FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2015] FCA 898

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    Leave to appeal be granted.

3.    The appeal be dismissed.

4.    The applicant to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

1    The applicant, Surender Kumar, applied to the first respondent, the Minister for Immigration and Border Protection (Minister) for a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 22 October 2014, a delegate of the Minister refused that visa application. Mr Kumar filed an application for review of the delegate’s decision in the Migration Review Tribunal (Tribunal). The Tribunal found that it did not have jurisdiction to entertain the application because Mr Kumar had not paid the prescribed fee. Mr Kumar then filed an application in the Federal Circuit Court of Australia purportedly invoking that court’s jurisdiction under s 476 of the Act. The primary judge summarily dismissed that application on the first return date of the application.

2    Mr Kumar now seeks leave to appeal the summary dismissal of his application by the Federal Circuit Court. The main issue raised by the appeal is whether in summarily dismissing his application, the primary judge denied Mr Kumar procedural fairness.

The Tribunal’s decision

3    The decision of the delegate to refuse Mr Kumar’s visa was an MRT-reviewable decision as defined in s 338 of the Act. Section 347(1) of the Act provides that an application for review of an MRT-reviewable decision must be made in the prescribed form, must be given to the Tribunal within the prescribed period, and must be accompanied by the prescribed fee (if any).

4    Mr Kumar’s application to the Tribunal for a review of the decision to refuse his visa was apparently in the approved form and was given to the Tribunal within the prescribed period. It was not, however, accompanied by the prescribed fee.

5    Regulation 4.13(1) of the Migration Regulations 1994 (Cth) prescribes the relevant fee. Regulation 4.13(4) provides as follows:

If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

6    It would appear from the Tribunal’s reasons that Mr Kumar made an application under reg 4.13(4) for the prescribed fee to be reduced. That application was refused by an authorised officer. Mr Kumar was advised of the refusal decision and also advised that he was required to pay the full application fee by 11 December 2014. Mr Kumar requested, and was granted, further time in which to pay the fee. He was advised that he was required to pay the prescribed fee by 2 January 2015. There is no dispute that he did not pay the fee by that time. Indeed, the fee had not been paid when the Tribunal decided, on 27 February 2015, that it did not have jurisdiction to review the decision to refuse Mr Kumar’s visa application because the prescribed fee had not been paid.

7    In its reasons, the Tribunal referred to two decisions of the Court in support of its finding that it did not have jurisdiction to review the decision to refuse Mr Kumar’s visa application. In Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 (Kirk), it was held that the former s 339 of the Act, which was in relevantly the same terms as s 347(1) of the Act, imposed mandatory requirements that had to be met to invoke the jurisdiction conferred by the former s 340 of the Act in respect of the internal review of certain decisions. One of the requirements was that the application had to be accompanied by the prescribed fee. The application for review in Kirk had been accompanied by a cheque that was subsequently dishonoured. The applicant delivered another cheque after the expiry of the time period in which the application was required to be made. The Minister advised the applicant that a review was no longer possible. Lehane J dismissed an application challenging the Minister’s decision to the effect that the jurisdiction under s 340 had not been invoked because the prescribed fee was not paid within the prescribed period.

8    In Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (Braganza), the Full Court (Wilcox, Weinberg and Stone JJ) considered the operation of s 347(1)(c) of the Act in circumstances where an application for waiver of the fee was made within the prescribed period. The appellant in that case lodged an application for review of an MRT-reviewable decision within the prescribed period, together with a request for a fee waiver on the basis of financial hardship. The waiver request was refused. The appellant then asked the Tribunal to reconsider the refusal and asked for an extension of time to pay the fee. Both requests were refused. The Tribunal informed the appellant that, as the prescribed period had elapsed, and as he had not paid the prescribed fee within that period, his application was not valid. The Tribunal decided, in effect, that it did not have jurisdiction to entertain the review. Importantly, it would seem that the Tribunal, having refused the waiver request, did not give the appellant any further time to pay the fee.

9    The Full Court upheld a challenge to the Tribunal’s decision that it did not have jurisdiction to entertain the review. Whilst the Full Court was invited to find that Kirk was wrongly decided, it decided the matter on a narrower basis. It found that Kirk was distinguishable, because in that case no application for a fee waiver had been made within the prescribed time. Where an application for a fee waiver is made within the prescribed time, the Full Court held (at [51]), that the application for review may be entertained, provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. The Full Court said at [51]:

… s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.

10    In Mr Kumar’s case, the Tribunal found that the proviso or qualification that the Full Court in Braganza read into s 347(1)(c) of the Act had not been met. The Tribunal concluded at [4] of its reasons as follows:

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.

The proceedings in and the decision of the Federal Circuit Court

11    Mr Kumar did not have the benefit of legal representation in the Federal Circuit Court. Mr Kumar’s application for judicial review of the Tribunal’s decision contained the following grounds:

Grounds of application

1.    The MRT made a jurisdictional error when it misapplied the law.

2.    The MRT did not include all the matter and evidence related with the application.

3.    The application was denied procedural fairness when the decision was made without giving him chance to submit necessary evidence before the decision.

4.    Applicant stay in Australia untill decision made.

5.    MRT did not give him time to pay his fee.

12    The Minister filed a response to Mr Kumar’s application. The Minister’s response included the following:

2.    The application pleads five grounds. Grounds one to and [sic] three make broad assertions which do not engage with the basis of the MRT’s decision. Ground four makes no allegation of error on the part of the MRT. Ground five alleges that the MRT did not give the applicant time to pay his fee, however it is clear from the MRT’s decision record that the applicant was given an extension to pay the fee on two separate occasions and that he still failed to do so.

3.    The first respondent contends that the application fails to raise an arguable case and that the application ought to be summarily dismissed at the first Court date.

13    The Minister’s response was served on Mr Kumar under cover of a letter from the Minister’s solicitors almost two weeks before the first court date of his application in the Federal Circuit Court. The letter included the following statement:

The Response opposes your application, and we may ask the Court to hold an immediate show cause hearing under Rule 44.12 of the Federal Circuit Court Rules 2001 to address the matters raised in the Response. At the show cause hearing we will ask the Court to dismiss your application. The Court may require you to provide reasons to explain why your application should not be dismissed at that time. These might include properly particularised grounds of judicial review, reasons why an extension of time should be granted, or evidence that your application is not out of time.

14    Thus, Mr Kumar was put on notice that the Minister contended that his application failed to raise an arguable case, that the Minister “may” ask the court to dismiss his application at the first court date on that basis, and that the court may require him to explain why his application should not be dismissed at that time.

15    The Court has not been furnished with a transcript of what transpired at the first court date in the Federal Circuit Court. It is apparent from the judgment of the primary judge, however, that the Minister moved for an immediate show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). That rule provides as follows:

44.12 Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

16    The application for an immediate show cause hearing was acceded to, and the Minister made submissions in support of the summary dismissal of Mr Kumar’s application. It appears from the judgment of the primary judge that Mr Kumar was invited to “identify a jurisdictional error”, and that in response Mr Kumar said that “he could not say anything and that he did not understand the law.”

17    The primary judge dismissed Mr Kumar’s application pursuant to r 44.12 of the FCC Rules. The primary judge concluded as follows (at [4]):

I am clearly satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is a matter in which it is appropriate to exercise the Court’s jurisdiction under r.44.12. This is a matter in which there is no arguable jurisdictional error.

Appeal grounds and submissions

18    Mr Kumar did not appear to have had the assistance of a lawyer in preparing his application for leave to appeal. His draft notice of appeal contains the following two grounds:

1.    Hon. Judges. failed to hold Migration Review Tribunal made a jurisdictional error of the law and did not consider appellant appeal.

2.    His honour failed to hold that the Tribunal did not give time to appear and explain his situation.

19    Mr Kumar did not file any written submissions in support of his application for leave to appeal. He appeared unrepresented at the hearing, assisted by an interpreter.

20    In his oral submissions in support of his application, Mr Kumar submitted that he did not have sufficient funds to retain a lawyer to assist him in the Federal Circuit Court. He did not, in those circumstances, know how to address legal arguments during the hearing in the Federal Circuit Court. He said that he urged the primary judge to give him some more time and that request was refused.

21    Mr Kumar’s oral submissions did not otherwise address the proposed grounds of appeal or, indeed, the merits of any argument he might have that there was a jurisdictional error on the part of the Tribunal.

Consideration

22    The decision to dismiss Mr Kumar’s application under r 44.12 of the FCC Rules is an interlocutory decision. For that reason, leave to appeal is necessary: Federal Court of Australia Act 1976 (Cth), s 24(1A).

