Babar v Minister for Immigration
[2016] FCCA 1521
•23 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABAR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1521 |
| Catchwords: LAWYERS – Conduct of applicant’s lawyer – failure to appear – subsequent failure to appear – whether on register of practitioners – failure to comply with Court orders – whether referral to New South Wales Legal Services Commission appropriate. MIGRATION – Restrictions on person not a registered migration agent giving immigration assistance – whether referral to regulatory authority appropriate. COURTS AND JURISDICTION – Whether Court has associated and ancillary jurisdiction to deal with alleged misleading and deceptive conduct, breach of contract and negligence by a person not acting as a migration agent. |
| Legislation: Australian Consumer Law, s.18 Competition and Consumer Act 2010 (Cth), Sch.2, s.18 Criminal Code Act 1995 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 14, 18, 53 Federal Circuit Court Rules 2001 (Cth), r.6.01 Judiciary Act 1903 (Cth), s.55B(3), 55C Migration Act 1958 (Cth), Part 5, ss.65, 140GB, 280, 337, 338(2)(d), 476 Migration Regulations 1994 (Cth), reg.4.02, Sch.2, cl.457.233 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 Christie v Harvey & Hayward (1900) 2 WALR 146 Kandel v Minister for Immigration & Border Protection & Anor [2015] FCCA 2013; (2015) 300 FLR 189 Kang v Australian Broadcasting Corporation [2015] NSWSC 893 Minister for Immigration & Border Protection v Lee & Ors [2014] FCCA 2881 Minister for Immigration & Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46; (2012) 130 ALD 237 |
| First Applicant: | ZAHEER-UD-DIN BABAR |
| Second Applicant: | SYEDA SOBIA SHAH |
| Third Applicant: | SAYYAN ALI BABAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 147 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 22 March, 8 April and 17 June 2016 |
| Date of Last Submission: | 17 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 23 June 2016 |
REPRESENTATION
| For the Applicants: | The first applicant in person initially, and later Mr JA Eaton (on 22 March 2016); the first applicant in person initially, and later Mr JA Eaton (on 8 April 2016); and the first applicant in person (on 17 June 2016) |
| Counsel for the First Respondent: | Mr D Carroll |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Principal Registrar of this Court refer these Reasons for Judgment to the Office of the Legal Services Commission in New South Wales for such action as that Office considers appropriate in relation to John Anthony Eaton, a practitioner of the New South Wales Supreme Court.
John Anthony Eaton, a practitioner of the New South Wales Supreme Court, personally pay the first respondent’s costs of 8 April 2016 in the sum of $1024 by 23 July 2016.
The first respondent serve a copy of this order on Mr Eaton by 9 July 2016.
The Principal Registrar of this Court refer a copy of these Reasons for Judgment, and a copy of the Court Book and the Transcript of any hearing in this matter be provided to, both the New South Wales Department of Fair Trading and the Office of Migration Agents Registration, for such action as they consider appropriate.
The first applicant’s oral application made on 17 June 2016 for an adjournment be dismissed.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 147 of 2015
| ZAHEER-UD-DIN BABAR |
Applicant
| SYEDA SOBIA SHAH |
Second Applicant
| ZAYYAN ALI BABAR |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This otherwise ordinary application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review of a decision of the former Migration Review Tribunal (“Tribunal” – now the Administrative Appeals Tribunal) has two otherwise unusual matters which arise within it, namely:
a)the conduct of a lawyer, John Anthony Eaton (“Mr Eaton”), who purported to appear for the applicants, but who had no right of appearance in this Court and who has not complied with various Court orders; and
b)an application for adjournment made by the first applicant, Zaheer-Ud-Din Babar (“Mr Babar”) appearing in person, arising from the alleged conduct of a Mr Kang, a person whose conduct in migration matters has seemingly previously given rise to concern both in this Court and the Federal Court.
Before addressing the merits of the application for judicial review, it is necessary to deal with:
a)the issues relating to the conduct of Mr Eaton; and
b)the adjournment application arising from the alleged conduct of Mr Kang.
The conduct of Mr Eaton
This matter first came before the Court for hearing on 22 March 2016. When the Court took appearances Mr Babar appeared in person, and told the Court that his lawyer, whose name he said was John Anthony Eaton, and who was from Sydney, had missed his flight that morning. Mr Babar did not know the name of the law firm or the Chambers from which his lawyer worked. The Court observed that there was no lawyer on the record for the applicants. Mr Babar indicated that he had found a lawyer who was willing to appear for him, seemingly after making an unsuccessful freedom of information application (the relevance of the freedom of information application is not immediately apparent to the Court). Mr Babar said that his lawyer had requested Mr Babar to ask the Court to adjourn the matter to the next date if possible. Having ascertained that Mr Babar had a mobile telephone number for Mr Eaton the Court adjourned briefly to see whether Mr Eaton could be contacted by telephone.
After an adjournment of slightly less than half an hour Mr Eaton appeared by telephone. His opening gambit was somewhat unconventional: “Hello, your Honour. How are you today?”: Transcript 22 March 2016, page 3. The Court then enquired as to why no Notice of Address for Service had been filed by Mr Eaton as a legal practitioner purporting to represent the applicants: see Federal Circuit Court Rules 2001 (Cth), r.6.01. Mr Eaton indicated that he had only recently received the matter, and that he was “very ill today”, and was “actually in bed right now”, and therefore sought an adjournment of one week to file all the appropriate documents and to then appear before the Court: Transcript 22 March 2016, page 4.
