FEDERAL COURT OF AUSTRALIA Parmar v Minister for Immigration and Border Protection [2018] FCA 502 Appeal from: Application for extension of time and leave to appeal: Parmar v Minister for Immigration & Anor [2017] FCCA 2646 File number: NSD 1822 of 2017 Judge: DOWSETT J Date of judgment: 13 April 2018 Catchwords: MIGRATION – application for an extension of time and leave to appeal from a decision of the Federal Circuit Court – where the application for a visa was made out of time – where it would be futile to grant the relief sought – application dismissed Legislation: Administrative Appeals Tribunal Regulations 1976 (Cth) regs 19(6A), 19(6B), 19(6C), 19(6D) Federal Court of Australia Act 1976 (Cth) s 24(2A) Migration Act 1958 (Cth) ss 347, 348, 360 Tribunals Amalgamation Act 2015 (Cth) Federal Circuit Court Rules 2001 r 44.12 Federal Court Rules 2011 r 35.13 Migration Regulations 1994 (Cth) reg 4.13, Sch 2 cl 602.213, Sch 3 criterion 3001 Cases cited: Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 Lee v Minister for Immigration and Citizenship (2007) 94 ALD 559 Project Blue Sky v Australian Broadcasting Corporation (1998) 194 CLR 355 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Date of hearing: 12 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: the Applicant appeared in person Solicitor for the First Respondent: Ms B Griffin of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS NSD 1822 of 2017 BETWEEN: DUSHYANT MANILAL PARMAR Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DOWSETT J DATE OF ORDER: 13 APRIL 2018 THE COURT ORDERS THAT: 1. the application dated 17 October 2017 be dismissed; and 2. the applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DOWSETT J: introduction 1 On 11 September 2014, the applicant, a citizen of India, lodged an application for a medical treatment (subclass 602) visa. The first respondent's delegate (the "delegate") refused his application. Any application for such a visa had to be made within 28 days after the expiry of the relevant person's last substantive visa. See the Migration Regulations 1994 (Cth) (the "Migration Regulations") at Sch 2 cl 602.213(5) and Sch 3 criterion 3001(1) (as at the relevant time). The applicant's last such visa expired on 4 April 2009. It was upon that basis that the delegate refused the application. 2 On 2 October 2014 the applicant applied for review of that decision by the second respondent (the "Tribunal"). At the relevant time, s 347(1) of the Migration Act 1958 (Cth) (the "Migration Act") provided: (1) An application for review of a [Tribunal] 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 [Tribunal] reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or (ii) if the [Tribunal] reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or (iii) if the [Tribunal] reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). 3 At that time reg 4.13 provided: (1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,540. (2) No fee is payable on the following: (a) an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act; (b) an application, made by a non-citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies. … (4) If the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, 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, Deputy Registrar or officer may determine that the fee payable is 50% of the amount mentioned in subregulation (1). (Emphasis added.) 4 Section 348 provided: (1) Subject to subsection (2), if an application is properly made under section 347 for review of a [Tribunal] reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339. 5 At some time shortly after the applicant had filed his application, he applied for reduction of the fee. On 9 October 2014, the applicant was advised that the fee had been reduced by 50% to $802. Where a determination is made under reg 4.13(4), the fee must be paid within a reasonable period after such determination (see Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364). The applicant was asked to pay the reduced fee by 3 November 2014. He did not do so. When contacted by an officer of the Tribunal, he indicated that he could not pay the reduced amount, and asked for further time to pay. The officer indicated that he should put his request in writing. He did not do so. On 24 November 2014, the Tribunal informed him that it had no jurisdiction to determine his application for review. This decision appears to have been based upon the view that the applicant had failed to pay the reduced fee within a reasonable time, and so had not complied with the requirement contained in s 347(1)(c), and that the application was not "properly made" pursuant to s 348(1). That section required the Tribunal to review a decision if an application was "properly made". Section 348(2) expressly forbade the Tribunal from considering an application in certain circumstances which are not presently relevant. The section said nothing concerning the Tribunal's consideration of an application which did not comply with s 347(1)(c). 6 On a strict construction of s 347(1) the prescribed fee was to be paid at the time at which the application was made. However reg 4.13 prescribed the fee for the purposes of s 347(1)(a) and contemplated reduction of it by up to 50%. Whilst it might be argued that any reduction had to be requested and granted prior to the application being made, the first respondent seems not to have generally proceeded in that way, apparently applying the decision of the Full Court in Braganza (supra). The Full Court there held at [51] that: In our view this argument should be accepted. The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, 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. proceedings in the circuit court 7 Pursuant to s 476 of the Migration Act, the applicant applied to the Federal Circuit Court for review of the Tribunal's decision. Such proceedings take the form of an application to show cause why relief should not be granted, the relief in question generally being that available pursuant to that section. It seems that in the Circuit Court, no consideration was given to the basis of the delegate's decision, the proceedings rather focussing on the Tribunal's decision that the applicant had not complied with s 347(1)(c) as construed by the Full Court in Braganza. The applicant's six grounds of review were as follows: 1. Tribunal made jurisdictional error. 