Boyjonauth v Minister for Immigration and Multicultural Affairs

Federal Court of Australia (Full Court)|2024-10-08|Before: Health J, Kennett JJ

INTRODUCTION

On 21 August 2018, the Administrative Appeals Tribunal concluded that it did not have jurisdiction to conduct a review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the appellant a Medical Treatment visa, because the appellant's "Application for review - Migration", which was lodged together with a "Request for Fee Reduction", was not accompanied by the prescribed fee or any portion of the prescribed fee.
On 18 July 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed the appellant's application for judicial review of the Tribunal's decision, agreeing that the Tribunal did not have jurisdiction because the prescribed fee had not been paid within the prescribed period: Boyjonauth v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 557 (hereafter "J").
For the reasons which follow, the appellant's appeal from the Circuit and Family Court's decision must be dismissed.

STATUTORY CONTEXT

Section 347 of the Migration Act 1958 (Cth) includes: 347 Application for review of Part 5‑reviewable decisions (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 (ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or (iii) if the Part 5‑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). … (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

THE APPLICATION TO THE TRIBUNAL

On 27 July 2018 at around 3:46pm, the appellant faxed an "Application for review - Migration" form to the Tribunal. There was no dispute about whether the correct application form was used. The application was lodged on the last day for making the application. In the application, the appellant indicated that he would pay the application fee by money order. No amount was indicated, but the application form did not provide for the insertion of an identified amount for a money order. The application form did not attach a copy of the money order.
Together with his application, the appellant sent to the Tribunal a "Request for Fee Reduction" form and a copy of a bank statement. The bank statement indicated that the appellant's account was in debit for the period 1 January 2018 to 1 June 2018.
The Tribunal issued a "Review Application Receipt", which stated it was a receipt and a tax invoice, and recorded that no amount had been received.
No portion of the application fee was paid by 27 July 2018. The consequence of the statutory scheme identified above was that an amount of 50% was payable whether or not the "Request for Fee Reduction" was ultimately successful: s 347(1)(c) of the Migration Act and reg 4.13(4) of the Regulations.
On 27 July 2018 at 4:51pm, an officer of the Tribunal attempted to telephone the appellant in relation to the payment of fees. The Tribunal's "Case Notes" included (AB60): Called PRA via phone to tell him that he needs to pay at least the reduced fee of $882 with his fee reduction request to avoid any jurisdiction issues. However PRA did not pick up, therefore left a voice message to email payment details from an M1 form to mrdivision@aat.gov.au or call 02 92765000 between 8.30 AM and %pm [sic - 5pm] Mon-Friday. -Still needs to pay $882 to accompany Fee Reduction request.
On 2 August 2018, an officer of the Tribunal again attempted to phone the appellant. The Tribunal's "Case Notes" provided: The RA has yet to make a payment for the application. Called at 9.34am and left a message to return my call. I will also send an email with a request for the payment and confirm whether he is in immigration detention as M1 form does not indicate the fact.
Later on 2 August 2018, the Tribunal wrote to the appellant by email as follows (emphasis in original): I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. I have left a message on your mobile phone this morning because it appears that you have yet to make payment for the application. In order for us to process your application, you are required to make either $1764 (full payment) or $882 (50% of the full payment) with Request for Fee Reduction form. We note you have lodged a Request for Fee Reduction form with your Application for Review Form on 27/07/2018. We kindly request that you provide us with payment at the counter by coming in person or provide us with payment details (credit card) on page 9 of the Application form and send it to us via fax or email at the earliest course. In addition, could you confirm whether you are in immigration detention as the question was left unanswered in your application form?
On 3 August 2018, the Tribunal sent an email to the appellant, attaching a letter which invited the appellant to comment on the validity of his application for review. The letter included: I am of the view that your application is not a valid application as the application fee has not been paid, I note in your application for review - Migration form faxed to the Tribunal, including a request for fee reduction, you selected money order as the payment method, however you did not indicate an amount and the Tribunal has not received a money order. We attempted to contact you as soon as we became aware of this without success, and it would now appear to be too late to make payment. However, this is a matter which must be determined by a Member. If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 17 August 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 17 August 2018, the appellant responded stating: I refer your letter dated on 3 August 2018, request for further information in regards of my appeal application in respect of a decision to refusal to grant subclass 602 visa validity which I faxed to Tribunal including a request for fees reduction. I would like to inform you that when I tried to apply on line with fees waiver I could not apply without paying full fees. I had to fax the appeal form and could not attach the money order with it. I was preparing to give the money by hand at the counter but in the mean time I received the letter and its mentioned that it appear too late to make a payment. I would like to request you to consider the above information and allow me to pay the appeal fees with fees reduction. I appreciate your consideration of my request to extension of time and look forward to a favourable response in due time.

