Jahangir v Minister for Immigration and Border Protection

1. Pursuant to r 36.75 of the Federal Court Rules 2011 (Cth), the appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal against orders made by a judge of the Federal Circuit Court of Australia on 22 June 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. 2 The appellant applied for a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 6 February 2017, a delegate of the Minister refused to grant the appellant this visa. 3 On 22 June 2017, the Tribunal came to the conclusion that it did not have jurisdiction under the Act to review the delegate's decision. The Tribunal's jurisdiction to hear these reviews is entirely statutory. The basis of the Tribunal's decision was not an exercise of discretion. Under the provisions of the relevant legislation and the strict time period set by those provisions, there is no such discretion. 4 It is useful, at this point, to set out the relevant legislative provisions. Under s 347(1) of the Act, the application for review had to be given to the Tribunal within the prescribed period: (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 … (c) be accompanied by the prescribed fee (if any). 5 The application also would need to be accompanied by the relevant prescribed fee unless a determination was made reducing the fee by 50% on the basis of financial hardship under r 4.13(4) of the Migration Regulations 1994 (Cth): (4) If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1). 6 The Tribunal found that the prescribed fee needed to be paid by the end of the prescribed period, or if a determination of a fee reduction was made within a reasonable period after that determination. In this respect, the authorities are clear and extend as far back as a decision of Lehane J in 1998 in Kirk v The Minister [1998] FCA 1174; 87 FCR 99 and Braganza v The Minister [2001] FCA 318; 109 FCR 364. 7 Section 348(1) of the Act provides that: …if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision. 8 At the relevant time, the prescribed fee was $1,673. The legislative regime did not allow the appellant to seek that the fee be waived. He would have to pay a minimum of $836.50 if the fee were to be reduced by 50%. 9 The Tribunal found that the prescribed period in this case ended on 27 February 2017, and on that date, the appellant filed the application for review and a request for a fee reduction. The appellant was advised on that day that he must pay 50% of the application fee by the end of the day in order for his application to be valid. He did not do so. By 29 March 2017, well outside any possible period the application to be filed, there had still been no payment. The Tribunal wrote to the appellant to advise him that, as the fee had not been paid at any relevant time, the application appeared to be invalid and invited him to provide comments by 12 April 2017. The appellant telephoned the Tribunal on 30 March to advise that he intended to provide comments and that he had borrowed money for the fee. On 3 April 2017 he emailed to ask to be permitted to pay the fee in two instalments and asked the Tribunal to "let me know". 10 At the time of the Tribunal's decision in June 2017 the fee remained unpaid and no further correspondence had been received. The Tribunal considered that by that time the appellant had been given a reasonable period of time within which to pay the fee, thus the Tribunal determined the application was not valid and that it did not have jurisdiction. 11 The applicant appealed to the Federal Circuit of Australia. The primary judge dismissed the application. 12 In the proceedings before this Court the appellant put forward two grounds of appeal: (1) The Hon. Judge erred in accepting the Tribunal's view that the appellant did not meet the criteria of medical visa. (2) The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 13 The appellant's written submissions were due on 15 November 2018. On 16 November 2018 my Associate arranged for an email to be sent to the parties reminding the appellant to file overdue submissions. No written submissions were filed by the appellant, nor have they been. 14 The matter was originally listed for hearing on 29 November 2018. In light of the judgments of Greenwood J in Brown v Minister for Home Affairs [2018] FCA 1643 and the then-pending Full Court on 30 November 2018 in Beni v Minister for Immigration and Border Protection, I adjourned the matter to today. 15 In the Brown case, Greenwood J held that s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) applied to an application for review of a Part 5-reviewable decision specifically in respect of conferring the Tribunal with the power to extend the time for the making of an application to the Tribunal for review. This was such that if the Tribunal did not consider exercising or understanding that it held this power it failed to exercise the jurisdiction conferred on it. 16 Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 was handed down on 14 December 2018. The Full Court unanimously held that Brown was wrongly decided. In particular, see [55]-[84] of the Beni decision. Unless the statutory preconditions of the exercise of jurisdiction by the Tribunal are satisfied by the due date, the Tribunal has no jurisdiction. 17 Ground 1 of the grounds of appeal is that the primary judge erred in accepting the Tribunal's view that the appellant did not meet the criteria for the medical visa. 18 As recognised in the Minister's written submissions, this ground is misconceived. The Tribunal found that it had no jurisdiction, that is, no authority to deal with the merits of the review. It did not form a view that the appellant did not meet the criteria for a medical visa since it did not consider the criteria for a medical visa since it dismissed the application for review on the ground that it did not have jurisdiction given a failure of the appellant to make a valid application under the Act and Regulations. 