Alraheb v Minister for Immigration
[2009] FMCA 1284
•24 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALRAHEB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1284 |
| MIGRATION – Review of decision of Migration Review Tribunal – delegate complied with notification obligations – no evidence of fraud – s.360 does not apply where no jurisdiction – no error in typographical mistake – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 338, 347, 348, 360, 476, 494B, 494C, 494D Migration Regulations 1994 (Cth), 4.10 |
| SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 Anthony David Craig v The State of South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193; 1995 HCA 58 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 |
| Applicants: | JOHN FAWZI ALRAHEB MAI GORGE ALRAHEB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2506 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 December 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 December 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 16 October 2009, and amended on 27 November 2009, is dismissed.
The first and second named applicants to pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2506 of 2009
| JOHN FAWZI ALRAHEB MAI GORGE ALRAHEB FAWZI JOHN ALRAHEB ALICE JOHN ALRAHEB MAIS JOHN ALRAHEB LU’AY JON ALRAHEB DANIAL JOHN ALRAHEB YAZEN JOHN ALRAHEB |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 16 October 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 27 November 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which found on 1 October 2009 that it did not have jurisdiction to review the decision of a delegate of the respondent Minister, made on 30 June 2009, to refuse Temporary Business Entry (Class UC) visas to the applicants.
Background
The applicants are husband (“the applicant”), wife and their six children (all under the age of 18). They are all citizens of Jordan.
On 18 September 2007 they applied for Temporary Business Entry visas (see Court Book – “CB” – CB 1 to CB 17). They were represented by a registered migration agent (CB 1), who assisted with completing the application form (CB 12). The applicant directed that all communication about the application should be sent to his migration agent (CB 12).
Formal appointment of the migration agent was sent by facsimile transmission to the Minister’s Department on 21 November 2007 (CB 22 to CB 26). The applicant agreed that communication with his migration agent was to be conducted by: “… fax, e-mail or other electronic means” (CB 25.5 – item 17).
The delegate refused the application on 30 June 2009. The decision record is reproduced at CB 104 to CB 111. The letter of notification of this decision, dated 30 June 2009 (CB 100 to CB 103) which attached the decision record was sent to the applicant’s migration agent as the authorised recipient for this purpose, on 30 June 2009, by “e-mail” (CB 98 to CB 99).
The applicant applied to the Tribunal for review of this decision on 27 July 2009 (CB 112 to CB 116). There was no indication that the applicant was represented in relation to this application (CB 114). He gave an address in West Pennant Hills, Sydney, as the address for receiving correspondence (CB 114). This was his residential address (CB 113).
The Tribunal acknowledged receipt of the application by letter dated 3 August 2009 and sent to the address for receiving correspondence as notified by the applicant (CB 119). It was returned by the postal service as “unclaimed” on 10 September 2009 (CB 121).
The Tribunal wrote to the applicant by letter dated 28 August 2009 advising that the application for review had not been made within the relevant time limit, and that it appeared in the circumstances that the application was not valid (CB 122). Comments in writing were invited by 22 September 2009.
The Court Book contains, relevantly, two copies of “Case Notes” by officers of the Tribunal recording telephone conversations and a conversation at the “counter” with the applicant.
The first (CB 123) reports that the applicant sought advice as to how he should respond to the Tribunal’s letter. He made reference to an earlier submission explaining why the application was “lodged late”. The officer advised that he still had until 22 September 2009 to comment.
The second (CB 124) reports an attendance by the applicant at the Tribunal’s “counter”, and a subsequent telephone conversation with a Tribunal officer.
By letter dated 18 September 2009 and delivered by hand on 22 September 2009 the applicant wrote to the Minister’s delegate and sought a “fresh letter” of notification, on the basis that the date of birth cited for one of his children in the decision record was “not correct” (CB 125).
It is clear that the applicant’s motivation was: “…By giving me another decision letter it would also assist me to exercise my right with the Migration Review Tribunal. My previous appeal to the Tribunal was received by the Tribunal late. If you use your generosity and grant me a new decision I will have the right to review” (CB 125).
The Court Book does not reveal any response by the delegate. But in the circumstances there is no evidence that any “new” decision letter was sent.
The Tribunal found that it did not have jurisdiction to review the delegate’s decision (CB 128 to CB 132).
The Tribunal’s Reasons
The Tribunal accepted that the applicant was seeking review of a reviewable decision covered by s.338(2), and that the prescribed applicable period was 21 days from the applicant being notified of the decision (s.347(1)(b)(i) of the Act and reg.4.10(1)(a) of the Migration Regulations 1994 (Cth)) (at [17] of the decision record). It found that the decision notice was dispatched (by e-mail to the authorised recipient) in accordance with s.66(1), s.494B(5) and s.494D, and thus the applicant was taken to have received the notice on 30 June 2009 (s.494C(5)) (at [21] of the decision record).
Therefore the last day on which a valid application could have been lodged was 21 July 2009 (21 days after the date of the notification – reg.4.10(1)(a)) ([25]).
The Tribunal found that as the application for review was lodged on 31 July 2009 and as the applicants were properly notified of the delegate’s decision on 30 June 2009, the application for review was made after the prescribed period had elapsed ([25] – [29]).
In its analysis the Tribunal considered the applicant’s statutory declaration which it said it received on 31 July 2009, which stated the applicant’s reasons for lodging the application late.
