BRGAA of 2010 v Minister for Immigration
[2010] FMCA 431
•15 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAA OF 2010 v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 431 |
| MIGRATION – Review of Refugee Review Tribunal decision – extension of time – grounds of the application – ineffective notification of the decision to refuse visa – ineffective notice of the decision – time to file application for review. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001 |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 Parker v The Queen [2002] FCAFC 133 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 SZNOR v Minister for Immigration & Anor [2009] FMCA 639 SZLZH v Minister for Immigration [2008] FCA 1163 SZNZI v Minister for Immigration and Citizenship [2010] FMCA 57 |
| Applicant: | BRGAA OF 2010 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 9 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 21 April 2010 |
| Date of Last Submission: | 21 April 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 15 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Nguyen |
| Solicitors for the Applicant: |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for extension of time is dismissed.
Subject to an application being brought by the applicant for any other order within seven days of today’s date, the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 9 of 2010
| BRGAA OF 2010 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction – Non-appearance by Applicant
This matter came on for final hearing on 21 April 2010. On that occasion the applicant made no appearance.
The applicant himself filed the initiating application on 6 January 2010. Since 6 January 2010 the applicant had been represented by Mr Sam Nguyen, Lawyer’s Code 0319875, for on that day there was also filed an affidavit in support of the applicant’s application in respect of which Mr Nguyen’s particulars were included. The affidavit noted it was prepared by Mr Sam Nguyen, Lawyer’s Code 0319875 of Nguyen Chambers. It included fax, telephone and email particulars.
At the mention of the matter on its first return on 10 February, Mr Nguyen appeared for the applicant. Subsequently, a set of written submissions were prepared for the applicant and were filed on the applicant’s behalf on 14 April 2010. Those submissions, although unsigned, were noted as being prepared by Mr Sam Nguyen, counsel for the applicant.
When the matter came on for hearing on 21 April, there was no appearance by the applicant or his legal representative. As noted, the application is noted as having been filed by the applicant personally. As I have earlier indicated, the affidavit filed in support on the same day notes the applicant’s representation by a lawyer.
It is possible, although unlikely, that these two documents were filed separately and, to that end, I am prepared to afford the applicant the benefit of the doubt. It does, however, appear plain that between the date of filing the application and at least 14 April the applicant was represented by a lawyer.
The lawyer has, however, failed to comply with FMC Rule 9.01(1) to file and serve a notice of appearance. In the circumstances, however, I am prepared to dispense with the non-compliance by the applicant’s lawyer with that rule as I consider that such an approach would be appropriate and in the interests of justice in this case, particularly having regard to the lawyer’s involvement, at least from the outset until more recent times: see FMC Rule 1.06(1).
It follows that I proceed upon the basis that the applicant has been and remains represented because no application has been made by Mr Nguyen to withdraw: see FMC Rule 9.03.
When Mr Nguyen was contacted on the day of the hearing because of his non-appearance, a member of his staff informed the court staff that he would not be appearing because of “lack of funding.” I am uncertain as to whether this meant; a lack of Legal Aid or private funding but, in any event, there was no suggestion that he sought leave to withdraw and, to that end, he remains on the record.
Significantly, I concluded that given the background of this case, there was a deliberate non-appearance. However, given that submissions have been filed it is, in my view, appropriate to proceed and hear and dispose of the application as though it had been contested: see FMC Rule 13.03A.
Grounds of Application
The applicant advanced two grounds for the application: first, that the decision of the tribunal constituted an ineffective notification of the decision because the applicant did not receive a letter dated 6 February 2009 from the delegate that informed the applicant of the department’s decision to refuse the protection visa. Secondly, as the applicant did not receive the letter, the applicant did not lodge his application for review within the required 28 day period.
The second ground advanced is entitled “Fraud”. It is alleged that the applicant was misled by his migration agent for the applicant does not speak or read English and hence he was relying upon his migration agent entirely. The applicant was of the wrong understanding that the agent had lodged the application for review on time.
Background Facts
Broadly, the background facts are these. An application has been made in respect of a review of a decision made by a delegate for the Minister of Immigration and Citizenship to refuse the grant to the applicant of a protection (class XA) visa under section 65 of the Migration Act. The applicant applied to the department for a protection (class XA) visa on 24 November 2008.
The delegate decided to refuse to grant the visa on 6 February 2009 and notified of the applicant of the decision and his review rights by letter of 6 February 2009. They were posted on 9 February 2009.
According to information on departmental records, the review application was given to the department’s Brisbane office in February 2009, rather than being filed with the tribunal. The department’s Brisbane office forwarded the review application to the Sydney office in March, and the application was filed on the applicant’s departmental file rather than being forwarded by the department to the tribunal. In fact, it was not forwarded to the tribunal until June 2009.