The Court made orders, as follows:
1.The applicant file and serve:
a. a notice of address for service by 4pm on 24 March 2016; and
b. an outline of submissions by 4pm on 31 March 2016.
2.The matter be adjourned to 9am on 8 April 2016.
3. The applicant pay the first respondent’s costs in the sum of $1024 by 1 April 2016.
The order with respect to costs was not opposed: see Transcript 22 March 2016, pages 4-5.
The matter came before the Court again for hearing on 8 April 2016. When the Court took appearances Mr Babar appeared in person. The Court noted that Mr Eaton was not appearing. Before enquiring of Mr Babar as to why that was so, the Court indicated for the record that on the previous occasion it had enquired of Mr Eaton as to whether he was on the Register of Practitioners on the High Court Roll, and he had indicated that he was, and the Court had therefore allowed him to appear in the proceedings: Transcript 8 April 2016, page 2, referring to Transcript 22 March 2016, page 4. The Court indicated that it had subsequently asked for that information to be checked, and that the Principal Registrar of the Court had been advised by the responsible officer of the High Court of Australia that Mr Eaton was not a practitioner registered on the High Court Roll, and therefore had no right of appearance in this Court. The Court further indicated that it had caused Mr Eaton to be emailed and advised that this issue would be raised at the hearing on 8 April 2016. The Court further noted that no address for service had been filed, although there was apparently an attempt to email an address for service directly to Chambers, and that no submissions had been filed on behalf of the applicants: Transcript 8 April 2016, page 2. It may be of some significance in relation to the conduct of Mr Kang referred to below that the Notice of Address for Service sent to Chambers by Mr Eaton gave that address as “Level 4, Suite 401, 80 Mount Street, North Sydney, 2060,NSW”.
Mr Babar indicated that he had booked and paid for Mr Eaton’s flights from Sydney to Perth and return, and that the previous night (7 April 2016) Mr Eaton had sent a text message to Mr Babar saying that he was unable to come to Perth, that he was sick, and that he would let the Court know and that the case could be adjourned: Transcript 8 April 2016, pages 2-3.
Mr Babar then indicated that the position the subject of his application for a Temporary Business Entry (Class UC) Subclass 457 Visa (“457 Visa”) was advertised by an agency, and that he had been “contacted by this agency … [told] there would be service charges for it and the rest we will do”: Transcript 8 April 2016, page 3. He went on to say that he had been in Australia for eight years and had been a law abiding person who had not done anything wrong: Transcript 8 April 2016, page 3.
The Court noted what had occurred before the Court on 22 March 2016, and what it had been told by Mr Babar, and turned to Counsel for the Minister, and indicated that three things occurred to the Court:
a)firstly, that the Court should cause the Principal Registrar of the Court to refer Mr Eaton’s conduct to the Office of the New South Wales Legal Services Commission on the basis of his treatment of Mr Babar, including causing him to incur considerable expense which may need to be reimbursed, and also because it appeared to the Court, as then advised, that Mr Eaton had misled the Court as to whether he was a practitioner registered on the High Court Roll;
b)secondly, that the Court was inclined to the view that it would be unreasonable not to adjourn the hearing to at least allow Mr Babar the opportunity to have the case properly put in some way, either by representing himself, or at least by allowing him to obtain some advice from the free legal aid service provided by Legal Aid WA for the federal courts in Western Australia, because it would be unfair to ask Mr Babar, who had understood that he was to be represented by a lawyer, to appear and put submissions in the circumstances; and
c)thirdly, that the Court would be minded to make a costs order for that day against Mr Eaton personally.
See Transcript 8 April 2016, pages 4-5.
The Minister did not oppose what was put by the Court and the Court indicated that it would make orders in the following terms:
(1) That the hearing of this matter be adjourned to 10.15 am on 17 June 2016;
(2) that the applicant file and serve an outline of submissions by 17 May 2016;
(3) the first respondent file and serve any supplementary outline of submissions by 1 June 2016;
(4) that the costs of today in the sum of $1024 be payable personally by John Anthony Eaton, a solicitor admitted to practice … by the New South Wales Supreme Court.
Transcript 8 April 2016, page 5.
The Court then made some observations to Mr Babar about obtaining legal advice from the lawyer provided by Legal Aid WA in the Federal Courts: Transcript 8 April 2016, pages 5-6, before indicating to Mr Babar that if he was unable to obtain any legal advice prior to the next occasion on which the matter was listed in Court that he would have to prepare submissions and appear himself: Transcript 8 April 2016, page 6.
At this point, which was 9.24am for a hearing listed at 9.00am, and which had commenced at 9.07am, Mr Eaton was put through to the courtroom by telephone. The Court indicated that it had made orders as outlined above, and that it had made enquiries as to whether or not Mr Eaton was a practitioner registered on the High Court Roll and had been advised that he was not on that Roll. Mr Eaton interjected at this stage and indicated that he was “definitely on the practising certificates – the current practising certificates, and I can certainly post over to your associate the actual practising certificate which I have”: Transcript 8 April 2016, page 6. The Court then indicated that the question which had been directed to Mr Eaton was as to whether he was a practitioner registered on the High Court Roll which under s.55B(3) of the Judiciary Act 1903 (Cth) (to be read with s.55C) was the basis for a person to appear in the federal courts, and the Court then enquired as to whether Mr Eaton said that he was a practitioner registered on the High Court Roll. Mr Eaton responded that he was a “registered solicitor in New South Wales”. When told that that was not the same thing, Mr Eaton indicated that he had misunderstood the Court, and thought that because he had a valid and current New South Wales practising certificate he could appear in this Court: Transcript 8 April 2016, page 7.
