CDS15 v Minister for Immigration

[2016] FCCA 813

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 813

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal for extension of time – no jurisdictional error – application dismissed – Applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

SZSXT v Minister for Immigration and Border Protection (2014) 307 ALR 31
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Applicant: CDS15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 974 of 2015

Judgment of: Judge Vasta

Hearing date: 21 March 2016

Date of Last Submission: 21 March 2016

Delivered at: Brisbane

Delivered on: 21 March 2016

REPRESENTATION

Counsel for the Applicant: Mr S. Nguyen

Solicitors for the Applicant: Essen Lawyers

Counsel for the Respondent: Ms A.L. Wheatley

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application for extension of time be refused.

2. That the Application filed 14 October 2015 be dismissed.

3. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 974 of 2015

CDS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application, dated 14 October 2015, the Applicant CDS15 seeks a review of the decision of the Administrative Appeals Tribunal (AAT) made on 31 August 2015. 

2. That decision that the Tribunal made was that the Tribunal was functus officio; that is, it could not now decide the application. The application was one to review the decision of the Minister for Immigration and Border Protection in refusing the Applicant a visa.

3. A short history of the matter shows that the decision by the Minister was made, it would seem, on 26 August 2014. 

4. On the 9 September 2014, the Applicant made his application for review to the now, Administrative Appeals Tribunal. 

5. What occurred then, on 22 October 2014, is that the Applicant appointed a new representative, Mr Sam Nguyen from Essen Lawyers as the representative. 

6. Received by the AAT on 10 July 2015, but posted on 7 July 2015, was a form that was dated 6 July 2015 and headed Withdrawal of Application for Migration or Refugee Review-MR Decision.  The letter that accompanied the form stated as follows:

   “We refer to the above matter and confirm we act for this client in all his migration matters. 

   We are instructed to apply for the matter to be withdrawn. 

   Please find attached the Withdrawal of application for migration or refugee review-MR Decision. 

   If you have any questions or concerns, please do not hesitate to contact the undersigned”

7. Now, the letter was signed by Mr Sam Nguyen.  The signature on that letter, which is reproduced at page 153 of the court book, is a different signature to that on the actual withdrawal form, which is reproduced at page 155 of the court book.  Both signatures are purporting to be the signature of Sam Nguyen, the authorised representative.

8. It is clear now that Mr Nguyen does, in fact, sign his name in different ways.  Because of that discrepancy on the face of the document, the Tribunal attempted to contact the representative seeking an explanation for this discrepancy on 10 August 2015, the day it received the form.  There was simply a message left.  On 19 August, the Tribunal again attempted contact and on 27 August, for a third time, there was an attempt at contact.

9. Those messages and file notes are contained in the court book. 

10. What is of significance, on 27 August, the note refers that what the Tribunal was seeking from the representative was confirmation that this was a valid withdrawal.  Later that same day, Mr Nguyen, the representative, returned the telephone call and the note is the following:

    “Mr Nguyen returned my call and I requested the confirmation of withdrawal because of the issue with the signature.  He stated he is an officer of the court and wouldn’t do anything that was not lawful and that sending another withdrawal will take up his time but he said he would ask the Applicant to come in and send another withdrawal.”

11. On 31 August 2015, the Tribunal accepted the withdrawal of the application and found that, therefore, once they have accepted that application, they were now functus officio, no longer having jurisdiction to review the matter.

12. On 1 September, the Tribunal attempted to contact Mr Nguyen and his assistant said the message would be passed on because he was not available.  The Tribunal then, that day, sent an email to the representative and to the email address.  The letter that was sent on 1 September was:

    “ Dear Mr Nguyen,

    WITHDRAWAL OF APPLICATION FOR REVIEW – XXXXX

    I am writing regarding your advice of 6 July 2015 informing us that you wish to withdraw the application for review made by you in relation by a decision to refuse to grant a Protection Visa. 