THE TRIBUNAL'S REASONS

On 21 August 2018, the Tribunal determined that the application for review was not valid because the application fee had not been paid and that, therefore, the Tribunal had no jurisdiction in relation to the matter. Its reasons were as follows: APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Immigration, dated 6 July 2018, to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (the Act).
The review application form was lodged with the Tribunal on 27 July 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
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 27 July 2018. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
Before the prescribed period expired, on 27 July 2018 the applicant asked the Tribunal to reduce the prescribed application fee. He was then contacted by telephone on same day and advised he needed to pay at least the reduced fee with his application for a reduction to avoid any jurisdictional issues.
On 2 August 2018 the Tribunal wrote to the applicant and again advised he needed to make payment of at least half the prescribed fee before his application for a fee reduction could be considered. He was asked to contact the Tribunal immediately.
On 3 August 2018 the Tribunal wrote to the applicant and advised his application for review would be considered to be not a valid application as the prescribed fee had not been paid. He was asked to make comments as to whether a valid application had in fact been made by 17 August 2018.
On 17 August 2018 the applicant wrote to the Tribunal and requested additional time in which to make payment of a reduced fee to allow his application for review to proceed. No payment was included with this request.
The Tribunal is satisfied the applicant sought a fee reduction on 27 July 2018. The applicant has not paid the application fee to enable consideration of that request. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer's decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter. DECISION
The Tribunal does not have jurisdiction in this matter.
The appellant applied to the Circuit and Family Court seeking judicial review of this decision under s 476 of the Migration Act on 24 September 2018.

SUMMARY OF THE PRIMARY JUDGE'S REASONS

The primary judge noted at J[40] that the Tribunal, in its reasons for decision, had referred to two decisions in support of its finding that it lacked jurisdiction in relation to the matter: Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99 (Lehane J) and Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; 109 FCR 364 (Wilcox, Weinberg and Stone JJ).
The primary judge noted at J[41] that these decisions had been discussed by Edelman J in Benissa v Minister for Immigration and Border Protection [2016] FCA 76; 150 ALD 276 as follows:
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.
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).
The decision in Kirk, with the qualification in Braganza, has been applied on numerous occasions subsequently.
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).
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.
The decisions in this line of authority are not plainly wrong. The Tribunal had no jurisdiction.
The primary judge noted at J[42] that Kirk and Braganza were decided at a time when the Regulations provided for a waiver of the prescribed fee in full, rather than for a waiver of only 50% of the prescribed fee.
The primary judge referred to various decisions of the Federal Circuit Court of Australia (as the Circuit and Family Court then was) and to decisions of the Circuit and Family Court and concluded that payment of at least 50% of the prescribed fee within the prescribed period was a necessary precondition to the Tribunal having jurisdiction to hear and determine the application for review: J[49] to [53]. Because no fee had been paid, it followed that the primary judge dismissed the application for judicial review.

THE APPEAL

The appellant's amended notice of appeal contained one ground: The primary judge erred in finding that the second respondent (the Tribunal) did not have jurisdiction to determine the appellant's application for review filed in the Tribunal on 27 July 2018.
The appellant submitted that - applying the analysis in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 - an application for review of a "Part 5-reviewable decision" is not invalid where the "prescribed fee" is not paid within the "prescribed period". Rather:
the making of an application in the "approved form" and within the "prescribed period" is sufficient to engage the jurisdiction of the Tribunal; and
the Tribunal may then exercise a discretion how to deal with non-payment of the fee, including to dismiss the application if the fee is not paid within a period specified by the Tribunal.
The appellant submitted that:
the question of whether the jurisdiction of the Tribunal is engaged is determined by reference to s 347 of the Migration Act; and
if that jurisdiction is engaged, then s 348 of the Migration Act imposes a duty to review, but only if the application is "properly made".
On this argument, if there is non-compliance with s 347(1)(c), then the duty to review is not engaged, but that does not supply the answer to the question of whether the application is valid or whether the Tribunal has jurisdiction.
The appellant framed the question on appeal as being "whether compliance with s 347(1)(c) of the Migration Act is necessary to the validity of an application" and observed that "the answer to that question turns on whether Parliament [should be taken to have] intended that, if an applicant did not pay the prescribed fee within the prescribed period, the Tribunal would not have jurisdiction to hear the application at all, as opposed to a discretion to refuse to determine the application". The appellant's six arguments are addressed in order below.
In that discussion, where possible the focus is on the consequences of non-compliance with the requirements of s 347(1)(c) as opposed to the "validity" or otherwise of the application. This is simply intended to focus attention on the consequences of non-compliance rather than looking at the issue as being whether the application is "valid" or not. The central issue on the appeal is whether the application failing to comply with the condition that it be accompanied by the prescribed fee had the legal effect or consequence that the Tribunal's jurisdiction was not engaged. A part of the factual context in which that issue arises is that the appellant also made a request for waiver of 50% of the prescribed fee without paying the 50% which had to be paid on any outcome of the request for waiver.