The Court went on to indicate that no Notice of Address for Service had been filed and no submissions filed as ordered on 22 March 2016, and that Mr Babar had not been advised until the previous night that Mr Eaton was not flying to Western Australia, that Mr Eaton’s conduct was “grossly unsatisfactory” and that the Court had indicated its intention to refer his conduct to the Office of the New South Wales Legal Services Commission. Mr Eaton indicated that, once again, his health had been “very poorly” and that he had been admitted to hospital the previous evening. There followed some interchanges about the requirements with respect to the registration of practitioners federally and in New South Wales, and there was an offer from Mr Eaton to provide a medical certificate in relation to his illness, and discussion of Mr Eaton’s failure to contact the Court prior to the commencement of the hearing with respect to his non-appearance. Mr Eaton then indicated that it was “extremely harsh” in the circumstances that he be ordered to pay the costs of that day personally and that he had actually been at the airport the previous evening with his ticket in hand when he had fallen ill. He further said that he was working pro bono, and said that:
I think this gentleman has been given a pretty hard time and I want to make sure that he gets a proper hearing and he doesn’t incur any more costs, and you can ask him right here and now if I have charged him any costs.
Transcript 8 April 2016, page 8.
The Court enquired as to whether there were any restrictions on Mr Eaton practising in New South Wales and Mr Eaton indicated that he did not believe so: Transcript 8 April 2016, page 9.
The following exchange then occurred:
MR EATON: Well, your Honour, as I can make a – you know, I – so honestly, I mean, at the same time – the same thing happened last time; it’s a terrible line, and when you asked – I thought you were asking if I had a current practising certificate, which I do, and now – from understanding now, you are saying do I have a practising certificate for the High Court of Australia; is that correct? Because I don’t. In fact, I will have to seek it out - - -
HIS HONOUR: Mr Eaton, it’s in your interests, frankly, that you explain that, because as I’ve indicated to you, the court was of a mind to refer your conduct to the New South Wales Legal Services Commission. Now, if having, for example, had a look at the transcript – and I will get Mr Lettenmaier to email a transcript to you – you’re still of a view that it was unclear, etcetera, you can put that on an affidavit and the court will consider that before it decides what else it will do in the circumstances of this case.
MR EATON: I understand, your Honour, but there is absolutely no – there was absolutely no intention on my behalf to actually mislead the court in any way.
HIS HONOUR: Well, Mr Eaton, you are a legal practitioner. You must understand why I’m doing this, to protect your interests and also to look after the interests of Mr Babar, because otherwise he may have to incur the costs of today if you don’t.
MR EATON: Well, no, I understand. It’s – your Honour, with great respect, the person who should be incurring costs today is a fellow called Mr Ted Kane, who referred Mr Babar to me, with short notice, as I said last time, and then I have had poor health, and this matter has been going on for many years, as you know, and costs on your ..... could be anything before it actually is being heard. I mean, that’s just completely unfair under any situation. I mean, what I should have done is said, no, I’m not taking it on, but I thought that Mr Babar had been treated unfairly, so I thought I will try and do the best I possibly can, and then just the poor health. I mean, I don’t want to be in poor health. I would like to be as fit as a fiddle.
HIS HONOUR: Well, Mr Eaton, all of that may cause the court to look at the matter differently, but put it in an affidavit.
MR EATON: Right. Yes, your Honour.
Transcript 8 April 2016, pages 9-10. (Having regard to what follows in these Reasons for Judgment it is apparent that the reference in transcript to “Ted Kane” should read “Ted Kang”).
The Court then made the following orders:
1.The application be adjourned to 10.15am on 17 June 2016.
2.John Anthony Eaton, a practitioner of the New South Wales Supreme Court file an affidavit explaining:
a.his non-attendance at court on 8 April 2016;
b.the details of his admission as a practitioner of the New South Wales Supreme Court and High Court of Australia (or otherwise); and
c.his conduct in the proceedings generally,
by 22 April 2016.
3.Costs be reserved.
Mr Eaton did not file an affidavit as required by order 2 of the orders made on 8 April 2016, and by the time of the resumed hearing on 17 June 2016 had still not filed any affidavit.
On 17 June 2016 Mr Eaton did not appear for the applicants. The Court is advised that there has been no contact from Mr Eaton since 17 June 2016.
Having regard to the above circumstances, the Court is of the view that Mr Eaton’s conduct in relation to this matter ought to be referred to the Office of the New South Wales Legal Services Commission, particularly in relation to:
a)his failure to comply with the Court’s orders of 8 April 2016;
b)his failure to attend the hearing on 22 March 2016 and 8 April 2016, including his failure to advise the Court in advance of his non-attendance and that Mr Babar would be attending in person seeking an adjournment;
c)his conduct in relation to his comments concerning whether or not he was a practitioner registered on the High Court Roll; and
d)his conduct of the proceedings generally.