19 Ground 2 of the notice of appeal contends that the primary judge dismissed the case without considering the legal and factual errors contained in the Tribunal's decision. 20 It is clear that the primary judge did engage with and address the material and arguments below. The proceedings in the Federal Circuit Court began with a show cause application lodged on 10 July 2017, although the primary judge dispensed with the need for a show cause hearing on 13 April and listed the matter for hearing on 22 June 2018. 21 The primary judge recognised that the issues in the case were somewhat novel and invited further submissions and issued a certificate for Mr Jahangir to receive pro bono assistance. That pro bono lawyer did provide some advice to the appellant but withdrew from the proceedings prior to the hearing in June. 22 There were three grounds of appeal in the Federal Circuit Court. First, that the Tribunal erred in assessing the application without allowing him to present his arguments. Implicit in this was a submission that the Tribunal was obliged to invite him to the hearing to address the issues. The primary judge found that the Tribunal was not so obliged, applying Edelman J's reasons in Benissa v Minister for Immigration [2016] FCA 76. In that case, Edelman J considered whether a person who had failed to pay the prescribed fee to the Tribunal was entitled to be invited to a hearing pursuant to s 360 of the Act. His Honour found that there was no such entitlement for a number of reasons. The first was the application of a case, SZEYK v Minister for Immigration [2008] FCA 1940, which Edelman J affirmed as "plainly right": [33]. The second was that "a decision under review" within the meaning of s 360(1) of the Act must import authority to review. This means that in order for the Tribunal to invite the appellant to a hearing, the Tribunal needs - as a pre-requisite - jurisdiction. Thirdly, the requirement in s 360 that the Tribunal invite the appellant to give evidence strongly indicates that the subsection is concerned only with circumstances where the Tribunal had jurisdiction to hear the matter. And, finally, the obligation upon the Tribunal under s 360 of the Act is in respect of evidence and arguments "relating to the issues arising in relation to the decision under review". Submissions as to whether the Tribunal has jurisdiction do not "relate to" the issues arising from the decision of the delegate. 23 Secondly, the appellant submitted that the Tribunal did not make any other attempt to contact him to attend the hearing and ought to have invited him to make comment. The primary judge also rejected this ground, finding that there was no obligation to invite the appellant to comment under the relevant legislation as it did not have a valid application before it. Under this ground, the primary judge also addressed the suggestion the appellant was denied procedural fairness. The primary judge held that he was not denied procedural fairness, that the appellant was invited to comment on the validity of the application, an opportunity he did not take up. This correspondence with the Tribunal after that invitation to comment involved a telephone call in which he advised that he intended to provide comments and an email asking to pay the fee in instalments. 24 Thirdly, the appellant submitted that the Tribunal erred by misinforming itself as to the true nature of the evidence and incorrectly dealing with the review application. How the Tribunal was misinformed, and what evidence was referred to, was not articulated, and the primary judge rejected this ground also. 25 The appellant also noted that at Federal Circuit Court hearing that he had only recently discovered that his friend, who was apparently meant to pay the 50% fee, had not done so. This was not explored further by the appellant, and, in any case, did not deal with the strict application of the legislative provisions. 26 There is no apparent error in the primary judge's consideration of the matter. There is no apparent error in the Tribunal's conclusion that it lacked jurisdiction to hear the review because of the failure to comply with the statutory and legislative preconditions of proper payment with an application. 27 The matter was called upon today and the appellant was not present. A telephone call was made to the telephone number provided by the appellant to the Department for communication purposes. That telephone call was made by my Associate assisted by an interpreter, Mr Sani.. After initially not being able to contact the appellant, the appellant spoke to Mr Sani and indicated to him that he was taking medication and he was not able to come today. 28 I propose to dismiss the appeal on the basis of r 36.75 of the Federal Court Rules 2011 (Cth) by reason of non-attendance of Mr Jahangir. Mr Jahangir will have a right to file an application to set aside orders made in his absence. For his benefit, I have set out in detail the history of the matter. The simple fact is that by reason of the authorities to which I've referred, unless the prescribed fee was paid on the day, the Tribunal had no jurisdiction. At no time was the prescribed fee or even the 50% ever paid. If Mr Jahangir seeks to have my orders dismissing the appeal set aside, he will have to address the fundamental problem he faces, that is, that his application to the Tribunal was defective. 29 For the reason that Mr Jahangir has not attended today, I dismiss the appeal with costs pursuant to r 36.75 of the Federal Court Rules. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.