The review application was then received by the tribunal on 17 June 2009, and it appears it was in effect filed that date.
Ultimately, when the matter came on before the tribunal, the question that was identified by the tribunal in the application before it was whether the tribunal had jurisdiction to determine the application. The issue to be determined was whether the application lodged on 17 June 2009 was a valid application under section 412 of the Act for review of the delegate’s decision.
The tribunal had formed the preliminary view, that it did not have jurisdiction because the application for review was received outside the prescribed time limit. The tribunal wrote to the applicant on 24 June 2009 inviting submissions on that issue. It did not receive a response to that letter and ultimately the tribunal proceeded to determine the application against the applicant resolving that it did not have jurisdiction to determine his application.
In its reasons, the tribunal decided that the application for review was received outside the prescribed time limit. It appropriately determined that the application was seeking review of an RRT reviewable decision covered by section 111(1)(c) of the Migration Act and that the applicable prescribed period was 28 days commencing on the day on which the applicant was notified of the decision: see section 412(1)(b) and rule 4.31(2)(b).
The tribunal was satisfied that the contents of the delegate’s decision notice complied with the requirements of section 66(2). As the tribunal noted, the decision notice was sent by prepaid registered post. The tribunal had made inquiries of the department to determine whether the letter was sent within three working days. Convergia, which is the organisation which provided mail and distribution services for the department confirmed that the decision notification was dispatched by prepaid post on 9 February 2009.
The tribunal concluded that the material before it indicated that the applicant did not give the minister written notice under section 494D Migration Act of the name and address of an authorised recipient. Accordingly the decision notice dated 6 February 2009 sent by prepaid post on 9 February 2009 was from a place in Australia to the applicant at an address in Australia being the last residential address provided to the minister by the applicant for the purposes of receiving documents.
It follows that it found the decision notice was dispatched within three working days of the date of the letter to the correct address and, therefore, the applicant was taken to have received the notice on 17 February 2009, being seven working days after the date of the notice.
The tribunal did consider the fact that the applicant gave his application to the department rather than the tribunal, and the department forwarded the application to the tribunal on 17 June 2009. However, it did not accept that these circumstances provided any basis or justification for accepting the review application lodged on 17 June 2009 as by statute the application for review must be given to the tribunal within the period prescribed in accordance with section 412(1)(b) of the Act. There had been no such application.
The tribunal noted that it had no discretion to accept an application that is lodged outside the prescribed timeframe and there was no provision for extension of time within which to lodge an application for review contained within the legislation.
The tribunal then found that the applicant was properly notified of the delegate’s decision and was taken to have been notified on 17 February 2009, and, therefore, the prescribed period of 28 days within which the application for review could be lodged ended on 17 March 2009. As I have noted, the application for review was not filed until 17 June 2009, which was well after the prescribed period had expired.
It was against that background that the applicant then lodged its present application seeking a review of the tribunal’s decision. I have earlier outlined the grounds of the application, but an additional matter arises, that being need for an extension of time.
Extension of Time
The application itself is in respect of the tribunal’s decision pronounced on 29 July 2009. However, the application itself was only filed on 10 February 2010. An application has been made for an extension of time. Accordingly, before considering the substantive grounds of the review, it is first appropriate to deal with the extension of time application.
The grounds of the application for extension of time are identified as follows:
i)The applicant did not receive the letter dated 6 February 2009 that informed the applicant of the Department of Immigration and Citizenship’s decision to refuse the protection visa.
ii)The applicant was cheated by his previous migration agent believing that the application to the RRT had been successfully lodged; and
iii)The applicant was consequently denied natural justice as he was not given an opportunity to appeal against the decision of the tribunal.
The application itself appears to be misconceived because in its terms it notes within its first ground the delay in respect of notice of the decision made by the delegate vis-à-vis the application to the tribunal. In fact, what I apprehend it seeks to do is to make application in respect of the delay between the decision of the tribunal and its lodging of its application for determination for review, and I proceed to deal with it on that basis.
Section 477 of the Act sets out the relevant time limits to be applied. Relevantly, it provides:
“(1) an application to the Federal Magistrates Court for a remedy to be granted in the exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the migration decision;
(2) the Federal Magistrates Court may, by order, extend that 35-day period as the Federal Magistrates Court considers appropriate if (a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
Section 477(3)(b) defines the date of the migration decision as the written decision of the Migration Review Tribunal, and the date written on the statement: section 368(1) or 430(1).In this case the original decision was 29 July 2009, and as I have noted, the application for review to the Federal Magistrate’s Court therefore had to be filed, at the latest, by 2 September 2009. As I have noted, the applicant filed his application on 6 January 2010. As section 477 sets out, the applicant is required to make an application for an order for extension of time to a court specifying why it is necessary in the interests of the administration of justice to make that order.
