FEDERAL COURT OF AUSTRALIA Nakul v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1230 MIGRATION – visas – appeal from decision of delegate without recourse to Migration Review Tribunal – whether decision reviewable – where decision is a "primary decision" under the Migration Act 1958 (Cth). MIGRATION – visas – appeal from decision of Migration Review Tribunal – review application ineligible for want of payment of prescribed fee – privative clause – application of Hickman principles – whether decision of Tribunal discloses an absence of good faith. Migration Act 1958 (Cth) Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (FC) Appl R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 Foll NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 Appl NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 Ref RAMAN NAKUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q118 OF 2002 COOPER J BRISBANE 7 OCTOBER 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q118 OF 2002 BETWEEN: RAMAN NAKUL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: COOPER J DATE OF ORDER: 7 OCTOBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q118 OF 2002 BETWEEN: RAMAN NAKUL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: COOPER J DATE: 7 OCTOBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant is a national of India. On 27 July 2000 he applied for an Extended Eligibility (Temporary) Visa (Class UK) and a Partner (Residence) Visa (Class BS) to be issued to him under the Migration Act 1958 (Cth) ("the Act"). The applications were refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 20 February 2002. 2 On 18 March 2002, the applicant applied to the Migration Review Tribunal ("the MRT") for review of the decision of the delegate. At the same time, he applied for waiver of the fee for an application for review pursuant to Regulation 4.13(4) of the Migration Regulations 1994. On 30 April 2002, the MRT refused to waive the $1,400 review fee and advised the applicant by letter of that date. The letter also advised him that for his application for review to proceed, he must pay the filing fee within a reasonable time or make alternative arrangements with the MRT. 3 The applicant did not pay the filing fee within a reasonable time or at all, and failed to make any alternative arrangements with the MRT as to the payment of the fee. 4 The MRT found that the applicant's application for review was ineligible for want of payment of the prescribed fee: s 347(1) of the Act. A letter dated 27 May 2002 was sent by the MRT advising the applicant that his application was ineligible. The letter erroneously stated that the review fee had been paid out of time and would be refunded. However, for the purposes of this application nothing turned on that error. 5 On 30 May 2002, the MRT received a letter from Rafik Sabdia and Associates, solicitors writing on behalf of the applicant, asking that his application for review be cancelled. 6 The applicant applied to this Court on 24 July 2002 for an order to review the decision of "DIMIA & MRT" and the conduct of "MRT" and "DIMIA". 7 The decisions which the applicant seeks to have reviewed in this Court are : (a) the decision of the delegate of the Minister of 20 February 2002 to refuse to grant his visa application; (b) the decision of the MRT of 27 May 2002 to treat his application for review as ineligible. 8 The applicant was not legally represented. He filed no affidavit material in support of his application, nor any outline of the submissions he wished to make. He appeared and argued his application and gave oral evidence in support of it. 9 The applicant denied knowledge of the letter of 27 May 2002 from the MRT advising him that his application had been determined to be ineligible, notwithstanding that it was found in his residential premises during a search by immigration officers on 17 July 2002. He also denied being a client of Rafik Sabdia and Associates and denied ever instructing those solicitors to write a letter on his behalf to the MRT 10 The applicant swore that he had sent to the MRT evidence of his bank details, bank statements, credit card accounts, pay slips and rent receipts, in support of his application for waiver of the review fee in the MRT, within days of receiving a request dated 5 April 2002 to provide such material. He admitted that he received a letter from the MRT dated 30 April 2002 advising him that his application for waiver of the fee had been refused because the MRT had no material to satisfy it that payment of the fee would cause him severe financial hardship. That letter also advised him to pay the fee within a reasonable time - fourteen days was indicated as being reasonable - or make alternative arrangements with the MRT. The applicant states that he rang the MRT upon receipt of the letter, spoke to a woman there advising her that he had provided the information requested. He stated that she said she would look into the matter and get back to him, however she did not do so. He stated that he made a further telephone call a week later and spoke to another woman to the same effect. She also said she would look into the matter and contact him about the outcome of her enquiries, but, says the applicant, she did not make any further contact with him. 11 The applicant said that the first time he became aware of the letter from the MRT of 27 May 2002 was when it was produced by an immigration officer during a search of his residence on 17 July 2002. He declined to specifically allege that the letter was placed in his residence by the immigration officers. He simply denied any knowledge as to how the letter came to be in his residence in an opened condition other than to suggest that one of his flatmates may have been responsible. 