Federal Court of Australia

Hanna v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 604

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    Subject to orders 4 to 6, the appellant pay the costs of the first respondent.

4.    Any party wishing to seek a different costs order to that in order 3 is to file and serve submissions (limited to 2 pages) by 4:00pm, 2 days after these orders.

5.    Any party wishing to oppose the making of a different costs order than that in order 3 is to file and serve written submissions (limited to 2 pages) by 4:00pm, 2 days after receiving the opposing party’s submissions pursuant to order 4.

6.    In the event an application for a different costs order is made under order 4, the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These proceedings derive from the refusal by a Delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to grant the appellant a medical treatment visa. The decision to refuse the medical treatment visa was amenable to review by the Administrative Appeals Tribunal in accordance with the statutory scheme. The Tribunal took the view that it did not have jurisdiction to determine the appellant’s review application because it was not made in accordance with s 347(1) of the Migration Act 1958 (Cth). Accordingly, the Tribunal refused to undertake a review. The Federal Circuit and Family Court of Australia (Division 2) (the Circuit Court) thereafter dismissed the application for judicial review of the Tribunal’s decision.

2    The issue in this appeal is whether the primary judge erred in concluding that the Tribunal’s conclusion as to jurisdiction was correct. That is a matter that the Tribunal could not itself authoritatively decide. The issue is jurisdictional and fell for decision by the court below and by this Court on appeal: Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 at [26]-[27]; BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20 at [11]. If the Tribunal was not correct in its conclusion that it did not have jurisdiction, then mandamus would lie to require the Tribunal to undertake the review in accordance with the duty imposed on it by s 348(1) of the Act: BXS20 at [11]. The primary judge decided this issue, inter alia, adversely to the appellant: Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 151 ([PJ]).

3    The sole ground of appeal is that the primary judge erred by failing to conclude that the Tribunal had made a jurisdictional error by refusing to exercise jurisdiction.

BACKGROUND

4    The facts giving rise to the appeal were essentially common ground before the Tribunal, the primary judge, and on this appeal.

5    The appellant, Mr Joseph Hanna, a citizen of Lebanon, arrived in Australia on 28 June 2011 as the holder of a Partner (Class UF) (subclass 309) visa. He subsequently lodged applications for partner and protection visas, without success. The appellant last held a substantive visa on 11 January 2013. His last bridging visa was cancelled on 9 January 2017.

6    On 22 April 2021, the appellant applied for a Medical Treatment (Visitor) (Class UB) Medical Treatment (Subclass 602) Visa (medical treatment visa) on the basis that he would be receiving treatment for a back injury from 30 April 2021 to 30 December 2021. At the time he applied for the medical treatment visa, the appellant was in immigration detention.

7    On 12 May 2021, the Delegate refused to grant the medical treatment visa on the basis that the appellant did not meet cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth). The Delegate was not satisfied that the appellant genuinely intended to stay in Australia temporarily for the purpose of medical treatment. The appellant was notified of the decision by email to his representative and informed that any application for merits review must be made within seven days after the end of the day the email attaching the letter of notification was sent. The relevant period within which to make a valid application expired at the end of the day on 21 May 2021.

8    The appellant electronically lodged an application with the Tribunal for review of the Delegate’s decision on 12 May 2021. He used the electronic form approved for that purpose (the M2 Form). The application was accepted for electronic lodgement. No fee was required to be paid, or means of payment identified, in order to complete the electronic lodgement. An electronic confirmation of lodgement was provided with a unique online reference number.

9    At the time of lodging the M2 Form, the appellant continued to be in immigration detention. On the first page of the M2 Form, the appellant identified the decision to be reviewed as the refusal of a medical treatment visa. The appellant completed the following section of the M2 Form by selecting “Yes”:

NOTE: If you are seeking a review of a decision other than the decision to refuse to grant or cancel a bridging visa, select the No option.

Are any of the applicants subject to this decision in immigration detention as a result of a decision by the department to refuse to grant or to cancel a bridging visa? *

10    Notwithstanding the appellant’s affirmative answer, he was not seeking a review of a decision to refuse to grant or cancel a bridging visa and accordingly, on the basis of the note which preceded the question, he should have answered “No”. Without reference to the note, the appellant’s circumstances would appear to require the question to be answered “Yes” the appellant was the person who was the subject of the decision to be reviewed – the refusal of the medical treatment visa – and he was in immigration detention as a result of a decision by the Department to refuse to grant or cancel a bridging visa. The refusal of the medical treatment visa was, however, not the decision that the appellant was applying to be reviewed. The design of the M2 Form gives rise to a risk of confusion as demonstrated by the way in which the appellant completed the form. The significance of the appellant’s answer to this question is that it appears to have caused his application form to be electronically processed as if it was not required to be accompanied by a prescribed fee. That would not be apparent to a person completing the form by reference to the form itself.

11    On 18 May 2021 at 10.30am, the Tribunal notified the appellant’s representative of two concerns it had with the review application that had been lodged. First, that it appeared to the Tribunal that the appellant had not lodged a valid application for review because he had not used the approved form. The Tribunal was wrong in this regard. Secondly, that the application fee of $1,826 had not been paid, and must be paid before the end of the prescribed period, in order to make a valid review application. The Tribunal provided the appellant with an M1 Form with the relevant payment details and an information sheet. The Tribunal’s letter was headed “ISSUES WITH APPLICATION…” and was in the following terms:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Medical Treatment (Visitor) (Class UB) visa.

The AAT’s Migration and Refugee Division provides independent merits review of visa and visa-related decisions made by Department of Home Affairs. To do so, we must first receive a valid application for review. One of the requirements of a valid review application is that it must be made on the approved form which is attached to this email. As it appears, you have not yet lodged a valid application for review.

Another requirement for a valid application is that the application fee is paid before the prescribed review period for making a valid review application has ended. For migration matters, an application fee of $1,826 is payable.

Please fill out an amended M1 form including all applicants and payment details for $1,826 and email it to mrdivision@aat.gov.au including the case number 2106303 in the subject heading. The form can be found attached to this letter.

There are strict time limits for making a valid review application that cannot be extended by the AAT. The Department’s decision letter should state the time limit for your particular case. If a valid application for review is not received within the time limit, we will not be able to review the decision.

…

The M1 Form enclosed with this letter is headed “Application for review – Migration (For persons not in immigration detention and organisations) (M1)” (emphasis in original).

12    Upon receipt of the Tribunal’s correspondence, the appellant’s representative telephoned the Tribunal. That call resulted in the Tribunal correcting and clarifying its position in an email on 18 May 2021 at 12.13 pm. The Tribunal walked back its concern that the appellant had lodged the wrong form and confirmed that the appellant had in fact used the correct form — the M2 Form. The Tribunal provided additional information in relation to the fee that was payable (as written):

Thank you for your call this morning regarding your client Joseph Hanna and his application for appeal of a UB602 visa refusal.

You are correct in that the form to be completed is the M2. The application lodged online was correctly lodged on the M2 form however as you answered Yes to the question "Are any of the applicants subject to this decision in immigration detention as a result of a decision by the department to refuse to grant or to cancel a bridging visa?" the system recognised this as an appeal of the bridging visa refusal made by an applicant in detention. As such it identified that no payment was required. However as your client seeks appeal of a UB602 visa and not a bridging visa, a fee of $1826 is payable.

To confirm, no error was made on your behalf when lodging this application and the lack of payment requirement was simply a system interpretation of the answered [sic] provided. As you have provided an M2, not [sic] further form needs to be completed. I have attached Part I of an application form which can be used to provide details for payment. This may be returned to mrdivision@aat.gov.au stating the case number 2106303 in the subject line. I have also attached an M11 form should you client wish to apply for a fee reduction (making payment for $913 at this time).

13    The enclosed M11 Form included information on making a fee reduction request in which it was stated (emphasis in original):

The fee for making an application for review of a migration decision may be reduced if payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.

When lodging an application online, if an application fee is applicable, the full fee must be paid as an online payment at the time the application for review is lodged. Any request for fee reduction will be considered after lodgement. If you are deemed to be eligible for a fee reduction, you will be refunded the appropriate amount.

…

If your fee reduction request is not granted, you must pay the full application fee (if not already paid) for your application to be valid. If you do not pay the fee your application for review will not be able to proceed. Please note that the Registrar or delegate can only review a fee reduction decision where there has been an error in the decision making process.

14    I note that the information provided in the covering email and in the information section of the M11 Form is inconsistent as to the amount a review applicant who also applies for a fee reduction must pay in order to make a valid application. That is regrettable, however, apart from potentially being relevant on the question of costs, nothing turns on the discrepancy in the present circumstances because ultimately the appellant did not pay either amount before the end of the prescribed period.

15    On Friday, 21 May 2021 at 12.13 pm (the date on which the prescribed period to make a valid application was due to expire at the end of the day), the appellant’s representative provided a completed M11 Form (fee reduction request) and the section of the M1 Form which provided for payment by credit card. The request for fee reduction was made on the basis that payment of the fee has caused, or was likely to cause, severe financial hardship. The credit card payment authorisation was in the sum of $913 (being 50% of the prescribed fee of $1,826). This was the amount which the Tribunal informed the appellant’s representative must be paid at the time of lodging the M11 Form in its covering email of 18 May 2021.

16    The prescribed period for making the review application expired at the end of the day on Friday, 21 May 2021.

17    The Tribunal did not attempt to process payment using the credit card details that had been supplied until Monday, 24 May 2021, at which time the card was declined, twice.

18    On Monday, 24 May 2021 at 12.03 pm, the Tribunal emailed the appellant’s representative indicating that it had been unable to process payment and that it would be in contact further regarding any validity concerns if and when appropriate. The Tribunal attached two payment processing slips that showed that payment had been declined twice — at 10.19 am and 10.21am on 24 May 2021. At 12.11 pm on 24 May 2021, the appellant’s representative responded indicating that sufficient funds were “now available” on the credit card number that had been supplied.

19    The Tribunal relied on this communication to infer that sufficient funds were not previously available when the Tribunal attempted to take payment but that they were “now”. The fact that the card was declined twice makes it plain that there were not sufficient funds at the time payment was attempted which was after the end of the prescribed period. At no stage did the appellant contend that sufficient funds were available on the credit card, the details of which had been supplied to the Tribunal, from which payment of the prescribed fee could have been taken before the end of the prescribed period. The Tribunal concluded that “…although the applicant provided credit card details within the prescribed period, the Tribunal is not satisfied, that when he did so on Friday 21 May 2021, the funds for payment of the fee were available to be accessed by the Tribunal for payment of the application fee. Therefore, the prescribed fee was not paid within the prescribed period.” ([T16]). Given that the appellant’s challenge to the decision of the Tribunal takes the form of an application for judicial review, he has not sought to challenge the Tribunal’s finding of fact that as at the end of the prescribed period the credit card authorisation supplied did not have available sufficient credit from which payment could be effected.

20    I include the following further matters of background as potentially relevant to the question of costs, even though not strictly relevant to the way in which the appellant has framed his appeal.

21    At 5.41 pm on 24 May 2021, the appellant’s representative sent a further email requesting that the Tribunal use an alternative credit card for payment of the application fee.

