FEDERAL COURT OF AUSTRALIA Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 913 MIGRATION – procedural fairness – application made in Migration Review Tribunal for review of decision refusing parent visa – where application for fee waiver lodged with Migration Review Tribunal – application refused on basis that applicants failed to demonstrate severe financial hardship – application for review subsequently declared ineligible – whether application 'properly made' under s 347 of the Migration Act 1958 (Cth) – where application for fee waiver refused, fee must be paid within a reasonable time – where the fee is not paid within a reasonable time application ceases to be 'properly made' under the Act. Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 applied Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 cited TREASURE AKPATA, FORTRESS AKPATA, PRECIOUS AKPATA & STEPHEN AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 55 of 2004 LANDER J 14 JULY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 55 OF 2004 BETWEEN: TREASURE AKPATA FIRST APPLICANT FORTRESS AKPATA SECOND APPLICANT PRECIOUS AKPATA THIRD APPLICANT STEPHEN AKPATA FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE OF ORDER: 14 JULY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 55 OF 2004 BETWEEN: TREASURE AKPATA FIRST APPLICANT FORTRESS AKPATA SECOND APPLICANT PRECIOUS AKPATA THIRD APPLICANT STEPHEN AKPATA FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE: 14 JULY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants in this matter are husband and wife and their two children. The first applicant is the daughter of the husband and wife (the fourth and second applicants), and the sister of the other child (the third applicant). The first applicant was born on 17 September 1993 in New Zealand and is a citizen of New Zealand. Her brother was born on 20 March 1990. 2 On 26 July 1999 the mother applied for a Parent (Migrant) (Class AX) Visa for herself and her son. Her daughter, a New Zealand citizen, sponsored her. 3 On 18 December 2002 a delegate of the Minister refused the application. 4 The delegate's assessment, included in the decision record, stated: 'ASSESSMENT I have examined the application and evidence provided in support of the visa application. Subclass 103 (Parent) is the only subclass in the Parent (Migrant) (Class AX). Migration Regulation 103.227(1)(a) states that each member of the family unit of the applicant who is an applicant, is a person who satisfies public interest criteria 4001. Public interest criteria 4001 states in part that the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test. The Minister has refused Stephen Akpata's visa. He therefore does not satisfy public interest criteria 4001. The criteria for the grant of a subclass 103 visa requires that each member of the family unit must satisfy public interest criteria 4001. If one member fails to satisfy this criteria then the other members of the family unit cannot satisfy the requirements to be granted a visa. DECISION In view of the foregoing and as the Minister's delegate, I cannot be satisfied that the be satisfied [sic] that the requirements of Migration Regulation 103.227 and 103.223 are met. Accordingly the applications by Fortress Akpata and Precious Akpata are refused.' 5 Fortress Akpata is the mother and Precious Akpata is the son. 6 On 10 February 2003 the Migration Review Tribunal received an application for review from Treasure Akpata seeking a review of Fortress and Precious Akpata's application for a Parent (Migrant) (Class AX) visa which had been refused by the delegate of the Minister on 18 December 2002. 7 The grounds of the application for review of the decision of the delegate were given: '1. The decision is flawed with actual and ostensible bias by the Minister thru [sic] his delegate. Error of law and 2. The Minister thru [sic] his delegate, constructively failed to exercise jurisdiction. Point of Law. 3. When the Minister thru [sic] his delegate made his decision on the 18th of December 2002 to refuse the applicants, Mrs Fortress Akpata & Precious Akpata, Application for Parent 103 visa he acted beyond his jurisdiction under the Migration Act 1958 (C'th). 4. The Minister thru his delegate made jurisdictional error for 4.1 Denial of Procedural fairness; 4.2 Denial of Natural justice.' 8 Section 347 of the Migration Act 1958 (Cth) (the Act) provides for the procedure for applying for a review of a decision of the delegate of the Minister by the Migration Review Tribunal (MRT). Section 348 provides that if an application is properly made under s 347 for review of an MRT reviewable decision the MRT must review the decision. 9 Section 347(1) requires that any application for a review be made in the approved form and be given to the Tribunal within the prescribed period and be accompanied by the prescribed fee. The time for lodgement is prescribed by Regulation 4.10 of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed fee is $1,400: Regulation 4.13(1). 10 The fee for making an application for review by the MRT may be waived if payment of the fee has caused or is likely to cause severe financial hardship to the review applicant: Regulation 4.13(4). 