It did not accept “that these submissions provide any basis for accepting the review application lodged on 31 July 2009” ([23]).
The Tribunal also noted that it had: “… no discretion to accept an application that is lodged outside the prescribed timeframe and there is no provision for extension of time in which to lodge an application for review” (at [23] of the decision record).
The Tribunal noted a copy of a letter addressed to the delegate from the applicants requesting that the delegate renotify the applicants of the decision because the birth date of one of the applicants was incorrectly recorded. However, the Tribunal found that this submission did not provide a basis for accepting the review application ([24]).
The Tribunal found that it did not have jurisdiction in this matter ([28]).
Application before the Court
The amended application before the Court contains grounds in the following terms:
“1. The Migration Agent acted in bad faith.
2. The Migration Review Tribunal failed to give me a hearing as I already paid the fee to establish reasons beyond doubt why my application should be considered.
3. The Tribunal ignored the omission of applicant’s involvement even though the Statutory Declaration was witnessed by him as a Justice of the Peace. The Tribunal failed to understand and investigate the delay in lodging the application.”
Before the Court
The applicant appeared in person. He was assisted by an interpreter in the Arabic language. Mr A. Markus appeared for the first respondent. The second named applicant, the applicant’s wife was also present. The applicant had been appointed as his children’s litigation guardian on an earlier occasion before the Court.
Evidence Before the Court
In addition to the Court Book, also taken into evidence were the applicant’s affidavit of 15 October 2009 and 27 November 2009. Mr Markus raised objections as to form. Neither affidavit, for example, contained any interpreter’s certification in circumstances where, clearly before the Court, the applicant required the assistance of an interpreter. Nonetheless, I admitted the applicant’s evidence, subject to the objections raised by Mr Markus. The applicant was cross-examined on his evidence.
For the respondent, the affidavit of Benjamin James May of 20 November 2009, annexed a statutory declaration made by the applicant on 29 July 2009. That had been provided to the Tribunal, and to which the Tribunal made reference in its decision record, and set out its terms in full (see [22] of the decision record). The Statutory Declaration was also taken into evidence, and marked as Court Book pages CB 134 and CB 135. In the circumstances it was preferable that the copy of the statutory declaration become part of the bundle of relevant documents.
The following can be derived as relevant to the issue before the Court from these documents, namely whether there was error in the Tribunal’s decision in concluding that it did not have jurisdiction to conduct the review of the delegate’s decision.
The Statutory Declaration
The applicant’s statutory declaration of 29 July 2009 was received by the Tribunal at about the time that the application for review was made.
In it, the applicant declared that he received the decision refusing his application for the visas on 8 July 2009 from his migration agent. That although his agent had told him that the: “… deadline for the lodgement of the application” was 21 days from the date of decision, that is 30 June 2009, the applicant thought that his 21 days started from the day that he picked up the decision from his agent’s office. The applicant declared that he then: “… went to Canberra for a week and came back on the 28th July 2009 and went to the MRT to lodge the application” (paragraph 5 of the statutory declaration).
In his declaration, the applicant appears to have accepted that his application was late (see paragraph 10), but asked the Tribunal to accept the application on the basis that his: “… whole life and family depends on this application”.
The First Affidavit
In his affidavit of 15 October 2009, the applicant affirms that he became aware of the refusal only after he “personally contacted the migration agent”. He states that the decision was sent to the migration agent, and “I was never officially notified even though I had paid and met all his fees” (paragraph 2).
The applicant says that when he became aware of his application (no date is given in the affidavit), he and his wife went to see the agent. He asserts the agent told him that he could lodge his application with the Tribunal: “… within 28 days after he gave it to me”. This latter is inserted in writing (see paragraph 4). There is no initial, or other notation, to show that this latter was part of the affidavit at the time that it was said to be witnessed before a Justice of the Peace on 15 October 2009.
The applicant affirmed, in his affidavit, that he was subsequently given the statutory declaration, which he says appears in the Tribunal’s decision record, and that the contents of that declaration were not explained to him until the time that he made his affidavit (that is, 15 October 2009). He asserts that the agent: “… made me sign it with an assurity that I should not worry” (paragraph 6).
The applicant also asserts in his affidavit that he was misled by his migration agent, and that he was not aware of the contents of the declaration which was given without his knowledge (paragraph 7).
The Second Affidavit
In his affidavit of 27 November 2009, the applicant confirms that he did not personally receive notification of the delegate’s decision, and that he only became aware of this when he approached his migration agent on 27 July 2009, when he visited the agent’s office with his wife to find out about progress on his application. On that date the applicant affirms that the agent completed the application for review form, and that he was told to take it to the Tribunal. He repeats that he understood from the agent that the application could be lodged within 28 days of receiving the notification of the refusal of the application (paragraphs 3 and 4).
He affirms that he was also told to come back to the agent in two days, within which time the agent would prepare the statutory declaration, which the applicant says was signed before his agent on 29 July 2009.
The applicant asserts that on 28 August 2009 he was sent a letter by the Tribunal (see CB 122) informing him that his application may not be valid, as it was not lodged within the requisite 21 days.
The applicant’s affidavit asserts that he recalls signing the statutory declaration prepared by his agent, but that he had never read it, and nor had it been read to him. That he now: “… totally disagree with its contents after it was read and explained to me” (paragraph 7).