23    It is well-accepted that in considering whether to grant leave to appeal from an interlocutory judgment, the Court is generally required to consider whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused supposing the decision at first instance was wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor Corporation). The Minister’s submissions did not directly address the question of leave, though it is clear that the Minister’s case is that the decision of the primary judge is not attended with sufficient doubt to justify it being reconsidered by the Full Court. No submissions were made in relation to the question of prejudice if leave is not granted. It is clear that Mr Kumar will suffer prejudice in the Decor Corporation sense if leave is refused. The refusal of leave would effectively spell the end of his attempt to challenge the adverse visa decision.

24    The only question, then, is whether Mr Kumar has demonstrated that the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave.

25    The only issue raised by Mr Kumar’s proposed appeal grounds and submissions is whether the primary judge erred in holding that Mr Kumar’s application failed to disclose any arguable case of jurisdictional error.

26    Putting to one side, for the moment, the question of procedural fairness, there is no basis for concluding that the primary judge’s finding that Mr Kumar’s application did not disclose any arguable case of jurisdictional error is attended with any doubt. The main difficulty for Mr Kumar is that there is simply no arguable basis for concluding that the Tribunal erred in finding that it had no jurisdiction to entertain Mr Kumar’s review application.

27    Grounds 1 to 4 of Mr Kumar’s application in the Federal Circuit Court did not raise any arguable contention of jurisdictional error on the part of the Tribunal. They are devoid of any meaningful particulars. Ground 5 was that the Tribunal did not give Mr Kumar time to pay the fee. That contention was unsupported by evidence and contrary to the Tribunal’s recitation of the facts, including the fact that Mr Kumar was given an extension of time to pay the prescribed fee.

28    There is no dispute that Mr Kumar did not pay the prescribed fee within the prescribed period. Whilst he applied for a waiver of the fee, that application was refused. Following the refusal, he was given a specific time in which to pay the fee. That time would appear to have been reasonable and was, in any event, extended. Mr Kumar did not pay the fee within the new time period set by the Tribunal.

29    The decision in Kirk establishes that the requirement in s 347(1)(c) of the Act in relation to the payment of the prescribed fee is a strict or mandatory requirement. Whilst the Full Court in Braganza did not decide whether Kirk was correctly decided, and (perhaps not surprisingly) Mr Kumar did not submit that it was incorrectly decided, there is no sound basis for finding that Kirk was wrongly decided. It should be followed, subject to the proviso or qualification read into the operation of the section by the Full Court in Braganza.

30    Mr Kumar’s case does not fall within the proviso or qualification in Braganza. Had Mr Kumar paid the prescribed fee on or before 2 January 2015, it would no doubt have fallen within the Braganza proviso and the Tribunal would have had jurisdiction to entertain the review application. But he did not pay the fee before 2 January 2015. Mr Kumar did not argue that the requirement to pay the fee before 2 January 2015 did not allow him a reasonable time. Even if he had advanced that argument, there is simply no basis for concluding that Mr Kumar was not given a reasonable time. In any event, Mr Kumar had not paid the fee before 27 February 2015, when the Tribunal ruled that it did not have jurisdiction. Mr Kumar accordingly was given effectively three months in which to pay the fee. It could not sensibly be argued that this was not a reasonable time.

31    Mr Kumar’s proposed grounds of appeal appear to include an argument that was not made in the court below. That argument is that the Tribunal denied him procedural fairness because it did not give him “time to appear and explain his situation.” Putting aside, for present purposes, the fact that Mr Kumar did not raise this argument in the court below, the question is whether, despite the fact that the Tribunal had told Mr Kumar that he was required to pay the prescribed fee by 2 January 2015, procedural fairness required the Tribunal to give Mr Kumar another opportunity to “explain his situation” in relation to the non-payment of the fee.

32    If the Tribunal had not specified a time by which Mr Kumar was required to pay the fee, it might have been arguable that procedural fairness might have required the Tribunal to give Mr Kumar notice that it intended to decide that it did not have jurisdiction to entertain his review application because he had not paid the prescribed fee. That is because there might, in those circumstances, have been an available argument concerning the period in which it was reasonable for Mr Kumar to pay the fee after the refusal of his waiver application. But Mr Kumar was given a specific time. That time was extended on his application. He was given another specific time. He did not seek a further extension or submit to the Tribunal that the time provided was unreasonable. In these circumstances, procedural fairness did not require the Tribunal to give Mr Kumar a further opportunity to explain his situation before deciding the question of jurisdiction.