22    By letter on 24 May 2021, the Tribunal notified the appellant’s representative that it had received the appellant’s application for review of the decision to refuse to grant a medical treatment visa. The letter attached a further letter dated 24 May 2021, which noted that the fee reduction request was being considered, and that the Tribunal would make contact soon in respect of this. Although both letters appear to have been transmitted by email, the covering email is not before me.

23    In response to the email from the appellant’s representative at 5.41 pm on 24 May 2021, on 25 May 2021 at 2.07 pm the Tribunal sent an email to the appellant’s representative attaching a form to be completed with the relevant payment details.

24    At 2.57 pm on 25 May 2021, the appellant’s representative provided the further payment details on the form provided (being 4 days after the prescribed time period for making a valid application had ended). The credit card authorisation was again in the sum of $913. No payment was taken (or attempted) on 25 May 2021.

25    The appellant’s representative made two phone calls to the Tribunal, on 28 May 2021 and 31 May 2021, requesting to speak to a case officer at the Tribunal in relation to payment of the application fee but was told that the case officer was not available and that an email would be sent to the representative.

26    On 31 May 2021, the Tribunal informed the appellant that it appeared that, as the appellant had not paid the reduced application fee of $913 before the end of the prescribed period, he had not made a valid application. The Tribunal invited the appellant to provide a response by 15 June 2021.

27    On 5 June 2021, the appellant’s representative responded. After setting out the interactions between the appellant’s representatives and the Tribunal systems and staff, the appellant requested that the Tribunal extend the prescribed period so that it commenced from the time the appellant was informed of the systems error on 18 May 2021 and ran for seven working days thereafter.

28    By email on 29 June 2021 at 11.25 am, the appellant’s representative was notified of the Tribunal’s decision in respect of the appellant’s application for review. A copy of the Tribunal’s statement of decision and reasons dated 26 June 2021 (T) was provided.

29    The appellant’s fee reduction request does not appear to have been determined as a result of the Tribunal’s conclusion that it did not have jurisdiction in respect of the review application.

TRIBUNAL’S DECISION

30    The Tribunal’s decision is encapsulated in the following extracts from its reasons:

3.     Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1 )(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 21 May 2021. The fee for the application for review of the primary decision must be paid within the prescribed period.

…

24.     The Tribunal is satisfied that the applicant, even in these slightly irregular circumstances, had a reasonable period, within the prescribed period of seven days since he was notified of the refusal of his visa, to pay the application fee since being notified on 18 May 2021 of the requirement to do so; he had until Friday 21 May 2021. However, for the reasons given, the Tribunal is not satisfied that the fee was not paid within that time. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

…

31    Critically, the Tribunal concluded that although the applicant provided credit card details within the prescribed period, the Tribunal was not satisfied, that when he did so, the funds for payment of the fee were available to be accessed by the Tribunal in order to effect payment and therefore the prescribed fee was not paid within the prescribed period: (T[16]). Accordingly, the Tribunal reached the conclusion that it did not have jurisdiction at (T[24]).

PRIMARY JUDGE’S DECISION

32    The appellant applied to the Circuit Court for judicial review of the decision of the Tribunal. The primary judge dismissed the application for judicial review and delivered reasons.

33    The primary judge was satisfied that the Tribunal was correct to conclude that it did not have jurisdiction. For the purpose of these reasons, it is sufficient to note that the primary judge, as a matter of comity, relied on two earlier decisions of the Circuit Court where it had been “held that payment of at least 50% of the prescribed fee within the prescribed period was a necessary precondition” to jurisdiction to hear and determine an application for review: Grey v Minister for Immigration [2018] FCCA 1564; Message v Minister for Home Affairs [2018] FCCA 2132 (PJ[8]). In doing so, the primary judge rejected the appellant’s submission that even though the decisions in Grey and Message were not plainly wrong, the Court should depart from the principle of comity in the particular circumstances of the appellant’s case.

34    The primary judge did not address the appellant’s submission that where a fee reduction request is pending, there is no prescribed fee for the purpose of s 347(1)(c) of the Act.

GROUND OF APPEAL

35    The appellant advances the following ground of appeal, which, in substance, although differently formulated, is the same as that advanced before the primary judge:

1.     The primary judge erred by failing to conclude that the Second Respondent (Tribunal) had made a jurisdictional error by refusing to exercise jurisdiction.

a.     The Tribunal held that it did not have jurisdiction because the Applicant had sought a reduction of the fee for merits review by the Tribunal but had not paid 50% of that fee within the prescribed period;

b.     As a result, the Tribunal did not determine the Applicant’s claim for a reduction of the application fee and refused to entertain the application for merits review;

c.     It is a jurisdictional error for the Tribunal mistakenly to refuse to exercise jurisdiction, whether the mistake is one of fact or law and regardless of materiality: Edwards v Santos Ltd [2011] HCA 8 at [46]; R v Shoreditch Assessment Committee; Ex parte Morgan [1910] 2 KB 859 at 880; Re Adams (1976) 1 ALD 251 at 254; Law v Minister for Immigration [2020] FCA 1726 at [55]-[56]; Huang v Nazaran [2021] NSWCA 243 at [27];

d.     The Tribunal erred in insisting upon an initial 50% of the application fee within the prescribed period as there was no “prescribed fee (if any)” requiring payment under s 347(1)(c) of the Act while the application for reduction was pending: compare Braganza v Minister for Immigration [2001] FCA 318; 109 FCR 364;

e.     Rather, the prescribed fee only arose upon, and could be paid within a reasonable time after, the grant or refusal of the reduction, with payment to be in an amount reflecting that grant or refusal: compare Braganza;

f.     To the extent the following reasons for judgment contain ratio or obiter contrary to the above submissions, they should respectfully be departed from by this Honourable Court: Grey v Minister for Immigration [2018] FCCA 1564 at [18], [22]; Message v Minister for Home Affairs [2018] FCCA 2132 at [19]-[22], [25]; Fairy v Minister for Immigration [2018] FCA 729 at [5], [11];

g.     Whether or not the primary judge was permitted to and should have departed from the reasons for judgment referred to in the preceding paragraph, his Honour should be taken to have erred upon the departure from those reasons by this Honourable Court.

