Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733
Outcome: cited
In relation to these grounds Jarrett FM found in summary: 1. The conclusion that the Tribunal officer came to in his reasons for decision was that he was not satisfied that the onus upon the appellant had been discharged by her, which was a view that the Tribunal officer was entitled to take. Further, even if it were the case that the Tribunal officer's finding was against the weight of the evidence before him or her, and might be said to be a perverse finding of fact, it did not amount to an error of law, let alone jurisdictional error [25]-[26]. His Honour referred to comments of Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733 at [67] in relation to this proposition. 2. In relation to alleged irrelevant considerations: a. the appellant's partner's financial circumstances was not an irrelevant consideration; b. in a decision that concerns the capacity of the appellant to pay a fee, her assertions as to her employment status, either at the time of the application or soon thereafter, were plainly relevant. 15 Accordingly, his Honour dismissed the application. 16 There are two grounds of appeal before the Court. 17 First, in her notice of appeal filed 29 August 2006 in this Court, the appellant claimed that "the Federal Magistrate failed to find a jurisdictional error when the initial decision by the Tribunal was made with jurisdictional error". As of 29 August 2006 the reasons for decision of Jarrett FM had not been made available, and the solicitors for the appellant indicated that particulars of the error of jurisdiction would be provided at a later date. The appellant subsequently provided the following particulars: &#8226; "The Federal Magistrate erred in not deciding that the decision of the Tribunal was unreasonable. &#8226; All the evidence before the Tribunal was that the appellant was penniless. &#8226; The Tribunal found that because the appellant had not complied with a non-regulatory policy through not producing a specific set of documents (not required by regulation) that she was therefore not going to suffer severe financial hardship as a result of paying the filing fee (of $1,400). (The list of documents in the policy does not even purport to be an exhaustive list). &#8226; In the circumstances, the decision of the Tribunal was unreasonable. &#8226; In this regard, the Federal Magistrate, in paragraph 25 of the reasons, justified the decision of the Tribunal by simply stating that the Tribunal has determined that the review applicant (the appellant) had not discharged her onus of proof. &#8226; But the Tribunal did not dismiss the appellant's application for a fee waiver because she failed to discharge any onus of proof, the Tribunal went impermissibly further by stating that the absence of certain documents meant that the Tribunal could make an actual finding that the review applicant would not suffer severe financial hardship. &#8226; Further the Tribunal took into account an irrelevant consideration, namely the absence of evidence of the estranged spouse's financial circumstances yet there was no finding either at the primary (Department) level or at the Tribunal stage that there was any financial support from the estranged spouse and no evidence that the appellant was in a position to provide evidence of the financial circumstances of the estranged spouse. &#8226; The Tribunal failed to perform its statutory function under reg 4.13(4) Migration Regulations and as a result its decision was in excess of jurisdiction." 18 Second, at the hearing before me, Mr Boccabella for the appellant sought leave to add a further ground of appeal based on s 347(1) of the Act, which provides that an application for review of an MRT-reviewable decision must be in approved form, given to the Tribunal within the prescribed period, and be accompanied by the prescribed fee (if any). This ground of appeal is that the appellant has not been given proper notice of a decision, and is entitled to a reasonable period after proper notice has been given (which has not yet occurred) to have an opportunity to pay the prescribed fee.