He must also set out and satisfy the court that it is necessary in the interests of the administration of justice to make the order. Assistance on the interpretation of that section has been provided in several recent decisions of this court. In particular, I refer to SZNOR v Minister for Immigration & Anor [2009] FMCA 639, where Scarlett FM set out a number of matters that ought be considered.
Scarlett FM summarised the matters in that decision as follows:
a)whether or not an application has been made in writing to the court specifying why an extension is necessary in the interests of the administration of justice;
b)whether the applicant has offered a reasonable explanation for the delay;
c)the extent of the delay;
d)a consideration of both sides of the litigation, including the effect on the applicant if the application is not granted, and the effect on the respondent or the detriment to be suffered by the respondent if the application is granted;
e)the nature of the substantive application, that is, whether the applicant could show an arguable case.
Other helpful dicta can be found in other decisions of this court, including SZNZI v Minister for Immigration and Citizenship[1].
[1] [2010] FMCA 57
Dealing then with the three critical issues that ought be examined in the context of this application, they are the question of whether the applicant has provided a reasonable explanation for the delay; a consideration of the effect of the general grant of an extension on both parties; and whether or not the application discloses an arguable case.
Explanation for Delay
The first observation to be made is that the applicant does not attempt to explain his delay in his application to the court. While there are some issues in relation to the conduct of the proceeding by reference to his migration agent, the fact remains that the applicant has not changed his address since the lodgement of his visa application, nor has the applicant appointed a representative to act on his behalf, except in respect of this application, and it follows that in respect of each of the visa application and the application to the tribunal, the applicant’s address remained at 77 Brisbane Street, Bundamba.
It’s also contended on behalf of the respondent that the application for review by this court remained at 77 Brisbane Street, Bundamba, but that matter, I think, is perhaps not nearly as pressing, given the potential intervention on the part of a Mr Nguyen who appeared for the applicant. Even though the applicant’s address remained at 77 Brisbane Street, and it is possible that the tribunal or the court could have corresponded with the applicant at that address, there was also the address of his lawyer with whom the court could have corresponded. But significantly at least, until the commencement of this application, 77 Brisbane Street remained the only address in respect of which correspondence could have been directed to the applicant.
As was noted by the tribunal, the evidence demonstrates that the applicant was informed of the tribunal’s decision by a letter sent by registered post to the applicant’s specified address. Pursuant to section 441C of the Act, where the tribunal despatches a letter by prepaid post, within three days of the date of the letter, to the applicant’s last address for service, the letter is taken to have been received seven working days after the date of that document.
It follows that there is no reason to believe in this instance that the applicant has not been appropriately informed of the tribunal’s determination, and in the absence of any explanation, there appears to be no real explanation as to why the applicant failed to file an application within the time.
Prejudice
The next consideration is of the effect of the grant of an extension on both parties. While it is obvious that the applicant may suffer an adverse result in the event that an extension is not granted, the respondent itself does not press that it would suffer any prejudice by reason of the late application. It did however note in its submissions that the Full Federal Court has held the mere absence of prejudice is not enough to justify the grant of an extension: see Parker v The Queen[2], paragraph 6, and observations endorsing the Full Court’s comments by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[3].
[2] [2002] FCAFC 133
[3] (1984) FCR 344
Arguable Case
Finally, the last of the principal considerations concerns whether or not the application discloses an arguable case. That requires consideration of the overall merits of the applicant’s application. As I have earlier noted, the applicant’s application appears to fall into two parts. That is, first, that the applicant was not given effective notice of the decision; and secondly, that the applicant has suffered fraud at the hands of his migration agent, in respect of which he ought be forgiven.
Ineffective Notice
Dealing first with the matter of ineffective service, although the applicant contended this issue in his application, in written submissions filed on the applicant’s behalf, his lawyer made these observations:
“The tribunal is further supported in their claim that the documents were delivered to the applicant by precedent decisions of the Federal Court. In accordance with the decision in SZKIU v Minister for Immigration and Another: Notification was sent to the address provided by the applicant, as was the case with the applicant. The provisions of the Act were complied with and therefore the applicant is taken to have received the notification. Therefore there are no grounds for the applicant to claim that they were not notified of the decision by the authoritative body. Further as there is no compelling evidence to suggest that the applicant was not notified of the decision, the Court would likely refuse the application on this ground. In consideration of the above provisions of the Act and in accordance with the brief instructions from our client, lacking any compelling evidence as to the unsuccessful delivery of the correspondence dated 29 July 2009, the applicant concedes this ground on the basis of the legislative provisions, together with the flavour of the precedent decisions made by the Federal Court clearly identify the position regarding the ineffective notification of tribunal decisions.”