Some matters of general principle

In Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 98 ALJR 623 at [24], the High Court set out with approval, the following passages of Project Blue Sky at [91]: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. … Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
The High Court observed that the consequences of non-compliance did not depend upon whether the relevant condition was enforceable by injunction: Miller at [25].
There may be statutory conditions to an application to a Tribunal which, if not complied with, do not result in the Tribunal not having jurisdiction, such conditions not being enforceable at all or giving rise only to administrative consequences: Miller at [25].
The High Court stated at [26]: The principle of statutory construction expounded in Project Blue Sky operates in the same way in respect of a condition that is a condition precedent to the exercise of a statutory jurisdiction as it does in respect of a condition that is a condition of the exercise of a statutory jurisdiction. Contrary to [the theme of an] argument of the Minister, a condition precedent to the exercise of jurisdiction neither stands outside the principle nor calls for any modification of its operation.
The High Court observed that the "mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity": Miller at [28].
The High Court observed that "identical imperative language might be used in a particular statutory scheme to express a suite of requirements, some of which will admit of one answer to the Project Blue Sky question and some of which will admit of another answer": Miller at [29].
In Miller, the question was whether the consequence of non-compliance with s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was that an application was invalid such that the Tribunal's jurisdiction was not engaged. Section 29(1) included: 29 Manner of applying for review (1) An application to the Tribunal for review of a decision: (a) must be made: (i) in writing; or (ii) if the decision is reviewable in the Social Services and Child Support Division - in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and (b) must be accompanied by any prescribed fee; and (c) unless paragraph (ca) or (cb) applies or the application was oral - must contain a statement of the reasons for the application; …
The parties agreed that non-compliance with s 29(1)(a) resulted in invalidity of an application, and that non-compliance with s 29(1)(b) did not. The reason why it was agreed that s 29(1)(b) did not result in invalidity of the application was explained by the High Court in Miller at [18]: The requirement of s 29(1)(b) of the AAT Act, that an application must be accompanied by any prescribed fee, needs to be understood in light of s 69C of the AAT Act, which provides that the Tribunal may dismiss an application to it if regulations made under s 70 prescribe a fee to be payable in respect of the application and the fee has not been paid by the time worked out in accordance with those regulations. In providing for an application to be dismissed for non-payment of any prescribed fee, s 69C necessarily assumes that an application that is not accompanied by any prescribed fee is a valid application. Section 69C was inserted into the AAT Act in 2013, in substitution for a provision inserted in 1993 which had provided that an application was "not taken to be made" unless the prescribed fee was paid.
Section 69C provides: 69C Dismissal of application for non-payment of application fee (1) The Tribunal may dismiss an application to the Tribunal if: (a) regulations under section 70 prescribe a fee to be payable in respect of the application; and (b) the fee has not been paid by the time worked out under regulations under section 70. (2) Subsection (1) does not apply to an application for review of a decision that is reviewable in the Migration and Refugee Division.
It might be observed, to point out the obvious, that the High Court's reasoning in relation to the differential consequences of non-compliance with the various sub-paragraphs of s 29(1) of the AAT Act was not that the word "must" differed in meaning in the various sub-paragraphs. Rather, what differed was the consequence of non-compliance with the obligation: in some cases, non-compliance results in invalidity with the result that the Tribunal does not have jurisdiction.
The appellant submitted that no different analysis is warranted by the fact that, unlike in s 29(1) of the AAT Act, the word "must" in s 347(1) of the Migration Act occurs in the chapeau and is not separately repeated in the subparagraphs, referring to Formosa v Secretary, Department of Social Security [1988] FCA 291; 46 FCR 117 and Howard v Secretary of State for the Environment (UK) [1975] 1 QB 235 at 240, 242.
This submission should be accepted. The word "must" is used in s 347(1) to indicate that there must be compliance with the various paragraphs of s 347(1). In principle, the consequences of non-compliance with the various conditions identified in the sub-paragraphs of s 347(1) may vary.

