El Mourani v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is a purported appeal from an order made by the Federal Magistrates Court. On 18 December 2009, that Court made an order dismissing the applicant's application for judicial review in relation to a decision of the Migration Review Tribunal ("the Tribunal") (El Mourani v Minister for Immigration & Citizenship [2009] FMCA 1268). The Tribunal had decided that it did not have jurisdiction to review a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant a Child (Residence) (Class BT) visa to the applicant under s 65 of the Migration Act 1958 (Cth) ("the Act"). 2 The basis of the Tribunal's decision that it did not have jurisdiction was that the applicant's application for review was not accompanied by the prescribed fee as required by s 347(1)(c) of the Act, nor had payment of the fee been waived under reg 4.13(4) of the Migration Regulations 1994 (Cth) ("the Regulations"). 3 The applicant's application for judicial review in the Federal Magistrates Court contained three grounds. They were first, that the Tribunal failed to justify its decision; secondly, that the Tribunal misunderstood the financial hardship; and, thirdly, that the Tribunal ignored the evidence on the file. The first respondent opposed the application for an order to show cause on the ground that the applicant had not raised an arguable case for the relief claimed: r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the Rules"). The application was listed for hearing before a federal magistrate under r 44.12. The federal magistrate held that none of the grounds were arguable and he dismissed the application for judicial review. 4 In this Court, the first respondent has filed a notice of objection to the competency of the purported appeal. He objects to the jurisdiction of the Court to try this proceeding on the basis that: 1. The appellant purports to appeal from an interlocutory judgment of the Federal Magistrates Court, which dismissed his application to that Court pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 2. Pursuant to section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), no appeal lies to the Federal Court of Australia from an interlocutory judgment, unless the Court or a judge gives leave to appeal. 3. The appellant has not sought or obtained leave to appeal. 5 Rule 44.12(2) of the Rules provides that a dismissal under paragraph 1(a) is interlocutory. Section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment referred to in subs (1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal. 6 It seems clear that the applicant does not have a right of appeal and that he requires leave to appeal. He asks this Court to treat his "appeal" as an application for leave to appeal and the first respondent does not object to this course. I think that it is appropriate to proceed in this way. 7 The test for the grant of leave to appeal is well known (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). In this case, the decision of the federal magistrate is not attended with sufficient doubt to warrant a grant of leave to appeal. 8 The circumstances surrounding the applicant's application for a Child (Residence) (Class BT) visa are set out in the federal magistrate's reasons: The applicant, who is a citizen of Lebanon, applied to the Department of Immigration on 21 January 2008 for a Child (Residence) (Class BT) visa as the dependent child of Wadih Mourani. A delegate of the Minister refused that application because it [sic] found that the applicant was not under 25 years of age at the time he lodged his application, and he had not provided evidence that he was incapacitated for work. Therefore, it [sic] found that he did not meet the visa criteria under cl. 802.212 of the Migration Regulations 1994 (Cth) ("the Regulations"). 9 On 20 February 2009, the applicant applied to the Tribunal for review of the delegate's decision. He also applied for a waiver of the prescribed fee under reg 4.13(4) of the Regulations. That sub-regulation gives the Registrar or Deputy Registrar of the Tribunal, or another officer of the Tribunal authorised by the Registrar, power to waive payment of the prescribed fee if he or she is satisfied that payment of the fee "has caused, or is likely to cause, severe financial hardship to the review applicant". The application for waiver of the fee was refused. That decision was reconsidered on two further occasions and, on each occasion, it was decided to refuse the application. 10 The applicant's case was then referred to a Tribunal member for decision. The Tribunal member held that the applicant's application to the Tribunal had not been properly made under s 347 of the Act, in that he had not complied with s 347(1)(c). 11 The federal magistrate did not consider that any of the grounds of judicial review were arguable. He said: A fair reading of the Tribunal's decision clearly shows that the various authorised officers considered all material submitted by the applicant in support of the fee waiver. Each of these applications in turn were rejected because the Tribunal member was not satisfied that the payment of the fee would cause the applicant or was likely to cause the applicant severe financial hardship. The details of this process which are set out above clearly indicate that the file was fully considered throughout this time. In the circumstances it would not be appropriate to proceed to a hearing because, in my view, there is no arguable case that would overcome the discrete finding that the Tribunal did not have jurisdiction to determine the application. Accordingly, I will make an order pursuant to r 44.12(i)(a) of the rules and dismiss the application that was filed on 14 August 2009. 12 The applicant's proposed notice of appeal contains two grounds and they are as follows: 1. His Honour Lloyd-Jones failed to consider the important information filed in Court on 6 October 2009. 2. The Migration Review Tribunal ("the Tribunal") overlooked the financial hardship and misunderstood as well as misapplied the waiver fee. 13 The "important information" referred to in the first ground is an affidavit affirmed by the applicant on 1 October 2009 and filed in the Federal Magistrates Court on 6 October 2009. The affidavit establishes that the Tribunal waived the prescribed fee in April 2006 when the applicant applied for review of a decision refusing him a bridging visa. The affidavit was filed without leave and after the hearing of the application for judicial review on 1 October 2009. There is nothing in the federal magistrate's reasons to indicate whether he had regard to it and, for present purposes, I will proceed on the assumption that he did not have regard to it. 14 The federal magistrate did not err in not having regard to the affidavit. It was filed after the hearing and without leave. It seems to me that it would not, in any event, be admissible because the affidavit is not relevant to any ground upon which the Tribunal's decision could be attacked on an application for judicial review. 15 Even if I am wrong, and the affidavit was admissible, it does not advance the applicant's case. The decision of the Tribunal was that it did not have jurisdiction to review the delegate's decision. The decisions of the Tribunal's authorised officers were that payment of the prescribed fee not be waived. It is clear, I think, that the applicant's real complaint is about the decisions of the Tribunal's officers. The only point of substance he raises about those decisions is that they are in some way inconsistent with the decision to waive the fee in April 2006. Assuming for present purposes only that the decision to waive or not waive the fee may be examined on an application for judicial review, there is simply no basis for the applicant's challenge. The documents make it plain that the Tribunal officers were aware of the previous decision, but considered that it was the applicant's current financial position which was relevant. There is no error in that approach. 16 The federal magistrate found that the application for the waiver of the fee was properly processed and considered by the relevant Tribunal officers. I see no reason to disagree with that conclusion. 17 The decision of the federal magistrate was correct and therefore it is not attended with sufficient doubt to warrant a grant of leave to appeal. 18 In my opinion, the application for leave to appeal should be refused. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.