33    It follows that neither of the two proposed appeal grounds raise any arguable case of error on the part of the primary judge in concluding that Mr Kumar had not demonstrated any arguable case of jurisdictional error on the part of the Tribunal.

34    The only remaining issue, not expressly raised in Mr Kumar’s draft appeal grounds or any submissions made by him, is whether he was denied procedural fairness in the Federal Circuit Court. This issue arises in particular having regard to the recent decisions of the Full Court in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 (Shrestha) and SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 (SZWBH).

Was Mr Kumar denied procedural fairness in the Federal Circuit Court?

35    In both Shrestha and SZWBH, the Full Court (Mansfield, Tracey and Mortimer JJ) held that the appellants had been denied procedural fairness by the Federal Circuit Court when their applications were summarily dismissed at the first court date. In both cases, the Full Court held that the FCC Rules expressly contemplate, and empower, a Federal Circuit Court judge to exercise the powers set out in r 44.12 at the first court date. That includes a power to dismiss an application if the judge is not satisfied that the applicant has raised an arguable case for the relief claimed.

36    The fact that such power exists, however, “says nothing about the legal constraints on its exercise”: Shrestha at [65]; SZWBH at [40]. In particular, there is no basis to infer from the terms of Pt 44 of the FCC Rules “an intention to abrogate the Court’s obligation to act fairly in considering, and exercising, the range of powers at its disposal under them”: Shrestha at [52].

37    In Shrestha, the Court said the following in relation to the Federal Circuit Court’s power to summarily dismiss a judicial review application (at [53]):

The pressure of high volume decision-making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.

38    In SZWBH, the Court said the following (at [56]-[57]) in relation to the dismissal of a judicial review application under r 44.11(a) of the FCC Rules at the first court date:

Although one must take care to allow for exceptional or unusual circumstances where the power in r 44.11(a) of the Rules may appropriately be exercised, it is difficult to conceive of circumstances where a court would be justified in summarily dismissing a judicial review proceeding at a first court date, of its own motion and without prior notice, where both parties have appeared.

At the very least, notice in advance of some kind should be given. The notice contemplated by the Rules for a respondent to seek summary dismissal (see r 6.19(a) and the requirement for three days’ notice) gives some indication. In circumstances where an applicant is unrepresented, to deal with a matter on short notice like that may still be procedurally unfair, especially if there are communication and language difficulties, but that will be circumstance-dependent. Notice is fundamental to a fair process in a court: in an adversarial system, it allows parties time to prepare, to meet what is to be put against them, to understand and consider the significance of what is proposed to occur, and to be in a position to present evidence and argument if they so wish. In a practical sense, it is the giving of reasonable notice which facilitates and protects the exercise of these entitlements by a litigant.

39    The circumstances of Mr Kumar’s case are, however, materially different from the circumstances in both Shrestha and SZWBH.

40    First, in both Shrestha and SZWBH, the appellants were effectively given no notice that the court might, at the first court date, require them to advance arguments for why their applications were reasonably arguable or that the court might dismiss their applications if not satisfied that their applications raised arguable cases for the relief claimed. In Mr Kumar’s case, however, the Minister specifically put Mr Kumar on notice, in both his filed response and in the letter under cover of which the response was served, that the Minister would or might apply to have Mr Kumar’s application summarily dismissed at the first court date.

41    As the decisions in both Shrestha and SZWBH show, the question of notice is critical to a consideration of procedural fairness in circumstances where the Federal Circuit Court summarily dismisses an application on the first court date. Other decisions of this Court also highlight the importance of the applicant being given prior notice that their application might be summarily dismissed at the first court date. It appears to have been a critical consideration in the decision of Flick J in AAV15 v Minister for Immigration and Border Protection [2015] FCA 700. In that case, Flick J quashed a decision of the Federal Circuit Court to summarily dismiss an application in circumstances where the dismissal occurred without prior notice to the parties and in circumstances where the Minister did not seek summary dismissal.

42    It also appears to have been an important consideration in MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075, where Black CJ granted leave to appeal from a dismissal under r 44.12 at the first court date. In doing so, the Chief Justice observed (at [14]):

I should also add that if those advising the Minister have in contemplation the possible operation of r 44.12 at the first court date, it would seem prudent to give a prior warning to the applicant.