The essence of the applicant’s evidence arising from this affidavit is that he was not made aware of the refusal of the application for visas until he visited his agent on 27 July 2009, and had not been made personally aware of the refusal by the Department. The applicant understands that the Tribunal has no discretion to accept an application that is lodged outside the prescribed period, but that the delay in making the application for review was because he was not properly notified of the decision by the Department, that he was not responsible for the statutory declaration dated 29 July 2009, and that this was a fabrication by the migration agent to justify a late lodgement.
Evidence Given in Court
The applicant gave evidence and was cross-examined as to the contents of his affidavits.
He gave evidence that:
1)He arrived in Australia in 2003 or probably 2004. That he can speak English “a little bit”, that he could write English, but was not good at spelling, and that he could read (in English), but “not 100%”.
2)He had signed both of the affidavits, and had received assistance from a Mr Toufic Laba Sarkis. In answer to a question as to whether any advice had been provided by Mr Laba Sarkis, the applicant responded that it was only interpreting, and that he was “helping with papers”.
3)Confirmed that he discovered that the application had been refused on 27 June 2009.
4)He gave evidence that prior to attending at his agent’s office, he spoke to his migration agent by telephone, and was told that the application had been rejected.
5)I note that this is inconsistent with paragraph 3 of his affidavit of 27 November 2009, where his evidence was that he visited the agent’s office “without appointment”, and that it was on that occasion that he first discovered that the application had been refused.
6)The applicant subsequently explained that he telephoned, was told that his application had been refused, and was told to “come over now”.
7)This again is inconsistent with his evidence at paragraph 3 of his affidavit of 27 November 2009. His evidence there was that he visited his agent’s office: “… without appointment to find out any progress on our application”.
8)The applicant confirmed that the signature on the Statutory Declaration was his signature, but that he did not know “any of these papers”. He only signed when he was told to. The applicant gave evidence that he was a businessman. I note that this was consistent with the type of visa he had applied for, and the information generally put in support of the application for the temporary business visa.
9)The applicant acknowledged that the Tribunal had sent its letter of 28 August 2009 to him seeking his comments on the issue of the validity of his application (CB 122). When pressed as to his knowledge of the contents, he then suggested in his evidence that he only knew that he generally received letters from “Immigration”. When what is reproduced at CB 122 was read to him through the interpreter he again confirmed that he had received this letter, displaying that the contents of the letter were at least to some degree known to him.
10)He also confirmed that he contacted the Tribunal by telephone on 1 September 2009 (CB 123), and that he had told the Tribunal officer that he had already explained why the application had been lodged late.
11)In context, this reference to an earlier explanation could only have been to the Statutory Declaration of 29 July 2009. When it was put to the applicant that he would not have told the Tribunal that he had already provided his explanation in a previous submission, unless he knew of what that previous explanation to be, the applicant merely stated that his migration agent told him to sign a Statutory Declaration and he did not know: “… if this paper is against me”.
12)The applicant also confirmed that he attended at the Tribunal offices on 22 September 2009 (CB 124). In answer to relevant questions, however, the applicant’s evidence, when asked to confirm whether he again told the Tribunal that he had already provided comments regarding the late application, was somewhat confused in that he said that it was “not in relation to the delay”. Given that he had not provided any other comments, it is difficult to see what else the applicant could have been referring to. He then gave evidence that he told the “counter” staff that he had sent the explanation “with” (through) the migration agent (this answer did not appear responsive to the question, but in any event contradicted what he had immediately just said).
The Applicant’s Submissions
In submissions before the Court the applicant confirmed that he was receiving assistance from Mr Toufic Laba Sarkis, and emphasised that this was in a “free” capacity. Nonetheless, I understood him to assert that he thought that Mr Laba Sarkis was both a migration agent, an immigration lawyer, and a translator (interpreter).
In further submissions the applicant:
1)Confirmed that he took no issue that the notification letter (including the delegate’s decision record) of 30 June 2009 was sent at that time.
2)But that he personally had not received the refusal letter.
3)That he only found out about it after he went to the migration agent’s office on 27 July 2009. He complained that he had paid the agent in advance, and that he had been cheated.
4)Pointed to his affidavit of 27 November 2009 as a complete explanation to what had then occurred.
5)That he trusted his migration agent, and just signed the Statutory Declaration.
6)That his migration agent made no mention of his name in the application for review. This again should be seen as his having been “tricked” by his agent, and that he was the cause for the late application.
7)That, with reference to [12] of the Tribunal’s decision record the Minister’s Department should have provided a copy of the notification to him personally.
8)Emphasised that the application for review had been submitted late, but that he was “a victim”, and could not be held responsible for the “negligence and trickiness” of his migration agent. Further, that there was negligence on the part of the Tribunal because the Tribunal did not “discover” the “cheating and delay was because of the immigration agent and not because of him”.
In his submissions the applicant also stated that he had signed the application for review on 27 July 2009, and that he was in his migration agent’s office when he had done that. This appears to be inconsistent with what is set out in his Statutory Declaration at item 5, where he declared that he had been in Canberra for a week, and returned to Sydney on 28 July 2009 (that is, the day after the day on which he said he was in his migration agent’s office in Sydney).
Consideration of the Applicant’s Evidence
It must be said that I found the applicant’s evidence before the Court, and with reference to what is set out in his Statutory Declaration, and his affidavits, to be unsatisfactory in a number of ways.