The Court is also of the view, as it was on 8 April 2016 until Mr Eaton appeared by telephone, that Mr Eaton ought to pay the costs of 8 April 2016 personally in the sum of $1,024. Given the opportunity in accordance with the Court’s orders of 8 April 2016 to put on an affidavit explaining the circumstances and his conduct, Mr Eaton has failed to file any affidavit. The Court is of the view that the costs consequences of Mr Eaton’s default should not be visited upon the applicants. The law does not like to see people penalised or punished because of poor or incorrect advice, or the errors or omissions of their lawyers: see, for example, the many cases dealing with time limitations on actions, including: Christie v Harvey & Hayward (1900) 2 WALR 146 at 150 per Hensman J; Salter Rex & Co v Ghosh [1971] 2 QB 597; [1971] 2 All ER 865; QB at 601 per Lord Denning MR; Doyle v Gillespie [2010] ACTSC 21; (2010) 173 ACTR 66; (2010) 4 ACTLR 188 at [54], [60] per Refshauge J, and where a person received arguably incorrect advice not to appear before a Registrar of this Court in relation to a sequestration order application in bankruptcy: Vlad v Lopez [2016] FCCA 823 at [16] per Judge Lucev.
In the circumstances, there will therefore be orders that:
a)the Principal Registrar of this Court is to refer these Reasons for Judgment to the Office of the Legal Services Commission in New South Wales for such action as that Office considers appropriate in relation to John Anthony Eaton, a practitioner of the New South Wales Supreme Court;
b)John Anthony Eaton, a practitioner of the New South Wales Supreme Court, pay the Minister’s costs of 8 April 2016 in the sum of $1024 personally by 23 July 2016; and
c)the Minister serve a copy of this order on Mr Eaton by 9 July 2016.
The conduct of Mr Kang and the adjournment application
Mr Babar appeared for the applicants at the hearing on 17 June 2016.
Mr Babar asked for an adjournment of the proceedings. He said he had paid $20,000 to a “Ted Kang”, who he said was not a migration agent but a recruitment agent, and that Mr Kang had told him that he would do “all legal paperwork” associated with his 457 Visa application. Mr Babar said that there had been miscommunication between the Department and Mr Kang, and that Mr Babar was not aware of the nomination approval, which was required before he could obtain his 457 Visa, not being approved. Mr Babar, putting at its lowest, alleged that he had been misled and deceived by Mr Kang who, as a recruitment agent, had charged him $20,000 to complete all of the necessary requirements to enable Mr Babar to obtain a 457 Visa. Mr Babar submitted that Mr Kang should be brought to the Court to explain what he had or had not done, and that the proceedings should be adjourned in the meantime.
On the face of it, Mr Babar appears to allege that Mr Kang may have:
a)engaged in misleading and deceptive conduct contrary to s.18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“s.18 of the Australian Consumer Law”);
b)breached a contract entered into with Mr Babar;
c)been negligent in the execution of tasks that he undertook for Mr Babar in relation to Mr Babar’s 457 Visa application and his employment status; and
d)engaged in the giving of immigration assistance contrary to s.280 of the Migration Act.
The Court has no doubt that in a properly framed application the Court might hear allegations of misleading and deceptive conduct under s.18 of the Australian Consumer Law (“ACL”) by reason of its associated jurisdiction under s.18 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”). Further, it might also hear allegations of a breach of contract or negligence by a person providing migration advice, whether registered or not, in the Court’s ancillary jurisdiction: FCCA Act, s.14. The difficulty for Mr Babar is that there is no such application for hearing of these matters presently before the Court. Nor is there presently any proper factual basis on which to proceed as no affidavit material in relation to any alleged misleading and deceptive conduct, or breach of contract or negligence, by Mr Kang has been filed with the Court. The affidavit sworn by Mr Babar on 14 April 2015 (“Mr Babar’s Affidavit”) is little more than a repetition of the applicants’ grounds of review under the judicial review application. There is no mention in the judicial review application, or in Mr Babar’s Affidavit, of Mr Kang, nor is there any mention of any relevant factual material which might be capable of giving rise to a cause of action under s.18 of the ACL, or for breach of contract or negligence. Further, it would take some time for such a claim to be properly investigated and researched by any lawyers instructed by Mr Babar before the task of formulating relevant claims might be undertaken. In relation to whether or not Mr Kang was a person providing immigration assistance whilst not a registered migration agent, contrary to the provisions of s.280 of the Migration Act, that is a matter for the appropriate regulatory authority to pursue. Section 280 of the Migration Act is a strict liability offence for the purposes of the Criminal Code Act 1995 (Cth): Migration Act, s.280(1) and (1A), but as a criminal matter, is not within the jurisdiction of this Court: FCCA Act, ss.10 and 53; Sims v Jooste & Ors [2016] FCCA 1343 at [64] per Judge Lucev.
The Court otherwise has before it a judicial review application, which for reasons set out below must be dismissed. The ultimate reason for that is that there is no approved sponsor and no nominated occupation for Mr Babar’s 457 Visa. The fact that there is no approved sponsor and no nominated occupation might have been caused, at least on what appears to be alleged by Mr Babar, by the conduct of Mr Kang, or, having regard to what follows, those who may be associated with him. That, however, does not alter the fact that there is no approved sponsor and no nominated occupation, and that Mr Babar cannot therefore satisfy the criteria for the grant of the 457 Visa. Nothing which could be done by reason of an action under the ACL, or any action for breach of contract or negligence, could remedy the fact that there is no approved sponsor and no nominated occupation for Mr Babar’s 457 Visa application. Having regard to that, and to the fact that this judicial review application has been on foot since 11 April 2015 and has been listed on three separate occasions for hearing, it would unduly prejudice the Minister if the matter were to be adjourned to allow Mr Babar to make applications in the Court’s associated and accrued jurisdiction alleging misleading and deceptive conduct under the ACL, and for breach of contract or negligence. That is particularly so when, subject to any relevant time limitations, those claims can still be separately dealt with in the Federal Court, this Court (subject to the maximum monetary limit on jurisdiction under the ACL) or a State Court with jurisdiction. In short, there is no reason that the Minister ought not have his remedy, by way of a dismissal of the judicial review application, now rather than later.
