FEDERAL COURT OF AUSTRALIA

Dahi v Minister for Home Affairs [2019] FCA 784

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent (“the Minister”) to cancel the appellant’s Return (Residence) (class BB) Resident Return (subclass 155) visa because the application made to the Tribunal was not accompanied by the prescribed fee as required by s 347(1) of the Migration Act 1958 (Cth) (“the Act”).

Background

2    The appellant, an Iranian national, was granted a protection visa in January 2011 and from 17 August 2016 had a Resident Return visa. On 16 December 2016, a delegate of the Minister made a decision to cancel the appellant’s Resident Return visa. A letter accompanying the reasons for cancellation informed the appellant that he could apply for merits review of the delegate’s decision to the Tribunal by 8 March 2017.

3    On 3 March 2017, the appellant completed an online application for review on the Tribunal’s website. The first question on the application asked whether the appellant was a refugee or non-refugee visa holder. The appellant selected the option “refugee visa” as the “kind of visa related to the decision to be reviewed”. His unchallenged evidence was that he answered “refugee visa” holder because he had been approved for residence in Australia as a refugee. Later in the application he was asked to fill in the class and subclass of the visa that had been cancelled and he correctly filled in that part of the form. The completed application form did not identify that a fee was required to be paid and the appellant electronically submitted that application without paying any fee.

4    On 6 March 2017, an officer of the Department of Immigration and Border Protection (as it then was) wrote to the appellant advising that the application had been received and asking for a copy of the Decision Record and covering letter. The email said that the appellant could send the documents by email to MRDivision@aat.gov.uk. That email address was clearly wrong as the last two letters of the address related to the United Kingdom. The following day the same officer emailed a formal letter to the appellant advising that the validity of the application had not yet been assessed and the appellant would be advised if it appeared that the application may not be valid. The letter wrongly referred to the application as an application to review a decision to refuse to grant the appellant a Resident Return visa but this time provided the correct email address to which to send any material. The misdescription of the application was rectified in a further letter emailed to the appellant the same day.

5    On 27 March 2017, the appellant’s migration agent wrote to the Tribunal advising that they had just been appointed to act for the appellant and asking that any future correspondence be sent to them.

6    On 18 April 2017 an officer of the Department noted that the application was lodged without an application fee and that this had not been picked up. The officer also noted that it appeared the appellant was now out of time to make payment. By email of 20 April 2017, the Department advised the appellant’s migration agent that the application for review had been lodged without an application fee and may be invalid because the appellant was now out of time in which to pay the fee. The appellant’s migration agent was invited to make comments about the validity of the application.

7    On 24 April 2017, the appellant’s migration agent wrote to the Tribunal by email enclosing a submission as to the validity of the application as well as providing the appellant’s credit card details for payment of the fee.

8    On 16 June 2017, the Tribunal held that it did not have jurisdiction to hear and determine the appellant’s application for review because of non-compliance with s 347 of the Act.

Relevant statutory provisions

9    Section 348(1) of the Act requires the Tribunal to review a Part 5-reviewable decision if an application is “properly made under section 347” for review of that decision. The decision to cancel the appellant’s Resident Return visa while the appellant was in the migration zone is a Part 5-reviewable decision: s 338(3).

10    Section 347 of the Act relevantly provides:

(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

...

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

    ...

11    The period prescribed for the purposes of sub-s 347(1)(b) started when the appellant received notice of the decision and ended at the end of seven working days after the day on which the notice was received: Migration Regulations 1994 (Cth), sub-reg 4.10(1)(b). As the notification of the decision was dated 16 February 2017 and sent by prepaid post the appellant was taken to have received it seven working days after this date: sub-reg 2.55(7)(a). For that reason, the last day on which the review application could be lodged was 8 March 2017.

12    Regulation 4.13(1) provided at the relevant time that the fee for an application for review of a decision by a Tribunal was $1,673. By reg 4.13(4) that fee could be reduced if the Registrar of the Tribunal was satisfied that payment of the fee had caused or would be likely to cause severe hardship to the review applicant and, under reg 4.13(2), no fee was payable on certain types of application, none of which are presently relevant.

The Tribunal decision

13    In holding that the Tribunal did not have jurisdiction to hear and determine the application by reason of the non-payment of the fee within the time by which the payment had to be made, the Tribunal reasoned as follows:

(a)    It is settled law that an applicant must pay the fee within the prescribed period (citing in support Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 (Lehane J) (“Kirk”)) or within a reasonable period after a determination to reduce the fee (citing Braganza v MIMA (2001) 109 FCR 364 (Wilcox, Weinberg and Stone JJ) (“Braganza”)). If not, the application is not valid and the Tribunal has no jurisdiction.

(b)    There is no dispute that the appellant did not pay the fee when he made his online application or within the prescribed period and he did not, explicitly or implicitly, ask for fee reduction.

(c)    The Tribunal has no discretion to permit the fee to be paid outside the prescribed period even if the application of the provision operates harshly against the appellant.

14    As part of its reasons the Tribunal considered and rejected the submission on behalf of the appellant made by his migration agent that there had been a “serious programming fault” in the online application system which had not recognised the inconsistency between the “kind of visa” and the subclass of visa to be reviewed. It was submitted that it was unconscionable that the appellant must suffer for the faulty programming of the Tribunal’s online application system. The Tribunal stated that the submission ignored the appellant’s error in identifying the relevant visa as a refugee visa. The Tribunal expressed the view that the mistake was understandable given the appellant’s immigration history and that it would be preferable if the online system could identify the inconsistency but, in the Tribunal’s view, it was not a serious programming fault.