The applicant’s evidence was inconsistent in a number of important matters relating to his factual account of what had occurred. For example in his evidence before the Court, the applicant said that he first found out about the refusal when he telephoned his migration agent who told him that the application had been refused, and that he then attended at the agent’s office.
This is inconsistent with paragraph 3 of his affidavit of 27 November 2009. Noting that this is the affidavit that the applicant pressed was the correct factual account of relevant events. In the affidavit he says that he visited the migration agent’s office on 27 July 2009 with his wife, without an appointment, to find out about the progress of the application. This certainly and clearly infers that he did not know of the outcome of his application prior to physically visiting his agent’s office.
The applicant’s evidence before the Court was that he signed the Statutory Declaration of 29 July 2009, but that he never read it, and that it was not read to him. That, at the time when he signed it, he did so because his agent told him to do so, and that he now disagrees with its contents.
That Statutory Declaration provides an explanation for the delay in making the application to the Tribunal which is quite at odds with the applicant’s subsequent explanation in his affidavits, and evidence before the Court. In the Statutory Declaration the applicant asserts that he was told that his “deadline” for the lodgement of the application was 21 days from the date of decision, but that there was a misunderstanding, because he thought that the 21 days started from the date that he picked up the decision from his migration agent’s office.
In the circumstances of this case, I find it difficult to accept the applicant’s evidence that he had no idea whatsoever what was contained in his statutory declaration which was made before a Justice of the Peace, who was also a registered migration agent. I agree with submissions by Mr Markus that the applicant is a businessman, and that, according to the material in the Court Book, material which he himself submitted to the Minister’s Department, reveals that he has been carrying on various business activities in Australia for a number of years. Further, it was the applicant’s evidence before the Court that he could read and write English “a little bit”, and, although he was not good at spelling, he could read English, but “not hundred percent”.
Within this context, the applicant’s evidence that he would take care, as a businessman, with legal documents (for example he would obtain the services of a lawyer or translator if there was a bank document to be signed) but that, given that this was a visa document, did not feel the need to do so when confronted with a Statutory Declaration, reveals an attitude, if true, to be inconsistent with someone versed in business transactions and dealings generally.
Mr Markus submitted that it is entirely “fantastic”, in the circumstances, for the applicant to suggest that he would sign a formal legal document, but not know its contents. Given the entirety of the applicant’s evidence this appears to be an accurate description if the word is meant to convey the meaning that what was said was not true.
This must also be seen in the context of what the applicant confirmed that he told the Tribunal officer in a telephone conversation on 1 September 2009. That is, that he had already explained, in a previous “submission”, why the application to the Tribunal was lodged late. In context, this could only have been a reference to the Statutory Declaration, as no other submission or document had been provided to the Tribunal as at 1 September 2009.
Therefore, the applicant’s evidence was that he told the Tribunal officer that the explanation had already been provided (the explanation in the Statutory Declaration). In effect, the applicant confirmed before the Court that the explanation that he had given the Tribunal for the delay was that there had been a misunderstanding with his migration agent as to the commencement of the prescribed period for the making of an application to review.
This is clearly inconsistent with his subsequent evidence that it was not until 27 November 2009 that the Statutory Declaration was read to him, and explained to him, and that he now disagrees with its contents (see paragraph 7 of the affidavit of 27 November 2009).
At the very least the inconsistency between the applicant confirming in his evidence that he told the Tribunal on 1 September 2009 that an explanation had already been provided as to the late lodgement of the application, yet, in the same evidence before the Court, confirmed that he had no idea what was in this document until it was read to him in November 2009, remained unexplained. It raises a question as to the credibility of the applicant’s evidence.
The applicant’s answers to questioning during cross-examination in relation to this inconsistency, as with other parts of his evidence, had the appearance of being rehearsed, or that the applicant was following a predetermined “script”. In effect, this can be derived from the repeated emphasis, without really answering the relevant questions put to him, on his explanation that he knew nothing about the contents of the Statutory Declaration, and only signed it because he was told to do so by his migration agent. The applicant appeared far more focused on repeating this explanation, than answering the questions put to him.
In this regard the applicant’s answers to questions relating to his attendance at the Tribunal’s offices again appeared to evade answering what for the most part (although it must be said not exclusively) were straightforward questions.
What remained unexplained, further, through the entirety of the applicant’s evidence, is why the applicant did not take up the opportunities, offered to him before the Tribunal, to provide the explanation that he has now attempted to put before this Court. If the applicant’s evidence is, on its face, that he had no idea what was in the Statutory Declaration, and that the agent had “tricked” him, or otherwise acted fraudulently, then his response to the Tribunal’s letter of 28 August 2009 would have been the perfect opportunity for the applicant to have put that allegation before the Tribunal (CB 122). He confirmed in his evidence that he told the Tribunal that he would respond to its letter by 22 September 2009 (CB 123).
The unsatisfactory and unexplained nature of the applicant’s evidence can also be seen when regard is had to the applicant’s letter dated 18 September 2009, and signed by him on 21 September 2009 (CB 125), to the Minister’s delegate requesting “a fresh” letter notifying him of the refusal of the visa, so that it would assist him to exercise his right to make an application to the Tribunal, given that his “previous appeal” “was received by the Tribunal late”.