The purpose of s 347(1)

The appellant submitted that the purpose underlying paragraph (c) of s 347(1) was a "user pays principle", referring to Braganza at [36]. The Full Court stated at [36] and [37]: [36] Dr Griffiths [counsel for the appellant] submitted that it is one thing to conclude that an appeal is invalid if the appellant fails to give notice of intention to appeal within a prescribed period - that reflects the legislature's evident concern that migration appeals be brought promptly. It is quite another thing to say that an appeal is invalid if the appellant fails to pay a fee within the stipulated period - that requirement serves a different purpose. The purpose was explained in the second reading speech to the Migration Legislation Amendment Act 1989 (Cth) which made provision, for the first time, for the making of regulations to permit the charging and recovery of fees for review applications. The then Minister said that the new provision for the charging of fees was intended to implement what he described as the "user pays principle". Dr Griffiths submitted that payment of a prescribed fee within the prescribed time for lodging an application for review was not essential to give effect to that principle, provided only that the fee was paid before the review was conducted. He referred to the observation of Hope JA in Hatton v Beaumont [1977] 2 NSWLR 211 at 223 to the effect that the importance of timely compliance with the requirement of a deposit - which Dr Griffiths said was a requirement of the type contained in s 347(l)(c) - "to the appeals procedure, to the interests of the respondent or to the Licensing Court is small indeed". [37] Dr Griffiths also referred to the second reading speech to the Migration Reform Act 1992 (Cth), which introduced s 117(1)(c) into the Act, that being the statutory precursor to s 347(l)(c). He submitted that it was evident from that speech that a central purpose of the new provisions, in both the 1989 and 1992 amendments, was to establish a system of review of migration decisions which was independent, fair, economical, informal and quick. The legislative reforms were said to constitute "an enhanced scheme of independent merits review" and to broaden review rights for visa applicants. He submitted that, in the light of such statements of purpose, the scope of the review regimes established by those Acts would be unduly restricted if non-timely compliance with fee requirements were permitted to nullify an otherwise valid review application.
Echoing these arguments put in Braganza, the appellant submitted that the achievement of the "user pays" purpose does not require that an application lodged without the fee in the prescribed period be invalid such that the Tribunal has no jurisdiction. According to the appellant, the purpose is satisfied if the Tribunal has a power to decline to engage in the review if there has been a failure to pay the fee.
The purpose of a statute resides in its text and structure: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [44]. Different parts of a statute might pursue different purposes: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1. Further, legislation rarely pursues a single purpose at all costs and, indeed, often seeks to strike a balance between competing interests or considerations: Carr v Western Australia [2007] HCA 47; 232 CLR 138.
For example, tight timeframes for the filing of applications for merits review are not unusual in the migration context. Unlike the situation for applications to the Tribunal to which s 29(7) of the AAT Act applies, there is no possibility for an extension of time. It is tolerably clear that the consequence of non-compliance with the condition in s 347(1)(b) that the application be made within the "prescribed period" is that the Tribunal does not have jurisdiction or power to review. The imposition of a pre-condition to jurisdiction that an application be accompanied by a prescribed fee is not one which is inherently unlikely or capricious or absurd and, indeed, is consonant with the requirement to file an application within a strict time frame. This might be thought to be harsh, but that is a matter for the legislature.
It is an oversimplification to state that the purpose of s 347(1)(c) is to implement a "user pays" principle or purpose. The purpose of ss 347 and 348 is to "confer a right to merits review and draw boundaries around its availability" (BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; 296 FCR 63 at [41]) and to impose a duty to review according to the particular review regime established by Part 5.

Does the AAT have power to decline to engage in a review?