36    The appellant’s contention that there was no prescribed fee requiring payment under s 347(1)(c) of the Act while the fee reduction request was pending is the focal point of the appeal.

37    The appellant seeks orders that, inter alia¸ the judgment and orders of the primary judge be set aside, and in lieu thereof it be ordered that the decision of the Tribunal be quashed, the matter be remitted to the Tribunal for determination according to law, and the Minister pay the appellant’s costs in the court below and of this appeal.

CONSIDERATION

Statutory Scheme

38    I will start by setting out the relevant statutory scheme.

Part 5-reviewable decision

39    The decision to refuse to grant the appellant a medical treatment visa was a “Part 5-reviewable decision” for the purpose of the Act by reason of s 338(2) of the Act, the exceptions in s 338(1) not being engaged.

Requirements for application for review

40    Section 347(1) 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…; and

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

41    “Prescribed” is defined in s 5 of the Act to mean prescribed by regulation. The power to make regulations is conferred by s 504(1) of the Act. It expressly includes power in relation to the charging and recovery of fees payable in connection with the review of decisions made under the Act (s 504(1)(a)(i)) and the remission, refund or waiver of such fees or for exempting persons from the payment of such fees (s 504(1)(b)).

Approved form

42    It was common ground that at the relevant time, the approved form for the purpose of s 347(1)(a) of the Act was the M2 Form. This appears to be a form approved under reg 1.18 of the Regulations.

Prescribed period

43    The relevant prescribed period for the purpose of s 347(1)(b) of the Act “starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received”: reg 4.10(2)(b). The effect of the regulation is to create an “envelope of time” within which a review application must be made: SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; 185 FCR 129 at [62] (Buchanan and Nicholas JJ). There is no power to extend the prescribed period: see Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7]; see also SZOFE at [61]-[63].

44    It is common ground that the prescribed period was seven working days after the email on 12 May 2021 giving notice of the Delegate’s decision. The prescribed period commenced on that day and ended at the end of 21 May 2021. The review application was lodged on the day on which the prescribed period commenced.

Prescribed fee

45    The prescribed fee for the purpose of s 347(1)(c) is prescribed by reg 4.13, which at the relevant time, provided:

4.13 Tribunal review — fees and waiver

(1)      Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.

Note:       The fee in subregulation (1) is subject to increase under regulation 4.13A.

(2)      No fee is payable on the following:

(a)      an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act;

(b)      an application, made by a non-citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies.

(3)      If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.

(4)      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).

46    The prescribed fee is subject to annual increases calculated in accordance with the formula stipulated in reg 4.13B starting from 1 July 2019, and thereafter on each 1 July: regs 4.13A-4.13B. The prescribed fee in reg 4.13(1) was initially $1,764 but appears to have increased to $1,826 by the time of the appellant’s application. Counsel for the appellant acknowledged that the Tribunal did not appear to be mistaken in stating that the prescribed fee at the relevant time was $1,826.

Fee reduction

47    The Registrar of the Tribunal has power to reduce the fee payable to 50% of the amount mentioned in reg 4.13(1) in cases of severe financial hardship: reg 4.13(4). Where the review applicant has paid the amount prescribed in reg 4.13(1) and the Registrar has made a determination under reg 4.13(4) that the fee payable is 50% of the amount mentioned in reg 4.13(1), then 50% of the amount paid under reg 4.13(1) is to be refunded: reg 4.14(1), Item 1.

Statutory Construction

48    In BXS20, the Full Court concluded that all of the requirements in s 347(1) of the Act must be satisfied in order to engage the Tribunal’s jurisdiction. In considering this issue, the Full Court made the following observations about the text, context and purpose of s 347(1)(c) of the Act ([30] to [34] (Thawley and Kennett JJ, Stewart J agreeing at [58]):

[30]     Section 347 must be read with s 348. Section 348(1) provides that, if an application is “properly made” under s 347, the Tribunal must review the decision to which it relates. This indicates the sense in which s 347(1) uses the word “must”: that is, compliance with its requirements (as well as the other aspects of s 347) is necessary in order to trigger the duty of the Tribunal to conduct a review. Importantly, also, it is necessary in order to trigger the Tribunal’s power to review a decision, since the Tribunal has no function to perform in the absence of an effective application: Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394, [20]-[21] (Perram J, Rares and Farrell JJ agreeing). Thus, although it is not inapt to describe s 347(1) as “mandatory” when viewed from the review applicant’s perspective, it is more accurate to describe it as a “jurisdictional” provision applicable to the Tribunal (in that, absent compliance, there is no power or duty to review).

[31]     Paragraphs (a), (b) and (c) of s 347(1) form parts of a composite requirement, all introduced by the word “must” in the chapeau and all relating in the same way – textually at least – to the condition specified in s 348(1). Reading these provisions according to their terms, there is no basis to treat some but not all of them as jurisdictional in the sense mentioned above.