When the contents of this letter, and its timing, is put in sequence with the Tribunal’s letter of 28 August 2009, the opportunity to comment in writing as to the reason for the delay by 22 September 2009, and with his two conversations with Tribunal officers on 1 September 2009 and 22 September 2009, where he advised even at that time that he had already provided comments regarding the late lodgement of his application, can only be seen that, at least as at 21 September 2009 (if not 22 September 2009), the applicant’s behaviour was such as to provide the basis to draw a strong inference that he certainly knew of the contents of the Statutory Declaration, that he was unable to provide any alternative explanation (given that he said that he had already provided his explanation), and, by his letter of in September 2009 to the Minister’s delegate, conceded that a “fresh” notification was the avenue available to him to be able to obtain a review before the Tribunal. Yet, during that time that was available to him, that is at least from 28 August 2009 to 22 September 2009, the applicant made no such attempt to provide the alternative explanation he now gives in his evidence to this Court.
Nor has the applicant explained the origin of the letter of 18 September 2009 to the delegate. On what is reproduced at CB 125, a copy of this letter was delivered to the Tribunal “by hand” on 22 September 2009. It was signed by the applicant on 21 September 2009 (the signature appears to be remarkably similar to the signature on the applicant’s affidavits put before the Court now). The letter bears the handwritten notation at its foot: “please see my letter to DIAC”.
Taken on its face, and in the absence of any explanation to the contrary by the applicant, the letter confirms that, at least as late as 21 September 2009, if not 22 September 2009, the applicant’s clear position in relation to the Tribunal was that his explanation for the delay had already been provided in a Statutory Declaration, and that the avenue for his being able to appeal to the Tribunal, was the request of the Minister’s department for a “fresh letter”.
Ground One
Ground one of the amended application asserts that the migration agent acted in bad faith. I understood, from the applicant’s submissions before the Court, that what he was asserting was fraudulent behaviour on the part of the agent in relation to the preparation, and the lodging of the Statutory Declaration with the Tribunal.
Even putting aside the unsatisfactory nature of the applicant’s evidence in relation to the Statutory Declaration, and what he knew, and did not know, I can only agree with Mr Markus that there is no factual basis for asserting, before the Court, fraud in relation to his migration agent.
Before expanding on this issue, a preliminary matter needs to be addressed. Neither by way of the grounds as pleaded, nor in his evidence or submissions does the applicant assert that the delegate’s decision was not properly notified to his migration agent.
To the extent, however, that paragraphs 9 to 11 of the applicant’s affidavit of 27 November 2009 infers error on the basis that the applicant was not personally notified of the notification of the refusal of the visas by the Minister’s Department (and as pressed in his submissions before the Court), then such a complaint must be rejected.
In paragraph 9 of his affidavit, the applicant refers to paragraph 12 of the Tribunal’s decision record, where the Tribunal sets out its understanding of some relevant provisions relating to the giving of notice in circumstances where an applicant has authorised a recipient for the purpose of receiving correspondence from the Minister’s Department. The applicant’s affidavit quotes from the Tribunal’s decision: “… if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D92 of the Act [sic: s.494D(2)]. However, this does not prevent the Minister giving the applicant a copy of the document”.
What the applicant fails to comprehend (or perhaps whoever directed the applicant to this particular section of the Act) is that, in circumstances where the applicant authorised his migration agent to be the recipient of correspondence from the Minister’s Department, s.494D(1) compels the Minister to give the authorised recipient, instead of the applicant, any documents (including the subject correspondence) that the Minister would otherwise have given to the applicant.
Section 494D(2) provides that, if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant. This is exactly what has occurred in the current case. By properly giving the letter of notification to the authorised recipient, the Minister discharged his obligation in this regard.
The last sentence quoted by the applicant from s.494D(2), that
this: “… does not prevent the Minister giving to the” applicant “a copy of the document” does not assist the applicant in the current case in showing error on the part of the Minister’s Department in relation to notification of the refusal of the visas. This is because the Minister is not compelled to give the applicant a copy of the notification letter, but merely if the Minister chooses to do so, there is no error in doing so, given what is set out in s.494D(1).
To the extent, therefore, that the applicant’s complaint, in at least a part, appears to assert such error, that is not made out.
The applicant’s ground, as pleaded, asserts bad faith on the part of the migration agent. There is no allegation, or even argument, that the Tribunal itself acted in bad faith. The migration agent was clearly not the relevant decision maker in the current case. The best, therefore, that the applicant can assert is bad faith or fraud on the part of the migration agent, such that it could be said that this vitiated any process before the Tribunal, in the sense as found by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (“SZFDE”).
While the ground as pleaded asserts “bad faith”, the applicant’s complaint is of “fraud” in his submissions and “affidavit evidence” before the Court. In any event, fraud can encompass the ground as pleaded (see SZFDE at [17] and the reference to Anthony David Craig v The State of South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193; 1995 HCA 58 per Brennan, Deane, Toohey and McHugh JJ at CLR 175-6; ALR 599-600; ALD 196-7).
There are a number of quite separate and complete answers to the applicant’s ground as properly understood in light of his submissions.
The first is, even if the Court were to accept the applicant’s evidence, on its face, there is still no evidence before the Court of any relevant fraud that affects the Tribunal’s decision, given the timing of the making of that decision.
The relevant chronology is:
1)The delegate’s decision was made on 30 June 2009.
2)This was notified by e-mail, to the applicant’s authorised recipient at the last e-mail address provided to the Minister for the purposes of receiving documents, on 30 June 2009.