Mr Kang is not unknown to this Court. In SZWCA v Minister for Immigration & Anor [2015] FCCA 1249 (“SZWCA”) his conduct was referred to the Office of Migration Agents Registration Authority because there were concerns about potential breaches of s.280 of the Migration Act: see SZWCA at [48] per Judge Smith. In SZWCA, Mr Kang filed an affidavit in support of an extension of time which in the Court’s view, together with other matters concerning the conduct of the solicitors for the applicant in that case, caused the Court to observe at [22] per Judge Smith that:
All of these matters raise considerable concern about Mr Kang’s involvement in this matter.
On appeal the Federal Court noticed that the addresses given by Mr Kang in his affidavit sworn in support of the extension of time, namely Suite 401, Level 4, 80 Mount Street, North Sydney was the same as that given by a solicitor and a separate firm of solicitors representing the applicant: SZWCA v Minister for Immigration & Border Protection (No. 2) [2015] FCA 1395 at [1] and [8] per Griffiths J (“SZWCA Appeal”). The matter was of sufficient concern with respect to the solicitor’s conduct to the Federal Court for it to refer the circumstances, which it described as “curious”, to the Law Society of New South Wales: SZWCA Appeal at [21] per Griffiths J. The above address is, the Court notes, the same address as in the Notice of Address for Service completed and sent to Chambers, but not filed, by Mr Eaton.
The Court notes that in this matter, Mr Babar’s 457 Visa application nominated a registered migration agent, Cedric Sze Chun Ng to act on his behalf. Mr Ng’s address was Suite 401 and 403, Level 4, 80 Mount Street, North Sydney, the same address given for Mr Kang and the solicitors for the applicant in SZWCA and SZWCA Appeal: CB 4-5.
Correspondence sent to Mr Ng by the Department was responded to by a person called Amy Young. The correspondence sent to Mr Ng was sent to the email address: [email protected]. The emails sent to the Department by Ms Young were “signed” or sent by her from “the Borderless Globe Pty Ltd” or “the Borderless Globe Pty Ltd c/- Singapore Oil Pty Ltd” (“Singapore Oil”): CB 42-45. The decision of the delegate and the decision record were sent to Mr Ng at the nzmi2009 email address: CB 53-63.
On 20 December 2013 under a fax cover sheet to the Tribunal from “Edward Kang”: CB 83 (faxed from +61294751197) the first and second applicants applied to the Tribunal for review of the delegate’s decision. The postal address given for contact with the applicants, they not having appointed a representative, was “GPO Box 378 North Sydney NSW 2059”: CB 91. The cheque dated 20 December 2013 for payment of the MRT application fee is drawn on “Singapore Oil Pty Ltd ACN 146351233”: CB 92. A Tribunal case note notes that no payment was received, but that attached to the application to the Tribunal for review was a photocopy of an ANZ bank cheque: CB 96. The Tribunal’s officer’s attempts to contact Mr Babar were unsuccessful: CB 96. On 2 January 2014 the Tribunal issued a tax invoice to Mr Babar for payment of the fees annexing what appears to be a copy of the same cheque made payable to Mr Babar rather than to “MRT application” as was previously the case, but still drawn on Singapore Oil.
On 21 August 2014 under cover of a fax cover sheet to the Tribunal from Mr Babar a request was sent to add a secondary applicant. The request was sent from the same facsimile number as the facsimile from Mr Kang referred to in the preceding paragraph. That facsimile number is a New South Wales facsimile number sent to the Tribunal at a time when Mr Babar was living in Western Australia.
The Court also notes that in Kang v Australian Broadcasting Corporation [2015] NSWSC 893 (“Kang”), Mr Kang, Singapore Oil and CWK M & D Pty Ltd (“CWK”) (the latter being Mr Babar’s nominated sponsor for his 457 Visa application) brought defamation proceedings against the Australian Broadcasting Corporation, but that the proceedings were struck out essentially because Mr Kang and the other plaintiffs failed to comply with programming directions issued by the New South Wales Supreme Court.
In Kang v Australian Broadcasting Corporation [2015] NSWCA 375 (“Kang Appeal”) a summons seeking leave to appeal from the judgment in Kang was dismissed. In Mr Kang Appeal at [1] per Basten JA the Court of Appeal notes that the statement of claim alleged that Mr Kang “claimed to operate a migration business as a director of the second and third corporate plaintiffs”, namely Singapore Oil and CWK. In Kang v Immigration News Pty Ltd [2016] NSWDC 74 a seemingly not dissimilar claim was struck out and dismissed.
It is evident from the foregoing that:
a)Mr Babar’s nominating sponsor CWK has been said to be a migration business of which Mr Kang is a director in proceedings in an amended statement of claim filed by Mr Kang, Singapore Oil and CWK in the New South Wales Supreme Court in Kang;
b)CWK, said to be a migration business, sought to sponsor Mr Babar who was employed as a dental technician;
c)Mr Kang managed the business of the nominating sponsor CWK;
d)the registered migration agent nominated as Mr Babar’s representative in the 457 Visa application form operates from the same address as that nominated by Mr Kang as his address in an affidavit filed in SZWCA: see SZWCAAppeal at [8] per Griffiths J;
e)the address for service nominated by Mr Eaton in the notice of address for service forwarded to Chambers but not filed with the Registry is the same address as that of the registered migration agent nominated in Mr Babar’s 457 Visa application and the same address as that given by Mr Kang in SZWCA;
f)Mr Babar’s fees for the application to the Tribunal for review of the delegate’s decision were paid by Singapore Oil, a company said in Kang to be a “migration business” of which Mr Kang is the managing director; and
g)Mr Kang forwarded to the Tribunal Mr Babar’s application for review of the delegate’s decision.
