Waseem v Minster for Immigration and Citizenship [2025] FedCFamC2G 1953

1. At the hearing the first respondent raised a preliminary issue in its written submissions, namely, whether the application (in particular grounds 1, 2 and 3) took issue with the fee reduction decision dated 21 April 2022 which was made by a Registrar on behalf of a Registrar of the Tribunal under reg 4.13(4), as well as the Tribunal decision dated 10 August 2022.
2. The first respondent submitted that it appeared from the grounds of review the applicant is challenging the fee reduction refusal decision dated 21 April 2022 which was made a Registrar in the exercise of the Registrar's administrative function of the Tribunal under reg 4.13(4): see Tanto v Minister for Immigration & Anor [2013] FCCA 282, [26].
3. I accept this submission, however, for completeness and given the applicant is unrepresented, I have also considered below whether the Tribunal decision dated 10 August 2022, the no jurisdiction decision, was affected by jurisdictional error as well.
4. At the hearing Mr Johnson referred me to a decision of Judge Laing in Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619 (Purnama), and a decision of Moshinsky J in Fairy v Minister for Immigration and Border Protection [2018] FCA 729, where the same issue arose, and in those cases their Honours held that a challenge to fee reduction refusal decision was a challenge to a decision of the Officer of the Tribunal on behalf of the Registrar, not the Tribunal Member who made the final decision on the review. The first respondent also submitted, based on these decisions, that the role of Registrar was distinct from the role of Members of the Tribunal: see Division 2, of Part 2 of the AAT Act. I agree with that submission.
5. The first respondent also noted that s 24W of the Administrative Appeals Tribunal Act 1975 (Cth) (which was the relevant Act governing the Tribunal at the time of the review, despite that Act having since been repealed) provided that:

1. Mr Johnson also referred me to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24, where McHugh J said at [43]:

1. The issue before this Court is whether either of the decisions dated 21 April 2022 and/or 10 August 2022 are affected by jurisdictional error: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32] and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
2. As I explained to the parties at the hearing, the Court cannot consider the merits of the decision; nor can it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below I set out my consideration of the grounds of judicial review in this matter. I have considered each of the four grounds on the basis that they are seeking review of the Registrar's decision dated 21 April 2022, namely, the fee reduction refusal decision.
4. For the reasons given below, neither of the grounds identify jurisdictional error has been committed.

1. Ground 1 and 3 concern the same issue. In Ground 1 the applicant asserts that that he provided sufficient evidence to the Tribunal (or the Registrar) concerning the fee reduction refusal decision, and that the Tribunal acted contrary to the evidence provided. In Ground 3 the applicant alleges the decision of the Tribunal (or the Registrar) not to make a fee reduction was an error of law.
2. The applicant in his written submissions, submitted that his application for a fee reduction was not treated fairly or justly.
3. Mr Johnson submitted, that based on an analysis of the fee reduction refusal decision, it was open to the Tribunal in all of the circumstances to determine that payment of the fee would not cause the applicant, or be likely to cause the applicant, severe financial hardship. He referred to Purnama and Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46 (Addy) in support of his submission, which held there are limits as to the kinds of jurisdictional error that might arise in fee waiver type decisions.
4. In my view, on a fair reading of the 22 April 2022 decision, the Registrar considered all the evidence provided by the applicant when making the fee reduction refusal decision, including the evidence it requested itself on two occasions from the applicant himself (on 17 March 2022 and 7 April 2022).
5. Further, I consider the Registrar gave proper and genuine consideration to the evidence. In my view, a fair reading of the 22 April 2022 decision also demonstrates that the Registrar had an active intellectual engagement with the evidence provided by the applicant in support of his fee reduction application when making its decision to reject it: see Singh v Minister for Home Affairs [2019] FCAFC 3 per Reeves, O'Callaghan and Thawley JJ at [37]. As the first respondent submitted, in its decision dated 22 April 2022 the Registrar:

1. As to Ground 2, the applicant claims that the Tribunal denied him natural justice (or procedural fairness) in relation to his application for a fee reduction made to the Registrar.
2. The applicant made the following written submissions in relation to this ground:
   1. The Tribunal is required to act fairly, justly, and according to substantial justice under section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
   2. The Tribunal's refusal to accept my genuine financial hardship and failure to provide a reasonable alternative payment arrangement denied me a fair opportunity to have my case reviewed.
   3. Access to the Tribunal should not depend solely on financial ability, particularly when credible hardship evidence has been provided.
   4. By treating the fee requirement as absolute, the Tribunal failed to consider the discretion available under Regulation 4.13 of the Migration Regulations 1994 (Cth), which allows for fee reduction on grounds of financial hardship.
3. Mr Johnson submitted that the Tribunal's Division 5, Part 5 procedural fairness obligations (as they then were) did not operate in "no jurisdiction" decisions such as in the present case: see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (SZEYK) at [35]-[36] (Bennett J). It was submitted that despite this, the requirements of common law procedural fairness, as discussed in cases such as Kioa v West [1985] HCA 81; (1985) 159 CLR 550, may arise. It was submitted on this issue, the question before the Court on review whether the applicant was given an opportunity to deal with matters adverse to his interests that the decision-maker proposed to take into account in exercising their power: at [37]. I agree this is the issue in this ground of review.

(2003) 211 CLR 476

(2019) 264 CLR 421

(2022) 289 FCR 21

(2020) 280 FCR 46

(2005) 228 CLR 294

(1985) 159 CLR 550

(2024) 98 ALJR 610