In tandem with the 2011-2012 Budget announcements, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) made an announcement with respect to their application fee structure. The Budget announcement proposed to increase the MRT/RRT application fees from $1400 to $1,540. The MRT/RRT announcement went further. It announced that from 1 July 2011 the MRT fee waiver application based on financial hardship, if successful, would only affect half of the application fee of $1540 (i.e. $770). The same change goes to those MRT applicants who have a decision made in their favour. This means that successful review applicants would only have half the fees paid refunded as opposed to a full refund for those successful applications made prior to 1 July 2011. Simply put, if the applicant can successfully show financial hardship s/he must continue to pay $770 before the review application is valid. If they finally have a successful outcome they will not get any refund. Other applicants must pay $1,540 and if the review is successful $770 will be refunded.
The relatively high fees
These significant changes would seem to be an added barrier for financially disadvantaged people accessing the MRT considering the relatively high existing review fees. Some comparisons below may demonstrate the point.
At the Commonwealth level, the Administrative Appeals Tribunal (AAT) has fees ranging from zero to $777 depending on the matter type[i]. It is common knowledge that the way in which the AAT operates is quite similar to a Court where hearings often run for days. Fair Work Australia (FWA) deals with workplace relation matters. It sets out a fee of $62.4 for the application of a dispute resolution heard and it contains fee waiver provisions for fees to be completely waived.[ii]
At the State level, The Administrative Decisions Tribunal of NSW (ADT of NSW) has application fees ranging from zero to $291 with a typical fee of between $71 and $148 and $291 on appeal.[iii] The Victorian Civil and Administrative Tribunal (CAT of VIC) has application fees ranging from zero to $1,258.7. The CAT of VIC charges most applicants a fee of $314 but for civil matters involving a credit provider having over 3000 related contracts or developments involved with values of $5 million or more, an application fee of $1,258.7 is charged.[iv]
While the MRT/RRT fees cannot be said to be prohibitively high, they are quite high when one takes into consideration that some other comparable tribunals often have hearings over a number of days and are presided over by multiple members, including judicial members. On the contrary, MRT and RRT matters are regularly handled by a single member. A typical hearing would only last for half a day. These twoTribunals impose a uniform fee regardless of whether the applicant is an asylum seeker, an international student who has paid thousands of dollars to come Australia to use its education services or an international conglomerate which wants to sponsor overseas employees to work in Australia.
The seemingly higher application fees aside, the way in which the new fee structure has been announced may have devastating effects for some review applicants. An example can demonstrate the problems:
An Australian citizen whose husband had an accident resulting in his severe physical disability, has to look after her dependent children and is unable to care for her husband. She sponsors her overseas brother for a Carer visa application with the view that her brother could provide daily care for her husband. The Carer visa application is refused. The reason for the refusal is due to the fact that the decision maker wrongly thought that the visa applicant and the person who needs care must be directly related.[v]
One way of dealing with a situation like this is to ask the primary decision maker to re-open the matter due to an obvious legal error. But as a matter of departmental policy which sometimes is said to be due to legal reasons (citing the common law doctrine of functus officio[vi]) the Department of Immigration and Citizenship (DIAC) often declines to re-open a finalized application. The applicant is left with no option but to seek a review in the MRT. An application of this kind with detailed submissions might result in a decision without the need of a hearing. The applicant could simply file a review application along with the required fee or fee waiver application, if s/he was financially disadvantaged. Prior to 1 July 2011, whether the fee was waived or paid, once the MRT made a favourable decision the aggrieved applicant would not be worse off, apart from the inconvenience of the delay in the processing of the visa application. Following the legislative changes, the applicant will be $770 worse off even if a rapid decision is made on the papers without a hearing. Worse still, if the review applicant does not have the financial resource to pay the required fee, whether full or reduced, the review application will be invalid and no redress will be available other than taking the matter to the High Court by way of judicial review.[vii]