2. Under regulation 19(6)(c) of the Administrative Appeals Tribunal Regulations 1976, a fee may be waived if the income, day-to-day living expenses, liabilities and assets of a person are at such a level that payment would cause financial hardship. 3. The Tribunal did not show the reasons in decision why they have not accepted as valid application when there is provision to take account a compassionate for delay payment. 4. After given time by Tribunal but the applicant cannot make payment that means the applicant do not have money so in this case the Tribunal consider his application. 5. Section 360(1) the Tribunal must invite applicants to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review. 6. Nature of justice was not delivered in my matter. 8 In broad terms, the Circuit Court addressed each ground as follows: Ground 1 was not particularized and did not identify an arguable case of error by the Tribunal. As to ground 2, the reference to reg 19(6)(c) of the Administrative Appeals Tribunal Regulations 1976 (the "AAT Regulations") is misconceived. First, there was no such regulation at the appropriate time. Second, those regulations did not apply to the review in question. Contrary to the assertion in ground 3, the Tribunal provided reasons. Further, it had no power to reduce the filing fee beyond 50%. No arguable case of error was made out on this ground. As to ground 4, the applicant's inability to pay the reduced filing fee did not constitute error by the Tribunal. As to ground 5, because the Tribunal had no jurisdiction to entertain the applicant's review application, it did not have any hearing-related obligation to him pursuant to s 360 of the Migration Act. Ground 6 was not particularized. As the Tribunal had no jurisdiction to undertake a review, there was no denial of natural justice in relation to any Tribunal hearing. 9 The Circuit Court Judge concluded that the applicant had demonstrated no arguable case of error by the Tribunal. The application was dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001. PROCEEDINGS IN THIS COURT 10 By application dated 17 October 2017, the applicant sought an extension of time in which to apply for leave to appeal from the Circuit Court Judge's decision, and for the grant of such leave. The Circuit Court Judge's decision was interlocutory. Pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant required such leave. An extension of time was required because r 35.13 of the Federal Court Rules 2011 required that an application for leave to appeal be filed within 14 days after the judgment was pronounced or the order made. In this case the applicant commenced the proceedings some 26 days after the Circuit Court's judgment was pronounced and its orders made. 11 In considering whether to grant such extension of time and/or leave to appeal, I must consider the reasons for the delay, whether, in all of the circumstances, the Circuit Court's decision is attended by sufficient doubt to warrant its being reconsidered, and whether the applicant would suffer substantial injustice if leave were refused (Décor Corporation v Dart Industries Inc (1991) 33 FCR 397). 12 The applicant's proposed grounds of appeal are as follows: 1. Hon. Judge Cameron failed hold that Administrative Appeals Tribunal made jurisdictional erroe of law when it took into account irrelevant consideration and misconduct the facts. 2. Under regulation 19(6)(c) of the Administrative Appeals Tribunal Regulations 1976, a fee may be waived if the income, day-to-day living expenses, liabilities and assets of a person are at such a level that payment would cause financial hardship 3. The Tribunal did not show the resons in decision why they have not accepted as valid application when there is provision to take account a compassionate for delay payment. 4. After given time by Tribunal but the applicant cannot make payment that means the applicant do not have money so in this case the Tribunal consider his application. 5. Section 360 (1) the Tribunal must invite applicants to appear before the Tribunal to give evidence and present arguments relating to the issuee arising in relation to the decesion under review. (Errors in original.) 13 Ground 1 is not particularized. However it is likely that grounds 2-5 particularize ground 1. 14 Ground 2 seems to be based on a misconception. On 1 July 2015, the Migration Review Tribunal was merged with the Administrative Appeals Tribunal. See the Tribunals Amalgamation Act 2015 (Cth). The applicant seems to have proceeded on the basis that as at the time of his application to the Migration Review Tribunal, the AAT Regulations applied to it. The AAT Regulations also made provision for reductions in fees. At that time there was no reg 19(6)(c). However regs 19(6A), 19(6B), 19(6C) and 19(6D) provided: (6A) If the Registrar, a District Registrar or a Deputy Registrar, having regard to the income, day‑to‑day living expenses, liabilities and assets of a person liable to pay an application fee, considers that payment of the fee would cause financial hardship to the person, the Registrar, District Registrar or Deputy Registrar may order that a fee of $100 is payable instead of the application fee. (6B) The fee for lodging an application is payable when the application is lodged. (6C) If the fee is not paid at that time, the Tribunal is not required to deal with the application unless, and until, the fee is paid. (6D) If the fee is not paid within 6 weeks after an application is lodged, the Tribunal may dismiss the application under section 69C of the Act. 15 In 2014 there was no basis for applying the AAT Regulations to proceedings in the Migration Review Tribunal. The Migration Regulations clearly applied at that time. Those regulations made it clear that the Tribunal could only allow a 50% reduction of fees. Ground 2 discloses no error. 