FEDERAL COURT OF AUSTRALIA

MIGRATION – application for internal review by Migration Internal Review Office – whether the requirement in s 339(1) of the Migration Act 1958 (Cth) that an application for review be “accompanied by the prescribed fee” is mandatory or directory – whether an application may be taken to be “accompanied by the prescribed fee” if there is given to the Secretary with the application a cheque in the amount of the prescribed fee if that cheque is dishonoured on presentation.

Migration Act 1958 (Cth), ss 338(1), 339(1), 340(1), 485(1)

Judiciary Act 1903 (Cth), s 39B

Migration Regulations, regs 4.04, 4.05

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446, followed 

Wielgus v Removal Review Authority [1994] 1 NZLR 73, cited

Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529, applied

National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668, applied

NG 563 of 1998

LEHANE J

SYDNEY

11 SEPTEMBER 1998

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Facts

The circumstances in which this application for judicial review is made are not in dispute.  They may be briefly summarised.

The applicant, a citizen of the United Kingdom, applied for a visa in a class described as “AS General (Residence)” and in a sub-class described as “805 skilled”.   The application appears, from the material in evidence, to have been lodged as long ago as 30 June 1995.   On 12 March 1997 that application was refused and the applicant was informed of the refusal by a letter from the Department dated the same day.   That decision was an “internally-reviewable decision” (Migration Act 1958 (Cth) s 338(1)) and the applicant, through his solicitor, on 10 April 1997 forwarded to the Secretary an application for review in the form required by s 339 of the Act.   Sub-section (1) of that section provides as follows:

An application for review of an internally-reviewable decision must:

(a)       be made in writing in the form approved by the Secretary; and

(b)       be given to the Secretary, at a prescribed place, within the prescribed period, being a period ending not later than:

            (i)         if the decision is covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision – 28 days after the notification of the decision; or

            (ii)        if the decision is covered by paragraph (e), (f), (g) or (h) of that definition – 70 days after the notification of the decision; and

(c)        be accompanied by the prescribed fee (if any). 

Section 340(1) provides that, subject to a qualification not applicable here, a review officer must review an internally-reviewable decision if an application is properly made under s 339.

The Migration Regulations prescribe, as the fee payable on an application for internal review of an internally-reviewable decision, $200 (reg 4.04(1)).  The applicant’s application for review was “given” within the prescribed period (28 days after notification of the decision) and was accompanied by a cheque for $200 drawn on the trust account of the applicant’s solicitor.

On 22 April 1997 a sequestration order was made against the solicitor’s estate.   On the same day he informed his bank of the order.  Unfortunately, the cheque accompanying the application for review had not then been presented for payment; it was presented the following day and was returned unpaid.  The applicant says that, since the cheque was drawn on a solicitor’s trust account, and since there was a sufficient balance standing to the credit of the trust account to meet the cheque, the dishonour was wrongful; the respondent does not dispute that but, as will appear, it does not matter for present purposes whether the applicant’s contention about that is right.   Once the solicitor discovered that the cheque had been dishonoured, he had discussions with officers of the Department, following which he cancelled the cheque and drew a further cheque which he sent to the Department.   By a letter dated 10 June 1997, however, the Department informed the applicant that review of the decision to refuse a visa was no longer possible.  The substance of what the Department had to say was conveyed by the following two paragraphs of the letter:

Unfortunately, on 5 May 1997, we were informed that the cheque used to pay the $200 processing fee for review by MIRO was dishonoured.  This means that we did not actually receive the fee, and your application is not eligible to be reviewed by us. 

The time limit for lodging an eligible application for review expired on 16 April, 1997.  As the fee was not paid by this date, your application is ineligible for review, and no further action will be taken on your case.  The cheque for $200 received on 6 June 1997 was also received outside time, and is enclosed with this letter.

Claim for review; objection to competency

In those circumstances, the applicant seeks review of both the decision to refuse the primary application for a visa and the decision:

that … the Migration Internal Review office would not consider and determine on the merits and according to law the application of the Applicant for a review of the decision to [refuse] the Applicant a Permanent Residence Visa under the Migration Act.

The respondent filed a notice of objection to competency in relation to the application for review of the earlier decision.  Clearly the Court does not have jurisdiction to review that decision: being an internally-reviewable decision, it may not be reviewed by this Court (s 485(1)).   The respondent accepts, however, that the refusal to entertain the application for internal review might, if contrary to law, attract mandamus under s 39B of the Judiciary Act 1903 (Cth).  In order to invoke the jurisdiction under s 39B the application probably requires amendment, at least by joining the Secretary as a respondent, the Secretary being the person to whom, under s 339(1) of the Migration Act, an application for internal review is to be directed.  The solicitor appearing for the respondent informed me, however, that he had instructions to consent to whatever amendments might be necessary to raise the substantive point, including joinder of the Secretary; and argument proceeded, and I shall proceed, on the footing that the necessary amendments have been made.