Part IV of the AAT Act is entitled "Reviews by the Tribunal of Decisions". Within Part IV, s 24Z provides: 24Z Scope of operation of this Part (1) Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division. Note 1: For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958. Note 2: Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part. (2) The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division: (a) section 25; (b) section 42.
Section 25(1) of the AAT Act provides: 25 Tribunal may review certain decisions Enactment may provide for applications for review of decisions (1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In simple terms, the way in which the AAT Act envisages that there will be a conferral of jurisdiction on the Tribunal is by another act making provision for applications to be made to the Tribunal.
The appellant submitted that the provision which confers power on the Tribunal is s 347 of the Migration Act, not s 348. Section 348 performs a different function: if an application is "properly made" under s 347, s 348 imposes a duty on the Tribunal to review the decision. The duty will not arise if the application is made otherwise than in accordance with s 347. Accordingly, if an application is not accompanied by the application fee, the Tribunal has no duty to review the decision, but - according to the appellant - it still has jurisdiction and power to do so because of s 347. The Tribunal has a discretion and it has powers to give effect to the "user pays" principle. One way the Tribunal could exercise its power is that it could adjourn the review until the fee is paid: s 363(1)(b) of the Migration Act.
According to the appellant, if the Tribunal wished to finalise the application, it could do so by one of two means. First, s 349(2)(a) empowers the Tribunal to affirm the decision below. The appellant contends that the provision does not provide that the Tribunal can only affirm the decision below if it has conducted a full hearing on the merits. Indeed, according to the appellant, this is contrary to s 353 which makes clear that the Tribunal "is not bound by technicalities, legal forms or rules of evidence" and "shall act according to the substantial justice and merits of the case".
Secondly, even apart from the express power in s 349(2)(a), the Tribunal has, by necessary implication, all of the powers that are reasonably necessary for the effective discharge of its express powers, referring to JKL v Justice Health and Forensic Mental Health Network [2021] NSWCA 94; 104 NSWLR 592 at [50] to [56]; Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 16-7.
The appellant submitted that the Tribunal has an implied power to decline to engage in the review where the obligation to pay the fee is unfulfilled. That implied power is reasonably necessary to deal with applications which engage the Tribunal's jurisdiction, but fail to engage the Tribunal's duty to review under s 348.
The appellant submitted that BXS20 (Thawley and Kennett JJ; Stewart J agreeing) was wrongly decided. In BXS20, the Full Court stated at [34] that "all of the requirements set out in s 347(1) must be satisfied in order for the Tribunal's jurisdiction to be engaged".
In BXS20 at [30], it was said: [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).
The appellant raised two issues about what was said in this passage: first, the appellant submitted that the emphasis on the word "must" in the first part of the paragraph is incorrect; secondly, the appellant submitted in relation to the second part of the paragraph that, whilst compliance with s 347 was necessary to trigger the Tribunal's duty to review, it was not necessary to trigger the Tribunal's power to review. The appellant submitted, in particular, that BXS20 at [30] was wrong in reading the conferral of jurisdiction as being effected by s 348 rather than s 347.
In the passage set out above, the Court referred to Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394. Fahme concerned an application for a Part 5 review which had been made to the Tribunal 22 days after the appellant had received notification of the decision, that is, one day late. The Tribunal held that it did not have jurisdiction as did the Circuit Court. Rares J held that the application was not valid and "[a]ccordingly, the Tribunal had no power to entertain the application because it was not validly given to the Tribunal within the time fixed in reg 4.10(1)(a)": at [12]. His Honour also agreed with the reasons of Perram J. Perram J stated: [16] Two issues arise: whether the Appellant's application for a review was properly made under s 347 and, if not, whether the fact that the Tribunal must determine properly made applications for review entails that it must not entertain applications for review which are not properly made. There is an additional issue as to whether s 347(1)(b) itself confers a discretion to extend time. [17] An application for review under s 348 will be properly made under s 347 only if it is made in accordance with the requirements of s 347. There are a large number of such requirements, only one of which is presently relevant [namely s 347(1)(b)] … [19] There is no dispute that the Appellant was notified of the decision on 21 August 2017. Consequently s 347(1)(b)(i) required his review application to be made within 21 days, ie, by 12 September 2017. He lodged his application on 13 September 2017. Consequently, there can be no doubt the application was not lodged in compliance with s 347(1)(b)(i). That being so, there can also be no doubt that it was not 'properly made under section 347' within the meaning of s 348. The mandatory duty which s 348(1) casts upon the Tribunal to conduct a review where an application has properly been made under s 347 therefore did not arise. [20] The question then is whether the Tribunal has a power to entertain a review application which has been made, but not in accordance with s 347(1)(b). The answer to that question must be no. Various attempts over the years to discover a power in the Tribunal to act in that way have been uniformly rejected. The authorities were collected by the Full Court of the Federal Court in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; 97 FCR 407 at 17-19 [42]-[49]. [21] Another way of looking at the matter is that the Tribunal is an inferior tribunal whose powers are limited to those set out in its enabling legislation. As has often enough been pointed out in the case of such an inferior tribunal, '[i]f the power does not flow from the Act as properly construed, it cannot exist': Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447; 91 WN (NSW) 34 at 38; [1970] 1 NSWR 617 at 620 per Herron CJ, Wallace P and Manning JA (applied in Palmer v Clarke (1989) 19 NSWLR 158 at 166); see also John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA. Part 5 does not confer any power on the Tribunal to hear a review application other than that which appears in s 348. Consequently Pt 5 conferred no jurisdiction on the Tribunal to entertain the Appellant's application.