The legislative changes also affect those visa applications which were refused by the DIAC but were subsequently found to be invalid visa applications on review and the matter remitted on that basis. Prior to 1 July 2011 an invalid visa application found by the MRT would result in remitting the matter to the DIAC and the review application fee would be fully refunded. Based on the new fee structure, an invalid visa application (not an invalid review application) found by the MRT (whether it is due to DIAC’s oversight or due to different findings of the law between DIAC and the MRT) would mean that the MRT would only refund half of the review application fee.[viii] The recent legislative changes do not affect the RRT fee structure. This is because the RRT operates under different regulations. Nonetheless, an invalid Protection visa application found by the RRT would make the $1,540 application fee payable by the review applicant within 7 days of being notified of the RRT’s decision.[ix]
The amendment regulations and other problems
In the 2011-2012 Budget the incumbent Government only announced its intention to increase the MRT/RRT application fees from $1400 to $1540. The Migration Act 1958 (the Act) itself is silent in relation to the actual fees but includes provisions that the regulations can prescribe the fees. Relevantly the Migration Regulations 1994 (the Regulation) makes provision to deal with review fees and fee waiver matters.[x]
On 16 June 2011 amendments were made to the Regulation to, amongst other things,change the prescribed fees with effect from 1 July 2011.[xi] This amendment only amended the existing fees of $1,400 to $1,540 but did not deal with the fee refund and waiver matters.[xii] On 30 June 2011 another amendment to the Regulation was made which came into effect on 1 July 2011.[xiii] The latter amendment sought to amend regs 4.13 and 4.14; which empowers the MRT to waive or to refund half of the applicable fees. The provisions in relation to a complete refund or waiver have been removed except for those invalid review applications that the MRT does not have jurisdiction to review.
It is a concern that the new regulations eliminate situations where a successful review applicant in the MRT can have a total refund and also where applicants who would suffer severe financial hardship can have a total fee waiver. This is particularly so considering the fact that some matters that were compelled to come before the MRT are due to mistakes made by the primary decision makers.
As was stated earlier, the RRT operates under different regulations in relation to fees and fee waiver matters. Reg 4.31B purports to prescribe the applicable fees for the RRT but it also makes provisions in relation to when fees are payable. Reg 4.31C deals with fee waivers and refund of fees. This would seem to be problematic when these regulations are viewed against the empowering Act and the RRT’s administrative practice.
Section 412(1) of the Act uses similar wording to that used in relation to the MRT in s347(1). It provides that, “An application for review of an RRT-reviewable decision must….(c) be accompanied by the prescribed fee (if any)”. Under ss347 & 412 of the Act, Parliament intends that review application fees need not be mandatory. There are two issues here. First, implicit in those sections, Parliament intends to give the executive arm of the government discretion in dealing with application fees to the extent that, they can choose to impose no fees (thus the choice of the expression “if any”), as well as various fees, if imposed, to be prescribed by regulations. Regulations cannot create a situation to oust this “no fee” discretion intended by Parliament. Second, in so far as the review application fee is concerned, an ordinary reading of this subsection would seem to suggest that, an RRT review application is valid only if it is accompanied by the prescribed fee. It is common knowledge that the RRT does not require an upfront application fee for RRT matters and will review an application without upfront fees. Therefore, the logical deduction would seem to be that, there has not been a prescribed fee because the RRT has exercised its discretion not to charge a fee. The RRT clearly does not intend this outcome. Can this seeming inconsistency be reconciled?
In order to reconcile the practical outcome of the current RRT practice one would need to read in words the Act does not have. That is to read s412(1)(c) as if it were expressed as, “be accompanied by the prescribed fee (if any prescribed fee is already payable)”. The way in which s347 is similarly expressed and the way the MRT operates do not support this interpretation. The only class of MRT applications that would be valid when they were not accompanied by the prescribed fee before the statutory time limitation for review application expires would be the ones that were lodged along with fee waiver applications. This class of application would become valid retrospectively only if the fee waiver application was accepted or the applicable fee was subsequently paid within a reasonable period following a refusal of the fee waiver request.[xiv] The writer is mindful of the qualification imposed by the Full Court in Braganza in relation to the interpretation of ss347(1)(c) where the Full Court said that, “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.”[xv] There is no apparent reason why the similarly worded s412(1)(c) should not be understood in the same way. However, fee waiver applications are not available for review applicants at the RRT.
