
In the course of the proceedings, the First Respondent filed the following materials on which it sought to rely:
(a)A response filed on 20 November 2018, by which they sought that the application be dismissed;
(b)An outline of submissions and a list of authorities, filed on 10 April 2024;
(c)A bundle of authorities, filed on 16 April 2024; and
(d)An outline of submissions, filed on 29 August 2024.
The present application proceeded to final hearing before the Court as presently constituted on 17 April 2024. The Applicant appeared in person and made oral submissions with the assistance of a Cantonese interpreter. The First Respondent was represented by a solicitor and did not oppose receipt of the Applicant’s affidavits filed as at that time.
Subsequently, with regard to the first and second grounds of the application and the approach in Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619 (Purnama) per Laing J, the Commonwealth of Australia was joined as a Third Respondent. The Third Respondent confirmed that they supported the submissions of the First Respondent and did not seek to add anything further. No party sought to be further heard in relation to the matter.
For completeness, this application was heard concurrent with the proceedings in MLG2527/2021. Those proceedings were also commenced by the Applicant in relation to a separate but different class of partner visa.
Factual context
The following is a summary of the relevant facts which are uncontentious except where indicated.
The Applicant is a citizen of China.
Having arrived in Australia on a tourist (subclass 600) visa on 13 March 2016, the Applicant was married to an Australian citizen on 20 August 2016.
On 7 September 2016, the Applicant applied for a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa (partner visa, subject of these proceedings).
On 20 April 2018, a delegate of the First Respondent refused to grant the partner visa on the basis that the delegate was not satisfied on the evidence before it that the Applicant met the definition of a spouse or de facto partner under ss.5F or 5CB of the Migration Act 1958 (Cth) (Act). A copy of the decision record was sent to the Applicant by email to an email address ending in “@qq.com”.
On 2 May 2018, the Applicant:
(a)lodged an application for review of the delegate’s refusal decision with the Administrative Appeals Tribunal (Tribunal), by hand, on which form she nominated her personal contact details (a postal address, a mobile number and the same email address as the Department had used to communicate its decision record, ending in “@qq.com”) and indicated that she did not want to appoint a representative on her behalf to be her authorised recipient;
(b)paid an amount equivalent to 50% of the associated filing fee ($865.50); and
(c)by separate form, lodged a request for a reduction of the remainder of the associated filing fee.
The Applicant filed evidence that, at the time of making the application to the Tribunal, she and her husband were in severe financial hardship. The Applicant and her brother gave evidence that, as at 2 April 2018, total funds in her account were $332.24. She also provided a bank statement for the period 23 April 2018 to 18 May 2018 which showed a closing balance of $898.77. The Applicant explained that she had no money and did not want to commit a crime by stealing money and had asked her brother to help them pay the filing fee which he did - in person, at the Tribunal office on 2 May 2018. The Applicant’s evidence was that a helpful reception officer at the Tribunal said that they just needed to pay half the fee and apply for a request for fee reduction. Further that, after she lodged the application, she informed the reception officer to communicate by post or both post and email as she did not use her emails frequently because of her English barrier problems and her Chinese emails are sometimes hacked.
On 3 May 2018, the Tribunal sent an email to the Applicant at the email address the Applicant had nominated on the application form. Attached was a letter from the Tribunal which acknowledged receipt of the Applicant’s application to the Tribunal for review of the delegate’s refusal decision and relevant to the present application included the following:
[…]
Your request to have the review application fee reduced is being considered and the Tribunal will contact you soon about this.
Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.
We have requested that the Department of Home Affairs (the department) provide us with all documents and files which they consider to be relevant to your application.
It is important that you:
•tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
•tell us immediately if your personal circumstances change and this is relevant to the review of the decision;
•use your case number 1812627 when you contact us.
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
[…]
Also attached to the 3 May 2018 letter was a document with further information about the review process and another document in multiple languages (including Cantonese) which advised of the importance of the letter and how to get assistance with interpretation and translation if required.