3)The applicants are taken to have received the notice, therefore, on 30 June 2009 (given the provisions of ss.66(1), 494B(5) and 494D).
4)The prescribed period, therefore, by which that application for review must be lodged ended on 21 July 2009. Given the provisions of s.347(1)(b)(i) and reg.4.10(1)(a) this means that the time within which the application for review must have been lodged ended on 21 July 2009.
Even if the applicant’s evidence, taken at its very highest, could show fraud on the part of the agent (although, in my view, that is not made out on the material before the Court), then the applicant’s evidence now before the Court is also that he attended at his migration agent’s office, with his wife, on 27 July 2009. That it was on that date that he completed the application for review. Whether the Statutory Declaration was prepared on that date, or some few days thereafter and signed by the applicant on 29 July 2009, what remains is that the “fraud” alleged by the applicant now (on the basis that what was said to have occurred was fraudulent) occurred, at the very earliest, on 27 July 2009, in circumstances where the application for review should have been made by 21 July 2009.
There is no evidence of any fraud having occurred up to and including 21 July 2009. Whatever may be said to have occurred after that date, at the agent’s office, cannot be said to have affected the Tribunal’s decision making process, as set out in Part 7 of the Act. The fact that the refusal of the visa was properly notified means that the date by which the applicant was required to make his application for review was 21 July 2009. Even if some fraud by the agent was said to have occurred after that date it cannot have affected the Tribunal’s exercise of its Part 7 function.
Given that the Tribunal, in whatever circumstances, had no discretion to extend the time by which the application could have been made, as Mr Markus correctly submitted in my view, the alleged fraudulent activity relates to preparation of documents after the expiry of the relevant time. In these circumstances, the Tribunal simply had no jurisdiction where the applicant was properly notified of the delegate’s decision.
Mr Markus referred the Court to Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443, in particular [33]:
“… This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is a testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s.426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal…”.
The issue in the current case, then, is that there is no evidence of any fraud on the applicant or the Tribunal between 30 June and 21 July 2009.
The applicant’s evidence in his affidavit of 15 October 2009 (see the hand written notation at paragraph 4), was that the migration agent mistakenly told the applicant that he had 28, instead of 21, days. I put to one side the question as to whether that evidence was properly given (there is no indication that the handwritten notation was made at the time of the making of the affidavit). However, even taking the applicant’s evidence at its highest, the best that could be said is that there may have been some omission by the migration agent in notifying the applicant of the exact 21 day time limit.
Even there, that “mistake” cannot properly be said to have been part of the “fraudulent conduct” of the agent in preparing the Statutory Declaration. Such advice, on the applicant’s own evidence, occurred, again, after the expiry of the relevant period within which an application could have been made, that is on 27 July 2009 (see paragraph 3/4 of the affidavit of 15 October 2009, and paragraph 3 of the affidavit of 27 November 2009).
There is no error, therefore, in the Tribunal’s determination that it had no jurisdiction in this matter, because, once the Tribunal found that the notification had been properly given, the date for the making of the application had passed without an application being made in circumstances where the Tribunal had no discretion to extend the relevant time. Further, in circumstances where there is no evidence (or even assertion, for that matter) of fraud either on the applicant, or the Tribunal, or its processes, as at that time.
In my view, there is a further answer to the applicant’s complaint. That is, the circumstances before the High Court in SZFDE were that the fraud of the migration agent was said to have had the effect of stultifying the operation of what was said to be “…the critically important natural justice provisions made by Div 4 of Pt 7 of the Act” (at [51]).
Relevantly, the High Court said:
“51 No doubt Mr Hussain was fraudulent in his dealings with the applicants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.
52 The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj” (footnotes omitted).
Importantly however, for current purposes, the High Court also went on to say:
“53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.” (footnotes omitted).
The current case plainly does not arise from circumstances involving Div 5 of Part 5 of the Act (concerned with the “Conduct of Review”) (the corresponding provisions to Div 4 of Part 7 applicable to this Tribunal). The current circumstances do not involve any allegation of fraud, such that the Tribunal’s procedural fairness obligations, arising from Div 5, could be said to be vitiated by any such fraud.
In my view, a distinction may be drawn between the conduct of a review by the Tribunal once it has entered on the exercise of its jurisdiction to conduct such a review, and the question of whether it has jurisdiction in the first place.
In the current case, the alleged fraudulent activity relating to the preparation of the Statutory Declaration occurred after the time for the making of the application for review. Any such fraud (which, in my view, is not made out in any event given the state of the applicant’s evidence), in relation to the Statutory Declaration, does not assist the applicant because it cannot be said to affect the Tribunal’s exercise of its powers.
As Mr Markus in my view correctly submitted, the Tribunal has no powers to exercise, until its jurisdiction is enlivened. Once the jurisdiction is enlivened, on the authority of SZFDE, any fraud which is established on the evidence may then assist an applicant to the extent that the Tribunal’s obligations in Div 4 may be said to have been vitiated by the fraudulent actions of another.
In the current case, at best, any advice by the agent that the period for the making of the application of the review was 28, rather than 21, days is at best negligent, given the absence of any other evidence attendant on that advice said to have been given by the migration agent. But in any event, it was given, on the applicant’s own evidence, after the expiry of the relevant date.