16 Ground 3 may also be based upon the assumption that the AAT Regulations applied to the Tribunal's decision. The ground assumes that the Tribunal had power to vary the amount of the fee beyond that conferred by r 4.13, or further to defer payment. Neither assumption is justified. Ground 3 must fail. 17 Ground 4 seems wrongly to assume that the Tribunal had power to waive the balance of the fee because of the applicant's failure or inability to pay. That proposition is untenable. This ground must fail. 18 As to ground 5 the Circuit Court held that there being no valid application, the Tribunal had no jurisdiction to entertain the application. It therefore had no duty to conduct a hearing. Section 360 of the Migration Act provides: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 19 I very much doubt whether the applicant's failure to pay the prescribed fee was an issue arising in relation to the decision under review, namely the delegate's decision. The question for the Tribunal's determination was whether it should hear the application for review, given that the applicant had not paid the reduced fee. In the present case, the Tribunal had asked the applicant to pay by 3 November 2014. He requested further time to pay. He was told to apply in writing. He seems not to have done so. On 24 November 2014 the Tribunal concluded that it had no jurisdiction in the matter, apparently because of such non-payment. The concept of a "reasonable time" in which to discharge an obligation inevitably involves an element of judgment. One might have expected that at some stage, the Tribunal would have warned the applicant that in the event of non-payment by an identified date, the Tribunal would decline jurisdiction. However the Tribunal did not take that step. 20 The Tribunal's decision and that of the Circuit Court Judge assumed that such non-payment resulted in the application being invalid. That approach was justified by the decision in Braganza and other decisions to which the first respondent has referred. Nonetheless, ss 347 and 348 do not say so in terms. THE EFFECT OF THE DECISION IN BRAGANZA 21 In the course of the proceedings, I expressed some doubt concerning the assumption that non-payment of the fee led to invalidity, notwithstanding the earlier decisions which proceeded on that basis. I suggested that given the relatively liberal approach taken to s 347 in Braganza and other cases, and having regard to the wording of ss 347 and 348, consideration should have been given to the effect of the High Court's decision in Project Blue Sky v Australian Broadcasting Corporation (1998) 194 CLR 355. It seems that such an argument was raised in Braganza, but that the Court did not have to consider it. Any argument that non-payment of the fee would not necessarily lead to invalidity may have derived some support from the similarities and differences between ss 46 and 47 of the Migration Act and ss 347 and 348. Sections 46 and 47 dealt with visa applications and the consequences of non-payment of fees for such applications. Section 46 expressly provided that payment of the fee was necessary in order that the application be valid. Further, s 47 expressly prohibited consideration of a visa application which was not a valid application. On the other hand, neither s 347 nor s 348 referred to validity. Section 348 required the Minister to consider an application which was "properly made" and prohibited consideration of a decision in relation to which the Minister had issued a certificate under s 339, a provision which is not presently relevant. Section 348 said nothing about applications not properly made. 22 At a hearing on 26 February 2018, I raised with the parties the possibility of issuing a pro bono referral certificate, so that the applicant might receive advice concerning this point and possibly, representation at any subsequent hearing. I invited further written submissions on the topic, and relisted the matter for hearing on 12 March 2018. THE FIRST RESPONDENT'S SUBMISSIONS 23 In his further written submissions dated 7 March 2018, and at the hearing on 12 March 2018, the first respondent contended that the Tribunal and the Circuit Court were correct to conclude that non-payment of the fee resulted in the application for review being invalid. It pointed to a number of first instance decisions in support of that conclusion. The first respondent also contended that, even if the Court found against him on this point, it should decline to exercise its discretion to allow an extension of time and grant leave to appeal on the basis that it would be futile to do so. FUTILITY 24 Futility is a ground upon which a court may refuse to grant relief of the kind sought in the Circuit Court: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57] (per Gaudron and Gummow JJ); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [52]-[59] (per Kirby J); and Lee v Minister for Immigration and Citizenship (2007) 94 ALD 559 at [45] (per Besanko J). The basis for the submission of futility was that the applicant's visa application had not been made within the prescribed period. As I have said, this aspect of the case was not raised in the Circuit Court. Nor was it raised before me at the initial hearing. Nonetheless, it was the basis upon which the delegate rejected the application. 25 In my view, it is plain that by virtue of the applicant's failure to make his visa application within the prescribed time, his application would necessarily fail. In those circumstances, it would be futile to grant an extension of time in which to seek leave to appeal, or to grant such leave. If the matter were remitted to the Circuit Court, the relief sought would not be granted. If the matter were remitted by the Circuit Court, to the Tribunal, the application would necessarily fail. In those circumstances, there is no point in seeking pro bono assistance in connection with the issues arising out of the decision in Braganza. orders 26 The application must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 13 April 2018