Benissa v Minister for Immigration and Border Protection

The background facts 3 The background to this application is described in the reasons of the Federal Circuit Court and in the Tribunal. There was no ground of appeal nor any affidavit evidence on this appeal which contradicted any of the factual background from those reasons which is described below. 4 On 1 April 2014, a delegate of the Minister refused Mr Benissa's application for a Medical Treatment (Visitor) (Class UB) visa (the Medical Visa) under s 65 of the Migration Act 1958. 5 On 14 April 2014, Mr Benissa lodged an application form for review of this decision with the Tribunal. As I explain below, the effect of s 347(1) of the Migration Act and reg 4.13 of the Migration Regulations 1994 (Cth) was that the prescribed fee (or any reduced fee on the basis of financial hardship) was required to be paid within the prescribed period. That prescribed period ended on 1 May 2014. 6 Sometime before 1 May 2014, Mr Benissa requested a reduction in the prescribed application fee ($1,602). This request was granted by the Tribunal. On 2 May 2014, Mr Benissa was informed that the reduction in the required fee meant that only $802 was payable. The Tribunal told Mr Benissa to pay the reduced application fee within 14 days of the letter. Mr Benissa sought further time within which to pay the fee and the Tribunal extended the time to 1 July 2014. In oral submissions, Mr Benissa said that he had been able to raise $650. This was not the subject of any affidavit evidence before the Federal Circuit Court or before this Court. In any event, there was no ground of appeal or submission before the Federal Circuit Court that alleged that the extension of time provided by the Tribunal to 1 July 2014 was unreasonable and the Federal Circuit Court observed that it was not suggested "that a further extension was sought on a basis that would realistically have raised the possibility of him actually paying the fee" ([3]). 7 On 7 July 2014, the Tribunal sent Mr Benissa its statement of decision and reasons explaining that it did not have jurisdiction to determine his application for review. The Tribunal said: The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the officer's decision; however the fee has not been paid. The application for review is therefore not a valid application and therefore the Tribunal has no jurisdiction in this matter. 8 On 28 July 2014, Mr Benissa filed an application in the Federal Circuit Court for judicial review of the Tribunal's decision. 9 On 24 September 2015, the Federal Circuit Court conducted the judicial review hearing. In ex tempore reasons given at the conclusion of the hearing the Federal Circuit Court concluded that the application for judicial review was "doomed to failure" ([4]). 10 The primary reason given by the Federal Circuit Court for why Mr Benissa's application must be dismissed was because the Tribunal had no jurisdiction in circumstances in which the required fee had not been paid within the reasonable period provided. 11 The Federal Circuit Court also observed that the Medical Visa for which Mr Benissa applied was required to be filed within 28 days of the last substantive visa that he held. It said that departmental records show that the last substantive visa that Mr Benissa held was a religious worker visa which expired on 10 August 1997. The Federal Circuit Court also said that Mr Benissa had produced photocopies that showed a visitor visa and bridging visa valid until 2009. Even assuming Mr Benissa did have valid visas until 2009, the Federal Circuit Court observed that the Medical Visa application had been made around five years outside the 28 day time limit. Although the terms and period of Mr Benissa's visa were the subject of oral submissions by him on this application, these were not matters which affected the ultimate conclusion of the Federal Circuit Court. As I have said, the Federal Circuit Court held that the application was "doomed to fail" because the Tribunal had no jurisdiction ([4]). 12 The Federal Circuit Court also ordered that Mr Benissa pay the costs of the Minister.

The application for leave to appeal to this Court 13 Mr Benissa requires leave to appeal because the decision of the Federal Circuit Court concerned whether the Tribunal had jurisdiction. Leave to appeal is required where the matter is not a final decision, that is, where "the judgment finally determines the rights of the parties": Brouwer v Titan Corporation Ltd & Ors (1997) 73 FCR 241, 242 (including the cases cited there); Federal Court of Australia Act 1976 (Cth) ss 4, 24(1A). A decision concerning whether a decision-maker had jurisdiction is not a decision which finally determines the rights of the parties: SZAJB v Minister for Immigration and Citizenship and Another [2008] FCAFC 75; (2008) 168 FCR 410, 412-413 [1], 416-419 [15]-[23] (French J), 429 [68] (Allsop J), 437 [114] (Tracey J). 14 Mr Benissa has only one ground upon which he seeks leave to appeal to this Court, including in relation to costs. That ground is that he "was not given any hearing at the [Tribunal]". He also says in that ground that he has "been in Australia for over eighteen years and now [is] legally blind". 15 In written submissions Mr Benissa submits that he should have been given an "interview" by the Tribunal before it concluded that it did not have jurisdiction. He submitted that this was required by s 360 of the Migration Act and that the Federal Circuit Court erred by failing to consider s 360 of the Migration Act.

