Federal Court (Full Court). Was the consequence of s 347(1)(c) of the Migration Act 1958 (Cth) and r 4.13(4) of the Migration Regulations 1994 (Cth) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful? If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?
The Full Court of the Federal Court (FCAFC) extracted the relevant provisions as follows:
4 Section 347 of the Migration Act 1958 (Cth) includes:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5-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 Part 5-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 Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑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).
…
(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
5 Relevantly, reg 4.10 of the Migration Regulations 1994 (Cth) provides for the time for lodgement of applications to the Tribunalto be 21 days after the day on which the notice is received:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
(a) if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act--starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; …
6 Section 348(1) of the Migration Act provides:
348 Tribunal to review Part 5‑reviewable decisions
(1) Subject to subsection (2) [which is not relevant to the present case], if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.
7 Regulation 4.13 of the Regulations provided (at the time the review application was lodged):
(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.
Note: The fee in subregulation (1) is subject to increase under regulation 4.13A.
…
(4) If the Registrar of the Tribunal 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 may determine that the fee payable is 50% of the amount mentioned in subregulation (1).
Some of the questions to the FCAFC were as follows:
Question 1: Was the consequence of s 347(1)(c) and r 4.13(4) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful?
Question 2: May the consequences of non-compliance with the various conditions identified in the sub-paragraphs of s 347(1) vary?
Question 3: Is the consequence of non-compliance with the condition in s 347(1)(b) that the application be made within the “prescribed period” that the Tribunal does not have jurisdiction or power to review?
Question 4: If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?
Question 5: Does the AAT have power to decline to engage in a review?
Question 6: Can it be said that the Tribunal only has jurisdiction where it has a duty to review and it only has a duty to review where an application is “properly made”?
Question 7: Does s 25 of the AAT Act change the meanings of ss 347 and 348 of the Migration Act?
Question 8: What is the provision in the Migration Act that gives the Tribunal jurisdiction to determine a review application?
Question 9: May the object of a specific provision "well be in tension with, or be intended to set limits around, the objects of another provision, particularly a provision expressing general objectives", such as 2A of the AAT Act?
The FCAFC answered those questions as follows:
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