In summary, it seems that the applicant concedes that there is nothing in its first ground.
Fraud
The next contention advanced on behalf of the applicant then was that the applicant was cheated by its migration agent. In other words, it suffered at the hands of the fraud of another, for which it was not responsible, and by inference, in respect of which it is contended the respondent has unconscionably taken advantage.
The particulars of the fraud are identified on page 8 of the applicant’s outline in these terms:
“(a) The applicant employed a migration agent to complete his application for a protection (class XA) Visa, and the subsequent appeal to the tribunal;
(b) The applicant was of the understanding that at all times the agent was acting in his interests;
(c) The applicant does not speak read or write English and hence relied on his migration agent entirely. The applicant was of the understanding that the agent had lodged the application for review on time;
(d) The applicant relied on the agent’s representation that he held himself out to be a professional migration agent;
(e) The tribunal delegate, Eddy Chiu stated in the abovementioned correspondence that the application was invalid due to the tribunal’s late receipt of the required forms and the subsequent non compliance with the relevant Act and Regulations.
(f) Due to non compliance the application was invalid and outside the tribunal’s jurisdiction to make a decision;
(g) The applicant instructs that he was of the understanding that his employed migration agent would submit a true and valid application by the required date;
(h) The application was due on 17 March 2009 in accordance with the limitation period of 28 days determined by the Act;
(i) The application was received by the tribunal on 17 June 2009;
(j) It has been considered by the tribunal that the delay in receipt of the appropriate forms was due to the appeal being lodged with the Department of Immigration and Citizenship (DIAC) rather than directly with the tribunal;
(k) It was suggested by a DIAC representative that the appeal forms were delivered in person on 12 February 2009 to its Brisbane office;
(l) The application was sent through internal mail to the tribunal and received one month following the due date;
(m) It submitted that the applicant was unaware that an invalid application had been made on his behalf until some months later in November, when he was notified that he was now residing in Australia without authority.”
It would seem that this is the principal argument and at the core of the applicant’s merits application. It in turn obviously bears upon his extension of time application. The first point to be made is that the decision under review in this case is the decision of the tribunal. This court has no jurisdiction to review the decision of the delegate, see section 476(2) of the Act. The tribunal’s decision was that it did not have jurisdiction to review the delegate’s decision, and that arose because of the delay which was earlier spoken of. Pursuant to section 414(1) of the Act:
“If a valid application is made under section 412 for review of an RRT reviewable decision, the tribunal must review the decision.”
Section 412 provides:
“(1) an application for review of an RRT reviewable decision must (a) be made in the approved form; (b) be given to the tribunal within the period prescribed, being a period not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee.
(2) an application for review may only be made by the non-citizen who is the subject of the primary decision.”
Regulation 4.31 of the Migration Regulations then provides:
“(1)For the purposes of paragraph 412(1)(b) of the Act, each period stated in sub-regulation (2) is prescribed as the period within which an application for review of an RRT reviewable decision to which the period applies must be given to the tribunal.”
Sub-regulations (2) and (3) deal then with procedural issues that follow.
In the second ground, the applicant alleges fraud. He states that he was misled by his agent – although he has failed to identify the name of that agent – and he states that he was of “the wrong misunderstanding of the agent who lodged the application for review on time.”
In an affidavit in support of his application, he deposed that the reason for failing to lodge an RRT application on time was because a migration agent was acting on his behalf and failed to prepare the application on time. He said the agent lied to him and told him the application was lodged on time, and he had no knowledge of it at the time because he cannot speak, read or write English.
His submissions amplified his affidavit evidence, noting that the applicant had employed a migration agent to complete his application to the tribunal and that the applicant was of the understand that the agent was at all times acting in his interests, and that the applicant was of the understanding that his agent would submit a true and valid application by the required date and, finally, that the applicant was unaware that an invalid application had been lodged until November when the Department contacted him.
For the respondents, the first respondent notes that the applicant has never acknowledged the assistance of a migration agent. First, in his initial application to the Department, the applicant ticked the box to indicate that he had received no assistance in preparing the application and that any communication should go to him. A form 596, appointing a migration agent, was never submitted to the Department. His application for review to the tribunal indicated that he did not have an advisor working for him and, finally, no form appointing a representative or authorised recipient was lodged with the tribunal.
