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[2000] FCA 808
Federal Court of Australia
2000-07-05
Hill J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, Mr Braganza, applies to the Court for judicial review of three decisions, namely the decision of the first respondent made on 14 October 1999 refusing to waive the fee otherwise required to be paid on an application for review by the Migration Review Tribunal ("the Tribunal"), a decision of the Deputy Registrar made on 25 October 1999 confirming the earlier decision following a request to reconsider it and a decision made on or around 29 October 1999 by the Tribunal refusing to proceed with an application by Mr Braganza for a review by the Tribunal of a decision made on 20 September 1999 by a delegate of the third respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant to him a permanent visa Class AO Family (Residence). The applicant relies alternatively on either the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). 2 It is not in dispute that the Court has jurisdiction to review the three decisions, assuming at least in respect of the third that there was a decision. It is also common ground that under the ADJR Act or the Judiciary Act the Court, if a ground of review were made out, could set aside the decision or decisions refusing to waive the relevant fee and ultimately, if on reconsideration the fee were waived, make an order in the nature of mandamus requiring the Tribunal to proceed with a review of the decision of the delegate of the Minister. For reasons which will become apparent, it is unnecessary to note the relevant statutory ground under the ADJR Act which Mr Braganza might invoke, particularly as some of the grounds stipulated in s 5(1) of the ADJR Act overlap. 3 The applicant is a citizen of India. He arrived lawfully in Australia and on 5 November 1998 applied for a visa class AO Family (Residence) subclass 806. He claimed to be a special need relative in relation to his sister Mrs Jeanne Fernandes who is an Australian permanent resident and who had been the nominator for the purposes of the application. The applicable criteria for subclass 806 read, at the relevant time, as follows: "At the time of application the applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who: (a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa." 4 Regulation 1.03 defined "settled" in relation relevantly to an Australian permanent resident to mean "lawfully resident in Australia for a reasonable period". 5 The application was refused by a delegate of the Minister. In so doing the delegate took the view that Mr Braganza's sister had only been a lawful resident in Australia since 9 February 1998, that is to say she had been a resident for only nine months before the application was made. He determined by reference to a departmental policy, which nominated a period of at least two years to be a reasonable period, that residence in Australia for nine months did not qualify the sister to be a "settled" Australian permanent resident. 6 Mr Braganza received notification of the delegate's decision on or about 27 September 1999. The letter, which accompanied the decision, was dated 20 September 1999. 7 After receiving the decision, Mr Braganza made enquiries of employees of the Tribunal as to how he should go about applying to have the decision reviewed. He was sent an application form to complete in relation to the review and a form to complete should he wish to seek waiver of the fee required to be paid in connection with an application to the Tribunal for review. He completed both forms, that is to say the application to the Tribunal for review and the application to the Deputy Registrar of the Tribunal for waiver of the required fee and forwarded them by Express Post to the Tribunal on 7 October 1999. The records of the Tribunal show a receipt on 11 October 1999. 8 The application for fee waiver, a printed form, contains the following information on its first page: "The fee for making an application for review to the Migration Review Tribunal may be waived if payment of the fee would cause the review applicant severe financial hardship. A fee waiver may be requested when making an application for review, or a refund of the application fee may be sought at a later date. It is important to note that an application for review is not valid unless the fee has been paid within the relevant time limit or payment of the fee has been waived. It is strongly recommended that requests for fee waivers be made well before the time limit for lodging an application for review expires. If the end of the time limit is approaching, it is strongly recommended that consideration be given to paying the fee. A decision on a fee waiver can be made after the time limit expires and any fee paid can be refunded. However, an application for review will not be valid where a fee waiver is not granted and the fee was not paid within the time limit." [the emphasis shown appears on the form] 9 As completed, the form disclosed that Mr Braganza had virtually no assets, no income other than a nursing care benefit carer's allowance of $75.00 that was paid to him fortnightly and living expenses per fortnight of $479. Mr Braganza stated that he had exhausted and used up his earnings and savings which he had brought with him from New Zealand and expressed this to be the reason why the application fee should be waived. 10 On 14 October 1999, in a letter on behalf of the Deputy Registrar addressed to Mr Braganza, the application for waiver of the application fee of $1400 was rejected. So far as is relevant the letter read as follows: "After carefully considering all available information, including the information you provided in support of your request, I am of the opinion that payment of the fee will not cause you severe financial hardship. The reasons for my decision are as follows: · You seek to remain in Australia as the "special need relative" of your sister, Ms Jeanne Fernandes. It is therefore reasonable to consider her financial situation in relation to your fee waiver request. From the information you have provided, it appears that your nominator, Mrs Fernandes, could assist you with the review fee. · Ms Fernandes and her spouse are currently in paid employment. In August 1999, they had $6300.80 in a cash management account and $8001.67 in a fixed term deposit. At the end of September 1999, Ms Fernandes also had $5589.41 in a savings account. Accordingly, for your application for review to proceed you must now pay the $1,400 application for review fee before the time limit expires. If you fail to pay the fee within the time limit, your application for review will not be valid. The fee can be paid by cash, cheque or money order at the New South Wales office of the Tribunal." 