43    On the other hand, in Singh v Minister for Immigration and Border Protection [2014] FCA 1209, Nicholas J dismissed an application for leave to appeal a dismissal under r 44.12 of the FCC Rules on the basis that the Minister’s solicitors had put the applicant on notice of a potential application to summarily dismiss the application at the first court date. Importantly, the notice was provided in a letter which was in relevantly identical terms to the letter that the Minister sent to Mr Kumar in this case.

44    A second distinguishing feature of the circumstances in Shrestha and SZWBH is that in both those cases the Federal Circuit Court moved on its own motion to summarily dismiss the appellants’ applications and where the Minister either did not actively support summary dismissal, or counselled against it. In Shrestha, the Minister and the appellant had agreed on the making of appropriate procedural directions at the first court date to enable the appellant to file evidence in support of his application. In SZWBH, the Minister went so far as to submit that summary dismissal was not appropriate given that the Minister had not yet prepared or filed a court book containing the material that was before the Tribunal. In neither case did the Minister submit that summary dismissal was appropriate. In Mr Kumar’s case, the Minister moved to have Mr Kumar’s application summarily dismissed as had been foreshadowed in the filed response.

45    Third, in both Shrestha and SZWBH, the appellants had said enough to identify an argument or arguments that, if made out, would establish jurisdictional error by the Tribunal. In both cases, it could not be concluded that the grounds raised or purportedly raised by the appellants were not reasonably arguable, at least at the first court date. In Shrestha, the appellant needed to tender the transcript of the hearing in the Tribunal to make out his case. The transcript was not available at the time of the first court date. In the case of SZWBH, the Minister submitted that it could not be concluded that the grounds relied on by the appellant were unarguable in the absence of any consideration of the material that was before the Tribunal. The difficulty was that as at the first court date, no court book had been prepared by the Minister and therefore the court did not know what was before the Tribunal.

46    In this case, however, the grounds in Mr Kumar’s application to the Federal Circuit Court did not suggest that it might be necessary for him to lead any evidence, or that it was necessary to consider the material that was before the Tribunal to assess those grounds. Nor did Mr Kumar suggest, at the first court date, that he could or would file any evidence in support of his application. Nor did he say anything that might suggest that the court could not determine whether his case was reasonably arguable in the absence of the consideration of any further material.

47    Finally, putting aside the contents of Mr Kumar’s application filed in the Federal Circuit Court and his apparent inability to articulate, at the first court date, any ground or argument that might support a finding of jurisdictional error on the part of the Tribunal, it is difficult, if not impossible, to identify any argument that might be available to Mr Kumar. In light of the decisions in Kirk and Braganza, Mr Kumar would appear to have no case that the Tribunal erred in concluding that it did not have jurisdiction to entertain his review application, given that he had not paid the prescribed fee. Mr Kumar’s draft notice of appeal does not raise any ground that suggests that he has an arguable case of jurisdictional error on the part of the Tribunal. Nor was Mr Kumar able to articulate any arguable case in support of his application for leave to appeal.

48    It is true that Mr Kumar appeared unrepresented at the first court date. It is true also that, so far as it is able to be gleaned from the primary judge’s reasons, the primary judge did not explain in plain and understandable terms that it was necessary for Mr Kumar to identify to the court why the Tribunal’s decision was not made lawfully and by a fair process. As explained in Shrestha, it is not helpful for a judge to insist to an unrepresented applicant that he or she identify a jurisdictional error. Many lawyers, and dare it be said, some judges, on occasion and in some circumstances, have difficulty grasping the concept of jurisdictional error. It is difficult to imagine that any unrepresented applicant would be able to understand what he or she would have to do to identify a jurisdictional error. It is not difficult to see why the primary judge’s invitation to Mr Kumar was met by the response from Mr Kumar that he did not understand the law and therefore could not say anything.

49    Nevertheless, in all the circumstances, and for the reasons already given, it cannot be concluded that Mr Kumar was denied procedural fairness by the primary judge.

50    Given that the circumstances of the summary dismissal raise at least an arguable case of denial of procedural fairness in light of Shrestha and SZWBH, and given that the question was fully explored in the Minister’s submissions, the appropriate course would be to grant leave to appeal, but dismiss the appeal.

Disposition

51    Accordingly, the orders of the Court are:

1.    The name of the second respondent be amended to the Administrative Appeals Tribunal.

2.    Leave to appeal be granted.

3.    The appeal be dismissed.

4.    The applicant to pay the first respondent's costs as agreed or assessed.

Associate:

Dated:    20 August 2015