    We have accepted your withdrawal.  Accordingly, we have decided that we no longer have jurisdiction to review the delegate’s decision…”

13. Now, it would seem that in the meantime, on 28 August, the day after Mr Nguyen’s conversation with the Tribunal, that the Applicant did come into Mr Nguyen’s office and he did sign a form but this form was not the withdrawal form, it was a change of contact details form. 

14. That form was not withdrawing the application; it was saying that Mr Nguyen was no longer going to be representing the Applicant.  The Applicant would be back representing himself.

15. That form would seem to be something totally different to the conversation that Mr Nguyen had with the Tribunal the day before. 

16. Notwithstanding that, there is quite a different set of instructions, or desires, on 28 August as opposed to 27 August, when the conversation occurred.  The form, itself, is not posted until 31 August 2015.  A letter accompanies that simply saying:

    “…We refer and confirm that we act for the above-named client in all his migration matter. 

    Please find enclosed the following documents:

    ·Change of contact details, signed 31 August 2015; and.…”

    I pause to note that it was actually signed on 28 August 2015.

    ·A certified copy of XXXXX Drivers Licence.

    Thank you for your assistance in the matter.  Should you have any queries regarding this matter, please do not hesitate to contact the undersigned.”

17. Again it was signed by Mr Nguyen.  That letter, dated 31 August 2015, posted on 31 August 2015, was not received until 3 September 2015.  By that time, the Tribunal had already made its decision and I do note, given the drastic change on the 28^th, that there was no other contact attempted with the Tribunal. So the Tribunal, having made its decision, and saying that it was functus officio, that was, as it were, the end of the matter.

18. Having regard to the fact that the Tribunal made its decision on 31 August and sent out the decision on the first, any application for review before this Court, has to be filed within 35 days. 

19. Whilst the Applicant now says that they did not know of what the AAT decision was until 28 September 2015 (for which there is no real explanation as to why it was this long), the application before this court had to be filed by 6 October 2015.  Even if the Applicant was not notified until 28 September 2015, that did give sufficient time to file this matter by 6 October.

20. As I said at the beginning of these reasons, the filing was not conducted until 14 October, so, therefore, this is an application for extension of time within which to file the application. 

21. Now, even if the Applicant gets over that particular hurdle, the application, under the rules, must be supported by an affidavit.  Now, an affidavit must be a proper affidavit as considered under the rules. 

22. Whilst there is some room for some form of leniency and there not being an over reliance on technical matters, what has occurred here does, to the very best for the Applicant in many ways, stretch the elasticity given by the courts to breaking point.

23. The affidavits must be signed and acknowledged on each page so that the court knows that it is the truth of the contents. 

24. This affidavit is not signed on all pages.  The annexure sheets are not in the proper form.  That would be enough to give some pause to looking at the affidavit, but, even more important, is that the section where the interpreter affirms or swears that the person who has actually made the affidavit, does understand what has been sworn to and that the interpreter is satisfied of that, is left completely blank.

25. Given that CDS15 is not proficient in the English language at all, that would cast a doubt upon the affidavit.  Therefore, if the affidavit is something that should not properly be before this court, then the application itself is not conducted by a supporting affidavit and, therefore, would be incompetent. 

26. Now, even if I were to somehow overlook these incredibly damaging aspects to the validity of the affidavit, one then has to look at the merits of the matter. 

27. The Applicant submits that the Tribunal has committed a jurisdictional error on three bases.  The grounds are as follows: 

    “(1)  Denial of Natural Justice. 

    The Tribunal denied natural justice to the Applicant by deciding not to re-open the matter

    and there are a number of particulars given, most of which I have already gone through;

    (2)    The Tribunal failed to take into account relevant factors into consideration. 

    The particulars there were that the Applicant provided his AAT form to notify that he wishes to withdraw his legal representatives on the day of the decision and the Tribunal made the decision without making inquiries into this information;

    and

    (3)    The Tribunal made an error of law by considering it was functus officio at the time of receiving submissions from the Applicant’s migration agent.”