11 Mr Braganza received the letter bearing the date 14 October 1999 on 18 October. He had rung the Tribunal on a number of occasions seeking information concerning the progress of his application. On receiving the decision Mr Braganza again rang the Tribunal and spoke to an officer there, a Ms Green. According to Mr Braganza Ms Green said to him: "Don't worry, you still have one week from today" to pay the fee of $1400. She also told him that he should ask for the decision to be reconsidered and an extension of time to pay the fee. In the same conversation Mr Braganza also spoke to another officer although it is not clear what that other officer said. 12 Mr Braganza adopted Ms Green's suggestion and sent a facsimile letter to the Tribunal on 19 October 1999. In a conversation after the facsimile had been received, Ms Green advised him that it had been difficult to read the facsimile and that he should send another letter. Mr Braganza complied with that suggestion. 13 Mr Braganza's sister apparently then agreed to pay the relevant fee and, according to Mr Braganza, on 20 October 1999 sent a facsimile to the Tribunal supporting the application for waiver and indicating that, whilst she and her husband did have money in a bank, it was there so that a loan could be arranged for them to buy a home. Mrs Fernandes set out in that letter details of her financial situation. 14 There were further telephone calls when Mr Braganza's sister's cheque had not been received. Finally, Mr Braganza took a cheque for $1400 to the Tribunal on 26 October 1999 and received a receipt for it on that day. 15 On 25 October 1999 a letter was sent to Mr Braganza on behalf of the Deputy Registrar advising that the fee would not be waived on the grounds that the Tribunal was not satisfied that payment would cause or would be likely to cause severe financial hardship. The Deputy Registrar set out her reasons as follows: "You have applied to remain in Australia as a special need relative of your sister Ms Jeanne Fernandes, in order to look after your mother. Your sister states that she is also assisting to support you. As such it is reasonable to consider the financial situation of Ms Fernandes and her family in relation to your fee waiver application. Documents produced to support your application for residence include a statutory declaration by Ms Fernandes which states that she and her spouse are working; they own a car and household goods; they have shares and bank accounts; strong family ties with other relatives in Australia; and were saving for a house purchase. Other evidence included a statement from Colonial State Bank and NRMA showing significant deposits. Whilst these deposits are apparently to be used for a house purchase, as well as you and your mother's residency deposits and medical insurance fees, it is the case that Ms Fernandes has assets and savings. The financial circumstances of you and your sponsor indicate that payment of the $1,400 application for review fee would not cause, or is likely to cause, severe financial hardship to you. A related issue is whether it is legally possible to make a decision to waive the fee after the time limit has expired. However, in light of the considerations above I have not gone on to address this issue." 16 The Deputy Registrar added that the time for making a valid application to the Tribunal had expired and as no fee had been paid the application for review was invalid. This view was confirmed by a letter from the Tribunal dated 29 October 1999 in which Mr Braganza was advised that the Tribunal could not accept the application for review and in consequence it was an ineligible application. The fee of $1400 was therefore to be refunded. 17 At the hearing before me Mr Braganza was represented by Ms Salsone acting pro bono. The Court wishes to acknowledge the care spent by Ms Salsone in preparing detailed and thorough submissions in writing and for the time given in making submissions orally to the Court so as to put to the Court everything that might be said on behalf of Mr Braganza in relation to his application. The work of the Court and the interests of justice are respectively made more manageable and enhanced by those who are prepared in the interests of the community to assist those who are unable otherwise to obtain legal representation. 18 Three matters arise for decision from the submissions put on Mr Braganza's behalf. These are: 1. Whether, in the event that the decision to waive the relevant fee is not set aside, the failure in the present circumstances of Mr Braganza to pay or to have paid on his behalf the relevant fee within 21 days of the receipt by him of the decision refusing his application for the permanent special need visa led to the conclusion that the Tribunal was obliged not to review the decision having regard to the terms of s 348 of the Migration Act 1958 (Cth) ("the Act"). 2. Whether, as was submitted on Mr Braganza's behalf, events surrounding the lodging of the application for review and fee waiver, as I have set them out, resulted in the respondents or some of them being estopped from refusing to accept the application for review and fee payment. 3. Whether, in considering his application for waiver of the relevant fee, the Deputy Registrar took into account an irrelevant consideration, namely the financial situation of the applicant's sister and her spouse. 19 I shall now deal with each of these matters.
