BCW15 v Minister for Immigration and Anor

[2015] FCCA 3045

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3045

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Show Cause hearing – whether migration consultant practiced a fraud upon the applicant – whether applicant believed migration consultant was a lawyer – no arguable basis for allegation of fraud – no arguable jurisdictional error – application for extension of time dismissed.

COSTS – Whether costs should be awarded on the basis of a final hearing – costs awarded on the basis of a final hearing.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 426, 426A, 476, 477(2), 494D(2)

Applicant: BCW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1703 of 2015

Judgment of: Judge Street

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 13 November 2015

REPRESENTATION

Solicitors for the Applicant: Mr D Leydon

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application for extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1703 of 2015

BCW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) in respect to a decision of the Tribunal made on 26 March 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Egypt and his claims were assessed by reference to that country.  The applicant first entered Australia on 30 June 1990 on a Subclass 995 (Diplomatic) visa valid until 29 March 1994.  He departed Australia on 3 December 1993.  The applicant re-entered Australia on 11 February 2004 and claimed to have visited Egypt during his absence from Australia.

3. The Subclass 995 visa was valid until 2000.  The applicant lodged a spouse visa application on 31 December 1999, but the application was refused on 19 March 2002 after the relationship broke down.  The MRT affirmed the refusal on 10 September 2003.  The applicant lodged a protection visa application some 10 months later on 30 July 2004 which was refused on 29 November 2004 and affirmed by the Tribunal on 23 February 2005.  The applicant thereafter remained an unlawful person in Australia until the applicant was detained on 15 December 2012.  The applicant was then released on a bridging visa on 9 August 2013 which was renewed on 20 March 2013.

4. Before the delegate, the applicant was represented by Andre Benjamin & Associates “Immigration Law Consultants”.  Correspondence from Andre Benjamin & Associates was sent to the delegate on 6 August 2013 and 8 February 2013.  On 28 May 2014 the delegate rejected the applicant’s application for protection that was lodged on 7 August 2013.  The application for review was lodged on 2 July 2014 and identified Andre Benjamin & Associates as the representative for the purpose of communication with the applicant.  Andre Benjamin & Associates as the applicant’s migration agent also provided submissions prior to hearing to the Tribunal.

5. On 25 February 2015, the Tribunal sent an invitation to appear at the hearing to the applicant’s representative, Andre Benjamin & Associates. The invitation was sent to the correct PO Box identified in the application for review. Under ss.494C(2) and 494D(2), a document given to the authorised recipient is taken to have been given to the applicant. The applicant filed the application in this Court on 22 June 2015 and to bring these proceedings the applicant requires an extension of time under s.477(2) of the Migration Act 1958.

6. On 29 July 2015, orders were made by the Court fixing the matter for hearing in relation to the s.477(2) application. Extension of time requires, first, a satisfactory explanation for the delay; and, second, a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The applicant put on an affidavit sworn on 20 September 2015 purporting to explain the delay.

7. After cross-examination, I find the applicant’s explanation entirely unconvincing.  I do not accept the applicant is a truthful witness.  In my opinion, the affidavit put on by the applicant was materially misleading in relation to the advice that the applicant had received from a lawyer prior to the expiry of the time for appeal in respect of the Tribunal’s decision delivered on 26 March 2015.

8. The applicant did not disclose the communications with the lawyer that took place on 30 April 2015.  This materially undermines the applicant’s credit and was a material matter that should have been disclosed by the applicant in relation to whether or not there was an explanation for the delay.

9. I do not accept that the applicant has an adequate explanation for the delay and on that ground alone I would refuse an extension of time under s.477(2). The grounds of the amended application are as follows:

   1. That a breach of the rules of natural justice occurred in connection with the making of the decision about the merits of my application under the complimentary Protection Provisions in s 36(2)(aa) of the Migration Act1958

   2. The RRT exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case

   3. The RRT failed to take a relevant consideration into account in the exercise of a power

   4. The RRT exercised its power in a way that constitutes abuse of the power.

10. It is clear from the evidence in the Court book at 266 that Andre Benjamin suffered a heart attack and was admitted to hospital on the day of the hearing.  Mr Andre Benjamin also acknowledged the receipt of text messages by the Tribunal which he failed to appreciate concerned the applicant.  There is no basis for the serious allegation of fraud by Mr Andre Benjamin in acting for the applicant.  It is clear that Mr Andre Benjamin suffered an unfortunate incident which the applicant has, in this Court, purported to advance as being one where there has been a fraud practiced upon him by Mr Andre Benjamin.  That assertion is completely lacking in substance.

11. It was suggested that Mr Andre Benjamin had represented himself to the applicant to be a lawyer.  I reject that contention and find that at all times the applicant well appreciated, as he acknowledged in evidence, the difference between a migration consultant and a lawyer. Indeed, it is apparent from the applicant’s own email that he fully appreciated that Mr Benjamin was a consultant.

12. There is no substance in the suggestion that Mr Andre Benjamin in some way misled the applicant and the assertion of a fraud practiced upon him is utterly baseless.  No arguable ground of jurisdictional error is disclosed by ground 1 of the application.

13. In relation to ground 2 there is no substance in the assertion of some contravention or subversion of the operation of ss.425 or 426 of the Migration Act 1958.  It is clear that the applicant was sent a statutory invitation in accordance with the statutory regime.

14. The Tribunal recorded in para.7 of its reasons the communication with the applicant’s representative in relation to the hearing date, and it is clear that an SMS was also sent, prior to the hearing date, to the representative. In those circumstances, the Tribunal was entitled, pursuant to s.426A, to proceed to decide the matter. There is no arguable jurisdictional error disclosed by ground 2. There is no substance, in relation to the contention, that there was any breach of s.424A of the Migration Act 1958 and ground 3 fails to disclose any arguable jurisdictional error.

15. In relation to ground 4, for the reasons I have already given, the Tribunal was entitled to proceed under s.426A and no arguable jurisdictional errors were disclosed by ground 4. The amended application is dismissed.

16. I am satisfied this is an appropriate matter in which to award costs on the basis of a final hearing, given the work that was required in relation to the serious allegation of fraud advanced on material that was baseless and false. I find the falsity of the allegation was not known to the solicitor for the applicant but clearly known by the applicant to be false.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 November 2015