No further material or written information was provided for the Tribunal’s consideration in response to the 3 May 2018 letter.
On 15 May 2018, the Tribunal sent an email to the Applicant at the email address the Applicant had nominated on the application form. Attached was a letter from the Tribunal with the subject line “Fee reduction refused – Ms Cuixian Ye” (Filing Fee Refusal Decision). That letter was authored on behalf of the Registrar and included the following:
I have carefully considered your request for a fee reduction dated 2 May 2018. You have stated in the form that you have your mother-in-law as a dependant and receive financial support from your husband, Ken Fowles. You have noted that your total post-tax income is $1,810 per fortnight and your total fortnightly expenses are $1,350. You have further stated that you owe a debt of about $7,000. You have not provided any supporting documents such as bank statements, loan agreements, payslips and/or utility bills in support of the claims made in the fee reduction request.
The fee for making an application for review of a migration decision may be reduced if payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant. Based on the information I have before me about your financial position, I am not satisfied that payment of the fee would cause you, or be likely to cause you, severe financial hardship.
You must now pay the remaining $865.50 of the application fee by 29 May 2018. If the remaining $865.50 of the fee is not paid by the due date your application for review will be allocated to a Member to determine whether you have made a valid application. If you do not pay the fee, the member may decide you have not made a valid application. If your application is invalid, we cannot review the decision.
No response was forthcoming and the remainder of the prescribed filing fee was not paid by 29 May 2018 or at all.
On 22 August 2018, the Tribunal sent an email to the Applicant at the email address the Applicant had nominated on the application form. Attached was a letter from the Tribunal with the subject line “Notification of decision – Ms Cuixian Ye”. That letter attached a decision record prepared by a Member of the Tribunal dated 22 August 2018 (No Jurisdiction Decision). By that decision record, the Tribunal concluded that it had no jurisdiction to determine the Applicant’s review application lodged 2 May 2018. The Tribunal’s reasons were briefly outlined in some 7 paragraphs as follows:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision of a delegate of the Minister for Immigration, dated 20 April 2018 (the decision), to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
2. On 2 May 2018, the applicant lodged the review application form and half of the application fee with the Tribunal. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship.
4. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 11 May 2018. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
5. On 2 May 2018, before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer decided to refuse the request for a fee reduction and the applicant was advised of this decision by letter dated 15 May 2018. The applicant was asked to pay the remainder of the application fee by 29 May 2018—that is, within 14 days of receiving the Tribunal’s letter.
6. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
The Applicant filed evidence by which she claimed to have never received communications from the Tribunal about the application fee by phone call or post to her nominated postal address. Further, that her brother (her money lender) could have paid the balance of the fee and the Tribunal should have charged him.
For completeness, the Applicant also filed evidence in these proceedings by which she sought to establish the bona fides of her marriage, including a letter of an introduction agency, a family violence intervention order issued on 18 May 2021 (expired 18 May 2022, made by consent with no admissions) and 2 supporting letters of a family violence counselling service (the first dated 24 June 2021 and the other undated but referenced 22 July 2021 as a date when assistance was sought). She described the family violence that she had suffered over 5 and a half years of marriage, but did not report at the time, as: financial abuse; and violent abuse crimes (for example, that her former husband would allow the dogs to come into their room when making love, had been involved in motor vehicle accidents and had a very old mother). She also said she was mistreated by the delegate at interview who treated her like a criminal or a terrorist and interviewed her for about 5 hours with no water and the delegate unfairly assessed her and gave her a death sentence. The Applicant also alleged that the same delegate misled her colleague to prejudicing or obstructing the AAT independent merits review with her bias bureaucracy and hypocrisy and prejudicing justice and abusing her power under the Act and the Public Service Act.
FIRST AND SECOND GROUNDS
Respective contentions
The originating application expressly nominated the decision under review as the No Jurisdiction Decision made by a Tribunal member. However, as will be apparent, the application relied on grounds which appeared to challenge the Filing Fee Refusal Decision made by a Tribunal officer.