12 I deal firstly with the applicant's application to have reviewed the decision of the delegate of the Minister to refuse to grant him the visas he had applied for. 13 The decision made on 20 February 2002, to refuse to grant the applicant the visas sought, was a MRT-reviewable decision: s 338. The decision was also a decision of an administrative character made under the Act. Consequently it was a "privative clause decision" within the meaning of s 474(2). 14 A privative clause decision which is reviewable under Part 5 of the Act, as this decision was, is a "primary decision": s 476(6). This Court has no jurisdiction in relation to a primary decision: s 476(1). It follows that a primary decision cannot be reviewed in this Court unless the party seeking review first follows the processes for review in the MRT provided for in the Act. 15 The applicant's application in respect to the delegate's decision fails. 16 The method of making application for review by the MRT is provided for in s 347 of the Act. That section requires by subsection (1) that : (a) the application be in the approved form; and (b) be given to the MRT within the prescribed period; and (c) be accompanied by the prescribed fee (if any). 17 If an application is properly made under s 347 then, subject to a condition which is not presently relevant, the MRT must review the decision: s 348(1). 18 The fee prescribed by the Migration Regulations 1994 is $1,400: Reg 4.13(1). It may be waived: Reg 4.13(4). It is refunded if the decision under review is set aside or varied or the application is remitted to the primary decision-maker for reconsideration: Reg 4.14(1)(a), (b). 19 The requirement in s 347(1)(c), that the application be accompanied by the prescribed fee, is subject to a qualification that the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed period, provided that the fee is eventually waived or paid within a reasonable time after the application for waiver is rejected: Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (FC) at [51]. 20 The respondent submits that the applicant knew on or about 30 April 2002 that his application for waiver had been refused and that he did not thereafter pay the fee within a reasonable time or at all. On 27 May 2002, the fee not having been paid, the respondent submits that there was then no application properly made under s 347(1) and the MRT was entitled to determine, as it did, that the application was ineligible and that it was unable to consider the application further. The respondent submits that there is no error of law demonstrated in the decision of the MRT because the only jurisdiction it has to review a decision comes from s 347(1) and that section requires that each of paragraphs 1(a), 1(b) and 1(c) be satisfied. In any event, the respondent submits that the determination of the MRT is a "privative clause decision" within the meaning of s 474(2) of the Act and thus subject to s 474(1) of the Act. 21 A privative clause decision is defined in s 474(2) as follows : "(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." 22 Section 474(3) of the Act, so far as is presently relevant, provides : "(3) A reference in this section to a decision includes a reference to the following : (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; ... (g) doing or refusing to do any other act or thing; ... (j) a failure or refusal to make a decision." 23 A determination to refuse to review a MRT-reviewable decision because there is no application properly made under s 347(1) in my view falls within s 474 (3)(a), (g) or (j). It is thus a privative clause decision as defined. 24 Section 474(1) of the Act provides : "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 25 The apparent blanket prohibition from judicial review of privative clause decisions provided for in s 474(1) is subject to conditions identified by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615: see the decision of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [9], [10], [104], [281], [298], [499] - [500], [612]. Those conditions are that : (a) the decision is a bona fide attempt to exercise the power; (b) the decision relates to the subject matter of the legislation; (c) the decision is reasonably capable of reference to the power given to the decision-maker; (d) there has been compliance with any inviolable limitations or restraints imposed by the Act. (See NAAV at [17], [613], [619] - [620], [625]. 26 The decision of the MRT is to be considered by reference to whether these conditions are satisfied. If they have not been satisfied, s 474(1) will not save the decision from judicial review. 