FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship [2009] FCA 392

MIGRATION – jurisdiction of Migration Review Tribunal – whether Tribunal wrongfully declined jurisdiction – prescribed fee payable on application for review – application for fee waiver – fee waiver refused – whether Tribunal should have considered whether appellant actually received letter informing him of refusal of fee waiver – whether Tribunal should have considered whether reasonable time had been allowed for payment of fee in light of any finding that he did not receive letter – whether Tribunal had discharged its function to review

Migration Act 1958 (Cth), ss 347, 347(1), 347(1)(b), 347(1)(c), 379A, 379AA, 379C, Pt 5

Migration Regulations 1994 (Cth), regs 4.10(1)(b), 4.13(1), 4.13(4)

Patel v Minister for Immigration & Anor [2008] FMCA 1035 reversing

Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (2001) 109 FCR 364 applied

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 cited

RINKESHKUMAR PATEL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

VID 676 of 2008

GRAY J

23 APRIL 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by the Federal Magistrates Court on 7 August 2008 be set aside.

3.                  There be substituted for those orders orders that:

            (1)        A writ of mandamus issue, directed to the second respondent, directing it to
            hear and determine the application of the appellant for review of a decision of    a delegate of the first respondent to cancel the appellant’s student visa            according to law.

            (2)        The first respondent pay the appellant’s costs of the proceeding.

4.         The first respondent pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     The question that arises in this appeal is whether the Migration Review Tribunal (“the Tribunal”), the second respondent to the appeal, was wrong in holding that it did not have jurisdiction to deal with the appellant’s application for review of a decision to cancel his visa.  Having taken steps to advise the appellant that his application for waiver of the fee normally required in conjunction with an application for review had been refused, the Tribunal proceeded to dismiss the application for review on the basis that it had no jurisdiction.  It took the view that a reasonable time had elapsed after notification of the refusal to waive the fee.  Subsequently, the appellant contacted the Tribunal to say that he had not received the notice of the refusal to waive the fee.  The Tribunal then took the view that it had discharged its function by making the decision that it did not have jurisdiction, and that it could not reopen that decision.  In essence, the question is whether the Tribunal was bound to reconsider the issue of the lapse of a reasonable time, in light of the appellant’s claim that he had not received the notice.

2                     The appeal is from a judgment of the Federal Magistrates Court, delivered on 7 August 2008 and published as Patel v Minister for Immigration & Anor [2008] FMCA 1035.  The learned federal magistrate dismissed an application by the appellant, seeking judicial review of the Tribunal’s decision, which was signed on 7 November 2007 and forwarded to the appellant, with a statement of reasons and a letter dated 8 November 2007.  The Tribunal expressed its decision in terms that “The Tribunal does not have jurisdiction to review this matter.”  The matter concerned was an application by the appellant to review a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to this appeal, cancelling the appellant’s student visa.  That decision was dated 20 August 2007. 

The facts

3                     The decision of the delegate of the Minister was based on the failure of the appellant to comply with a condition of his visa requiring a recorded minimum level of attendance at classes conducted by the educational institution at which he was pursuing the course for which he had been granted the visa.  The delegate reached the conclusion that the appellant could not be excused from the requirements of the condition because his non-compliance was not due to exceptional circumstances beyond his control.  In the absence of such exceptional circumstances, cancellation of the visa was required by the relevant provision of the Migration Regulations 1994 (Cth) (“the Migration Regulations”), as it then stood.  The appellant wished to contest the issue of exceptional circumstances beyond his control.  On 24 August 2007, he lodged with the Tribunal his application for review of the decision of the Minister’s delegate.  He also made an application for waiver of the fee required by reg 4.13(1) of the Migration Regulations.

4                     According to the Tribunal’s reasons for decision, on 25 September 2007, an authorised officer of the Tribunal decided to refuse the request for fee waiver.  On the same day, the Tribunal wrote to the appellant, advising him of this decision and asking that he pay the prescribed application fee within a reasonable period, specifically by 18 October 2007, or make other arrangements with the Tribunal about the payment of the fee.  The appellant neither paid the fee nor responded otherwise to the Tribunal’s letter.  On 30 October 2007, the case was allocated to a member of the Tribunal, who decided that the Tribunal did not have jurisdiction to review the decision of the Minister’s delegate.  The stated reasons of the Tribunal were as follows:

As the prescribed application fee was not paid to the Tribunal within the prescribed period or within a reasonable period after the fee waiver request was refused, the application for review is not a valid application and the Tribunal has no jurisdiction to review the delegate’s decision.

