Paul Cutler's Migration Case Law Blog

An application to the AAT has to be accompanied by the prescribed fee pursuant to section 347(1)(c) of the Migration Act. Despite my initial view “how hard can it be?” there have been at least two cases on this topic this year!

Fee reduction application

In the first case, Hanna v Minister [2023] FCA 604, the Applicant applied for a fee reduction at the time application was lodged. No actual fee was paid (in the prescribed period) and the Tribunal found it was without jurisdiction. On appeal the argument was that no fee was payable until the Tribunal decided if there would be a fee reduction.

Cheeseman J noted that: “In this appeal, the appellant had to navigate the twin shoals of the 2011 amendment, by which the possibility of outright waiver of the prescribed fee had been removed, and his failure to pay at least 50% of the prescribed fee within the prescribed period.”

Her Honour did not accept the Appellant’s arguments, but left open the question about what would have happened if 50% of the fee had in fact been paid. I wouldn’t advise testing it!

Payment of wrong amount

In the second case, BXS20 v Minister for Immigration [2023] FCAFC 20 the wrong amount was paid, leaving a shortfall of $58. That shortfall was eventually paid, but after the expiry of the prescribed period. Once again, the AAT treated the application as invalid (and it had no jurisdiction).

Although the Full Court considered the relevant cases on payments (by credit card) and the meaning of “accompanied” (which has some flexibility), the preferable construction of 347(1) was that both lodgement and payment had to occur in the prescribed period. In a separate (but not dissenting) judgment, Stewart J threw out a lifeline for future applicants when he observed that rectification (which wasn’t argued) acts retrospectively. So, had been rectification been raised, depending on the facts, the case may have succeeded.

Conclusion

I certainly understand that the prescribed fee is a considerable amount for some applicants, but paying the correct amount is a lot cheaper than fighting about it in the courts afterwards.

Creative commons acknowledgment for the photograph.