Whether s 348 of the Act applied 20 Section 347 of the Act provides that an application for review of a MRT-reviewable decision (and the decision to refuse him a visa is such a decision) is to be made in the approved form, to be given to the Tribunal within the prescribed period and to be accompanied by the prescribed fee (if any). For relevant purposes the prescribed period is 21 days after the decision has been notified. That 21 day period expired on 18 October 1999. 21 Section 348 of the Act then provides as follows: "(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339." 22 The present is not a case to which s 339 would apply. In Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, Lehane J considered the case of an applicant who applied for review of a decision to refuse his visa application and forwarded with the application a cheque for the required fee drawn on the trust account of his solicitor. The cheque, however, was dishonoured. On being informed of this, the solicitor forwarded a new cheque which was received by the Tribunal outside the relevant timeframe. 23 His Honour held that the requirement that both the application for review be received and the prescribed fee be received within the relevant prescribed time, which in that case was 28 days of notification of the original decision, was mandatory. His Honour further held, although this holding is irrelevant to the present case, that when the Act refers to payment of the prescribed fee it refers to a valid payment of that fee so that a dishonoured cheque did not constitute payment for this purpose. 24 In reaching the conclusion that the time limits for lodging applications and payment of the relevant fees were mandatory, Lehane J followed the decision of Mansfield J in Tabet v Minister for Immigration of Multicultural Affairs (1997) 75 FCR 446. That case held that any review by the Tribunal pursuant to an application lodged outside the prescribed period was incompetent and that the time limits stipulated were mandatory. The case was not, as such, concerned with the situation where the application itself was lodged in time but where it was not accompanied by payment of the prescribed fee, that prescribed fee not being paid until the time in which payment was required to be made had expired. 25 It was submitted by counsel on behalf of Mr Braganza that Kirk should be distinguished on its facts. It was conceded that the time limit in s 347 was mandatory in respect of an application which was to be accompanied by a fee but did not apply where an application was lodged together with an application to have the relevant fee waived. This was said to arise by necessary implication including, presumably, the implication arising from the fact that an application for waiver of fee might not be considered within the time stipulated for lodging an application. The power to extend time should, it was submitted, exist to extend the relevant time for payment of the fee in such a case until a reasonable time expired after the applicant was notified that the application for waiver of the fee had been determined adversely to the applicant. 26 There is a problem in the present case even if this submission was able to be accepted in that, as has already been noted, the decision refusing to waive payment of the fee was actually notified to Mr Braganza by letter dated 14 October 1999 received by Mr Braganza, according to his evidence, on 18 October 1999, the day the relevant time limit expired. The letter in fact advised Mr Braganza that it was necessary that he ensure that the fee be paid within the prescribed period or otherwise his right to apply for a review would be lost. There perhaps may have been time for him to make the payment on that day had he been aware of the relevant time periods. I am prepared to accept however that he was not and, for that matter also, that no time was available for him to make the payment. 27 The problem with the submission is that the language of ss 347 and 348 does not accommodate it. Section 347(1)(c) makes it clear that the application is to "be accompanied by the prescribed fee (if any)". The words "if any" cover, in my view, the class of case where no fee is prescribed at all. They are not, in my view, intended to cover the class of case where an application for fee waiver has been made but rejected. It may well be the case, and indeed I think it is, that once a fee has been waived the requirement that the application be accompanied by a fee is inapplicable. But that is not the present case. 28 The legislation contemplates that, whether or not an application for waiver of a fee is made, the fee has to be paid within the prescribed time. If an application to waive the fee is made, reg 13(4) of the Migration Regulations 1994 provides that any fee paid in connection with the application for review is to be refunded where the waiver is granted. Thus reg 4.13 recognises the intention manifest in the mandatory language of the Act that, should a prescribed fee be payable (and that will be the case where an application for waiver has been rejected), payment must be made within the prescribed time. Failure so to do brings about the result that the Tribunal lacks jurisdiction to entertain a review.