By the first and second grounds, together with her supporting affidavits and oral submissions at hearing, the Applicant was understood to contend that the decision of the Tribunal officer to reject her application for reduction of the prescribed fee was wrong and a Tribunal reception officer otherwise misled her in respect of the prescribed fee. The Applicant was understood to make the following contentions in support of this ground:
(a)The Tribunal fee was too high and her financial hardship was genuine;
(b)A Tribunal reception officer had viewed her personal bank account balance at the time of lodgement of the review application and, upon seeing this, encouraged her to pay only half the prescribed filing fee at the time of lodgement and to apply for a waiver of the remainder; and
(c)The Applicant should not have been required to pay the remainder of the prescribed filing fee or her brother should have been charged the remainder using payment details provided to make the initial payment.
The First Respondent accepted the jurisdiction of the Court to review the Fee Waiver Refusal Decision and that it were appropriate to join the Commonwealth of Australia as a respondent to the proceedings. The First Respondent (supported by the Third Respondent) submitted that the Filing Fee Refusal Decision was open to the Tribunal officer to make, for the reasons stated in their letter of 15 May 2018. Further, that there was nothing irrational or illogical in concluding that their discretion under reg 4.13(4) was not enlivened because the Applicant had not submitted supporting documents for the financial claims that has been made by the Applicant.
Consideration
In Fairy v Minister For Immigration & Anor (No 2) [2017] FCCA 3095 (per Mansouridis J, not overturned on appeal in Fairy v Minister for Immigration and Border Protection [2018] FCA 729), it was acknowledged that a Registrar’s decision not to waive the remaining 50% of the prescribed fee may be invalid and amenable to judicial review were it found to be irrational or (legally) unreasonable.
Where the power exercised was discretionary, there are limits to the kinds of error that might arise. The Court’s role is not to ascertain whether the matter in respect of which the identified person is required to form an opinion actually existed, but rather whether the person had formed the required state of mind as to its existence: Commissioner of Taxation v Addy [2020] FCAFC 135 per Davies, Derrington and Steward JJ as cited in Purnama at [28].
In the present case, the Applicant had submitted information about her financial hardship to the Tribunal in support of her fee waiver application – amounts of her fortnightly income, fortnightly expenses, a debt owed and that she had a dependent mother-in-law. The Applicant had not submitted copies of bank statements, loan agreements, payslips or utility bills in support. The claim that the Applicant had shown the Tribunal officer her bank balance and was, for that reason, encouraged to make application for a fee waiver does not render the Tribunal’s decision legally unreasonable because it was for the Applicant to put documents to the Tribunal in support of her fee waiver application and she did not do so (whether upon submitting the fee waiver application, in the 13 days after submitting the fee waiver application or after receiving notice of the Fee Waiver Refusal Decision but before the No Jurisdiction Decision was made). It is not for this Court to revisit the merit of the Tribunal officer’s decision and replace it for one that this Court would have made. The Tribunal officer gave clear and cogent reasons for the Filing Fee Refusal Decision which expressly paid regard to the information that was before it. The Tribunal officer was entitled to proceed as they did in the exercise of their discretion and did not act irrationally, illogically or unreasonably in this respect.
Taking the Applicant’s case about the representation made by the Tribunal officer at its highest, the Tribunal officer did no more than encourage her to apply for a waiver of the balance of the prescribed filing fee. The Applicant then proceeded to complete and submit an application form and understood there would be follow up communications (as apparent by the contentions in respect of the third ground, addressed below). The very next day after the fee waiver application form was submitted, the Tribunal wrote to the Applicant by which it clearly communicated that a decision on the fee waiver application was yet to be made and a valid application had not been accepted and provided an information sheet in her first spoken language which gave details about where to get assistance. For completeness, for the reasons explained in relation to ground 3, it was reasonable that the communication of 3 May 2018 was sent to the Applicant’s nominated email address. On what is before the Court, I am unable to find any unreasonableness in this respect.
