Gallagher and Minister for Immigration and Citizenship [2011] AATA 10 (11 January 2011)

Last Updated: 14 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR ORAL INTERLOCUTORY DECISION [2011] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5300

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID GALLAGHER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

The Hon R J Groom AO (Deputy President)

Date 11 January 2011

Place Hobart

Decision

The Tribunal determines that it has jurisdiction to hear this application.

[Sgd The Hon R J Groom]
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - Migration Act 1958 - cancellation of visa - application to review lodged within nine day limitation period - applicant a prison inmate - fee paid after nine day period - whether application to review valid - whether Tribunal has jurisdiction - application to review valid - Tribunal has jurisdiction

Migration Act 1958, ss 347, 500(6), 501(2)

Migration Regulations, Rule 2.55(7)

Administrative Appeals Tribunal Act 1975, ss 29(7), 29A

Administrative Appeals Tribunal Regulations 1976, Regulation 19(4), 19(6)

Commonwealth Acts Interpretations Act 1901, s 15AA

F A R Bennion, Statutory Interpretation, 3rd Edition, 1997

Feyisa Eggu and Minister for Immigration and Citizenship [2010] AATA 1003

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99

Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2002) 65 ALD 95

Prospect Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 206 ALR 335

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28

Angus Fire Armour Pty Ltd v Collector of Customs [1988] FCA 339; (1988) 83 ALR 449

REASONS FOR ORAL INTERLOCUTORY DECISION

13 January 2011

The Hon R J Groom AO (Deputy President)

1. At the hearing held yesterday I said I would give my decision on the preliminary issue today. I did so because I considered that an early resolution of the issue was necessary in view of the strict timelines provided in the Migration Act 1958 ("the Act") for reviews of decisions under section 501(2).
2. The preliminary issue is whether the Tribunal has jurisdiction to determine the application for review.
3. Mr Gallagher is a citizen of New Zealand. He has held a Class TY Subclass 444 Special Category (Temporary) visa. A Delegate of the Minister for Immigration and Citizenship has cancelled that visa under section 501(2) of the Act. Mr Gallagher decided to apply to this Tribunal for a review of the decision to cancel his visa.
4. On 18 June 2008 Mr Gallagher had been convicted in the Supreme Court of Tasmania of "causing death by dangerous driving" and was sentenced to four years imprisonment. He remains an inmate of the Risdon Prison.

5. Mr Gallagher was advised in writing by letter dated and posted on 26 November 2010 of the decision to cancel his visa. By Rule 2.55(7) of the Migration Regulations 1994 he is deemed to have been notified of the cancellation decision seven working days after the posting of the letter. The date of notification is therefore 7 December 2010.

6. Under section 500(6B) of the Act an application to this Tribunal to review the cancellation decision must be lodged within nine days after the date of notification. The extension provisions in section 29(7) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") do not apply. (See section 500(6) of the Act). The Tribunal therefore has no power to extend time.

7. Mr Gallagher, who is unrepresented, forwarded a handwritten application to the Hobart Registry of the Tribunal. It was received by the Tribunal on 8 December 2010 and so was within the nine day limitation period. No fee was included with the application.

8. A recent amendment to Regulation 19 of the Administrative Appeals Tribunal Regulations 1976, which took effect on 1 November 2010, provides that an inmate of a prison is required to pay an application fee of $100.00. Previously no fee was payable by an inmate.

9. Section 29A of the AAT Act provides as follows:

"(1) Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.

(2) An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal".

10. Regulation 19(4) of the Administrative Appeals Tribunal Regulations 1976 is in the following terms:

"Subject to subregulations (5) and (6), an application fee payable for lodging an application must be paid before lodgment".

11. In the letter to Mr Gallagher of 26 November 2010 informing him of the visa cancellation he was advised of his right to apply to this Tribunal for a review of the decision to cancel. Included was the following statement:

"... there is a fee payable when you apply for a review. This fee can sometimes be waived. More information about fees can be obtained from the AAT". (Exhibit A1)

12. Although in oral evidence Mr Gallagher said that he believed the $100.00 had been mentioned in correspondence from the Minister's Delegate when he was advised of the cancellation decision, I am satisfied on the evidence that he first became aware of the quantum of the fee when he received a notice from the Tribunal's Hobart Registry dated 15 December 2010 which acknowledged receipt of his application and included the following statement:

"... Please note also that an application fee is payable in order for your application to be valid. Generally an application fee of $777 is payable, however as you are an inmate of a prison you are required to pay a reduced fee only of $100. Please contact the Registry to arrange for payment of the application fee in order that your application can proceed ..." (Exhibit A4)

13. In further correspondence to Mr Gallagher dated 31 December 2010 from the Case Service Officer in the Tribunal's Hobart Registry he was advised as follows:

"... An application fee of $777 must usually be paid before the AAT can review this type of decision. As you are in prison, the application fee is automatically reduced to $100.

