Assaad v Minister for Immigration & Border Protection

[2015] FCCA 921

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASSAAD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 921

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal can extend time to lodge an application for review of a decision of a delegate of the first respondent – whether negligent advice from a migration agent is sufficient to enable the applicant to establish jurisdictional error on the part of the Migration Review Tribunal – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 66, 347, 357, 474, 494B, 494C
Migration Regulations 1994 (Cth), reg.2.01, 4.10

Cases cited:
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401

Applicant: ABED EL RAHMAN ASSAAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2366 of 2013

Judgment of: Judge Emmett

Hearing date: 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Sydney

Delivered on: 25 March 2015

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2366 of 2013

ABED EL RAHMAN ASSAAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 29 August 2013 and handed down on 30 August 2013 (“the MRT”).

Background

1. The applicant is a citizen of Lebanon.

2. On 6 May 2013, the applicant applied to the Department of Immigration and Citizenship (“the Department”) Student (Class TU) (Subclass 572) visa.

3. On 4 June 2013, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a Student (Class TU) (Subclass 572) visa.

4. On 26 June 2013, the applicant lodged an application for review of the Delegate’s decision by the MRT.

5. On 29 August 2013, the MRT found that it did not have jurisdiction to review the decision of the Delegate as the application for review had been lodged out of time.

6. On 3 October 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

The MRT’s review and decision

1. On 22 July 2013, the MRT wrote to the applicant informing him that his application had not been made within the relevant time limit and was therefore not a valid application. The letter invited the applicant to comment on the validity of the application.

2. On 1 August 2013, the applicant responded to the MRT’s letter of 22 July 2013. The applicant’s response conceded that his application was one day out of time and submitted that the delay was not intentional and was beyond the applicant’s control.

3. In its decision record the MRT determined that it did not have jurisdiction to consider the applicant’s application to review a decision of the Delegate.

4. The MRT noted that the review application was lodged on 26 June 2013. The MRT noted that pursuant to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”), an application for review of the Delegate’s decision was required to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

5. The MRT found that the applicant was notified of the Delegate’s decision by a letter dated 4 June 2013 and dispatched by email. The MRT was satisfied that the applicant was notified of that decision in accordance with the statutory requirements.

6. The Delegate’s decision record was sent by email to the applicant’s authorised recipient at the email address of the authorised person’s recipient, and addressed to both the applicant and his authorised recipient. The MRT noted that on 22 July 2013 it wrote to the applicant informing him that his application for a review was not lodged within the relevant time period. The MRT noted a response was received from the applicant on 2 August 2013 in which the applicant acknowledged the application was lodged one day late from the due date, but that the delay was not intentional.

7. The MRT found that, in accordance with s.494C of the Act the applicant is taken to have been notified of the delegate’s decision on 4 June 2013 and the prescribed period in which the review application could be made ended on 25 June 2013. In the circumstances, the MRT determined that it had no jurisdiction to consider the review application any further in light of the failure of the applicant to lodge his review application within the mandatory time period.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. 

2. On 24 February 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

5. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

7. The applicant confirmed that he relied on the grounds contained in his originating application filed on 3 October 2013 as follows:

   “1. The decision maker breached the duty to accord procedural fairness in making an abrupt decision in the middle of email correspondences between him and my migration agent.

   2. The way my application was handled denied me natural justice.”

8. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

9. After the grounds had been interpreted to the applicant, I asked the applicant if there was anything he wished to say in support of those grounds or in support of his application generally. The applicant said that he had been assigned a migration agent who was responsible for looking after his matter and that the mistake was that of the migration agent in failing to lodge the review application in time. I said to the applicant that that was the first time he had ever made such a complaint and that he would need to seek leave of the Court to give evidence in support of such an allegation. The applicant sought that leave which was opposed by the solicitor for the first respondent. However, having regard to the overall interests of justice, the Court granted the applicant leave to give that evidence under oath.

10. The applicant stated that the mistake was because of his migration agent and not him, that he is a victim and had not ignored or neglected to lodge his application, but that the migration agent did not give him the documents until 26 July 2013 whereupon he lodged them with the MRT straight away, but was out of date.

11. The applicant had nothing further to say on the matter.

12. The applicant was cross-examined and confirmed that the migration agent identified on his student visa application was his authorised recipient, as reflected in that document, and that the email address in that document was, indeed, that of the authorised recipient.

13. The applicant confirmed that he gave that authority to the migration agent and that the migration agent acted on his behalf.

14. Whilst it may well be that the applicant received bad or negligent advice, there is no evidence of fraud before the Court. There was no complaint made by the applicant to the MRT in response to the letter the MRT wrote to the applicant on 22 July 2013 to suggest that the authorised recipient, the applicant’s migration agent, was acting fraudulently.

15. As Besanko J stated in SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [33], in referring to the Full Court of the Federal Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401:

    “…an applicant’s failure to appear before the Tribunal by reason of the bad or negligent advice of his or her agent, as distinct from fraudulent advice or conduct, is not without more sufficient to constitute jurisdictional error.”

16. In the circumstances, there is no evidence before this Court to suggest that the MRT’s decision is infected with jurisdictional error.

17. The MRT understood the legislative regime by which it was bound. The first respondent’s submissions accurately summarised the relevant legislative regime as follows:  

    “23. Pursuant to section 66(1) of the Act, the delegate's decision needed to be notified to the applicant by a prescribed method. Regulation 2.16 of the Migration Regulations 1994 (the Regulations) sets out the prescribed methods, and as the decision was to not grant a visa, regulation 2.16(3) provided that the notification must be by one of the methods specified in section 494B of the Act.

    24. Section 494B(5) of the Act provides for a document to be transmitted by email to the last email address provided to the Minister for the purposes of receiving documents.

    24.1 The applicant nominated another person (his migration agent) to receive communications on the applicant's behalf.  The delegate's decision in the present matter was sent by email on 4 June 2013[1] to the email address "[email protected]", the authorised person email address, which was the email address provided by the Applicant in his visa application form.[2]

    24.2 The notification letter therefore complied with the requirements of section 494B(5). Section 66(2) of the Act requires that the decision notification contain information in relation to the reason for the decision as well as review rights and how and where to apply for review. It is submitted that the letter (sent by email) dated 4 June 2013 met those requirements.[3]

    25. Pursuant to section 494C(5) the applicant was taken to have received the notification letter on the date on which it was emailed, being 4 June 2013.  

    26. The MRT draws its jurisdiction from section 347 of the Act. Section 347(1)(b) requires that an application for review be given to the MRT within the prescribed period. Regulation 4.10 of the Regulations sets out the prescribed periods.

    26.1 The decision to refuse a Student visa is an MRT reviewable decision under section 338(2) of the Act, and the applicant was not in immigration detention when notice of the delegate's decision was sent. Therefore pursuant to regulation 4.10(1)(a) the prescribed period was 21 days after the day on which notice of the delegate's decision was received.

    26.2 The applicant was taken to have received notification of the delegate's decision on 4 June 2013, meaning that the 21 day period ended on 25 June 2013, as was found by the MRT.

    27. The application received by the MRT on 26 June 2013 was therefore received outside of the prescribed period by one day.”

    [1] CB 22

    [2] CB 67

    [3] CB 22

18. In the circumstances, the MRT was correct to conclude that it did not have jurisdiction to consider the applicant’s review application further. The legislative scheme makes clear that there is no residual discretion reproposing in the MRT to extend time to the applicant.

19. In the circumstances, the MRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. The MRT applied the correct law to those findings and had complied with its obligations under the statutory regime in the making of its decision. The MRT’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision. Pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

20. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  14 April 2015