11 That sub-regulation provides: '(4) The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid 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 decision to determine whether the fee should not be paid is that of the Registrar, Deputy Registrar or another officer of the Tribunal. 12 On either 7 or 10 February 2003, and the date does not matter, Treasure Akpata's application for a fee waiver was received by the MRT. She disclosed that she was a nine and a half year old girl who was a primary school student in suburban South Australia. In answer to a question: 'You and your partner's assets', someone has written in 'N/A', which I take to be not applicable. 13 In answer to the question: 'If you are not the visa applicant - Please explain why the visa applicant cannot assist you to pay the review fee' she has answered: 'Because my mother is not elligible [sic] for any government assistance. Precious my brother is only 13 years old. We live in a community housing. My parent [sic] are unable to pay this [sic] fees. My father is in immigration detention. We are support [sic] by St Vincent de Paul Society.' 14 The application form also asked the applicant to provide an explanation as to why the applicant believed that payment of the review fee had caused or was likely to cause severe financial hardship. She answered: 'I am just 9˝ years old and my special benefits was [sic] stopped since September of 2002. My parents are not entitled to any government assistance. My father is in immigration detention.' 15 A letter accompanied the application for the fee waiver. In that letter she wrote: 'I do not have any money to pay for the fees. My Mother is unable to pay as we are all in a desperate situation and very sever [sic] financial hardship since 1997. And in particular since my Father was taken into immigration detention. We have being [sic] going through litigation with the minister of immigration since 1997 through the RRT process three times. Federal Court four times and the high court. This very long legal battles have cost us and placed us in severe financial difficulties as we always have legal representation. In all stages of the litigation since 1997. I am not entitled to receive any form of social benefit or any government assistance since September 2002. (See Centre-link letter). No other of my family, neither my Father, Mother nor Brother is entitled to receive any form of government assistance whatsoever.' 16 She concluded the letter in the following terms: 'I ask that you waive the fees as there is no way neither [sic] I or my Mother, Father or Brother can be able to pay the application fees. Please do not deny us legal review because of money. We simply do not have any money to pay.' 17 The application for review of the migration decision was acknowledged by a Tribunal Officer of the MRT on 24 March 2003 and Treasure Akpata was advised that the eligibility of the application had not been assessed but that she would be advised if the application is found to be ineligible. 18 On 14 January 2004 a Tribunal Officer of the MRT wrote to Treasure Akpata advising her, as the application for itself had, that the fee for making an application for review could be waived if the Tribunal was satisfied that payment of the fee had caused, or would be likely to cause, severe financial hardship to the review applicant. 19 The letter stated: 'Before a decision in relation to this matter can be made, it is recommended that the following information/documentation be provided by you to assist in a decision being made: § Bank statements for you and your mother Mrs Fortress Akpata, of all accounts including any overseas accounts for the last six months. § Evidence of rental payments. § Any other evidence that you believe is relevant to your fee waiver application.' 20 The applicant was advised that the requested information should be provided to the Tribunal within seven days of the date of receipt of the letter, and if the information was not supplied 'the application for fee waiver may be declined'. 21 On 6 February 2004 an Authorised Officer of the MRT wrote again to Treasure Akpata and advised her: 'After carefully considering all available information, including the information you provided in support of your request, I am of the opinion that payment of the fee has not caused, nor is it likely to cause you severe financial hardship. The reasons for my decision are as follows: § In our letter dated 14th January 2004 you were given until 2nd February 2004 to provide extra information. § This information was not received by our office.' The letter indicated that the application for review could proceed provided the $1,400 review fee was paid within a reasonable time, which generally the Tribunal regarded was within 14 days of the date of that letter. 22 The letter advised Treasure Akpata that if the fee was not paid within 14 days and no other arrangements had been made, the application for review would be invalid and not be considered further. 23 Lastly she was advised: 'Please note that a review of this decision by the delegate to refuse a fee waiver is only possible if there is a change in your financial circumstances or if you have new information or evidence that you had not previously provided the Tribunal.' 24 The same Authorised Officer of the MRT wrote to the applicant at the same address in the same terms on 9 February 2004. 