Estoppel 29 The role which estoppel may play in administrative law is discussed in some detail by Gummow J, when a member of this Court, in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. There is some difficulty in seeing how the doctrine of estoppel might be raised in such a way as to overcome mandatory time limits in a statute such as the present. It is difficult to see, where Parliament has required by the imposition of mandatory time limits the lodging of an application within a particular time, that any act, representation or thing done by an employee of the Minister or Tribunal could operate as an estoppel against the Act itself. For present purposes, however, I am prepared to assume that in an appropriate case any estoppel could operate to bring about the conclusion that in some way payment of a fee outside the relevant mandatory period could be treated as having been in time or such as to give the Tribunal jurisdiction. 30 For there to be an estoppel there would necessarily have to be some representation, be it of fact or of law, and be it in relation to the present or the future, made by or on behalf of the person against whom the estoppel is said to apply and relied upon by the applicant in circumstances where detriment was suffered: see generally the judgment of Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. Here the circumstances said to give rise to an estoppel are said to be, or to include, the fact that Mr Braganza had done everything he possibly could to ensure the fee was paid within the required time, that he was led to believe that even if it was not waived he had until 26 October 1999 to pay it and that in accordance with the advice given to him he did pay the fee on that day. It was also said that he was not advised about the fee waiver decision until the very day that the prescribed period elapsed so that it would be procedurally unfair for the Tribunal to reject his application for review. 31 The evidence in my view does not found any estoppel. There is nothing in the evidence that suggests any reliance by Mr Braganza on any statement or conduct by or on behalf of any of the respondents. Indeed it would be difficult to imagine that there could be an estoppel in circumstances where the application for fee waiver which was completed by Mr Braganza made it abundantly clear that the fee had to be paid within the relevant time. The document urges an applicant for fee waiver to give consideration to paying the fee because as the document makes clear an application for review would not be valid should the fee waiver not be granted and the fee not paid within the time limited for payment. 32 There is some suggestion that Mr Braganza was in fact told that the relevant time was 28 days from the date of the decision refusing his visa application. That is quite likely so, given that the regulations deemed service of the notice refusing the application for a visa to be effective 7 days after the date of the letter. The regulation so providing (reg 5.03) was subsequently held to be invalid in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377. But if the 28 days are taken to run from the date of the letter, the period still expires on 18 October 1999 and the fee was not paid by Mr Braganza or on his behalf until some time later than that date. 33 In my view the facts of the present case could not give rise to any estoppel.
The fee waiver application - was there an irrelevant consideration? 34 It is submitted on behalf of Mr Braganza that the financial situation of his sister and her family constituted an irrelevant consideration so that in so doing the Deputy Registrar erred in taking it into account in deciding the fee waiver application adversely to him. 35 The power to waive found in reg 4.13(4) depends upon the decision-maker being satisfied that the payment of the fee would cause, or be likely to cause, severe financial hardship. It is said that the question is thus confined to the financial means and situation of the applicant, not to the financial means and situation of the applicant's sister and her spouse, notwithstanding that the sister is the relevant nominator. 36 In my view the means of the applicant's sister or her spouse were not in the circumstances of the present case an irrelevant consideration. Mr Braganza's application for a visa was based upon his assisting his sister to look after their mother. Given that the sister was likely to obtain an advantage should the visa be granted, it does not seem to me to be irrelevant to consider whether it was likely that the fee would be paid by the sister and in circumstances where the payment would thus cause no financial hardship at all to the applicant. It may be noted that this indeed is what ultimately happened. Although the means of the applicant's sister and spouse were not the primary matters of consideration, they did in my view bear upon the question which the Tribunal was called upon to consider, namely the impact of payment of the fee upon Mr Braganza. They could not be said to be irrelevant. 37 For these reasons I am of the view that the Deputy Registrar did not take into account an irrelevant consideration in making the decision she did. It follows that it is not necessary to consider whether, once a decision has been made, an application for reconsideration of the decision is then lodged and a further decision made, that further decision may be subject to review under the ADJR Act on the basis that it too is a decision under an enactment. In coming to each of the two decisions it made refusing to waive the prescribed fee, the Deputy Registrar took the same matter into account. In my view neither decision is infected with error and I would accordingly refuse to set either of them aside. It follows that the application must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Solicitor for the Respondent: Australian Government Solicitor
Braganza
Deputy Registrar, Migration Review Tribunal