In summary, therefore, given the unsatisfactory state of the applicant’s evidence, I do not accept that the migration agent acted fraudulently (or, for that matter, in bad faith) by virtue of what was said to be attendant on the preparation of the Statutory Declaration ultimately signed by the applicant. In my view, on the evidence available to the Court, the applicant knew of the contents of the Statutory Declaration at the earlier time. His subsequent actions up until 22 September 2009 were consistent with the explanation provided for the late attempt at making an application for review to the Tribunal. Namely, that there was a misunderstanding between the applicant and his migration agent.
But even if some fraud could be said to be established on the evidence, any such fraud occurred well after the time for the making of the application, and could not be said, therefore, to have affected any process before the Tribunal, whether the consideration of whether it had jurisdiction, or otherwise.
Third, in my view, for the claim of fraud to have assisted the applicant it would have required the Tribunal to have embarked on the exercise of its jurisdiction such that the authority of SZFDE would be available to the applicant, subject of course to fraud being established in the circumstances.
In all, therefore, ground one of the amended application is not made out.
Ground Two
Ground two of the amended application asserts that the Tribunal failed to give the applicant a hearing, given that he had already paid the fee, to establish reasons “beyond doubt” as to why his application should be considered.
As the Minister submits, this ground is misconceived to the extent that it asserts that the Tribunal should have invited the applicant to a hearing. The Tribunal concluded that it had no jurisdiction to consider the application for review. In the circumstances set out above the Tribunal’s conclusion was not made in error. Given this, the Tribunal was not obliged to conduct a review under Part 5 of the Act (that part of the Act containing s.360, which obliges the Tribunal, in certain circumstances, to invite the applicant to appear at a hearing before it to give evidence, and present arguments relating to the issues arising in relation to the decision under review).
To the extent, therefore, that the applicant asserts some failure or breach, pursuant to s.360 of the Act, this ground is misconceived, particularly to the extent that the ground, or rather whoever drafted the ground on behalf of the applicant, does not understand that the threshold issue in the current case was whether the Tribunal had jurisdiction to review the delegates decision in the first place.
While s.348 of the Act compels the Tribunal to review a valid application made under s.347 of the Act, the late lodgement of the application in the current case means that the application, purportedly made pursuant to s.347, was not valid. The Tribunal, therefore, was unable to enter into the conduct of the review.
Section 360, relating to a hearing, and for that matter all the other sections set out in Div 5 of Part 5 of the Act, do not apply where the Tribunal has no jurisdiction to conduct the review (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940).
Notwithstanding this, it is the case that general considerations of common law procedural fairness obligations do apply to the question of whether the Tribunal had jurisdiction or not. But, in this regard, the applicant was invited, in writing, to comment on this significant issue on which the Tribunal’s decision turned. That is, whether the application to the Tribunal had been made in time, and the effect on the Tribunal’s capacity to conduct the review. This is the import of the Tribunal’s letter of 28 August 2009 (CB 122).
The applicant did not respond in writing, as he was invited to do, by 22 September 2009. This, of course, does not reveal any failure of procedural fairness on the part of the Tribunal, given that the time provided to the applicant for that purpose was a reasonable period.
In any event, on the evidence available to the Court, the applicant, within that period, notified the Tribunal that he had already provided his “submission” on the issue as to why the application for review was lodged out of time. This of course being a critical factor in relation to the question of the Tribunal’s jurisdiction. The applicant’s reference to this “submission” leads to the Statutory Declaration of 29 July 2009. At the relevant time of the making of its decision, this remained, at that time at least, the applicant’s preferred explanation as to why the application had not been lodged within time. The Tribunal considered that explanation, and took into account the applicant’s “submission”. But, in the circumstances, correctly found that the “submission” did not provide any basis for it being able to accept the application for review out of time. Particularly, that is, in circumstances where the Tribunal had no discretion in this regard, and given that there was no provision for any extension of time within which to lodge such an application.
While the applicant clearly was not invited to a hearing, as opposed to being given the opportunity to comment in writing, the Tribunal was, in the circumstances, not compelled to issue any such invitation, irrespective of whether the applicant had paid a fee or not.
Ground two, therefore, does not succeed.
I cannot help but comment on the irony that the applicant’s ground now before the Court, drafted, at least as at 27 November 2009, asserts that he had “established reasons beyond doubt why my application should be considered”. The “establishing” of those reasons could only relate to what the applicant set out in his Statutory Declaration, given that no other reasons appeared to have been provided to the Tribunal. Apparently the irony, or indeed contradiction, in the applicant’s evidence now of seeking to assert that he had no knowledge of the contents of that Statutory Declaration, was lost on whoever drafted, or assisted the applicant in drafting, his application to this Court on 27 November 2009, where this ground asserts, in effect, a reliance on that very same Statutory Declaration.
Ground Three
Ground three contains two elements of complaint. The Minister submitted that it was unclear what was intended by:
“The Tribunal ignored the omission of the applicant’s involvement even though the Statutory Declaration was witnessed by him as a Justice of the Peace”.
In describing this as being unclear as to what was intended, it is the case that the Statutory Declaration was witnessed by a Justice of the Peace, and not the applicant. Nor is there any evidence that the applicant is a Justice of the Peace.
It may be however that this is a clumsily expressed attempt to assert what the applicant now asserts before this Court by way of his affidavits, and that is that he had no involvement in the drafting of the Statutory Declaration. That it was drafted by the applicant’s migration agent, and that the applicant had no knowledge of the contents of the Statutory Declaration, notwithstanding that he signed the Declaration, and that his signature was witnessed by a Justice of the Peace.