25 On 1 March 2004 the same Authorised Officer of the MRT wrote another letter to Ms Akpata at the same address in exactly the same terms except that an additional reason for the decision was given for the Authorised Officer reaching the opinion that payment of the fee had not caused, or would not be likely to cause, severe financial hardship. 26 The additional reason was: § 'A further letter was sent on 9 February 2004, which has also not been acknowledged.' 27 On 26 March 2004 the same Authorised Officer wrote again to Ms Treasure Akpata in the following terms: 'This is to advise you that your application for review is ineligible, as the application fee was not paid within a prescribed time. On 14 January 2004 a letter was sent requesting further information in relation to your fee waiver application. A response was not received. On 9 February 2003 [sic] a letter was sent refusing the fee waiver application and allowing you until 23 February 2004 to pay the fee. On 1 March 2004, a further letter was sent allowing you to 16 March 2004 to pay the fee. To date there has been no response. Therefore, the application has now been made ineligible and no further action will be taken on this case. The Department of Immigration and Multicultural and Indigenous Affairs have been advised.' 28 Accompanying that letter was an 'Advice of Eligibility Decision' which stated: 'The Tribunal has made a decision that the application for review of a refusal of a 103 visa is ineligible for the following reason: Paragraph 347(1) of the Migration Act 1958 requires that an application for review is accompanied by the fee and that the application for review is made within the prescribed period. The application for review is ineligible, as the fee was not paid within a prescribed time and a fee waiver application has not been lodged.' 29 The two advices are contradictory. In the letter the MRT acknowledged that a fee waiver application had been lodged, as indeed it had, but that it had been refused. 30 In its reasons, the MRT has assumed that a fee waiver application had not been lodged. 31 In December 1995 Mr Akpata applied, unsuccessfully, for a protection visa. He appealed from that refusal and, during the appeal process, was granted a bridging visa. On 26 July 1999 he applied for a parent 103 visa. On 11 June 2002 the then Minister, acting under s 501 of the Act, refused that application on 'character grounds'. A consequence was that Mr Akpata's bridging visa was also cancelled: s 501F(3). He therefore became an unlawful non-citizen and was taken into immigration detention. 32 On 25 March 2004 the Full Court of the Federal Court of Australia allowed Mr Akpata's appeal and set aside the Minister's decision refusing Mr Akpata's application for a parent 103 visa on 11 June 2002 pursuant to s 501 of the Act: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65. 33 The Full Court ordered the Minister to reconsider Mr Akpata's application for a parent 103 visa in accordance with the reasons of the Court. That has not yet occurred. 34 The applicants seek a review of the decision of the MRT made on 26 March 2004. The decision complained of is the decision that the application is ineligible. There is no complaint about the failure of the Registrar, Deputy Registrar or other officers of the MRT refusing the application that the fee should be waived. 35 The fourth applicant (Mr Akpata) has no interest in these proceedings. He was not included in the wife's application for the parent visa. He was not interested in the application to the MRT for a review of the decision of the delegate of the Minister. He is not, therefore, a proper party to these proceedings. None of the three applicants who are interested in these proceedings appeared. Only the fourth applicant, who as I have said, has no interest in these proceedings, appeared. He claimed to be entitled, as Treasure Akpata's father, to represent her. 36 He had no written authority to represent her. The fact that he claimed to be entitled to represent her highlighted a flaw in the constitution of the proceedings. Treasure is an infant. An infant is a person under a disability: O 43 of the Federal Court Rules. An infant may sue by her next friend: O 43 r 1(1). The proceedings as presently constituted are irregular. However, no point was taken by the respondent on the constitution of the proceedings. No objection was taken to Mr Akpata representing Treasure Akpata on this application. 37 This matter first came on for hearing before me on 3 May 2004 when I gave directions on the conduct of the application. In particular, I directed the applicants, if so advised, to file and serve a supplementary book of documents by 24 May and file their contentions of fact and law by no later than 7 June. 38 The applicants did not file a supplementary book of documents or any contentions of fact and law. That is not a matter of moment when the applicants are unrepresented. 39 However, during the hearing of this application, Mr Akpata consistently referred to matters of fact which had not been proved in the affidavit which accompanied this application. 40 He asserted that his daughter was outside Australia when the letters of 14 January, 6 February, 9 February, 1 March and 26 March 2004 were written. He said that she did not receive the correspondence. He said also that his daughter and his wife had supplied the MRT with details of their financial position. 