You can pay the application fee by:
sending the AAT a cheque or money order that is payable to “Collector of Public Monies, Administrative Appeals Tribunal”;
phoning the AAT and paying by credit card (American Express, Diners Club, Mastercard and Visa accepted); or
organise someone to pay in person by cash, cheque or credit card at an AAT registry.

Please note that your application to the AAT may not be valid until you have paid a fee.

If we do not hear from you before your hearing on 10 January 2011, the AAT will need to assess whether your application can proceed on this day.

If you need any further information or assistance, please contact the AAT on the telephone number below ..." (Exhibit A3)

14. Mr Gallagher is a person without savings or significant income other than the small amount of income of approximately $40.00 per week he receives whilst in the prison. He explained to the Tribunal that all of that limited income is used to buy essential toiletries, some additional food and to pay for regular telephone calls to New Zealand.

15. As Mr Gallagher did not personally have the means to pay the $100.00 fee he had to arrange for his partner, Nicole Wakefield, to pay the fee. The fee was paid on Thursday 6 January 2011 and received by the Tribunal.

16. As the fee was not paid before the expiration of the nine day limitation period the preliminary issue to be determined by the Tribunal is whether it has jurisdiction to review the visa cancellation decision.

17. Mr Wilson for the respondent correctly pointed out that a decision on the preliminary point now being considered depends on the meaning of section 29A of the AAT Act. Also of relevance is the purpose and meaning of regulation 19(4).

18. Regulation 19(4) states that an "application fee", "must be paid before lodgment". The essential question to be decided is whether the regulation is merely directory in stating when the fee is payable or is it intended to go further and invalidate an application if the fee has not already been paid. If failure to pay the fee before lodgment is intended to end the whole review process then it would have been a straightforward matter for the person drafting the regulation to express that intention in plain language. The draftsman did not do so.

19. The wording of regulation 19(4) suggests that it may not be intended to apply to the various categories of persons listed in regulation 19(6) including, relevantly, inmates of prisons. Regulation 19(4) refers to "an application fee". In 19(1) it is said the standard fee of $777.00 in this regulation is "called an application fee". Regulation 19(6) states that "a fee of $100.00 is payable instead of (Tribunal emphasis) the application fee if ...". A distinction between "an application fee" and the significantly reduced "fee of $100.00" may be helpful in interpreting the purpose of regulation 19(4). It is reasonable to infer that the directive that the application fee is payable before lodgment is intended to apply in the circumstances where an applicant is required to pay the full $777.00 fee and not to pensioners, children, inmates and others who are to pay the lower fee of $100.00.

20. I note that both regulation 19(4) and section 29A were considered by Deputy President Forgie in the recent decision in Feyisa Eggu and Minister for Immigration and Citizenship [2010] AATA 1003. Unlike the present case Mr Eggu had not lodged his application within the nine day limitation period. As the Deputy President said in her decision the Tribunal has no power to extend time and so it did not have jurisdiction. It is of interest to note that if the applicant in that case had lodged his application within nine days of notification, which is the essential prerequisite in the Migration Act, then no fee would have been payable as lodgment would have occurred on or before 14 October 2010. That date was before the regulation imposing the $100.00 fee commenced to operate. Although there was some discussion as to the meaning of section 29A and regulation 19(4), with a strict interpretation proposed, that discussion was strictly unnecessary as the critical step required by section 500(6B) of the Migration Act 1958 had not been satisfied.

21. Two other decisions of the Federal Court were referred to in the course of discussions at the hearing and I will now give consideration to each of those decisions.

22. In Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 which was concerned with the then section 339 of the Migration Act 1958, Lehane J
adopted a strict view although, of course, he was considering a different provision and very different factual circumstances. Kirk can therefore be distinguished. It is interesting to note that His Honour took a somewhat more lenient view with respect to the word "accompanied". He said at page 103 of the decision:

"As I have already said, a requirement that an application be accompanied by the prescribed fee must mean, at least, that the fee be paid not later than the period within which the application must be given to the Secretary".

23. In the more recent case of Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2002) 65 ALD 95, the Full Federal Court (Wilcox, Weinberg and Stone JJ) considered the difficult position which arises when a person seeks a waiver of the fee but eventually the waiver is not granted and the person finds that they are then out of time to make the application. The Court expressed concern that a strict construction would, on the facts of that case, produce an absurd result. The Court referred to F A R Bennion, Statutory Interpretation, 3rd Edition, 1997. The Court said at page 106:

" ... the learned author comments at p 751 that this is one of the interpretative presumptions based on "the nature of legislation". He observes that the court seeks to avoid a construction of an enactment that produces an "unworkable or impracticable result" unless there are overriding reasons for applying such a construction. He refers to a number of authorities which illustrate this principle ..."

