Ong v Minister for Immigration & Anor [2010] FMCA 649 (2 August 2010)

Last Updated: 1 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ONG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 649

MIGRATION – Review of decision – Migration Review Tribunal – sponsor – Standard Business Sponsor.

Migration Act 1958 (Cth), s.347(1)(c) Migration Regulations 1994 (Cth), rr.1.20D(2)(c)(ii ), 4.13 Constitution of the Commonwealth of Australia 1901 (Cth) s.75(5)

Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364

Applicant:

VAN HUNG ONG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 419 of 2010

Judgment of:

Riethmuller FM

Hearing date:

2 August 2010

Date of Last Submission:

2 August 2010

Delivered at:

Melbourne

Delivered on:

2 August 2010

REPRESENTATION

Counsel for the Applicant:

The Applicant appearing in person.

Counsel for the Respondents:

Mr Wee

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application filed 22 March 2010 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 419 of 2010

VAN HUNG ONG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 1 May 2009, the applicant lodged an application for approval as a Standard Business Sponsor in relation to a subclass 457 visa.
   A number of documents were submitted with the application. On 14 July 2009 a delegate of the Minister of Immigration and Citizenship (‘MIAC’) made a decision to refuse the application on the basis that the applicant failed to meet the criteria under Regulation 1.20D(2)(c)(ii) of the Migration Regulations.
2. On 11 August 2009, the applicant applied to the Migration Review Tribunal (‘MRT’) for a review of the delegate’s decision. The applicant also sought a waiver of the $1400 fee prescribed by Regulation 4.13 of the Migration Regulations 1994 (Cth). There was then correspondence with the Tribunal with respect to the application for a fee waiver.
3. On 7 January 2010, after reviewing a large amount of material, as set out in the letter of that date, the Tribunal officer, Mr Wood, refused the application for the fee waiver. The letter sets out the course of events leading up to the decision and the requests for documents. The letter also sets out some of the salient features of the case. For example, the Tribunal officer noted that the applicant had departed and re-entered Australia five times in the past financial year, implying that he had access to other undeclared funds.
4. The applicant does not, in his submissions, point to any particular evidence that the officer failed to have regard to. Rather the applicant states that there is nothing else he could have put before the officer and argues that, in these circumstances, the officer should have allowed his application for a waiver of the fee.
5. It does not appear that the applicant has established a ground for judicial review with respect to the fee waiver application. The applicant clearly had an opportunity to be heard and to put forward considerable material, and the officer considered the facts and circumstances before refusing the application.
6. Difficult issues arise as to whether or not I would have jurisdiction to judicially review the fee waiver decision in any event. However, given my findings with respect to the fee waiver decision and the case attacking it, it seems that I do not need to formally determine that question, as I have not found that the applicant has established a ground for judicial review.
7. The applicant was given notice that he then needed to pay the application fee, and failed to do so. Thereafter the MRT considered the application and, importantly, the effect of section 347(1)(c) Migration Act 1958 (Cth), which requires an application fee if the waiver has not been granted. No application fee had been paid and the Tribunal member concluded that 14 days had been a reasonable period within which the fee could be paid, if the applicant chose to pay the fee and pursue his application. As a result the MRT refused the applicant’s application on the basis that it was an invalid application to the Tribunal. This appears to be in accordance with the existing case law. For example, the first respondent refers to Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364. The Full Court said at [51]:
   • where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.23, 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.
8. In these circumstances, it appears to me that all that remains is the applicant’s attempt to bring a case to judicially review the delegate’s decision. The decision of the delegate is a primary decision within the meaning of the Migration Act, and therefore does not appear to be within the jurisdiction of this Court. I considered whether I should transfer the application to the Federal Court of Australia. However, it appears from the Act that the Federal Court would not have jurisdiction to deal with such an application either. The only court that arguably does have such jurisdiction is the High Court of Australia under section 75(5) of the Constitution. It is not open to me to transfer this application to the High Court.
9. In these circumstances, it is appropriate to formally dismiss the application. I should add that the application, as drafted, is clearly an application to review the Tribunal’s decision on 19 February 2010, whilst the body of the application appears to attack the fee waiver decision, and the affidavit in support annexes the Tribunal’s decision that concluded it did not have jurisdiction. On a strict reading of the application, it must fail in any event.
10. In all of the circumstances I therefore dismiss the application of the applicant.
11. The Minister has been successful in the application and seeks costs in the sum of $5000. This is less than the scale fee that is provided in the Federal Magistrates Court scale. The matter has taken a fairly standard track with the usual process of submissions, outlines and case authorities. Having regard to the scale, I am persuaded that the sum sought is a reasonable fee in this matter.
12. The question then arises as to whether or not the applicant should pay the first respondent’s fees. The applicant has been entirely unsuccessful in this case, although he is self-represented and states that he is impecunious. That is not usually a basis for refusing to make a costs order in a judicial review application. On the submissions of the applicant, there is nothing that would properly found a refusal to make a costs order as sought by a party who has been wholly successful.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 25 August 2010