41 I told Mr Akpata that if he wished to refer to facts relevant to any issue in question, those facts had to be established either by way of affidavit or by way of oral evidence. 42 He applied for an adjournment of the application so that he might establish the matters to which I have referred. That application was opposed. 43 I refused the application because, in my opinion, the matters to which he referred were not relevant to the issue before the Court. The issue before the Court was whether the decision of 26 March 2004 made by the MRT should be set aside for any of the reasons advanced in the application. As I have already pointed out, that was the only decision which was the subject of the application for judicial review. 44 The applicants' first contention was that the decision of the Full Court of the Federal Court means that the decision of the delegate dismissing Fortress Akpata's application is null and void. 45 I cannot agree with that contention. The Full Court decision may make it likely that an application for review of the delegate's decision is likely to be successful because the facts upon which the delegate's decision were based have changed but the decision does not make the delegate's decision null and void. A review of the delegate's decision, however, is a matter for the MRT, not for this Court. 46 The real question in this case is whether the applicants were denied procedural fairness by the MRT concluding that the application become ineligible. 47 The decision was that the application was ineligible 'as the fee was not paid within a prescribed time and a fee waiver has not been lodged'. That second matter is not correct. A fee waiver had been lodged but had been rejected. It would have been more accurate to say 'and a fee waiver has been lodged and refused and the fee not paid within a reasonable time'. However, whilst the reason for the decision was incorrect, the real question is whether the decision itself was correct. I need to decide whether the application for review of a refusal of the parent 103 visa was ineligible. 48 Section 347 mandates the procedure for applying for a review of the decision of the delegate. Section 348 imposes an obligation on the MRT to review the decision if the application is properly made under s 347. 49 In Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364, the Full Court of this Court held that an application was 'properly made' for the purposes of s 348 of the Act if the application for review was in the approved form and was given to the MRT within the prescribed period and, if not accompanied by the prescribed fee, the applicant sought a waiver of the prescribed fee within the prescribed period. It concluded that the MRT could hear the matter even if the waiver was refused after the prescribed period had expired if the prescribed fee was paid within a reasonable time. In reaching that conclusion, the Full Court held at 375 that: '… s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.' 50 In this case, when the application was made it complied with the requirements of s 347. It continued to do so until a reasonable time after the officer of the MRT refused the application for a fee waiver. 51 When a reasonable time had passed after that refusal, the application for review ceased to be properly made under s 347 of the Act. The MRT no longer had any obligation to review the decision of the delegate dismissing the application for the Parent (Migrant) (Class AX) Visa. It follows that the decision is correct even if the reason for it was wrong. 52 This decision cannot be understood as confirming the appropriateness of the administrative decision of the officer refusing the application for a waiver of the prescribed fee. That decision, as I have said, was not the subject of this review. 53 I should say something about the futility of this application. Both Mr Akpata and Mrs Fortress Akpata brought separate applications for parent 103 visas. Mr Akpata's application was refused pursuant to s 501 because he did not pass the character test. Mrs Akpata's application was refused because her husband's parent 103 visa had been refused because he did not pass the character test. 54 After the decision of the Full Court, Mr Akpata's application for the parent 103 visa must be reconsidered by the Minister. If it is granted, Mrs Akpata does not need to pursue her application for a parent 103 visa because she and Precious will receive the benefit of his successful application. If Mr Akpata's application for a parent 103 visa is refused because he does not pass the character test then, inevitably, her application will be refused. Mrs Akpata and Precious will only become entitled to a parent 103 visa if Mr Akpata passes the character test. 55 In the end result, Mrs Akpata's application for a visa to remain in Australia depends upon her husband's separate application. 56 It would be in everyone's interests if the Minister could consider Mr Akpata's application and decide whether the application should be refused pursuant to s 501 of the Act. 57 The application is dismissed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 14 July 2004 Counsel for the Applicants: S Akpata Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 22 June 2004 Date of Judgment: 14 July 2004