Perram J also agreed (at [24]) with the reasons of Rares J and Farrell J (at [25]) agreed with the reasons of Rares and Perram JJ.
The appellant submitted that Fahme should not be understood as deciding whether it was s 347 or s 348 which conferred jurisdiction on the Tribunal. That narrow proposition may be accepted. The conclusion in Fahme was that there was no power to review an application made outside of the prescribed period contrary to the statutory requirement in s 347(1)(b). That conclusion was correct. However, Fahme remains significant because its reasoning treats the absence of power as a consequence of the Tribunal's duty in s 348 not having been engaged. It stands in the way of the appellant's argument that there is a class of case where the Tribunal has jurisdiction (by operation of s 347) and a discretion whether to exercise that jurisdiction.
Section 348 provides that there is no duty to review an application which does not comply with s 347(1)(b). An application made out of time is not "properly made" for the purposes of s 348. Sections 347, read in the context of Part 5 as a whole, does not provide a power for the Tribunal to exercise jurisdiction to review an application made out of time. Nor, properly understood, does s 347(1) confer jurisdiction on the Tribunal where an application is made in breach of the condition in s 347(1)(b). The consequence of non-compliance with s 347(1)(b) is that the Tribunal has no jurisdiction. The scheme of Part 5 of the Migration Act is that the Tribunal only has jurisdiction where it has a duty to review and it only has a duty to review where an application is "properly made".
An essential plank of the appellant's argument is that it is s 347, not s 348, that confers jurisdiction on the Tribunal to review a Part 5-reviewable decision. This submission draws on s 25(1) of the AAT Act, which has been set out above. Section 25(1) (whose application in respect of proceedings in the Migration and Refugee Division is expressly preserved by s 24Z(2)) provides that an enactment may provide for applications to be made to the Tribunal. This, it is said, is the mechanism by which the AAT Act envisages the conferral of jurisdiction on the Tribunal to conduct a review. An express conferral of power to review, formerly contained in s 25(4), was repealed by the Tribunals Amalgamation Act 2015 (Cth) (the 2015 Act), apparently on the understanding that it was unnecessary. Hence, it is submitted, the Tribunal has jurisdiction by force of s 347 when an application is made; and it is only the duty to exercise that jurisdiction that is contingent, under s 348, on the application being "properly made".
The main work done by the 2015 Act was to abolish the former Migration Review Tribunal and Refugee Review Tribunal and transfer their powers and functions to the Tribunal (to be exercised in its newly created Migration and Refugee Division). The provisions of Part 5 of the Migration Act setting out the powers, duties and procedures of the former Migration Review Tribunal (including relevantly ss 347 and 348) were not amended except to the extent necessary to accommodate the replacement of that Tribunal. Part 5 was thus retained as a standalone regime for review of a specific class of administrative decisions. By operation of s 24Z of the AAT Act, the only provisions of that Act that apply to the review of such decisions are s 25 (referred to earlier) and s 42 (which deals with disagreements between members of a multi-member tribunal).
In the light of this history, the creation (by the 2015 Act) of a link between Part 5 of the Migration Act and the AAT Act should not be understood to have effected a change to the roles performed by, or proper construction of, ss 347 and 348. Section 25 of the AAT Act is not itself a jurisdiction-conferring provision; it does no more than recognise that the Tribunal may acquire jurisdiction from provisions of other enactments. Its application does not change the meanings of ss 347 and 348.
The correct understanding of these provisions emerges from their terms and from the reasoning in Fahme discussed above:
Section 347 does not in its terms "provide that applications may be made", let alone confer authority to decide on the Tribunal in respect of such applications. It imposes requirements on an application, as to form and timing (subs (1)) and who may make the application (subs (2)-(4)).
Section 348(1) identifies the circumstances in which the Tribunal "must" review the decision (ie, where an application is "properly made"). No other provision confers authority to decide.
The question in the present case is whether the consequence of non-compliance with s 347(1)(c) is that the Tribunal's jurisdiction to review is not engaged. The terms of s 348, and indeed the whole of Part 5, is relevant to the determination of that question. The way in which a Part 5 review is to be conducted is carefully addressed by Part 5. In this statutory context, the better view is that the Tribunal's jurisdiction to review is engaged only where its duty to review is engaged. If it is necessary to locate the source of jurisdiction in a specific provision, that provision must be s 348. Further, the better construction of the provisions is that there is no separate discretionary power in the Tribunal to review where an application is not "properly made". Nor is there a jurisdiction to exercise more confined statutory or inherent powers where there is non-compliance with s 347(1)(c).
In BXS20 at [31], it was said: [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.
The appellant submitted that this reasoning "wrongly proceeds on the basis that the word 'must' cannot change its meaning". Given the appellant's earlier submissions, this must be understood as contending that the reasoning wrongly assumes that the consequences of non-compliance with the various sub-paragraphs of s 347(1) cannot change as between those sub-paragraphs. In this regard, the appellant also referred to the first sentence of BXS20 at [33]: [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) …
As mentioned earlier, the word "must" indicates that a person has to do the things specified in the paragraphs to s 347(1). At the level of principle, non-compliance with different sub-paragraphs could have a different consequence. The point of importance which is made in BXS20 at [31] and [33] is that the better reading of s 347(1), in context, is that non-compliance with any of the sub-paragraphs of s 347(1) has the result that the application is invalid with the consequence that the Tribunal does not have jurisdiction.
There is no reason to depart from BXS20.