[32]     The task of statutory construction must begin and end with the text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]. The text is always to be read in context, including in the light of such indications of the statute’s purpose as emerge from its structure and relevant extrinsic materials. However, regard is had to the context only in order to assist in fixing the meaning of the text. While regard may be had in choosing between competing interpretations to irrational or unjust results that flow from one or the other (eg Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, 350), it is a mistake to begin with one’s own idea of the desirable policy and impute that to the legislature as a purpose of the statute or a particular provision: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [26] (French CJ and Hayne J). The reverse is also true. To identify a result that one considers undesirable, and assume that the legislature intended to avoid it, risks error. Legislative purpose emerges from the statutory text itself, read in context (see eg Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 (Lacey) at [44]). Thus, the conclusion that a particular consequence of a proposed construction is one that Parliament is unlikely to have intended (and therefore to be avoided) needs to be grounded in the text and structure of the statute, albeit the process may be assisted by common law and statutory rules of construction (Lacey at [44]).

[33]     Nothing in the context of s 347(1) requires it to be given a strained construction in which the words of the chapeau have different effect in relation to para (c) from that which they have in relation to para (b). The most that can be said is that making payment of a fee (of the magnitude currently prescribed in the Regulations) a prerequisite for review by the Tribunal tends to limit access to merits review, in relation to decisions that are likely to be personally very important to applicants. However, it is not to be assumed that wider availability of merits review is always Parliament’s purpose – especially in construing provisions whose central function is to define and limit the availability of such review. On the other hand, if payment of the prescribed fee were not a prerequisite for review, there would be no reason for anyone to pay the fee; and s 347(1)(c) would serve little if any purpose.

[34]     The proper understanding is that all of the requirements set out in s 347(1) must be satisfied in order for the Tribunal’s jurisdiction to be engaged. …

49    Subject to one potential qualification, the Full Court in BXS20 concluded that, if the conditions in s 347(1)(a) to (c) are satisfied, the Tribunal must review the decision: s 348(1) of the Act. I note that there is an exception to s 348(1) in s 348(2) of the Act, which was not engaged in BXS20 and is not engaged the present case.

50    The potential qualification alluded to by the Full Court in BXS20 arises as the result of an earlier Full Court decision — Braganza v Minister for Immigration [2001] FCA 318; 109 FCR 364. Braganza was decided in the context of the previous iteration of reg 4.13, which was in force prior to the amendments introduced in 2011. The version of reg 4.13(4) that applied at the time Braganza was decided provided that a Registrar or Deputy Registrar could determine that the relevant fee “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”. The critical difference being that prior to the 2011 amendments, the power to reduce the fee payable was not limited to a reduction of 50% only — the fee could be waived in its entirety.

51    In Braganza, the appellant advanced two arguments, in the alternative, in relation to the proper construction of s 347(1)(c) of the Act. The appellant’s first, and broader, argument was that provided the prescribed fee was paid prior to the time fixed for the hearing of the review, there was no impediment to the Tribunal proceeding to determine the review application. The alternative, narrower, argument was that if the applicant sought a waiver of the prescribed fee within the prescribed period, the Tribunal could hear the matter, even if the waiver was ultimately refused after the expiration of the prescribed period, provided that the prescribed fee was paid within a reasonable time after the waiver decision was made.

52    In Braganza, the review applicant lodged his review application with the Tribunal within the prescribed period, together with a request for fee waiver on grounds of financial hardship: [8]. The application form for fee waiver included notes to the effect that an application for review would not be valid unless the fee was paid or waived within the prescribed period. Further, that it was not sufficient to seek a waiver but leave the fee unpaid by the end of that period: [7]. The application for a waiver was refused but the applicant was informed he could apply for reconsideration and an extension of time to pay the fee. The applicant sought reconsideration of his waiver request and asked for an extension of time. The Tribunal refused both requests and informed the applicant that as the prescribed period had elapsed and he had not paid the prescribed fee within the prescribed time, his application was not valid and had been “finalised as ineligible”: [9] to [11].

53    The Full Court allowed the appeal in Braganza. In doing so, the Full Court found it both possible and preferable to resolve the case by reference to the narrower of the two arguments relied on by the appellant. In doing so, the Full Court reasoned that the words “if any”, in the phrase “accompanied by the prescribed fee (if any)” in s 347(1)(c) of the Act, in addition to excluding a prescribed fee where the Regulations themselves provided no fee is payable (for example, reg 4.13(2)) also did so in a “situation where an application is to be made for a decision that the fee “should not be paid” ” (at [52]):

[52]     We have reached this conclusion largely because of the inclusion of the words “if any” in s 347(l)(c). We are unable to accept Mr Johnson’s submission that those words were included in order only to accommodate those cases where no fee is payable for the application to review the particular MRT-reviewable decision under challenge; for example applications for review of primary decisions of a kind referred to in s 338(4) and applications made by persons in immigration detention (reg 4.13(2)(a) and (b)). For one thing, the expression “no fee is payable” in reg 4.l3(2) is not apt to describe a situation where the MRT determines in accordance with reg 4.13(4) that the fee on an application for review “should not be paid” because of severe financial hardship. The former expression is an exemption from any requirement to pay fees while the latter constitutes a waiver. Given that the words “if any” are applicable to a situation where an application is to be made for a decision that the fee “should not be paid”, and not merely to a situation where “no fee is payable”, Dr Griffiths’ narrower construction argument is plainly tenable. His contentions are also broadly consistent with the provisions of the Act when read as a whole. We consider that s 347(l)(c) ought to be so construed.

[53]     In our opinion s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act. The legislature is hardly likely to have introduced a provision which requires an application for review of an MRT-reviewable decision “to be accompanied by the prescribed fee (if any)”, in conjunction with a provision which authorises the making of regulations which allow 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. Many applicants for review would struggle to raise a sum of $1,400 at short notice, or at all. If Mr Johnson’s contention were to be accepted, an application for review lodged without payment of the prescribed fee, but accompanied by an application for waiver, would necessarily be dismissed as incompetent as soon as the prescribed period expired. Assuming that the operation of reg 4.13(4) is predicated upon a competent application for review being extant, it is arguable that it would be wrong for the MRT to continue its consideration of whether or not the fee should be waived, from the very moment that the prescribed period has expired. The legislature could hardly have intended to bring about that result.