For completeness, in Tanto v Minister for Immigration and Anor [2013] FCCA 282 (Tanto) at [23] (per Driver J, which was upheld on appeal: Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853), some consideration was given to the underlying merit of the application for review of the delegate’s decision which in that case was considered bound to fail. It is not the role of this Court to engage in a review of the delegate’s decision. However, to the extent it may be relevant to an assessment of the application in this matter, on what is before the Court about the relative strengths of the application that was before the Tribunal and the applicable criteria which were to be met as at the time the subject partner visa application was made, there is nothing to alter the conclusion reached.
For the above reasons, the first and second grounds do not succeed.
THIRD GROUND
Respective contentions
By the third ground of the application, the Applicant claimed that the Tribunal member’s decision of 22 August 2018 (earlier defined as the No Jurisdiction Decision) was wrong, unjust and/or procedurally unfair. In particular, the Applicant said that she had not received the Tribunal’s communications about the fee waiver application or the need to pay the balance of the filing fee. She said that those communications were sent to her email address contrary to an oral instruction given to the Tribunal’s reception officer and she was never contacted by telephone.
The First Respondent contended that, by the time the Tribunal made its determination on 22 August 2018, the Applicant had been afforded approximately 3 months to pay the remainder of the required application fee. The First Respondent sought to contend that the Applicant was therefore afforded a reasonable time to pay the remainder of the application fee, and that the Applicant did not respond to the Filing Fee Refusal Decision.
Consideration
The Tribunal’s jurisdiction to review the delegate’s decision was contingent upon an application being properly made under s.347 of the Act: s.348.
Section 347 of the Act proscribed requirements of an application for a Part 5-reviewable decision. Relevantly:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:
(a) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b) if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
(c) if the Part 5‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
(d) if the Part 5‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).
(3) If the Part 5‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(3A) If the Part 5‑reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
(4) If the Part 5‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:
(a) request the opportunity to appear before the Tribunal; and
(b) request the Tribunal to obtain oral evidence from a specified person or persons.
A request must be made in the approved form and must accompany the application for review.
(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
The prescribed fee to accompany the application for review, for purposes of s.347(1)(c) was (at the relevant time) $1,731: reg. 4.13 of the Migration Regulations 1994 (Cth) (Regulations), with indexation. The Regulations provide (and, at the relevant time, provided) that the prescribed fee may be reduced by 50% if the Registrar of the Tribunal is satisfied that the payment of the fee has caused, or is likely to cause, severe financial hardship to the reviewing applicant: reg.4.13(4).
The prescribed period for filing the application for review accompanied by the prescribed fee was (at the relevant time) 21 days after the day on which the notice of the Part 5-reviewable decision is received by the Applicant: reg.4.10(1)(a). However, it can happen that the Tribunal does not determine the fee reduction request before the expiry of the prescribed period. Under a previous iteration of this regulation, the Federal Court of Australia determined that, in those circumstances, the application may still be entertained by the Tribunal provided that: the request for fee reduction was made within the prescribed period; and the fee is either waived or paid within a reasonable time of the waiver request being rejected: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 per Wilcox, Weinberg and Stone JJ at [51] (Braganza).
In my view, Braganza remains good authority and (especially as to do otherwise would only preclude the Applicant from pursuit of her application on account of the Tribunal not determining her waiver request sooner) I consider it appropriate to adopt that reasoning here. However, in circumstances where an applicant has been denied a fee reduction and has failed to pay the remaining balance of the prescribed fee within a reasonable time, such an application will be taken to not have been made within the meaning of s.347(1)(c) and therefore does not enliven the jurisdiction of the Tribunal: Tanto at [35].
In the present case, it was not contentious that the Applicant sought to apply to the Tribunal for review of the delegate’s decision, paid half of the prescribed filing fee and sought a reduction of the remainder of the prescribed filing fee within the prescribed period at s.347(1)(b) of the Act.