A surprising result?

The appellant submitted that it would be a surprising result if payment of the prescribed fee was essential to validity of an application. It would be surprising because, in many other applications to the Tribunal, which are governed only by s 29 of the AAT Act, payment of the prescribed fee is not essential to validity.
The AAT Act itself excludes the operation of s 29 of the AAT Act to a proceeding in the Migration and Refugee Division: s 24Z(1). Further, the scheme of the AAT Act is that it is given jurisdiction by other acts. Many of those acts alter the way the AAT Act would otherwise operate. In this context, it is not particularly surprising that the conferral of jurisdiction on the Tribunal to review a particular type of decision is conditioned on payment of a prescribed fee within a prescribed time, with the Tribunal's jurisdiction not being engaged if there is non-compliance with the condition.

Section 504 of the Migration Act

The appellant referred to s 504(1) of the Migration Act, which includes: 504 Regulations (1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: (a) making provision for and in relation to: (i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or … (b) making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;
As noted earlier, a regulation has been made for the waiver of 50% of the relevant fees. The appellant submitted that, in conferring this power on the Executive, it must have been obvious to Parliament that the Tribunal may be unable to deal with an application for waiver of the prescribed fee within the prescribed period. If payment of the prescribed fee within the prescribed period is essential to validity, the power to approve a fee waiver could miscarry. If a request for a waiver is refused, the prescribed fee will not have been paid within the prescribed period. The appellant submitted that the more coherent construction was that accepted by the Full Court in Braganza. At the time Braganza was decided it was possible to obtain a complete waiver of the applicable fee. The Full Court held that an applicant could wait until the fee waiver application had been determined and then pay what (if any) fee was required, subject to any directions of the Tribunal as to by when the relevant fee must be paid.
The conclusion reached in Braganza was that non-compliance with s 347(1)(c) does not have the consequence that the Tribunal lacks jurisdiction if the applicant has applied for a fee waiver, being something which the statutory scheme contemplated might occur. If no such application had been made, and the prescribed fee was not paid in the prescribed time, the consequence of non-compliance was that the Tribunal lacked jurisdiction.
The present position is that an applicant can apply for a 50% fee waiver or remission. A number of decisions of this Court and the Circuit Court / Circuit and Family Court have held, or observed in obiter, by reference to Braganza that - where an application for a 50% fee waiver has been made - payment of 50% of the prescribed fee within the prescribed period is a necessary precondition to jurisdiction: Fairy v Minister for Immigration (No 2) [2017] FCCA 3095 at [4]; Tsimperlenios v Minister for Immigration [2018] FCCA 229; 329 FLR 70 at [71]; Grey v Minister for Immigration [2018] FCCA 1564; Message v Minister for Home Affairs [2018] FCCA 2132 at [22], [25]; Fairy v Minister for Immigration [2018] FCA 729 at [5], [11] (Moshinsky J); Jahangir v Minister for Immigration and Border Protection [2019] FCA 245 at [6], [8], [16] (Allsop CJ); Hanna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 151 at [8] to [10]; Hanna v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 604 (Cheeseman J). It follows from this line of authority that, if no application for fee waiver has been made within the prescribed time, or if 50% of the prescribed fee has not been paid within the prescribed time, the consequence is that the Tribunal lacks jurisdiction.