27 The decision of the MRT relates to the subject matter of the legislation, namely whether or not there is an application properly made for review of an MRT-reviewable decision under s 347(1) which the MRT must hear as provided for in s 348(1). The decision not to proceed further to review the decision of the delegate because of the failure to pay the prescribed fee, is reasonably capable of reference to the power of the MRT to review MRT-reviewable decision where an application for review is properly made under s 347(1). There are no inviolable limitations or restraints imposed by the Act which the MRT has failed to comply with. 28 The evidence of the applicant as to what occurred after receipt by him of the letter of 30 April 2002 advising him that his application for waiver of the fee had been rejected, even if I accepted it, which I do not, does not disclose bad faith on the part of the MRT in the sense of there being a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the MRT: see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] and the cases cited there. 29 I do not accept the evidence of the applicant that he provided the financial records sought by the MRT in its letter of 5 April 2002. Nor do I accept that he spoke with personnel of the MRT on not less than two occasions after receipt of the letter of 30 April 2002 advising that the material had been sent, offering to send further copies, and being told to do nothing until the MRT contacted him further. Nor do I accept that his failure to act on the letter of 30 April 2002 was caused by the conduct of two unnamed female officers of the MRT. 30 The version of events which the applicant now gives has not previously been given by him on any occasion, when one would expect that he would do so in his own interest to explain his failure to pay the fee or make suitable alternative arrangements with the MRT. He did not give such an account to immigration officers when detained on 17 July 2002. His written record of interview merely says that the result of his application for review was "INELIGIBLE (FEE WAIVER REFUSED)". He has filed no material in support of his application which sets out this version of events. The material from the MRT states that no material was received from him, makes no reference to receiving any telephone contact from him protesting that he had provided the required information and records the making of a determination on the basis that there has been no response to the letter of 30 April 2002 from the MRT to him. 31 The evidence of his being keen to proceed with his application for review and of his passively waiting to hear from the MRT in ignorance of its decision of 27 May 2002 until the search of his home on 17 July 2002 is not credible. Such evidence is totally inconsistent with the letter from the solicitors dated 24 May 2002. The claim by him that the letter was a fraud because it contained the file number B070/2002, which was not a file number associated with his application for review was shown to be wrong. As appears from his application for fee waiver, B070/2002 was the reference number of that application. Other than to suggest that the solicitor's letter was a fabrication and part of a conspiracy to harm him by some persons (not being immigration officers or officers of either the Department or the MRT) he could not explain why the solicitors would write such a letter without instructions or how they obtained the information contained in it. No material from the solicitors was filed to corroborate the allegation that the letter was a fabrication not of the solicitor's making. His evidence of being ignorant of the letter from the MRT dated 27 May 2002 is also inconsistent with that letter being found opened in his residence when searched on 17 July 2002. There is no credible reason advanced why his flatmates would open the letter and keep the letter and its contents from the applicant. 32 There is also material in his signed record of interview which states that in July 2002 the applicant had $40,000 in his bank account, and personal effects of some value. Other than to admit that he came into this money in or earlier that July 2002, there was no explanation forthcoming from the applicant of when and how he obtained such money. In the written record of interview, the applicant gave a history of working in Indian restaurants from 1998 until the date of the record of interview. In it he stated that in Brisbane he was "known as a skilled chef" and was starting a restaurant business. In evidence he said he was in the final stages of buying a business in the Myer Centre in the Brisbane CBD. 33 The apparent substantial means available to the applicant within a month of his being unable to pay the fee without experiencing severe financial hardship suggests that a full and frank disclosure in April or May 2002 of all the financial records sought by the MRT would not have assisted his application for waiver. His strong financial position at that time persuades me that, other than the financial information which accompanied the original application for waiver of the fee, no additional material was provided in response to the letter of the MRT of 5 April 2002. Being of that view, it follows that I do not accept that the telephone calls were made by him to the MRT after receipt of the letter of 30 April 2002. 34 The applicant has failed to make out any of the Hickman limitations. In those circumstances, s 474(1) operates to render the decision of the MRT final and conclusive and beyond challenge in the proceedings brought by the applicant in this Court for judicial review. 35 The application will be dismissed. There is no reason to make other than the usual order that costs follow the event. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 7 October 2002 Applicant appeared in person Counsel for the Respondent: Mr P Bickford Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 5 September 2002 Date of Judgment: 7 October 2002