The Tribunal determined to refuse the Applicant’s request for a waiver or reduction of the prescribed filing fee but did not do so until 15 May 2018 - that is, after the prescribed period had elapsed on 11 May 2018. On the established authority in Braganza, this would not of itself have been fatal because the fee reduction or waiver request was made within the prescribed time - provided that the fee was ultimately waived or paid within a reasonable time after the application for a waiver of the prescribed fee was rejected.
Together with its fee waiver refusal decision, the Tribunal corresponded with the Applicant by which she was afforded a further 14 days to pay the remainder of the prescribed fee and given an explanation that this was required in order to make a valid application for review.
As of the Tribunal’s jurisdictional decision of 22 August 2018, the remainder of the filing fee (and, it follows, the prescribed filing fee) had not been paid by or on behalf of the Applicant.
In at least one other case that was brought to the Court’s attention, a period of 3 months has been considered reasonable (see, for example, in Tanto). Nonetheless, in considering whether the Applicant was afforded a reasonable time to pay the prescribed fee after the application for reduction or waiver was rejected, the case turns on its own particular facts and requires an element of judgement: Parmar v Minister for Immigration and Border Protection [2018] FCA 502 per Dowsett J at [19].
Here, it is relevant that there was a period of some 3 months that elapsed from the date of Tribunal’s refusal of the fee waiver on 15 May 2018 and when the Tribunal made its jurisdictional determination on 22 August 2018. The Applicant was warned about the consequences of non-payment of the remainder of the prescribed filing fee. In the 3 months that then passed, there is no evidence or record of any correspondence from the Applicant to the Tribunal or any attempt made to follow up on her application at all.
The Applicant said she was not afforded a reasonable time to pay the fee because she was not notified of the Fee Waiver Refusal Decision.
There was no particular method by which the Tribunal was obliged to communicate its Fee Waiver Refusal Decision and it was therefore entitled to communicate that decision to the Applicant by any method that it considered appropriate including by email transmission: ss.379AA and 379A of the Act.
On the overwhelming balance of the evidence and materials before the Court, it was reasonable for the Tribunal to communicate with the Applicant at the contact email address that she had nominated on her application form on 2 May 2018. The very next day, on 3 May 2018, the Tribunal had communicated with the Applicant by email to acknowledge receipt of her application and also to remind her of the importance of keeping her contact details updated – this was an opportunity for the Applicant to formally request an alternate method of communication had she considered it necessary. Further, the Applicant’s nominated email address to which the Tribunal communicated is the same email address at which the Department had previously communicated with her.
In all of the circumstances, the Applicant was afforded a reasonable time to pay the prescribed filing fee after the Tribunal decided to refuse her waiver application but did not do so.
For the above reasons, the third ground does not succeed.
OTHER MATTERS
The Applicant was understood to raise an additional point, to the effect that the delegate misused s.375A to “block” the Tribunal proceeding.
To the extent that the Applicant sought to contend that the non-disclosure certificate issued by the delegate was in error, the validity or otherwise of that certificate had no apparent bearing on the Tribunal’s Fee Refusal Decision or No Jurisdiction Decision. The reasons for the Tribunal’s decisions subject of this application to the Court were confined to its consideration of the discretion to waive and the requirement to pay a filing fee within a reasonable period after notification of the delegate’s decision.
Even if it were a ground of the application, this argument would not succeed.
For completeness, the Applicant also indicated her strong disagreement with the procedure adopted by the delegate at first instance. The Applicant is understandably aggrieved by the delegate’s decision which she characterised as a “death sentence”. However, as was explained to her at the hearing, the delegate’s decision is not within the jurisdiction of this Court and is not a decision that this Court is empowered to review or to set aside.
CONCLUSION
For the above reasons, the application must be dismissed with costs fixed in the amount of $5,500 being less than the scale amount and as sought.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 26 September 2024
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