The first respondent submits it follows that there is no evidence of the applicant having ever engaged a migration agent or having been advised by a migration agent, and accordingly it is submitted there is nothing from which the court could even infer that an agent ever existed.
In any event, the first respondent submits that the failure by a migration agent to prepare an application on time cannot amount to a fraud on the tribunal, which is what is required to be demonstrated before jurisdictional error can be shown: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
In that decision, it was determined that two elements must be satisfied before fraud on the tribunal can be shown. First, it must be demonstrated that the actions of the agent are able to be characterised properly as fraudulent, that is undertaken for personal gain to the applicant’s detriment. The motives of the agent are therefore a highly relevant consideration in that context.
That matter was explained by the Full Court in Minister for Immigration and Citizenship v SZLIX[4]. It follows that before actions of an agent can give rise to the level of fraud on the tribunal, to be actionable, they must be fraudulent in a sense of being dishonest and in advance of the agent’s own interests above those of the client.
[4] (2008) 245 ALR 501
The second matter that must be demonstrated is that the agent’s fraud or fraudulent conduct has directly affected the tribunal’s decision-making procedure. The High Court, in SZFDE, held that the ultimate issue is the effect upon the tribunal’s decision-making process by the actions of the agent: see SZFDE at [47].
So far as the principles therefore apply to this case, the first respondent submits that neither of the two elements being fraudulent conduct or the deprivation of the tribunal’s statutory functions are present.
The applicant, in his submission, contends that the decision in SZFDE and the facts of the case before the court in this instance are not dissimilar. I do not agree. The facts of SZFDE are starkly different to the facts of this case. In SZFDE, the agent deliberately and dishonestly persuaded the applicant not to attend the tribunal hearing in order to avoid his own unlawful behaviour being revealed.
Here, the alleged agent – and there is a question as to whether there was indeed an agent at all – merely failed to lodge the application on time. There was no evidence that this inadvertence was due to some ulterior motive on the part of an agent, nor was any motive apparent on the evidence. On the applicant’s behalf, it is simply said that the applicant expected an application to be lodged but it was not.
In addition, the facts of this case demonstrate a clear contradiction in the applicant’s claims that he was not notified that the agent failed to prepare an application on time. As the documents on the tribunal’s file show, the application to the tribunal was completed and signed by the applicant on 12 February 2009, only three days after the letter posted by the Department, but was not sent to the tribunal.
The first respondent submits that this strongly suggests that the applicant did receive the Department’s notification letter and either prepared, or had prepared on his behalf, an application. Unfortunately, however, the application was not given to the tribunal. I accept that submission.
Pursuant to section 412 of the Act, and regulation 4.31, the application had to be lodged with the tribunal to be valid. Therefore, only when the application was received by the tribunal did it become valid, and by that time, however, the application was well out of time.
As such, it seems that the application, whilst perhaps prepared on time was not lodged with the tribunal within time. Accepting that matter as I do, on either set of facts, the actions of the alleged agent simply denote a mistake, negligence or incompetence on his or her behalf. They do not constitute fraud. Nor did they affect the decision-making process of the tribunal. There is, in my view, no error in the tribunal’s decision illustrated or demonstrated on this ground.
Conclusion
The applicant has failed to make out the first ground of having essentially conceded that point, and it’s failed in respect of the second ground. The application, as I noted, has been brought out of time and there has been no adequate explanation for it being lodged out of time. There is no compulsion in the current instance, by reason of no evident prejudice to the respondent in refusing the applicant’s application.
Perhaps more poignantly, as noted by Logan J in SZLZH v Minister for Immigration[5], the tribunal is a statutory tribunal and posses no greater jurisdiction than that which the Parliament has chosen to confer upon it. Section 412 of the Migration Act 1958 lays down a period within which an application to the tribunal can be brought. If an application is brought outside that period, then the tribunal has no ability to extend time, whatever may be the merits here in law or in fact of the challenge that was sought to be made to the decision of the Minister or his delegate.
[5] [2008] FCA 1163
There is, in my view, no power for this court to extend the jurisdiction of the tribunal to accept the application lodged out of time. Further, nothing had occurred to stop time from running following notification of the tribunal’s decision, and there has been no error demonstrated in the tribunal’s decision.
There is, in my view, no arguable case set out in the application for review. It follows that the application for an extension of time ought be refused, and I refuse the application.
In the event that I am wrong in the exercise of my discretion in respect of the application for an extension of time, I am, in any event, of the view that the application would fail on the merits for the reasons that I have outlined above and would dismiss the application in any event.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 8 July 2010
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