15    The Tribunal also stated that it would have been preferable if Registry had discovered the appellant’s error before the end of the prescribed period but there was no legal obligation and the failure did not make the application valid.

FCC Decision

16    The FCC held that in light of Kirk and Braganza the Tribunal was correct to hold that it did not have jurisdiction to hear and determine the appellant’s application for judicial review.

Appeal

17    At the commencement of the appeal, the Court raised with the parties the question of whether the appellant had made his application for review in the “approved form”, given that the application which he completed did not identify that any fee was payable. As neither party had given any consideration to this question, the matter was stood down for a short period of time to enable the parties to give consideration to it. Upon the hearing of the appeal resuming, the Court was informed that in the time available, the parties had not been able to determine whether there was an “approved form” nor had a copy of the actual application for review submitted online by the appellant been located. Both counsel informed the Court that the Minister did not contend that the appellant had not lodged an application in the “approved form” and the only issue for determination was whether the Tribunal lacked jurisdiction by reason of the failure of the appellant to pay the prescribed fee on an application for review of a decision to cancel his visa within the prescribed time limit for submitting an application.

18    The starting point for consideration is Kirk. In that case, the applicant attached a cheque for the prescribed fee to his application for judicial review of the decision not to grant him a visa. The application was lodged within time but the cheque was dishonoured after the time limit for lodging the application had expired. Section 339(1) of the Act required an application for review to be “accompanied by a prescribed fee (if any)” and to be made within a prescribed period. Lehane J held that the requirements of s 339(1) were mandatory and required strict compliance, but construed the expression “accompanied by” to mean that the prescribed fee must be paid before the end of the period within which the application must be made. His Honour concluded that the Tribunal had no jurisdiction to review the application because the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee within the prescribed period for lodgement. In obiter, his Honour considered whether the power to waive the fee affected the mandatory requirements of s 399(1) and expressed the view that until a determination to waive the fee was made, the fee was payable so that it was necessary for an applicant to pay the fee within the prescribed period if a determination on the application for waiver was not made before the end of the prescribed period.

19    In Braganza, the Full Court considered the question whether the Migration Review Tribunal (as the Tribunal then was) had jurisdiction to hear and determine an application for review of a decision in the circumstance where an application for waiver was made within the prescribed period but not determined and the prescribed fee had not been paid. The Full Court held that it was sufficient that the applicant for review had applied for a waiver of the fee within the prescribed period. The Court reasoned at [51]:

The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, 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. That is 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.

The Court reached that conclusion “largely” because of the inclusion of the words “if any” in s 347(1)(c). The Court also considered that s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act, stating that the legislature was hardly likely to have introduced a provision which required an application for review of an MRT-reviewable decision “to be accompanied by the prescribed fee (if any)” in conjunction with a provision which authorised the making of regulations which allowed for the waiver of any such fee, without recognising that applicants who seek waiver may not be in a position to pay the fee, even on a refundable basis, within the prescribed period. The Court reasoned that the words “if any” in s 347(1)(c) allowed for a sensible interplay with s 504(1)(b) and the regulations made thereunder.

20    In Benissa v Minister for Immigration and Border Protection [2016] FCA 76, Edelman J applied Kirk and Braganza to hold that the Tribunal had no jurisdiction to hear an application for review where the applicant had requested a reduction in the prescribed application fee by reason of financial hardship, which was granted, but where the fee was not paid within a reasonable period. Edelman J referred to other authorities which had applied the decision in Kirk, with the qualification in Braganza, and concluded that the decisions in that line of authority were not plainly wrong.

21    In the present case, counsel for the appellant did not seek to argue that the decision in Kirk was plainly wrong. Rather, it was submitted that Braganza is authority that the phrase “accompanied by” has a flexible and elastic meaning. Reference was also made to Anand v Minister for Immigration (2013) 215 FCR 562; [2013] FCA 1050 (“Anand”) as an illustration of the flexibility and elasticity of the phrase. In that case, Katzmann J held that the statutory requirement for an application to be “accompanied by evidence” of an Australian Federal Police check did not require the evidence to be submitted simultaneously with the visa application and evidence accompanying an application could be supplied after the application was lodged as long as there was some temporal connection with the application.

22    It was argued that in the present case where there was an unbroken sequence of events:

    starting with a question on the online application form in fact misleading the appellant into entering the incorrect “kind” of visa onto the system, which the Tribunal, correctly, found to be an “understandable” error;

    a failure of the Tribunal’s online application system to identify the appellant’s error in identifying the relevant visa as a “refugee visa”;

    the application system failing to alert the appellant that a fee was payable; and

    a failure by the Tribunal Registry to identify the error –

in the circumstances of the appellant promptly proffering payment of the fee on notification that it was payable, the Court should find that the requirement that the application be “accompanied by” payment of the prescribed fee was satisfied.

23    These submissions cannot be accepted. Whilst it can be accepted that there is some elasticity in the meaning of the words “accompanied by”, that elasticity is with respect to the payment of the fee before the expiration of the prescribed period. In other words, provided the fee is paid within the period by which an application must be made, the application is “accompanied by” payment of the prescribed fee. Anand does not advance the appellant’s case because it concerned a different statutory provision which did not contain a temporal limit by which the relevant evidence must be furnished.

24    There is no reason to doubt the correctness of Kirk. The decision was not plainly wrong and should be applied.

25    The appeal is accordingly dismissed.

Associate:    

Dated:    31 May 2019