In order to deem an RRT review application a valid application, not only has s412(1)(c) to be read with an expression that does not exist but a legal fiction has to be created, namely, to take each RRT review application also as an application for a fee waiver. The fee waiver decision will then be seen as being suspended until a review decision is made by the RRT. Whether the fee will be waived or not depends not on the exercise of a discretionary power by the RRT but on a set of rules prescribed by regulations. Even if this legal fiction were to be accepted, a few problems would remain: 1) By its own nature, a waiver decision must necessarily be an exercise of a discretionary power by the RRT and not be simply dependent on a set of written rules[xvi]. 2) The outcome of such fictional fee waiver requests ought not to be contingent on whether the applicant seeks further Court action or not, or whether the applicant seeks Ministerial intervention or not. [xvii] 3) The regulations in relation to RRT fee refund or waiver refer to “fee paid”. When a fee was not paid, no refund or waiver provisions can be enlivened.[xviii]
With the above discussion in mind, the issue of “no fee” discretion under the Act can be dealt with simply. Unlike reg 4.13(2) for the MRT where some kinds of review application do not attract a fee at all, the RRT does not have similar provisions. A fee that can be refunded or waived is not the same as an application that does not attract a fee from the outset.
In so far as the RRT is concerned, the fee regime would seem to be inconsistent with Parliament’s intention and is open to the argument that the relevant regulations are repugnant to the empowering Act. When subordinate legislation, such as regulations made under an Act of Parliament, is inconsistent or repugnant to the empowering Act the subordinate legislation is invalid to the extent of that inconsistency or repugnancy.[xix]
It is apparent that there are factual and legal issues in relation to the ways in which the MRT and RRT structure their respective fee regimes. It is hoped that, the Senate will consider disallowing the regulations or that the incumbent Government will soon restore the situation which allows a complete refund of fees paid and a complete fee waiver regime when the situation is warranted. It is further hoped that the authorities will soon put in place interim schemes to make sure that financially disadvantaged people will have an opportunity to seek a review application in the MRT.
By Chris Yuen[xx]
[ii] See http://www.fwa.gov.au/index.cfm?pagename=aboutbriefs&year=2011#300611 and http://www.fwa.gov.au/index.cfm?pagename=disputeapplication#feewaived. The FWA is established under Fair Work Act 2009 and s367 empowers the FWA to charge a fee.
[v] See definitions of “carer” in Reg 1.15AA of the Migration Regulations 1994 http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s1.15aa.html
[vi] It is the writer’s view that a matter of this nature does not give rise to functus. See Minister for Immigration & Multicultural Affairs v Bhardwaj  HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002)
[vii] The Migration Act 1958 specifically excludes the jurisdiction of the Federal Magistrates Court and the Federal Court in matters of this kind. See ss475-476A of the Act. The High Court has its original jurisdiction to hear migration decisions despite the Act. See Plaintiff S157/2002 v Commonwealth  HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) and a recent decision in the High Court: Plaintiff M13-2011 v Minister for Immigration and Citizenship  HCA 23 (23 June 2011) It is worth noting that, due to the nature of judicial review applications, not all mistakes made by a decision maker can be cured by a superior court. For instance, if the mistake was a mistake of fact that did not affect the jurisdiction of the decision maker, no remedy is available.
[viii] See new Reg 4.14(1)(b)6 which came into effect on 1 July 2011.
[ix] See Regs 4.31B & 4.31C of the Migration Regulations 1994.
[x] See Reg 4.13 & 4.31A of the Migration Regulations 1994
[xii] Ibid, see schedule 8 of the amendment regulations.
[xiv] See Braganza v Minister for Immigration and Multicultural Affairs  FCA 318 (28 March 2001) at par 50-52 and also, Patel v Minister for Immigration and Citizenship  FCA 392 (23 April 2009) also par 13-14.
[xv] Ibid, at 51.
[xvi] The regulations do have this effect, see reg 4.31C generally.
[xvii] Ibid, see reg 4.31C(1)(a)(i) and (b).
[xviii] Ibid, see reg 4,31C(2).
[xix] See Northern Territory v GPAO  HCA 8; 196 CLR 553; 161 ALR 318; 73 ALJR 470 (11 March 1999) per Gleeson CJ & Gummow J at 41 & 52.
[xx] Chris Yuen has been practising migration law for a number of years both commercially and at community legal centres. Chris was the principal solicitor of the Immigration Advice & Rights Centre (IARC) and he is now the principal solicitor of the Refugee Advice & Casework Service (RACS).