54    The Full Court held that s 347(1)(c) should be read as subject to the qualification that where an application for review and a request for fee waiver are made within the prescribed period, the Tribunal is not deprived of jurisdiction to consider the application for review merely because the prescribed fee has not been paid within the prescribed time – provided the fee is either eventually waived, or paid within a reasonable time after the waiver request is rejected: [51].

55    In BXS20, the appellant had lodged within the prescribed period an application for review with the Tribunal, together with credit card details specifying an amount less than the prescribed fee (at [6]-[7]). After the prescribed period had elapsed, the appellant attempted to pay the shortfall (at [9]). The Full Court held that the full payment had to be made within the prescribed period (at [49]-[50], [54]). In so holding, the Full Court rejected the “broader argument” as to the meaning of the words “accompanied by” which had been left open in Braganza.

56    In BXS20, the Full Court noted that reg 4.13 had been amended since the decision in Braganza such that it no longer provides for outright waiver. The Court expressly refrained from ruling upon the correctness of the “narrower argument” accepted in Braganza or on whether it applied in the context of the current iteration of reg 4.13 because the review applicant in BXS20 had not made a fee reduction request, and so it was not necessary to consider the issue: BXS20 at [55].

57    There have been a number of single judge decisions, of this Court and the Circuit Court, in which it has been held, or observed in obiter, that since the 2011 amendments payment of at least 50% of the prescribed fee within the prescribed period is a necessary precondition to jurisdiction to hear and determine an application for review: Grey; Message; Fairy v Minister for Immigration [2018] FCA 729; and Jahangir v Minister for Immigration and Border Protection [2019] FCA 245.

58    In Grey and Message, the applicants each applied for a fee reduction but did not pay the prescribed fee, or a portion of it, within the prescribed period. In each case, the Tribunal took the view that it had no jurisdiction to undertake a review and the Circuit Court dismissed an application for judicial review. In doing so, the Circuit Court held that in circumstances where the Regulations no longer permitted a waiver of the entire fee, payment of the prescribed fee, or at least 50 per cent of the prescribed fee, was a necessary precondition to the invocation of the Tribunal's jurisdiction. The Circuit Court observed that if a fee waiver was ultimately rejected, a reasonable time should be permitted to the applicant to pay the balance of the fee.

59    In Fairy, this Court dismissed an appeal from the Circuit Court in which the primary judge had dismissed an application for judicial review of the Tribunal’s refusal to undertake a merits review on the basis that it did not have jurisdiction. In Fairy, the appellant lodged his review application, paid 50% of the prescribed fee and applied for a reduction in order to avoid payment of the remaining 50% of the prescribed fee. The reduction request was refused. The applicant ultimately did not pay the remaining 50% of the fee. The primary judge held that the applicant had been given a reasonable time within which to pay the remaining 50% of the prescribed fee after the fee reduction request was refused. Accordingly, the Tribunal was correct that it did not have jurisdiction. The appeal to this Court was dismissed on the basis that the primary judge was correct to conclude that the Tribunal lacked jurisdiction for reasons substantially the same as those of the primary judge.

60    In Jahangir, on the last day of the prescribed period the applicant applied for a merits review and for a fee reduction but did not pay the prescribed fee, or a portion of it, before the end of the prescribed period. This Court dismissed the appeal from the Circuit Court pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) by reason of the non-attendance of the appellant. In obiter, Allsop CJ (sitting as a single judge of appeal) observed that there was no apparent error in the Tribunal’s conclusion that it lacked jurisdiction to hear the review because of the failure to comply with the “statutory and legislative preconditions of proper payment with an application”: [26].

Summary of parties’ submissions

61    In this appeal, the appellant had to navigate the twin shoals of the 2011 amendment, by which the possibility of outright waiver of the prescribed fee had been removed, and his failure to pay at least 50% of the prescribed fee within the prescribed period. He sought to do this by submitting that where a review applicant requests a fee reduction within the prescribed period there is no fee prescribed under reg 4.13(1) on which s 347(1)(c) of the Act can operate until such time as the request is determined. The appellant submits that the conditional words in s 347(1)(c) of the Act “if any” are engaged in the negative with the result that there is at that point in time not any prescribed fee. The prescription arises later, in the form of a grant or refusal of the reduction. Only then does the expression “accompanied by” have a prescribed fee upon which it operates. The concept of “accompanied by” is sufficiently flexible to permit payment within a reasonable time of the reduction being granted or refused.

62    The appellant elaborates by submitting that while a request is pending, the fee is not necessarily the whole of the prescribed fee nor is it necessarily 50% of the prescribed fee. The appellant submits that it follows that the Tribunal cannot require 50% of the fee to be paid before the end of the prescribed period. Accordingly, as the submission goes, there is no prescribed fee that must accompany the review application under s 347(1)(c) of the Act. The appellant’s argument culminates in a submission that the most the Tribunal can do is wait until the fee reduction determination is made, and then insist upon either the entire fee or 50% thereof depending on the reduction determination that is reached.

63    The appellant submits that because his fee reduction has not been determined, no fee is “yet due” and therefore the Tribunal had jurisdiction to proceed with the review, there being no prescribed fee which was required to accompany the review application. The appellant submits that where a fee reduction request is made, the Tribunal will only lack jurisdiction if the fee is unpaid following the elapse of a reasonable time after the reduction request is decided.