28. Those three grounds are, really, all three different ways of looking at the same major complaint and that is that the tribunal ought not to have made the decision that it had made on 31 August. 

29. Central to these grounds is a submission by the Applicant that the form, reproduced on page 155 of the court book, was an incorrect form or an incorrectly executed form. 

30. The only basis upon which the form could be said to be improperly executed is if it was not signed by the Applicant or his authorised agent. 

31. The submission is that because the Tribunal had concerns about the signature that, therefore, the Tribunal have come to a conclusion that it was not a valid document.  There is no merit to such a submission.

32. The query that the Tribunal had was simply because of the change in signatures from the covering letter to the signature on the form. 

33. Mr Nguyen in this court submitted that he does sign his name in different ways.  That is apparent when one has a look at the affidavit that has been the subject upon which this application is based.  The signature of the Applicant is witnessed by Mr Nguyen and Mr Nguyen has signed his name. 

34. The annexures to the affidavit are also witnessed by Mr Nguyen and Mr Nguyen has signed his name. 

35. The signature for the annexures is different to the signature that is on the certification of the affidavit. 

36. Notwithstanding that they are different signatures, there is no doubt that it is Mr Nguyen who has witnessed both documents.

37. It is clear then when one has a look at the document that is the withdrawal form that is at page 155 of the book that it is signed by Mr Nguyen. 

38. Mr Nguyen said exactly that to the Tribunal when it asked for confirmation of the matter and iterated very strongly that he is an officer of the court and would not do anything that was wrong. 

39. The Tribunal accepted that it was Mr Nguyen’s signature, that it was a genuine withdrawal form. 

40. So, therefore, in acting on that, it cannot be said that the Tribunal was acting on an incorrectly executed form.  The form was properly executed and the Tribunal could have acted on it from 10 July when it first received the form.  The fact that it did not do that shows the diligence of the Tribunal in absolutely ensuring that what they were doing was proper.  The fact that they have taken so long is more a credit to the Tribunal than anything that ought be critical. 

41. So if that is a valid document, then there is really no suggestion that the Tribunal could have committed a jurisdictional error. .

42. It would seem to me, that quite plainly, the error is either the error of Mr Nguyen or the error of the Applicant himself. 

43. It may very well be that the Applicant did want to withdraw his application and gave those instructions but then after being pressed by Mr Nguyen when he spoke to him on 28 August, he changed his mind and wanted to pursue the matter again. 

44. It may be that there was a communication breakdown and Mr Nguyen did totally misunderstand what it was that the Applicant wanted in his instructions, that is, that he just did not want Mr Nguyen to act for him anymore. 

45. Whatever the true state of affairs is nothing with which this court needs to concern itself because whatever error there was, was not an error of the Tribunal. 

46. Ms Wheatley for the Applicant has very helpfully referred me to the decision in SZSXT v Minister for Immigration and Border Protection (2014) 307 ALR 31 at paragraph 52 where the court said:

    “It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa Applicant, will not constitute fraud so as to warrant judicial intervention…”

47. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, the Full Court emphasised the necessity of demonstrating that an agent’s fraud in dealing with a visa Applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. 

48. A communications breakdown is not a fraud. 

49. A communications breakdown which leads to the provision of a withdrawal form to the Tribunal cannot constitute jurisdictional error. 

50. So when I look at this matter, there are great problems with the merits of the matter, so much so that, even if I were looking at the merits of the matter, I could not in any way see that there had been a jurisdictional error by the Tribunal. 

51. The affidavit upon which the Applicant is based has many problems with it so as to for it to be extremely doubtful that it is a proper affidavit upon which such an application can be based.  The fact that there is really no explanation as to why from 28 September until 6 October of this year there was not an application made.

52. In all of the circumstances, I am of the view that I should not grant leave to extend the time in which to hear this matter. 

53. Therefore, I refuse the application to extend time. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 12 April 2016.