What Braganza decides is that non-compliance with s 347(1)(c) does not always result in invalidity. That is because the statute itself contemplates that an applicant might seek relief from compliance with the condition to pay the fee within the prescribed time. It is perhaps not common to find a condition non-compliance with which results in a failure to engage jurisdiction except in certain circumstances. However, ultimately the point of statutory construction is to give effect to what it should be presumed the legislature intended. The view of the Full Court in Braganza was that non-compliance would result in a lack of jurisdiction on the part of the Tribunal, except in the confined circumstance that an applicant had applied for a waiver of fees within the prescribed period. Given the fact that the legislature contemplated the availability of such fee relief, the Full Court's view was open. So too is the view, expressed or implicit in the various decisions just referred to, that - where an applicant has applied for a 50% waiver within the prescribed period which remains undetermined and paid 50% of the prescribed fee - the Tribunal's jurisdiction is engaged or, to put it in terms of non-compliance: non-compliance with the condition of paying the prescribed fee does not result in the Tribunal's jurisdiction not being enlivened if 50% of the prescribed fee is paid within the prescribed period and the applicant has applied for a 50% fee waiver which remains undetermined.
Section 504(1) of the Migration Act and the associated regulations permitting a 50% fee waiver or remission do not require the conclusion that a Tribunal has jurisdiction, or the power to review or otherwise deal with an application for review, where there has been non-compliance with s 347(1)(c). It is not necessary to decide what the position would have been if the appellant had paid 50% of the fee within the prescribed period, however - on the authorities identified above - the Tribunal would have had jurisdiction.

Section 2A of the AAT Act

Finally, the appellant referred to s 2A of the AAT Act, a provision referred to by the High Court in Miller at [38]. It provides: 2A Tribunal's objective In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decisions - making of the Tribunal.
The appellant noted that the AAT Act and the Migration Act form an overlapping scheme for review of Part 5 migration decisions. Referring to s 15AA of the Acts Interpretation Act 1901 (Cth), the appellant submitted that it best gives effect to s 2A of the AAT Act to read the obligation in s 347(1) of the Migration Act to pay the prescribed fee in the prescribed time as inessential to the Tribunal's jurisdiction.
No significant assistance is gained from s 2A of the AAT Act in the present context. As has been mentioned, the objects of a statute are almost never all one way. Section 2A provides that "in carrying out its function, the Tribunal must pursue the objective of providing a mechanism of review" that has the attributes indicated. Section 2A identifies objectives of the Tribunal expressed at a level of generality. Section 2A is relevant to construing other provisions of the AAT Act and acts conferring jurisdiction on the Tribunal. However, there is nothing unusual in specific provisions having an object of defining limits or conditions on other rights created by the statute. It is plain enough from an examination of the various statutory rights of review created by the Migration Act that the legislature has conditioned the rights of review by reference to often strict limits, particularly as to time. Strict limits of various kinds (including as to the time for making an application) might be capable of being characterised, to adopt the language of s 2A of the AAT Act, as not being "fair" or as not giving rise to an "informal" procedure or as resulting in the Tribunal not being "accessible". However, the object of a specific provision may well be in tension with, or be intended to set limits around, the objects of another provision, particularly a provision expressing general objectives. It is the object of the specific provision, having regard to its terms in context (that context here including s 2A of the AAT Act), which is critical.

CONCLUSION

The appeal must be dismissed. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Thawley, Rofe and Kennett.

Tribunals Amalgamation Act 2015(Cth)

Migration Legislation Amendment Act 1989(Cth)

Migration Reform Act 1992(Cth)

Migration Act 1958(Cth)ss 347, 348, 349, 363, 476, 504

Administrative Appeals Tribunal Act 1975(Cth)ss 2A, 24Z, 25, 29, 42, 69C

Migration Regulations 1994(Cth)reg 4.10, 4.13

ffairs [2018] FCCA 2132 Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 98 ALJR 623 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Tsimperlenios v Minister for Immigration [2018] FCCA 229; 329 FLR 70

At a glance

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