5                     By letter dated 8 November 2007, an officer of the Tribunal forwarded to the appellant a copy of the Tribunal’s statement recording its decision and reasons.  This letter was addressed to the appellant at his place of residence in Werribee South.  The appellant informed me on the hearing of the appeal that he had received the letter dated 8 November 2007, with the Tribunal’s decision.  He said that he telephoned the Tribunal and informed the person to whom he spoke that he had not received any letter informing him of the outcome of his fee waiver application.  According to the Tribunal’s records, on 15 November 2007, an officer of the Tribunal made contact with the appellant.  The record reads as follows:

I called the applicant and advised that I had looked into the matter of his fee waiver refusal and can confirm that a letter was dispatched to his last notified address on 25/09/07 under reg. post number RP35137215.  I confirmed that the Tribunal had met its legal obligation to notify him of the decision and the matter is now out of hands [sic] and we can do nothing further to assist him.  I advised him of the Tribunals’ complaint handling procedures and suggested that he may want to contact the post office to follow up on the registered post that was dispatched to him and provided him with the reg. post number.

6                     On the appeal, counsel for the Minister sought to rely on evidence not before the Federal Magistrates Court.  The evidence was in an affidavit of a District Registrar of the Tribunal, who produced the Tribunal’s postal log for 25 September 2007, recording that an item was sent by registered post to the appellant at the Werribee South address on that day.  Significantly, there was no evidence that Australia Post obtained any signature for the delivery of the registered mail article.  Counsel for the Minister conceded that no such evidence was to be found in the records of the Tribunal.

The federal magistrate’s reasons

7                     At [4] of his reasons for judgment, the federal magistrate referred to Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (2001) 109 FCR 364.  At [5], his Honour concluded that the appellant was deemed to have received the letter of 25 September 2007, because of the cumulative effect of reg 4.10(1)(b) of the Migration Regulations and s 347 of the Migration Act 1958 (Cth) (“the Migration Act”).  After reciting the facts, at [11], his Honour expressed the view that it was surprising that, of all the letters sent to the appellant at his nominated address, the only one he did not receive was that of 25 September 2007.  At [12], his Honour pointed out that evidence that he had not received that letter was not before the Tribunal.  His Honour said that it is not generally open to an applicant to seek to put new evidence before the Federal Magistrates Court, in order to challenge a finding of fact made by the Tribunal.  After pointing out that the appellant had had every opportunity to put evidence before the Federal Magistrates Court, at [15], his Honour expressed the “opinion” that “it is more probable than otherwise that the [appellant] did receive the Tribunal’s notification about paying his fee but simply failed, for whatever reason, to do so.”  His Honour went on to say that, even if the appellant did fail to receive the letter, “it is plain that the Tribunal’s decision was correct.”  The reason his Honour gave for this was that, at the time of the Tribunal’s decision, the appellant had not paid the required fee.  At [16], his Honour expressed a concern that a person who did not actually receive notification from the Tribunal of the rejection of a fee waiver application may suffer hardship.  Nonetheless, his Honour said, that was a matter for Parliament and his Honour was required to hold the application to be totally deficient in merit.

Relevant legislation

8                     Section 347(1) of the Migration Act provides, so far as relevant to the present case:

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

(a)       be made in the approved form; and

(b)       be given to the Tribunal within the prescribed period...and

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

9                     In the present case, it is not disputed that the appellant gave his application in the approved form to the Tribunal within the prescribed period.  It is therefore unnecessary to look in detail at the provisions of s 347(1)(b) of the Migration Act, or at reg 4.10(1)(b) of the Migration Regulations, to determine what the period was.  It is also not disputed that the appellant did not give to the Tribunal the prescribed fee within the prescribed period, because he applied for a waiver of that fee.  The source of the power to waive the fee is reg 4.13(4), which provides:

The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid 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.

If there is a decision that the prescribed fee on application should not be paid, there is not “any” such prescribed fee, for the purposes of s 347(1)(c) of the Migration Act.  In the present case, there was no such decision.