Without taking into account what was said from the bar table by Mr Babar, namely that Mr Kang charged him $20,000 and told him that he would look after all of the legal paperwork in relation to his 457 Visa application, there is sufficient in the foregoing for the Court to infer that Mr Kang’s conduct is of concern, and warrants referral to the appropriate regulatory authorities, in this case both the New South Wales Department of Fair Trading and the Office of Migration Agents Registration Authority. The fact that Mr Eaton had an address for service which is the same as that of Mr Kang, and also of Mr Babar’s registered migration agent, is also “curious” (to adopt what was said by the Federal Court in SZWCA Appeal at [21] per Griffiths J), and further warrants referral of the matter to the Office of the New South Wales Legal Services Commission in relation to the conduct of Mr Eaton.
In the circumstances there will be an order that the Principal Registrar of this Court provide a copy of these Reasons for Judgment, and that a copy of the Court Book and the Transcript of any hearing in this matter be provided to, both the New South Wales Department of Fair Trading and the Office of Migration Agents Registration Authority, for such action as they consider appropriate.
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at [21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev (“MZZZL”). Having taken into account all of the above matters, the Court has determined that these proceedings should not be further adjourned, and that the Court should proceed to determine the judicial review application before it, because:
a)Mr Babar can pursue any action under the ACL (or any equivalent State legislation), together with any action for a breach of contract or negligence, against Mr Kang, on his own behalf;
b)the New South Wales Department of Fair Trading can also pursue any action under any New South Wales fair trading legislation against Mr Kang;
c)if Mr Kang has been acting so as to provide immigration assistance without being a registered migration agent, those are matters which can be considered by the Office of Migration Agents Registration Authority, or any further regulatory authority to which the Office of Migration Agents Registration Authority might refer the matter; and
d)Mr Eaton’s conduct is appropriately referred to the Office of the New South Wales Legal Services Commission for further action.
The judicial review application
On 11 April 2015 the applicants lodged the application for judicial review seeking review of a decision of the Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 16 March 2015, to affirm the decision of the delegate made on 4 December 2013, to refuse to grant the first and second applicants Visas under s.65 of the Migration Act.
A copy of the Tribunal Decision is at Court Book (“CB”) 137-139.
Background
The background to this matter is as follows:
a)on 17 May 2013 Mr Babar, a Pakistani national, lodged the 457 Visa application, listing his spouse, the second applicant, as a secondary visa applicant: CB 1-3;
b)the application listed CWK as the sponsoring employer: CB 9-10;
c)by letter dated 31 October 2013 and emailed to the applicants’ migration agent, the Department invited Mr Babar to comment within 28 days:
i)on information that CWK did not have an approved nomination for him; and
ii)that Mr Babar’s 457 Visa application was unlikely to be successful: CB 47-51;
d)the delegate refused to grant the 457 Visas on the basis that Mr Babar did not satisfy the requirement in cl.457.233(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) that a nomination of an occupation in relation to Mr Babar had been approved under s.140GB of the Migration Act: CB 52-53 and 61-63;
e)the delegate noted that on 25 September 2013 the Department had refused CWK’s nomination application in respect of Mr Babar (“Nomination Refusal Decision”), and that the Department had not received a response to its 31 October 2013 letter: CB 62;
f)the delegate’s decision was sent by email to the migration agent for Mr Babar and his partner under a covering letter dated 4 December 2013: CB 53-56;
g)on 20 December 2013 the Tribunal received an application for review of the delegate’s decision: CB 83-94;
h)on 19 February 2014 CWK’s sponsorship agreement was cancelled: CB 114;
i)on 21 August 2014 Mr Babar advised the Tribunal that his son (the third applicant in these proceedings) was born on 25 April 2014, and requested that the Tribunal add his son as a party to his application for review: CB 117-120;
j)on 2 February 2015 the Tribunal wrote to Mr Babar and the other applicants indicating its preliminary view that, consistent with the Federal Circuit Court decision in Minister for Immigration & Border Protection v Lee & Ors [2014] FCCA 2881 (“Lee”), the Tribunal did not have jurisdiction to review the Delegate’s Decision: CB 124-125. The Tribunal invited a response by 16 February 2015;
k)on 16 February 2015 Mr Babar responded and, among other things, requested that the Tribunal “postpone decision on the validity issue until all processes of my prospective employer's complaint to Ombudsman” or give four weeks to seek legal advice: CB 126-128;
l)on 17 February 2015 the Tribunal granted the applicants an extension until 3 March 2015 to comment on the validity of the application for review: CB 129-130;
m)on 3 March 2015 Mr Babar requested a further seven day period to respond, which was refused by the Tribunal on 4 March 2015: CB 131-133;
n)on 16 March 2015 the Tribunal decided that it had no jurisdiction in respect of the delegate’s decision;
o)on 17 March 2015 the applicants were notified of the Tribunal Decision by email: CB 135-139; and
p)on 11 April 2015 the applicants sought review of the Tribunal Decision in this Court.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)correctly identified that it only had jurisdiction to review the delegate’s decision if it was an MRT-reviewable decision within the scope of s.338(2)(d) of the Migration Act: CB 138 at [2];
b)noted that as a result of Lee, the requirements of s.338(2)(d)(i) of the Migration Act would only be satisfied if, at the time of the review application to the Tribunal, a nomination of an occupation was approved and in force. Alternatively, the requirements of s.338(2)(d)(ii) of the Migration Act would be satisfied if a review of a sponsorship refusal decision was pending at the relevant time: CB 138 at [4];
c)found that the Nomination Refusal Decision had occurred on 25 September 2013, and that CWK had not sought review of the Nomination Refusal Decision: CB 138 at [5];
d)recorded the history of its correspondence with the applicants regarding the validity of the application for review, and that no additional relevant material had been provided after the Tribunal refused the second extension of time request on 4 March 2015: CB 138 at [6];
e)found that at the time that the application for review was lodged, there was no nomination of an occupation relating to Mr Babar that was approved under s.140GB of the Migration Act and was in force; and
f)found that the fact that CWK was approved at the time of the application for review did not satisfy s.338(2)(d)(i) of the Migration Act, and that s.338(2)(d)(ii) of the Migration Act was not satisfied because at the time of the application for review there was no review of a decision not to approve CWK pending, and, therefore, did not consider that these findings were affected by Mr Babar’s reference to pending enquiries with the Commonwealth Ombudsman: CB 138-139 at [7], and therefore found that:
i)the requirements of s.338(2)(d) of the Migration Act were not met;
ii)the delegate’s decision was therefore not an MRT-reviewable decision; and
iii)the Tribunal therefore did not have jurisdiction to review the delegate’s decision: CB 139 at [8]-[10].