64    Relatedly, by one of the particulars to the ground of appeal, the appellant submits that the decisions in Grey, Message and Fairy should not be followed to the extent they contain ratio or obiter contrary to the appellant’s central contention that there is no prescribed fee payable while an application for a fee reduction is pending.

65    Accordingly, the appellant submits that the primary judge erred in concluding that the Tribunal did not have jurisdiction to determine the appellant’s application for review.

66    The Minister submits that there was at all times a prescribed fee made mandatory by the terms of s 347(1)(c) of the Act, whether in the sum of 50% or 100% of the fee stipulated by the Regulations. The Minister submits that because the appellant failed to pay at least 50% of the prescribed fee within the prescribed period, the review application was not validly made in accordance with s 347(1) of the Act. Accordingly, the primary judge did not err in concluding that the Tribunal was correct to refuse to undertake the review.

Determination

67    The issue in this appeal is of limited compass and arises on closely confined facts. It is whether, in circumstances where a fee reduction request has been made but not determined before the end of the prescribed period, there is any “prescribed fee” under s 347(1)(c) of the Act which must accompany a review application in order to engage the Tribunal’s duty under s 348(1) of the Act to conduct a review. The only avenue by which the appellant sought to obtain relief was by contending that on a proper construction of s 347(1)(c) of the Act there was no prescribed fee when a fee reduction application was pending because it was common ground that he had not paid any fee, not even 50% of the fee, within the prescribed period. I was not referred to any authority in which this issue has been considered.

68    The essential facts are not disputed. A review application was made in the approved form before the end of the prescribed period. A fee reduction request was made before the end of the prescribed period. At the time of making the fee reduction request, the appellant proffered a credit card authorisation in respect of 50% of the prescribed fee. The payment amount was limited to a sum which equated to 50% of the prescribed fee. This was consistent with what the appellant’s representative was informed by the Tribunal was required, although not in accordance with the more generic information which was also given to the appellant’s representative and which stated that the whole of prescribed fee had to be paid pending a fee reduction decision. The Tribunal did not attempt to process payment until the first working day after the expiration of the prescribed period, at which time payment was declined, twice. After expiration of the prescribed period, the appellant provided the Tribunal with other means by which it was said that payment could be made. It being after the end of the prescribed period, the Tribunal did not attempt to utilise any of those means of payment. No payment was made before expiration of the prescribed period. The fee reduction request was not determined.

69    I am not persuaded by the appellant’s submissions that s 347(1)(c) of the Act should be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period. The construction of s 347(1)(c) of the Act which the appellant advances does not accord with the text of s 347(1)(c) of the Act, understood in its context, including by reference to the relevant legislative history, and with regard to the purpose of the statutory scheme. 

70    The appellant’s argument seizes on the phrase “prescribed fee (if any)” in s 347(1)(c) of the Act. The word “prescribed” is defined to mean prescribed by regulation. That necessarily directs attention to the relevant regulation.

71    As a general principle, regulations made pursuant to legislation ought not be referred to in construing that legislation: Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [26]. That said, recourse may be had to regulations in order to assist in the understanding of a scheme established by legislation, so as to better interpret the legislation in light of its purpose: Ketchell at [19] citing an observation in argument by Mason J in Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at 652; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [8.380] and other authorities referenced in fn 169. The decision in Braganza illustrates such an approach.

72    In BXS20, the Full Court recognised that the central function of s 347(1) of the Act is to define and limit the availability of merits review. Further, specifically in relation to s 347(1)(c), that if payment of the prescribed fee was not a prerequisite for review, there would be no reason to pay the fee and s 347(1)(c) would serve little if any purpose: BXS20 at [33].

73    The requirements necessary for the making of a valid review application prescribed by s 347(1)(a) to (c) of the Act have in substance been constant since September 1994. Section 347(1)(c) in its present form is unchanged from that which was in force in September 1994. Amendments in the intervening years to s 347(1) have been directed to changes in nomenclature, but the three jurisdictional features as to approved form, within the prescribed period and accompanied by the prescribed fee have been constant. Changes to the way in which the scheme operates have occurred through amendment of the regulations promulgated under the Act.

74    The content of the phrase “prescribed fee (if any)” is drawn from reg 4.13, which appears under the heading “Tribunal review – fees and waiver”. As mentioned, the content of reg 4.13 has changed over time. The relevant iteration of reg 4.13 is extracted at paragraph [45] above.

75    Subject to the exceptions in reg 4.13(2) to (4), reg 4.13(1) prescribes “the fee for an application for review of a decision by the Tribunal” in a dollar sum certain, subject to annual increase pursuant to reg 4.13A. The exceptions in reg 4.13(2) to (4) are as follows.

76    The effect of reg 4.13(2) is that the prescribed fee is not payable if the application is of a type described in reg 4.13(2)(a) or (b). In Braganza, the Full Court described this subregulation, which was then in the same form as it is now, as an exemption from any requirement to pay the fee as opposed to a waiver: [52]. If the application is of a kind described by reg 4.13(2)(a) or (b) then there is no prescribed fee which is required to accompany the review application for the purpose of s 347(1)(c) of the Act. This scenario informs the meaning of the phrase “prescribed fee (if any)”.

77    The effect of reg 4.13(3) is to waive the obligation to pay the prescribed fee more than once when a combined application for review of more than one decision is made under reg 4.12. There is only one prescribed fee which is required to accompany the review application for the purpose of s 347(1)(c) of the Act if the application is made in respect of two or more decisions as part of a combined review application. The corollary is that there is no application fee prescribed in respect of multiple review applications when brought in a combined application other than that which applies in respect of one of them. This is another scenario that informs the meaning of the phrase “prescribed fee (if any)”.

