Case: Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (2001) 109 FCR 364
Outcome: applied
[4] of his reasons for judgment, the federal magistrate referred to Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (2001) 109 FCR 364. At [5] , his Honour concluded that the appellant was deemed to have received the letter of 25 September 2007, because of the cumulative effect of reg 4.10(1)(b) of the Migration Regulations and s 347 of the Migration Act 1958 (Cth) ("the Migration Act "). After reciting the facts, at [11], his Honour expressed the view that it was surprising that, of all the letters sent to the appellant at his nominated address, the only one he did not receive was that of 25 September 2007. At [12], his Honour pointed out that evidence that he had not received that letter was not before the Tribunal. His Honour said that it is not generally open to an applicant to seek to put new evidence before the Federal Magistrates Court, in order to challenge a finding of fact made by the Tribunal. After pointing out that the appellant had had every opportunity to put evidence before the Federal Magistrates Court, at [15], his Honour expressed the "opinion" that "it is more probable than otherwise that the [appellant] did receive the Tribunal's notification about paying his fee but simply failed, for whatever reason, to do so." His Honour went on to say that, even if the appellant did fail to receive the letter, "it is plain that the Tribunal's decision was correct." The reason his Honour gave for this was that, at the time of the Tribunal's decision, the appellant had not paid the required fee. At [16], his Honour expressed a concern that a person who did not actually receive notification from the Tribunal of the rejection of a fee waiver application may suffer hardship. Nonetheless, his Honour said, that was a matter for Parliament and his Honour was required to hold the application to be totally deficient in merit. Relevant legislation Section 347(1) of the Migration Act provides, so far as relevant to the present case: An application for review of an MRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period...and (c) be accompanied by the prescribed fee (if any). In the present case, it is not disputed that the appellant gave his application in the approved form to the Tribunal within the prescribed period. It is therefore unnecessary to look in detail at the provisions of s 347(1)(b) of the Migration Act , or at reg 4.10(1)(b) of the Migration Regulations , to determine what the period was. It is also not disputed that the appellant did not give to the Tribunal the prescribed fee within the prescribed period, because he applied for a waiver of that fee. The source of the power to waive the fee is reg 4.13(4), which provides: The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant. If there is a decision that the prescribed fee on application should not be paid, there is not "any" such prescribed fee, for the purposes of s 347(1)(c) of the Migration Act . In the present case, there was no such decision. The provisions of the Migration Act relating to the giving and receiving of Tribunal documents are found in Div 8A of Pt 5. Section 379A provides relevantly as follows: (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient ); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. ... (4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. A letter from the Tribunal to an applicant, advising that a decision that the fee on an application for review by the Tribunal should not be paid has not been made is not a document that any provision of the Migration Act or the Migration Regulations requires or permits the Tribunal to give to a person, or states that the Tribunal must do so by one of the methods specified in s 379A. Section 379AA provides, however: If: (a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 379A or 379B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Section 379C provides relevantly as follows: (1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA). ... (4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia&#8212;7 working days (in the place of that address) after the date of the document; or (b) in any other case&#8212;21 days after the date of the document. The effect of Braganza The Full Court in Braganza attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act . That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee. If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee. The problem is that time has elapsed. Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired. If a literal view were to be taken of s 347(1), in every such case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c). This would have the effect of depriving reg 4.13(4), and the words "(if any)" in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful. Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.13(4) to waive the fee. It is likely that there would be many such applicants. To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4). See especially [50]-[52] in the reasons for judgment of the Full Court. Consequent upon Braganza , the Tribunal appears to have adopted a practice of allowing 14 days from the deemed receipt by an applicant of a letter informing that applicant that a decision to waive the prescribed fee has not been made. This period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza . That practice appears to have been applied by the Tribunal in the present case, when it advised the appellant in the letter dated 25 September 2007 that he should pay the fee by 18 October 2007. This allowed for the seven working days after the posting of that letter, to give rise to the deemed receipt, with a further period of 14 days as a reasonable time in which to pay the fee. The Tribunal's obligation There can be no doubt that the Tribunal was entitled to act upon the view that the appellant must be taken to have received its letter dated 25 September 2007 once seven working days, determined at the place of posting, had expired. For the purposes of the application of the principle enunciated in Braganza , however, the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee. A reasonable time can never be a period determined arbitrarily. The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case. If, in a particular case, the person to whom the letter is addressed has not received it in fact, that is one of the circumstances that must be taken into account in determining whether a reasonable time has in fact elapsed.