Grounds of the judicial review application
The judicial review application contains the following 12 grounds:
1. MRT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness
2. MRT has failed to serve the documents in proper manner
3. MRT and DIBP have failed to do correspondences incorrectly and insufficiently
4. THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING HIS CASE PROPERLY AND ADEQUATELY
5. The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was he in a position to properly present the facts on which he relied
6. The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application
7. In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation to properly presented the Applicant's case but hence was denied by the Tribunal.
8. THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING HIM THE OPPORTUNITY TO PROPERLY CONSIDER HIM LEGAL POSITION, GIVEN HIM LIMITATION IN THE LEGAL SYSTEM
9. THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT'S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECCESSARILY LIMITED AND CONSTRITED AND WHICH FITTED THE TRIBUNAL MEMBER'S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW
10. The Tribunal Member therefore regarded the Applicant's as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness
11. The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant's actual circumstances
12. Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant's case for review.
(Copied from the judicial review application without amendment).
As indicated above, Mr Babar did file an affidavit in support of the judicial review application but it does little more than reiterate the grounds of the judicial review application.
Orders made by a Registrar
On 19 August 2015 a Registrar of the Court ordered (“Registrar’s Orders”) by consent that:
a)the applicants file and serve on or before 14 October 2015 any amended application giving particulars of the grounds of review, and any further affidavits upon which the applicants intend to rely at the hearing of the matter; and
b)the applicants file and serve an outline of submissions not less than 42 days before the final hearing listed for 2.15pm on 22 March 2016.
The applicants did not file or serve any of the documents referred to in the Registrar’s Orders. The oral submissions made by Mr Babar at hearing are set out above, particularly as they relate to Mr Kang’s alleged conduct.
The Registrar’s Orders entitled the Minister to file and serve written legal submissions 21 days before the hearing of the judicial review application. The Minister’s submissions were filed on 1 March 2016. It is unnecessary to set out the Ministers submissions in detail as they are in large part reflected in the Court’s consideration set out below.
Consideration
The Tribunal’s jurisdiction
Ground 9 alleges in part that the Tribunal failed to determine the applicants' application for review according to law.
At the time of the Tribunal Decision, s.338(2) of the Migration Act relevantly provided as follows:
338 Decisions reviewable by Migration Review Tribunal
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
…
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The application to the Tribunal for review of the delegate’s decision came within the “chapeau” to s.338(2)(d) of the Migration Act on the following basis:
a)it was a criterion for grant of the 457 Visa that Mr Babar be sponsored by an approved sponsor because:
i)pursuant to s.337 of the Migration Act, read with reg.4.02(1AA) of the Migration Regulations, Mr Babar was “sponsored” if he was identified in a nomination under s.140GB of the Migration Act; and
ii)it was a requirement for grant of the 457 Visa that at the time of decision “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”: cl.457.223(4)(a)(i) of Schedule 2 to the Migration Regulations, and in Minister for Immigration & Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46; (2012) 130 ALD 237 at [38]-[43] per Robertson J this was held to constitute a requirement that the applicant be “sponsored” as required by the chapeau to s.338(2)(d) of the Migration Act; and
b)a 457 visa was a temporary visa prescribed for the purposes of s.338(2)(d) of the Migration Act: reg.4.02(1A)(k) of the Migration Regulations.
