Domany v Minister for Home Affairs

1. The application for an extension of time filed 22 March 2019 is dismissed.
2. The applicant is to pay the first respondent's costs of the application to be taxed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 Ms Kitti Domany, the applicant, has applied for an extension of the time set by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) so that she may file an appeal from a judgment of the Federal Circuit Court (see Domany v Minister for Immigration & Anor [2019] FCCA 860 (Domany)). In determining whether to exercise the discretion to grant such an extension, the Court will normally have regard to the length of any delay, the explanation offered for the delay, any prejudice that may be suffered by the respondent and the applicant's prospects of success in the proposed appeal if an extension were to be granted (see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at [19] per Perry, Derrington and Wheelahan JJ). 2 Ms Domany is a citizen of Hungary. On 25 May 2016, she applied for a Special Eligibility (Class CB) Former Resident (Subclass 151) visa. That application was refused by a delegate of the Minister on the ground that she did not satisfy cl 151.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). That clause relevantly required that the applicant be a "long residence applicant or a defence service applicant". The Minister's delegate found that she did not meet either of these criteria. Ms Domany was notified of that decision on 13 July 2016. 3 On 24 August 2016, Ms Domany filed an application with the Administrative Appeals Tribunal (the Tribunal) seeking a merits review of the delegate's decision. She was entitled to do this because the delegate's decision was a Part 5 reviewable decision. However, when she filed that application, she completed a form which provided credit card details authorising payment of the amount of "$0". This statement has proved to be fatal to the validity of Ms Domany's review application. 4 The Registrar of the Tribunal pointed this out in a letter to Ms Domany on 7 October 2016: I am of the view that your application is not a valid application as the application fee has not been paid and you did not pay the application fee before the expiry of the time for lodging the applications. 5 The requirement to file such an application within a set period and to pay the application fee within that period is contained in s 347(1) of the Migration Act 1958 (Cth). That section relevantly provides: (1) An application for review of a Part 5-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period, 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; … and (c) be accompanied by the prescribed fee (if any). 6 Under r 4.10 of the Regulations, the prescribed period in this matter was 21 days. Since Ms Domany was notified of the delegate's decision on 13 July 2016, that period expired on 3 August 2016. As is already mentioned above, Ms Domany filed her application three weeks after this date on 24 August 2016. 7 The prescribed fee is fixed by reg 4.13 of the Regulations. Regulation 4.13(4) permits the Registrar of the Tribunal to determine that 50% of that fee is payable where he or she is satisfied that "severe financial hardship" has been caused, or is likely to be caused, by the payment of the full fee. However, there is no provision in the Regulations that allows the Registrar to fix the prescribed fee at nil. 8 As Allsop CJ observed most recently in Jahangir v Minister for Immigration and Border Protection [2019] FCA 245, there are judgments of this Court dating back to 1998 which hold that "[u]nless the statutory preconditions of the exercise of jurisdiction by the Tribunal are satisfied by the due date, the Tribunal has no jurisdiction" (see at [6] and [16]). Unsurprisingly, the Tribunal came to this conclusion when it came to consider Ms Domany's application. So too did the Federal Circuit Court (see Domany at [12]). 9 The matters set out above demonstrate why both of those decisions are correct. That being so, Ms Domany cannot succeed in any appeal against the Federal Circuit Court judgment and it would be futile to grant an extension of time to allow that appeal to proceed. It is unnecessary to consider the other main factor that usually affects an application of this kind, namely a satisfactory explanation for the delay. Suffice it to say that, given the confusion that arose with respect to the filing fee Ms Domany was required to pay when filing her application for judicial review in the Federal Circuit Court, I consider that she has provided a satisfactory explanation for that delay. 10 For these reasons, the orders will be: