FEDERAL COURT OF AUSTRALIA

Fairy v Minister for Immigration and Border Protection [2018] FCA 729

ORDERS

THE COURT ORDERS THAT:

1.    If and to the extent that leave to appeal is required, leave be granted.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    The appellant appeals from orders of the Federal Circuit Court of Australia, dismissing his application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) to the effect that the Tribunal did not have jurisdiction. The matter relates to an application by the appellant for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).

2    The procedural background to the appeal is as follows:

(a)    On 11 February 2016, the appellant applied for a medical treatment visa.

(b)    On 16 February 2016, a delegate of the first respondent (the Minister) refused the application. The delegate’s reasons stated that, under the migration law, a visa could not be granted unless the applicant met the relevant legal requirements specified in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The delegate stated that cl 602.213 in Sch 2 to the Migration Regulations had not been met by the appellant. (In relation to the criteria for a medical treatment visa, see generally Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235.) The delegate decided that, in the appellant’s circumstances, he was required to satisfy cl 602.213(3), (4) and (5). These provisions in turn required the appellant to satisfy criterion 3001 in Sch 3 to the Migration Regulations. That criterion relevantly required the application for the medical treatment visa to be made within 28 days after the last day when the applicant held a substantive visa. In the appellant’s case, Departmental records confirmed that his last substantive visa ceased on 16 March 1995. His application for a medical treatment visa was received on 11 February 2016, which was more than 28 days after his last substantive visa had ceased. Accordingly, the appellant did not satisfy the criteria for the visa.

(c)    On 9 March 2016, the appellant lodged an application for review with the Tribunal and paid $836.50, being half of the prescribed fee of $1,673. The appellant applied for a fee reduction so that he was not required to pay the balance of the fee.

(d)    On 16 March 2016, an authorised officer of the Tribunal, acting on behalf of the Registrar of the Tribunal, sent a letter to the appellant refusing the request for a fee reduction. The letter provided reasons for the refusal, which included that the appellant had not provided sufficient documentary evidence of his current financial circumstances. The appellant was given until 12 April 2016 to pay the remaining $836.50 of the application fee.

(e)    On 7 April 2016, the appellant wrote again to the Tribunal, in relation to the fee reduction request.

(f)    On 21 April 2016, the Tribunal wrote to the appellant, maintaining the refusal to grant a fee reduction, but extending the period for the appellant to pay the remaining $836.50 to 17 May 2016.

(g)    The appellant did not pay the outstanding amount by that date, or at all.

(h)    The Tribunal gave the appellant an opportunity to comment on whether it had jurisdiction to determine his application.

(i)    On 28 June 2016, the Tribunal decided that it did not have jurisdiction in the matter, on the basis that the appellant had not paid the prescribed fee. The Tribunal referred to the relevant provisions of the Migration Act and Migration Regulations. After noting that the prescribed period ended on 17 March 2016, the Tribunal stated that the fee was required to be paid within the prescribed period or, if a determination had been made under reg 4.13(4) of the Migration Regulations, within a reasonable period after that determination, citing Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 (Kirk); and Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (Braganza). The Tribunal set out the chronology of events relating to the appellant’s application for a fee reduction and his failure to pay the remaining $836.50 by 17 May 2016. The Tribunal referred to the appellant’s response to its invitation to comment. The Tribunal concluded that the appellant had been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however, the fee had not been paid. In these circumstances, the Tribunal concluded that the application for review was not a valid application and that the Tribunal had no jurisdiction in the matter.

(j)    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

(k)    The matter was initially set down for hearing on the issue of whether the appellant had an arguable case. On 15 September 2017, the primary judge decided that the appellant did have an arguable case and therefore that the matter should go to a final hearing: Fairy v Minister for Immigration & Anor [2017] FCCA 2203 (the First Reasons).

(l)    A final hearing took place on 5 December 2017. On 15 December 2017, the primary judge dismissed the appellant’s application for judicial review: Fairy v Minister for Immigration & Anor (No 2) [2017] FCCA 3095 (the Second Reasons).