The problem for the applicant in asserting this complaint now, if indeed this is what is meant, is that there was no such evidence, let alone any assertion, before the Tribunal. The evidence before the Court reveals that the applicant was given every opportunity to explain the delay in the making of the application. He insisted, on at least two occasions (and this was confirmed on the best view of his evidence before the Court), that the Statutory Declaration was his submission before the Tribunal as to the delay in making the application. That the applicant now, someone else on his behalf, has sought to assert otherwise in his application to the Court, does not overcome the fact that what the applicant put before the Tribunal was that, in effect, the Statutory Declaration contained his explanation. There was nothing subsequently put to the Tribunal to say that the Declaration was not the applicant’s own true declaration, as asserted by the appending of his signature to the Statutory Declaration.
The Tribunal properly dealt with what was before it. No error is revealed in this regard.
As to the second element, this again, as the Minister submits, is misconceived. To the extent that the Tribunal was said to have failed to investigate the delay in lodging the application, the evidence before the Court is that the applicant was given every opportunity to explain the delay. It is difficult to see what else the Tribunal could have done in the circumstances, other than ask the applicant to provide his relevant comments. Given that the applicant directed the Tribunal to his Statutory Declaration, the Tribunal clearly considered it.
To the extent that the applicant complains that the Tribunal failed to understand the applicant’s explanation for the delay in lodging the application, this again must be rejected. A plain reading of the Tribunal’s decision record (see [22] and [23]) plainly revealed that the Tribunal well understood what the applicant was putting to it at the relevant time.
In any event, as the Minister submits, the relevant elements in the Tribunal’s consideration of whether it had jurisdiction related to the proper notification of the refusal of the visa application. The relevant parts of the applicant’s explanation would have been those matters that went to the date of notification of the decision by the delegate, and the date of the application to the Tribunal. In circumstances where the relevant statutory regime provides no discretion to the Tribunal, and no capacity to extend the relevant time, any misunderstanding between the applicant and his agent in relation to the actual time for the making of the application cannot assist the applicant.
Ground three, also, is not made out.
Additional Matter
Before the Court, and with reference to paragraph 5 of his affidavit of 27 November 2009, the applicant complained that, in the decision record attached to the delegate’s letter of notification of the refusal of the application, in the personal particulars of the applicant, his wife, and his children tare set out (see CB 104). The applicant complains that, in relation to one of his children (Fawzi), the date of birth is shown as 13 June 1963. That this is not his “correct” date, as his son was born on 13 June 1993.
The applicant is correct in noting that his son’s birth year is recorded in the delegate’s decision record as “1963”. I note, however, as was pointed out by Mr Markus, that in the application for the visas, this son’s birth year was given as “2993”. Clearly both instances are typographical mistakes.
To the extent, however, that the applicant sought to submit that this was an error in the delegate’s decision, what is clear is that what is a simple factual error or a typographical error is, in no way, relevant to the issue of the notification of the decision to refuse a visa. Nor, it must be said, given the application to the delegate, and any plain reading of the delegate’s decision, does this factual error provide any basis for concluding legal error in the delegate’s decision. Noting, of course, that this Court has no jurisdiction to review the delegate’s decision, which is a “primary decision” reviewable under Part 5 of the Act (see s.476 of the Act).
What is reviewable before this Court is the Tribunal’s decision that it did not have jurisdiction to consider the application for review. That question turned on whether the delegate’s decision had been properly notified to the applicant, and whether the applicant had made his application for review within the relevant time. The son’s birth year has nothing to do with the relevant notification requirements. Any such complaint, therefore, is misconceived.
Conclusion
For the applicants to succeed before the Court, the Court would need to find some error in the Tribunal’s decision that it did not have jurisdiction to consider the application for review. None of the applicant’s grounds, or complaints, before the Court reveal any error in the reasoning, or the conclusion of the Tribunal. Nor can I otherwise see any such error. The application is therefore dismissed.
Postscript
I cannot leave this case without commenting on the role and impact of Mr Toufic Laba Sarkis, who, on the applicant’s own evidence, played some role in the bringing of this application, and the applicant’s evidence to this Court. I take note that Mr Laba Sarkis is not a registered migration agent, and is not a legal practitioner admitted to practice in New South Wales. I cannot, of course, make any comment about what motives may have impelled him to assist the applicant in this case. Even noting the frequency with which Mr Laba Sarkis appears to have involvement in cases of this type before this Court (Migration and Refugee).
What remains, however, is that the relevant scheme under the Act, which requires persons to be registered migration agents before they give migration assistance, and the relevant provisions relating to the provision of legal advice, including advice in the conduct of litigation before the Court, exist for perfectly good and practical reasons. That is, that it is of no assistance to applicants such as those before the Court now, to involve persons such as Mr Laba Sarkis, with the result that, what can, at best be said about the grounds put forward, is that they are misconceived.
There is clearly a role for those in the community to volunteer and provide, if nothing else, moral support to people who find themselves in the unfamiliar environment of litigation before a Court. This may even extend to pointing applicants in the right direction to obtain professional assistance in relation to migration matters, and competent legal advice from a qualified practitioner. But anything further, in my view, is of no assistance. In fact, it can lead to detrimental consequences for applicants. For example, quite often resulting in orders for liability for costs incurred by the Minister in responding to such applications.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 23 December 2009
2
3
2