10                  The provisions of the Migration Act relating to the giving and receiving of Tribunal documents are found in Div 8A of Pt 5.  Section 379A provides relevantly as follows:

(1)       For the purposes of provisions of this Part or the regulations that:

(a)       require or permit the Tribunal to give a document to a person (the recipient); and

(b)        state that the Tribunal must do so by one of the methods specified in this section;

            the methods are as follows.

...

(4)       Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

            (a)        within 3 working days (in the place of dispatch) of the date of the
            document; and

            (b)        by prepaid post or by other prepaid means; and

            (c)        to:

                        (i)         the last address for service provided to the Tribunal by the
                        recipient in connection with the review; or

                        (ii)        the last residential or business address provided to the
                        Tribunal by the recipient in connection with the review.

11                  A letter from the Tribunal to an applicant, advising that a decision that the fee on an application for review by the Tribunal should not be paid has not been made is not a document that any provision of the Migration Act or the Migration Regulations requires or permits the Tribunal to give to a person, or states that the Tribunal must do so by one of the methods specified in s 379A.  Section 379AA provides, however:

If:

(a)       a provision of this Act or the regulations requires or permits the        Tribunal to give a document to a person; and

(b)       the provision does not state that the document must be given:

            (i)         by one of the methods specified in section 379A or 379B; or

            (ii)        by a method prescribed for the purposes of giving documents to a     person in immigration detention;

the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

12                  Section 379C provides relevantly as follows:

(1)       This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).

...

(4)       If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

            (a)        if the document was dispatched from a place in Australia to an
            address in Australia—7 working days (in the place of that address)   after the date of the document; or

            (b)        in any other case—21 days after the date of the document.

The effect of Braganza

13                  The Full Court in Braganza attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act.  That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee.  If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee.  The problem is that time has elapsed.  Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired.  If a literal view were to be taken of s 347(1), in every such case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c).  This would have the effect of depriving reg 4.13(4), and the words “(if any)” in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful.  Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.13(4) to waive the fee.  It is likely that there would be many such applicants.  To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4).  See especially [50]-[52] in the reasons for judgment of the Full Court.

14                  Consequent upon Braganza, the Tribunal appears to have adopted a practice of allowing 14 days from the deemed receipt by an applicant of a letter informing that applicant that a decision to waive the prescribed fee has not been made.  This period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza.  That practice appears to have been applied by the Tribunal in the present case, when it advised the appellant in the letter dated 25 September 2007 that he should pay the fee by 18 October 2007.  This allowed for the seven working days after the posting of that letter, to give rise to the deemed receipt, with a further period of 14 days as a reasonable time in which to pay the fee.

The Tribunal’s obligation

15                  There can be no doubt that the Tribunal was entitled to act upon the view that the appellant must be taken to have received its letter dated 25 September 2007 once seven working days, determined at the place of posting, had expired.  For the purposes of the application of the principle enunciated in Braganza, however, the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee.  A reasonable time can never be a period determined arbitrarily.  The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case.  If, in a particular case, the person to whom the letter is addressed has not received it in fact, that is one of the circumstances that must be taken into account in determining whether a reasonable time has in fact elapsed.

16                  When the appellant contacted the Tribunal to advise that he had not received the letter informing him that a decision to waive the prescribed fee in his case had not been made, it was not open to the Tribunal to take the view that it had allowed a reasonable time and had completed the discharge of its function.  The information provided by the appellant necessarily raised for the Tribunal the factual question whether the appellant had not received the letter of 25 September 2007.  If this question had been determined in the appellant’s favour, it would have raised for the Tribunal the question whether its decision that it had no jurisdiction to deal with the appellant’s application for review was attended by jurisdictional error.  If the Tribunal had proceeded to such a decision before the passage of a reasonable time, in the circumstances of the case, it would not have performed its statutory function of reviewing the decision of the Minister’s delegate.  It would have declined to exercise its jurisdiction in circumstances where the provisions of the Migration Act required it to exercise that jurisdiction.  The making of a decision consequent upon jurisdictional error does not discharge the Tribunal’s function.  The Tribunal has the power, and the duty, to disregard its previous decision and to proceed to perform its statutory function.  See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597.  In that case, a Tribunal exercising powers under the Migration Act had proceeded to make a decision on the footing that the applicant for review had not attended at the appointed time for a hearing, unaware of the fact that the applicant had communicated a request for an adjournment of that hearing.  Upon discovering the error, that Tribunal had proceeded to make a second decision, after affording the applicant procedural fairness.  The High Court held it had power to do so.