The application to the Tribunal for review of the delegate’s decision did not come within s.338(2)(d)(i) or (ii) of the Migration Act because:
a)the Department's records indicate that CWK’s nomination in respect of Mr Babar was refused on 25 September 2013: CB 109 and 122, prior to the application to the Tribunal being lodged on 20 December 2013. As noted by the Tribunal there is nothing to indicate that CWK sought review of the Nomination Refusal Decision: CB 139 at [7];
b)there is nothing to indicate that Mr Babar was the subject of a subsequent nomination application at the time of the applicants' application to the Tribunal for review of the delegate’s decision;
c)Mr Babar was therefore not “identified in a nomination under s.140GB” of the Migration Act, at the time of the application to the Tribunal for review of the delegate’s decision, and on this basis the applicants could not meet the requirement in s.338(2)(d)(i) of the Migration Act that Mr Babar be “sponsored” at the relevant time;
d)there is nothing to indicate that, at the time of the application for review of the delegate’s decision, an application for a review of a decision not to approve CWK had been made and review of that decision was pending such that s.338(2)(d)(ii) of the Migration Act was satisfied;
e)the current circumstances are distinguishable from the decision of this Court in Kandel v Minister for Immigration & Border Protection & Anor [2015] FCCA 2013; (2015) 300 FLR 189 (“Kandel”) where a nomination application lodged with the Department was pending at the time of the visa applicant's application to the Tribunal for review of a 457 visa refusal decision: see Kandel at [3] per Judge Street;
f)the current circumstances are also distinguishable from the Full Court of the Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (“Ahmad”), where an application to the Tribunal for review of the Department's decision to refuse the sponsoring employer's nomination application was pending at the time of the visa applicant's application to the Tribunal for review of a 457 visa refusal decision: see Ahmad at [12]-[13] per Katzmann, Robertson and Griffiths JJ;
g)the current application is within the scope of the reasoning in Lee which was confirmed as correctly decided by the Full Court in Ahmad at [111] per Katzmann, Robertson and Griffiths JJ;
h)section 338(2)(d) of the Migration Act is an exhaustive statement of the circumstances in which the Tribunal will have jurisdiction to review a decision to refuse a 457 visa; and
i)the applicants’ application to the Tribunal for review did not come within s.338(2)(d) of the Migration Act, and the Tribunal was correct to decide that it did not have jurisdiction.
Grounds 1, 2, 3, 6, 10 and 11 - Natural justice and procedural fairness
Grounds 1, 2, 3, 6, 10 and 11 variously allege that the Department and the Tribunal failed to accord the applicants procedural fairness.
The Department's correspondence regarding the 457 Visa application was sent to the migration agent’s email address provided in the 457 Visa Application: CB 5. While the evidence suggests that the migration agent may not have responded to some of the Department's correspondence, there is nothing to suggest that the Department made “important procedural errors” in the process leading to the delegate’s decision or the Tribunal Decision.
Mr Barbar received and responded to the Tribunal’s correspondence regarding his application to the Tribunal for review: CB 126-128 and CB 131. There is nothing to indicate that the Tribunal failed to accord the applicants procedural fairness.
Grounds 1, 2, 3, 6, 10 and 11 do not establish jurisdictional error in the Tribunal Decision.
Grounds 9 and 11 – bias
To the extent that grounds 9 or 11 allege that the Tribunal was biased, the Tribunal Decision does not indicate any actual or apprehended bias. An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
Grounds 9 and 11 do not establish jurisdictional error in the Tribunal Decision.
Grounds 4, 5, 7 and 8 - Applicants' opportunity to seek legal advice
Grounds 4, 5, 7, and 8 allege error on the basis that the Tribunal denied the applicants the opportunity to seek legal advice.
Taking into account the two week extension granted by the Tribunal, the applicants were given a month to comment on the validity of their application for review. Further, after the Tribunal refused a second extension there was a further period of almost two weeks before the Tribunal Decision was made. At no point did the applicants provide the Tribunal with evidence that they were taking active steps to secure legal advice. Further, the applicants had had many months from the time of the delegate’s decision to seek legal advice, and there is no indication that they did so. Noting that the Tribunal was not conducting a review under Part 5 of the Migration Act at the time, the Tribunal Decision to refuse the second request for an extension of time did not contravene the common law requirements of procedural fairness.
In any event, the inability to obtain legal advice or legal representation in relation to migration matters is not a basis for the grant of prerogative relief in relation to the Tribunal Decision. Various authorities, including SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J, SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J and MZZZL at [11] per Judge Lucev have held that there is no right to the obtaining of legal advice or legal representation upon an application for judicial review in this Court, and in particular no right to obtain legal advice or legal representation in relation to a review before the Tribunal of the delegate’s decision.
Grounds 4, 5, 7 and 8 do not establish jurisdictional error in the Tribunal Decision.
Futility of relief
Section 338(2)(d)(i) and (ii) of the Migration Act sets out criteria that must be satisfied at the time of the application for review. Therefore even if the applicants were to establish jurisdictional error in the Tribunal Decision, it would be futile for the Court to grant relief as the Tribunal Decision regarding jurisdiction would necessarily be the same on remittal. A Court will not order a reconsideration of a decision in these circumstances: X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; [2002] FCAFC 3; (2002) 116 FCR 319; (2002) 67 ALD 355 at [45] per O’Loughlin J.
Fraud on the Tribunal
Even if the conduct of Mr Kang, and possibly Mr Eaton, and those associated with them, were ultimately able to be definitely established, and even if it constituted a fraud on the Tribunal within the parameters described by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510, any such fraud would not affect the outcome of the judicial review application. That is because, fraud or not, Mr Babar does not have a nominating sponsor, nor does he have a nominated occupation, for the purposes of fulfilling the 457 Visa criteria. In those circumstances, for reasons set out above, the grant of prerogative relief would be futile.
Conclusion on judicial review application
In the above circumstances, the Court has concluded that the judicial review application must be dismissed. There will be an order accordingly.
The Court will hear the applicants and the Minister as to any further orders as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 23 June 2016
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