24. I also refer to the "purposive" approach adopted in interpreting legislation. This approach was earlier recognised at common law but is now established in legislation. For example, section 15AA of the Commonwealth Acts Interpretations Act 1901 states as follows:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

25. The purposive approach as expressed in s15AA above and in similar statutes of the various States of Australia is now recognised as an accepted approach to statutory interpretation by Australian courts. (see Prospect Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at p381 and also Insurance Commission of Western Australian v Container Handlers Pty Ltd (2004) 206 ALR 335 at 365 per Kirby J and Palgo Holdings Pty Ltd v Gowans [2005] HCA 28.
26. It is noted that section 29 of the AAT Act which sets out details of the manner of applying for a review of a decision does not refer at all to the payment of fees. This may be because until 1993 no fees were payable for an application to the AAT. That earlier approach reflected the initial attitude of the founders of the Tribunal that no impediment should be placed in the way of a person seeking a review of an administrative decision. Unlike section 29 of the AAT Act section 347 of the Migration Act which is concerned with applications to the Migration Review Tribunal states that an application for review must "(c) be accompanied by the prescribed fee (if any)".

27. As Mr Wilson has pointed out section 29A became part of the AAT Act in 1993. It was an attempt to overcome the effect of the decision in Angus Fire Armour Pty Ltd v Collector of Customs [1988] FCA 339; (1988) 83 ALR 449. The majority of the Full Federal Court in that decision held that an application had been "lodged" when it was first received even though a fee had not been paid. A substantial portion of the discussion in that decision concerned the proper meaning of the word "lodge". The majority held that the document was lodged regardless of whether or not a fee had been paid. It was suggested however that the application did not have to be processed until the fee was actually paid. I believe that point has practical merit.

28. It is not difficult to understand why there should be a response to the Angus Fire decision as the majority in the Full Court appeared to entirely disregard the fee payment issue in determining the meaning of "lodge". The question however is what words were ultimately used by the legislature to respond to Angus Fire and what really was their intended effect? The report of the review of the Administrative Appeals Tribunal and the Second Reading Speech and Explanatory Memorandum helpfully provided by Mr Wilson do not give any additional explanation of the intent beyond the wording in the section.

29. The wording in section 29A is not as straightforward as it may appear to be at first reading. It is important to note that the word "unless" is used and not the word "until". The inclusion of the word unless suggests an intention that if the fee is paid an earlier timely lodgment is then valid.

30. The facts of this case are that Mr Gallagher has applied to the Tribunal for a review. That application has been received by the Tribunal and the necessary processes have been commenced by the Hobart Registry of the Tribunal including forwarding essential information to Mr Gallagher. The other important point is that the fee has in fact now been paid, even though it was paid after the nine day time limit had expired.

31. There are two possible interpretations of section 29A. First there is the strict approach namely that the application had not been made until the fee is paid. This would mean that Mr Gallagher has paid his fee after the nine day period and so he has not made a proper application within the strict period provided in the Act.

32. The more generous approach is that if and when the necessary fee is paid the application is deemed to have been made at the date of the original lodgment. In other words the subsequent payment validates the earlier lodgment of the application.

33. In the Tribunal's view it is necessary to examine the language of the relevant provision but also to consider very carefully the general scope and object of the whole Statute.

34. The AAT Act not only establishes the Tribunal, but in association with many individual Statutes creating rights of appeal, puts in place at the Commonwealth level a process of merits review of administrative decisions. The Administrative Appeals Tribunal Act provides a review process of fundamental importance to individuals including, as in this case, appeals under the Migration Act 1958 which may ultimately determine the country in which a person is to eventually live.

35. Did the legislature really intend that the failure of a prison inmate, without access to any representation or advice, and without the means to pay the $100.00 fee in a timely manner, but who has now paid that fee, should prevent that person from having his visa application decision reviewed which in all other respects was a valid application? In my opinion it did not so intend.

36. Unlike the Eggu case the issue here is the late payment of the $100.00 and not the application itself. The written application, which is obviously an essential prerequisite, was provided to the Tribunal, and through the Tribunal to the respondent, well within the time period provided.

37. The Tribunal concludes that what the legislature intended requiring of an applicant in these particular circumstances was substantive compliance with the provisions of section 29A of the AAT Act. If an application has been made within time and a fee paid subsequently but before the matter was to be heard and determined by the Tribunal, then there has been substantial compliance with the requirements of section 29A.

38. The Tribunal therefore determines that it has jurisdiction to hear this application. The application has been set down for hearing at 10.00 am on Tuesday 1 February 2011.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 10 January 2011

Date of Oral Decision 11 January 2011

Date of Written Reasons 13 January 2011

Solicitor for the Applicant Applicant on his own behalf

Solicitor for the Respondent Mr D Wilson, Australian Government Solicitor