78    By reg 4.13(4), the Registrar of the Tribunal is empowered, upon being satisfied of the requisite degree of financial hardship, to “determine that the fee payable is 50% of the amount mentioned in subregulation (1)”. In this last scenario, it is possible that the fee payable will be only 50% of the amount in subregulation (1) but that depends on a Registrar reaching the requisite state of satisfaction under subregulation (4). In making that determination, the Registrar is empowered to determine that the fee payable is 50% of the application fee prescribed by reg 4.13(1). It is not necessary for the purpose of this appeal to determine whether as presently framed, reg 4.13(4) provides for a partial exemption or a partial waiver. In either case, for the reasons which follow, there is a prescribed fee which is payable under s 347(1)(c) of the Act and the conditional words in s 347(1)(c) of the Act “(if any)” are not engaged.

79    The amount “prescribed” by the Regulations is that specified in reg 4.13(1), as increased under reg 4.13A. The Registrar may determine that only 50% of the amount prescribed by reg 4.13(1) is payable — that is to say the Registrar may exempt the applicant from paying or waive payment of 50% of the prescribed fee. The Registrar in making a decision under reg 4.13(4) does not exercise the regulation making power to set the fee payable for review of a decision made under the Act pursuant to s 504(1)(a)(i) of the Act. It is not the Registrar’s decision that functions to “prescribe” the relevant fee. Prescribed means prescribed by regulation: s 5 of the Act. On a textual reading of reg 4.13, until such time as a favourable determination is made by a Registrar under reg 4.13(4), the fee which must accompany the review application is the fee prescribed by reg 4.13(1), as increased annually by reg 4.13A.

80    The terms of reg 4.13(4) make it clear that the Registrar’s determination of the fee reduction request may occur before or after the end of the prescribed period. It is expressly contemplated that the determination may be made before or after payment is made — “payment of the fee … has caused, or is likely to cause, severe financial hardship”.

81    If the Registrar determines before the end of the prescribed period that the fee payable is 50% of the amount, then pursuant to s 347(1)(c) that sum would have to be paid before the end of the period. That is because payment of the remaining 50% of the prescribed fee is not required – whether as a result of an exemption or a waiver. If the fee reduction request is not determined by the end of the prescribed period, then at least textually, the whole of the amount specified in reg 4.13(1) must accompany the review application before the end of the prescribed period because there has been no abrogation of the requirement to pay 50% of the fee.

82    The textual construction is reinforced by the regulatory mechanism. In the event that the whole of the fee is paid within the prescribed period and payment of 50% of the fee is subsequently waived, there is provision in reg 4.14, Item 1 for the amount paid in excess of 50% to be “refunded”. The provision made in respect of a refund mechanism is relevant to the way in which s 347(1)(c) of the Act is to be construed as part of the statutory scheme. There is no equivalent express mechanism in the statutory scheme which expressly provides for suspension of the obligation to pay the prescribed fee during the period when an application under reg 4.13(4) is pending nor is there any prescription of the time within which payment must be made if a Registrar is not satisfied that a determination under reg 4.13(4) should be made that the fee payable is 50% of that mentioned in reg 4.13(1). This would be an odd outcome having regard to the fact that s 347(1) of the Act functions to create a defined envelope of time within which a review application must be made.

83    Based on this analysis, the text of s 347(1)(c) of the Act, when construed, as it must be, in the context of the Regulations that underpin it, is not capable of yielding the construction for which the appellant contends. That conclusion is reinforced when one has regard to the function of s 347(1) of the Act, which serves to define and limit the availability of merits review.

84    To the extent that there is any uncertainty as to the operation of s 347(1)(c) of the Act in the context of the current iteration of reg 4.13 in circumstances where at the end of the prescribed period a fee reduction request is pending, it is as to whether the amount required to accompany the review application in the prescribed period is the whole of the amount mentioned in reg 4.13(1), or alternatively at least 50% of that amount.

85    The Minister did not embrace a construction that requires the whole of the prescribed fee to be paid within the prescribed period where a fee reduction request is pending. The Minister’s position on this appeal was that, where a review applicant seeks a fee reduction, the application for review may be entertained provided that at least 50% of the prescribed fee is paid within the prescribed period, and the remainder is paid within a reasonable period after the reduction request is refused, if the request is refused. That may be explained by reference to the analysis in Braganza, albeit based on the previous form of reg 4.13(4), and of the decisions which post-date the 2011 amendments where payment of at least 50% of the prescribed fee within the prescribed period was treated as a necessary precondition to jurisdiction when a fee reduction request was pending: see Grey, Message, Fairy and Jahangir. It may also be explained by the content of the Tribunal’s communications with the appellant’s representatives and the fact that the more permissive construction advanced by the Minister is, on the present facts, sufficient to dispose of the appeal because it is common ground that the appellant made no payment, not even 50% of the prescribed fee, within the prescribed period.

86    Having concluded that the appellant’s construction of s 347(1)(c) is not tenable, it is possible and preferable to determine this appeal without resolving the issue of whether when a fee reduction request is pending at the end of the prescribed period, it is necessary for the review application to be accompanied by the whole of the prescribed fee, or only at least 50% of the fee. Nothing turns on resolution of that issue in this appeal and the parties did not seek to address that issue.

CONCLUSION

87    For the reasons given, the appeal must be dismissed.

88    Having regard to the various administrative missteps on the part of the Tribunal to which I have referred, I will afford the parties an opportunity to make submissions as to the appropriate costs order and whether in the circumstances of this case it is appropriate to adopt an approach similar to that in Tabet v Minister for Immigration and Multicultural Affairs [1997] FCA 547; 75 FCR 446 at 457 and Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99 at 103. I will make procedural orders to permit that to occur.

Associate:

Dated:    13 June 2023