The Tribunal had no jurisdiction 16 At the time of the Tribunal's determination, s 347 of the Migration Act provided: 347 Application for review by Migration Review Tribunal (1) An application for review of an MRT‑reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period, being a period ending not later than: (i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - 28 days after the notification of the decision; or (ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or (iii) if the MRT‑reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). (2) An application for review may only be made by: (a) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - the non‑citizen who is the subject of that decision; or (b) if the MRT‑reviewable decision is covered by subsection 338(5) or (8) - the sponsor or nominator referred to in the subsection concerned; or (c) if the MRT‑reviewable decision is covered by subsection 338(6) or (7) - the relative referred to in the subsection concerned; or (d) if the MRT-reviewable decision is covered by subsection 338(9) - the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection. Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c). (3) If the MRT‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made. (3A) If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who: (a) was physically present in the migration zone at the time when the decision was made; and (b) is physically present in the migration zone when the application for review is made. (4) If the MRT‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may: (a) request the opportunity to appear before the Tribunal; and (b) request the Tribunal to obtain oral evidence from a specified person or persons. A request must be made in the approved form and must accompany the application for review. (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place). 17 At the time of the Tribunal's determination reg 4.13 of the Migration Regulations 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 $1,540. 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, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, 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, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1). 18 Regulation 4.13A provides that the fee prescribed by reg 4.13(1) is to be increased on each biennial anniversary of 1 July 2011. Regulation 4.13B provides that the calculation of the increase is to be determined by reference to the latest All Groups Consumer Price Index number. As I have mentioned, the Federal Circuit Court explained that the fee associated with an application at the time of Mr Benissa's application was $1,602 and the Tribunal had reduced that fee to $802. 19 In Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, Lehane J considered a similar provision then existing in the Migration Act. The provision in that case, s 339, required that the application for review to the Tribunal be accompanied by a prescribed fee which was $200. The applicant's application was accompanied by a cheque which was dishonoured on presentation. The applicant's solicitor delivered another cheque outside the 28 day period provided for in s 339. Justice Lehane considered the effect of s 339(1)(c) which provided that "an application for review of an internally reviewable decision must be accompanied by a prescribed fee (if any)". His Honour applied the earlier decision of Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 where Mansfield J held that s 339 was a mandatory provision requiring strict compliance. Justice Lehane concluded that the Tribunal had no jurisdiction to review because the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee. 20 In Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364, the Full Court considered whether the Migration Review Tribunal had jurisdiction in circumstances in which the appellant had failed to pay the prescribed application fee (which was then $1,400) in accordance with s 347 of the Migration Act. In that case, the appellant had lodged his application for review within the prescribed period together with a request for fee waiver on the grounds of financial hardship. The fee waiver was denied. The appellant asked the Tribunal to reconsider his request for a waiver and for an extension of time. The request for reconsideration of the fee waiver was refused. The Tribunal informed the appellant that it had no jurisdiction because the prescribed fee had not been paid within the required time. The Full Court distinguished the decision in Kirk holding that where an applicant for a visa applies for a waiver within the prescribed period, s 347 does not deny jurisdiction to the Tribunal if the applicant pays the required fee within a reasonable time after the application for waiver is rejected (or if the fee is eventually waived). 21 The decision in Kirk, with the qualification in Braganza, has been applied on numerous occasions subsequently. 22 In El Mourani v Minister for Immigration and Citizenship [2010] FCA 289, Besanko J upheld a decision of the Federal Magistrates Court that the Migration Review Tribunal did not have jurisdiction because an application for review was not accompanied by the prescribed fee as required by s 347(1)(c) of the Migration Act and the fee had not been waived under reg 4.13(4). 23 In Ong v Minister for Immigration and Citizenship [2010] FCA 1259 an appeal was brought to the Federal Court from a dismissal of an application for judicial review where the Tribunal (in that case the Migration Review Tribunal) had concluded that it did not have jurisdiction because a hearing fee had not been paid and an application for fee waiver had been refused. Justice Marshall held that since the fee had not been paid after refusal of the fee waiver application there was no proper application for the Tribunal to consider. The appellant had been given a reasonable time, in the circumstances, to pay the fee after the rejection of his fee waiver application, but he did not avail himself of that opportunity. 24 The decisions in this line of authority are not plainly wrong. The Tribunal had no jurisdiction.

The absence of a hearing before the Tribunal 25 As I have explained, Mr Benissa submitted that the Federal Circuit Court erred by failing to find that the Tribunal should have given him a hearing concerning whether the Tribunal had jurisdiction. Mr Benissa relied upon s 360 of the Migration Act. It was not suggested that the Tribunal owed, and had violated, obligations of procedural fairness independently of s 360 so it is unnecessary to consider the extent to which s 360 is an exhaustive statement of these obligations or the extent to which it would mould any general law obligation of procedural fairness. 26 At the time of the Tribunal's determination, s 360 of the Migration Act provided: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 27 Subsections 359C(1) and 359C(2) are concerned with circumstances where a person is invited to give information, or the applicant is invited to comment or respond to information, but does not do so before the time for giving the information, commenting or responding has passed. 28 In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal's decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal "must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". 29 Justice Bennett dismissed the applicant's ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no "decision under review" ([34]). 30 The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal's conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a "hollow opportunity" ([39]). 31 The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the "utility of extending any opportunity to be heard" was "elusive" and may well have been (using the phrase of Bennett J) "a hollow opportunity". There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]). 32 In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons. 33 First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right. 34 Secondly, and further supporting the reasoning of Bennett J, a "decision under review" within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a "decision…made under [the Act]". 35 Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter. 36 Fourthly, the obligation in s 360 requires the Tribunal's invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that "relate to" the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.

Conclusion 37 The Federal Circuit Court correctly upheld the decision of the Tribunal that it had no jurisdiction. Perhaps more accurately, that "decision" might be characterised as a recognition by the Tribunal that it did not have authority to decide. Section 360 of the Migration Act did not require the Tribunal to hear from Mr Benissa about whether it had that authority to decide. 38 As I have mentioned, Mr Benissa also included in his ground of appeal that he had been in Australia for eighteen years (it may be that this period was almost entirely comprised of the period which the Federal Circuit Court found had followed the expiry of his last substantive visa). Mr Benissa also included in his ground of appeal the remark that he is now legally blind. These matters are not relevant to the legal questions that arise on this application. 39 The application is dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.