3    Before turning to the appellant’s appeal, I will briefly outline the First Reasons and the Second Reasons.

4    In the First Reasons, the primary judge considered that it was arguable that, if the decision not to waive 50 per cent of the fee was not valid (eg for irrationality or legal unreasonableness), the prescribed time for the appellant to make the application would not have expired, which would in turn mean that it was arguable that the Tribunal was incorrect to conclude that it had no jurisdiction (see the First Reasons at [17]).

5    In the Second Reasons, the primary judge accepted the following submissions that were made by the solicitor acting for the Minister. The Minister’s solicitor submitted that: whether or not the Registrar’s decision was unreasonable or irrational was irrelevant to whether the Tribunal had jurisdiction to entertain the application for review; this was for the simple reason that the appellant had paid only 50 per cent of the prescribed fee and the Registrar had not waived payment of the remaining 50 per cent of the prescribed fee. Stated another way, it was submitted that the jurisdiction of the Tribunal to entertain an application for review was conditional on, among other things: (a) the application for review being accompanied by the prescribed fee; or (b) the application being accompanied by 50 per cent of the prescribed fee and the Registrar waiving the payment of the remaining 50 per cent of the prescribed fee; or (c) the application being accompanied by 50 per cent of the prescribed fee and, if the Registrar refused to waive payment of the remaining 50 per cent of the prescribed fee, the applicant paying the remaining 50 per cent of the prescribed fee within a reasonable time after the Registrar refused to waive its payment. The primary judge accepted these submissions, citing Kirk and Braganza (see the Second Reasons at [3]-[4]).

6    The primary judge stated that, in the present circumstances, although the appellant had tendered 50 per cent of the prescribed fee, on 16 March 2016 the Registrar refused to waive payment of the remaining 50 per cent of the prescribed fee and the appellant was given until 12 April 2016 to pay the remaining 50 per cent of the prescribed fee. The Registrar had then extended the due date for payment of the remaining 50 per cent of the prescribed fee to 17 May 2016. The primary judge considered this to be a reasonable time within which the appellant could pay the remaining 50 per cent of the prescribed fee. It followed that, at the time the Tribunal decided it did not have jurisdiction to consider the appellant’s application for review, none of the preconditions for a valid application had been met. Accordingly, the primary judge held, the Tribunal was correct to conclude that it did not have jurisdiction to consider the appellant’s application for review (see the Second Reasons at [5]).

7    The appellant applies to this Court from the orders of the Federal Circuit Court. In his notice of appeal, he relies on the following three grounds:

1.    I do not agree with the judgment of His Honour … because I continue to believe that I have an arguable case and that the Tribunal acted unreasonably by expecting me to provide bank and credit card statements and evidence of regular expenses. Such request is unreasonable based on my application under medical treatment where I have submitted extensive evidence of medical problems and evidence of outstanding money to the hospital and the Tribunal failed to provide, among other things, copy of my medical treatment visa application 48ME, which was originally submitted in Canberra.

2.    The Tribunal had no grounds to ask for another 50% fee to be paid based on someone else assisted me to pay the first initial application fee. My circumstances are different and my further correspondence was ignored and the Tribunal as well as His Honour misunderstood the fact that a person in my situation should never be asked to pay additional fee.

3.    I hope that the Federal Court of Australia will look at my matter differently and remit the case back to the Tribunal and I believe that my case should not be dismissed.

8    The appellant appeared for himself, with the assistance of an interpreter.

9    At the outset of the hearing of the appeal, I raised with counsel for the Minister whether the decision of the Federal Circuit Court may be interlocutory on the basis that it pertained to an issue of jurisdiction (see Benissa v Minister for Immigration and Border Protection [2016] FCA 76; 150 ALD 276 at [13]). The Minister’s counsel indicated that, to the extent that leave to appeal may be required, the Minister had no objection to leave being granted. I will, accordingly, make an order that, if and to the extent that leave to appeal may be required, such leave be granted.

10    The appellant did not make any substantive submissions directed at showing error in the decision of the Federal Circuit Court or in the decision of the Tribunal.

11    In my view, the grounds set out in the notice of appeal do not provide a basis upon which to conclude that the primary judge erred. I consider that the primary judge was correct to conclude that the Tribunal lacked jurisdiction and had correctly so decided. My reasons for reaching this conclusion are substantially the same as those of the primary judge as set out above.

12    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    24 May 2018