Appeal
17 At the commencement of the appeal, the Court raised with the parties the question of whether the appellant had made his application for review in the "approved form", given that the application which he completed did not identify that any fee was payable. As neither party had given any consideration to this question, the matter was stood down for a short period of time to enable the parties to give consideration to it. Upon the hearing of the appeal resuming, the Court was informed that in the time available, the parties had not been able to determine whether there was an "approved form" nor had a copy of the actual application for review submitted online by the appellant been located. Both counsel informed the Court that the Minister did not contend that the appellant had not lodged an application in the "approved form" and the only issue for determination was whether the Tribunal lacked jurisdiction by reason of the failure of the appellant to pay the prescribed fee on an application for review of a decision to cancel his visa within the prescribed time limit for submitting an application.
18 The starting point for consideration is Kirk. In that case, the applicant attached a cheque for the prescribed fee to his application for judicial review of the decision not to grant him a visa. The application was lodged within time but the cheque was dishonoured after the time limit for lodging the application had expired. Section 339(1) of the Act required an application for review to be "accompanied by a prescribed fee (if any)" and to be made within a prescribed period. Lehane J held that the requirements of s 339(1) were mandatory and required strict compliance, but construed the expression "accompanied by" to mean that the prescribed fee must be paid before the end of the period within which the application must be made. His Honour concluded that the Tribunal had no jurisdiction to review the application because the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee within the prescribed period for lodgement. In obiter, his Honour considered whether the power to waive the fee affected the mandatory requirements of s 399(1) and expressed the view that until a determination to waive the fee was made, the fee was payable so that it was necessary for an applicant to pay the fee within the prescribed period if a determination on the application for waiver was not made before the end of the prescribed period.
19 In Braganza, the Full Court considered the question whether the Migration Review Tribunal (as the Tribunal then was) had jurisdiction to hear and determine an application for review of a decision in the circumstance where an application for waiver was made within the prescribed period but not determined and the prescribed fee had not been paid. The Full Court held that it was sufficient that the applicant for review had applied for a waiver of the fee within the prescribed period. The Court reasoned at [51]:
The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.
The Court reached that conclusion "largely" because of the inclusion of the words "if any" in s 347(1)(c). The Court also considered that s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act, stating that the legislature was hardly likely to have introduced a provision which required an application for review of an MRT-reviewable decision "to be accompanied by the prescribed fee (if any)" in conjunction with a provision which authorised the making of regulations which allowed for the waiver of any such fee, without recognising that applicants who seek waiver may not be in a position to pay the fee, even on a refundable basis, within the prescribed period. The Court reasoned that the words "if any" in s 347(1)(c) allowed for a sensible interplay with s 504(1)(b) and the regulations made thereunder.
20 In Benissa v Minister for Immigration and Border Protection [2016] FCA 76, Edelman J applied Kirk and Braganza to hold that the Tribunal had no jurisdiction to hear an application for review where the applicant had requested a reduction in the prescribed application fee by reason of financial hardship, which was granted, but where the fee was not paid within a reasonable period. Edelman J referred to other authorities which had applied the decision in Kirk, with the qualification in Braganza, and concluded that the decisions in that line of authority were not plainly wrong.
21 In the present case, counsel for the appellant did not seek to argue that the decision in Kirk was plainly wrong. Rather, it was submitted that Braganza is authority that the phrase "accompanied by" has a flexible and elastic meaning. Reference was also made to Anand v Minister for Immigration (2013) 215 FCR 562; [2013] FCA 1050 ("Anand") as an illustration of the flexibility and elasticity of the phrase. In that case, Katzmann J held that the statutory requirement for an application to be "accompanied by evidence" of an Australian Federal Police check did not require the evidence to be submitted simultaneously with the visa application and evidence accompanying an application could be supplied after the application was lodged as long as there was some temporal connection with the application.
22 It was argued that in the present case where there was an unbroken sequence of events:
starting with a question on the online application form in fact misleading the appellant into entering the incorrect "kind" of visa onto the system, which the Tribunal, correctly, found to be an "understandable" error;
a failure of the Tribunal's online application system to identify the appellant's error in identifying the relevant visa as a "refugee visa";
the application system failing to alert the appellant that a fee was payable; and
a failure by the Tribunal Registry to identify the error -
in the circumstances of the appellant promptly proffering payment of the fee on notification that it was payable, the Court should find that the requirement that the application be "accompanied by" payment of the prescribed fee was satisfied.
23 These submissions cannot be accepted. Whilst it can be accepted that there is some elasticity in the meaning of the words "accompanied by", that elasticity is with respect to the payment of the fee before the expiration of the prescribed period. In other words, provided the fee is paid within the period by which an application must be made, the application is "accompanied by" payment of the prescribed fee. Anand does not advance the appellant's case because it concerned a different statutory provision which did not contain a temporal limit by which the relevant evidence must be furnished.
24 There is no reason to doubt the correctness of Kirk. The decision was not plainly wrong and should be applied.
25 The appeal is accordingly dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.