Issues

There are two issues, both involving questions of law.   The first is whether s 339(1) of the Migration Act, to the extent that it requires an application for review to be “accompanied by the prescribed fee”, imposes a condition, strict compliance with which is necessary to invoke the jurisdiction under s 340, that the fee be paid (or be caused to accompany the application for review) before the end of the period within which the application must be “given to the Secretary”.   The second question, which arises if the first is answered “yes”, is whether an application may be taken to be accompanied by the prescribed fee if there is given to the Secretary, with the application, a cheque in the amount of the prescribed fee, even if that cheque, on presentation, is dishonoured.

First issue: essential condition?

In Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 Mansfield J held that the provisions of s 339(1), requiring an application for review to be given to the Secretary within the prescribed period, were mandatory in the sense that strict compliance is necessary in order to engage the duty, under s 340, to review a decision.  In reaching that conclusion, his Honour approved and applied earlier decisions of this Court concerning similar statutory provisions.    His Honour recognised (as the facts of Tabet themselves demonstrated) that s 339(1), so construed, might operate harshly in particular cases.  He concluded, however, (at 455) that he should give effect to “the clear words of the relevant provisions” and the earlier decisions to which he referred.   I have no doubt that it is appropriate for me simply to follow his Honour’s decision and adopt his reasons.

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) 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.      

I was referred to one distinction, arising under the Migration Regulations, between the provisions for the time within which an application for review must be “given” and those relating to payment of the prescribed fee.  Whereas no power is given to extend the prescribed period, there is a limited power to dispense with payment of the fee. 

It arises under reg 4.04(3), which provides:

The Secretary may determine that the fee should not be paid in a particular case if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.  

Regulation 4.05 then provides for the refund of a fee paid on an application for review in various circumstances, including:

(c)        under sub-regulation 4.04(3), the Secretary determines that the fee should not be paid; …

In my view, that limited power to waive the fee, given by the Regulations, does not affect the mandatory requirements of s 339(1).  Of course, those mandatory requirements apply only where a fee is payable (“the prescribed fee (if any)”).  Thus if, before the expiry of the time for giving a review application to the Secretary, the Secretary has already made a determination under reg 4.04(3), no payment need be made.   Unless and until a determination is made, however, the prescribed fee is payable, so that if an applicant for review has applied for a determination under reg 4.04(3) but the Secretary has made no determination before the expiry of the prescribed period, it is probably necessary for the applicant to pay the fee, relying on the prospect of a refund should the Secretary make a favourable determination.   It is not necessary to reach a firm view about that, because in this case no application was made for a determination under reg 4.04(3).  In the result, the applicant must fail unless the trust account cheque which accompanied the application for review may properly be described as “the prescribed fee”.   

Second issue: “accompanied” by the fee

In my view the applicant’s submissions on that second question fail also.  As I have already said, a requirement that an application be accompanied by the prescribed fee must mean, at least, that the fee be paid not later than the period within which the application must be given to the Secretary.   It is well established by high authority that when a cheque is given and accepted for the purpose of paying an amount due, the amount due will be treated as paid on the date the cheque is given provided that the cheque is met on presentation; but not otherwise:

“There can be no doubt that the acceptance of a payment by cheque implies, if there be nothing to the contrary, an agreement that it shall be considered as payment, subject to the condition subsequent that if the cheque be dishonoured it shall no longer be so considered: ….”

(Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 at 535 per Kitto J; see also at 532, 533 per Dixon CJ and at 537 per Menzies J).  That principle was restated in the joint judgment of the High Court in National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668 at 676.   There is nothing in the context of the Migration Act or the Regulations which excludes that well-established principle which, where a cheque is dishonoured, does not depend for its operation on the reason why a cheque is dishonoured.  If the cheque is in fact dishonoured, then the condition fails and payment is taken not to have been made.  

Conclusion

The result is that the application must be dismissed.  That is a hardship, and may be considered an injustice, arising through no fault on the part of the applicant.  It is, of course, easy enough to see reasons why policy may dictate that there be a relatively short period within which applications for review under the Migration Act should be commenced and dealt with and certainty as to whether, by the expiry of a prescribed period, the necessary steps have been taken (though I cannot resist the observation that the Department does not seem to have regarded the applicant’s visa application as one requiring great urgency in its consideration). 

In the circumstances, and for similar reasons, I propose to take the course adopted by Mansfield J in Tabet: the application is dismissed but I make no order as to costs.

Associate:

Dated:              11 September 1998