Ong v Minister for Immigration and Citizenship [2010] FCA 1259 (17 November 2010)

Last Updated: 19 November 2010

FEDERAL COURT OF AUSTRALIA

Ong v Minister for Immigration and Citizenship [2010] FCA 1259

Citation:		Ong v Minister for Immigration and Citizenship [2010] FCA 1259
Appeal from:		Ong v Minister for Immigration & Anor [2010] FMCA 649
Parties:		VAN HUNG ONG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		VID 735 of 2010
Judge:		MARSHALL J
Date of judgment:		17 November 2010
Legislation:		Migration Act 1958 (Cth) ss 347, 476(2) Migration Regulations reg 1.20D(2)(c)(ii)
Cases cited:		Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364 Ong v Minister for Immigration and Citizenship [2010] FMCA 649
Date of hearing:	17 November 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
	The Appellant appeared in person
Counsel for the First Respondent:	Ms Catherine L Symons
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 735 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VAN HUNG ONG Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	17 NOVEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Leave is given to extend the time within which to serve the notice of appeal, to 26 August 2011.
2. The appeal is dismissed.
3. The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 735 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VAN HUNG ONG Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE:	17 NOVEMBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court which dismissed his application for review of a decision of the Migration Review Tribunal (the “Tribunal”). The Tribunal concluded that it did not have jurisdiction to hear the application for review as the hearing fee had not been paid and the application for a fee-waiver was refused by an authorised officer of the Tribunal.
2. On 1 May 2009, the appellant lodged an application for approval as a Standard Business Sponsor in relation to a subclass 457 visa (“the visa”) with the first respondent’s Department. A delegate of the first respondent refused the application for the visa on 14 July 2009. The delegate considered that the application did not satisfy a requirement contained in reg 1.20D(2)(c)(ii) of the Migration Regulations (the “Regulations”).
3. On 26 October 2009, the Tribunal wrote to the appellant informing him that the fee may be waived if it was satisfied that the payment of the fee was likely to cause severe financial hardship to the appellant. The Tribunal requested further information, including account statements, within 14 days. The appellant did not respond.
4. On 11 August 2009 the appellant applied to the Tribunal for a review of that decision and on the same day, the appellant made an application to the Tribunal for a fee-waiver.
5. On 24 November 2009, an authorised officer of the Tribunal decided to refuse the request for a fee waiver because the officer was not satisfied that the payment of the fee would cause the appellant, or would have been likely to cause the appellant, severe financial hardship. The Tribunal wrote to the appellant on the same day, advising him of the decision, and requesting that the prescribed application fee be paid within 14 days of receiving the Tribunal’s letter. This made the last date for payment of the fee 17 December 2009. Any further material in support of fee waiver was to be supplied by that date.
6. On 7 January 2010, an authorised Tribunal officer considered the appellant’s material in support of the fee waiver application and decided to refuse the request for the fee waiver. In arriving at his decision the Tribunal officer, took into account that the appellant travelled outside Australia on five separate occasions throughout the course of the past financial year. In the view of the Tribunal officer, this indicated that there were some undeclared funds in the possession of the appellant. The appellant did not make subsequent contact with the Tribunal and did not pay the fee.

The Tribunal

7. When the application for review came before the Tribunal for its consideration, it held that its jurisdiction would have been enlivened if the application was made in compliance with s 347 of the Migration Act 1958 (Cth) (“the Act”). However, in the absence of payment of the prescribed fee, the Tribunal had no jurisdiction to review the decision of the first respondent. No further consideration was given to the merits of the appellant’s application.

The Court below

8. On 22 March 2010, the appellant applied for a review of the Tribunal’s decision before the Federal Magistrates Court. The appellant’s claim was that all documents had been provided in relation to the fee-waiver, and that there was no further information that could be provided.
9. The Federal Magistrate held that appellant did not establish a ground for judicial review of the fee-waiver decision, and at [5] stated that:

...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.

10. Further, the Federal Magistrate decided that any judicial review of the decision would only be within the jurisdiction of the High Court of Australia. As his Honour stated at [8]:

...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(v) [sic] of the Constitution. It is not open to me to transfer this application to the High Court.

11. The Federal Magistrate dismissed the application on 2 August 2010.

Grounds of Appeal

12. The appellant prepared the grounds of appeal himself, without the assistance of a lawyer. The grounds fail to address the Tribunal’s determination that it lacked jurisdiction to hear the review of the delegate’s decision. The appeal grounds assert that the Tribunal had failed to take into account the financial hardship of the appellant and had dismissed his application for judicial review “without any judgment”.

Consideration

13. The Court below, at [5] observed that the appellant had an opportunity to put forward material supporting the fee waiver application. His Honour also observed that the departmental officer considered the material relied on by the appellant before refusing the application.
14. The fee waiver application having been refused, the review to the Tribunal required the payment of the requisite fee pursuant to s 347(1)(c) of the Act. In the absence of the payment of that fee, after the refusal of the fee waiver application, there was no proper application for the Tribunal to consider, see Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364 at [51] where a Full Court held that the entertaining of an application for review by the Tribunal depends on the waiver of the fee or the payment of it “within a reasonable time after the application for fee waiver is rejected”. The appellant had a reasonable time, in the circumstances, to pay the fee after the rejection of the fee waiver application, but did not avail himself of that opportunity.
15. For the foregoing reasons the appeal is dismissed with costs. The appellant is granted leave for an extension of time to serve his appeal, given the short delay and the lack of prejudice to the respondents. It is unnecessary to deal with the Minister’s further submission that the Federal Magistrate determined correctly that the Court below had no jurisdiction to deal with the application before it by reason of the provision of s 476(2) of the Act.
    

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 18 November 2010