17                  In the present case, the Tribunal had power to consider whether a reasonable time had in fact elapsed after the deemed receipt of the letter of 25 September 2007 and therefore whether its decision declining jurisdiction had been made properly.  It was wrong for the Tribunal, by means of its officer, to communicate to the appellant that the Tribunal had met its legal obligation, that the matter was now out of its hands, and that it could do nothing further to assist the appellant.  Instead, the Tribunal should have offered to the appellant the opportunity to be heard on the factual question, whether he had received the letter of 25 September 2007.  It is possible that the appellant may have been able to persuade the Tribunal to make a finding of fact in his favour on that question.  The fact that the Tribunal did not have evidence of actual delivery of the registered mail article (such as a recipient’s signature) is significant.  The appellant informed me on the hearing of the appeal that the house in which he lived was a household of some 12 students.  It is not difficult to see that, when the agent of Australia Post arrived to effect delivery, if the appellant had been not at home, a card recording the attempted delivery might have been left with another occupant of the house who had neglected to hand it on to the appellant.  It is not for me (and it was not for the federal magistrate) to make this factual determination.  It was a matter entirely for the Tribunal.

18                  If the appellant had succeeded in obtaining a finding of fact that he had not received the letter of 25 September 2007, the Tribunal would have been required to consider whether, in the light of that circumstance, the appellant had been afforded a reasonable time in which to pay the application fee.  The appellant informed me in the course of the hearing of the appeal that he had been ready and able to pay the fee, if his application for a decision that the fee should not be paid were to be unsuccessful.  It is likely that, in those circumstances, the Tribunal would have determined that a reasonable time had not elapsed, would have accepted the fee from the appellant, and would have proceeded to deal with his application for review of the decision of the Minister’s delegate.  Having regard to the subsequent history, in which the appellant has had to litigate this issue, it would still be open to the Tribunal to determine that a reasonable time has not elapsed, if it were to find in the appellant’s favour on the question of fact about actual receipt of the letter.

19                  If the Tribunal found that a reasonable time had not elapsed, it might also have considered that its earlier decision that it had no jurisdiction because the application fee had not been paid within a reasonable time was subject to jurisdictional error.  It amounted to wrongfully declining to perform the Tribunal’s statutory function of reviewing the decision of the Minister’s delegate, and therefore wrongfully declining to exercise jurisdiction.  If the Tribunal reached such a decision, it would be open to it, and necessary, for it to ignore the previous decision and deal with the review of the decision of the Minister’s delegate.

20                  For these reasons, the Tribunal wrongfully declined to investigate the appellant’s assertion that he had not received the letter of 25 September 2007.  The federal magistrate was in error in dismissing the appellant’s application for judicial review.  His Honour should have found that the Tribunal had not completed the discharge of its function and should have ordered the Tribunal, by means of a writ of mandamus, to proceed to do so.

Conclusion

21                  The appeal must be allowed.  The orders made by the federal magistrate on 7 August 2008 must be set aside.  In place of those orders, an order should be made that a writ of mandamus issue, directed to the Tribunal, requiring it to hear and determine the appellant’s application for review of the decision of the Minister’s delegate according to law.  It is unnecessary to order that a writ of certiorari issue, because it may be that the Tribunal, upon revisiting the matter, finds that its initial decision declining jurisdiction is the correct one, because it does not make the requisite finding of fact in favour of the appellant about the actual receipt of the letter dated 25 September 2007.  In those circumstances, that decision will remain.  If the Tribunal determines that a reasonable time has not passed, it will ignore the earlier decision and proceed to deal with the review, as long as the appellant pays the application fee.  For the federal magistrate’s order that the appellant pay the Minister’s costs of the proceeding in the Federal Magistrates Court, there should be substituted an order that the Minister pay the appellant’s costs of that proceeding.  In addition, there should be an order that the Minister pay the appellant’s costs of the appeal.

Associate:

Dated:         23 April 2009