Chadha v Minister for Immigration

[2014] FCCA 2089

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2089

Catchwords:
MIGRATION – Application for judicial review – Application filed out of time – allegation of negligence from the migration agent – application for extension of time dismissed – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZLIX and Anor [2008] FCAFC 17
SZFDE & Others v Minister for Immigration and Citizenship & Anor [2007] HCA 35
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471

Applicant: RAMANDEEP SINGH CHADHA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 140 of 2014

Judgment of: Judge McGuire

Hearing date: 8 September 2014

Date of Last Submission: 8 September 2014

Delivered at: Melbourne

Delivered on: 16 October 2014

REPRESENTATION

Solicitors for the Applicant: Unrepresented

Counsel for the First Respondents: Mr McDermott

Solicitors for the First Respondents: Australian Government Solicitors

ORDERS

1. The applicant’s application for extension of time to file an application for judicial review is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 140 of 2014

RAMANDEEP SINGH  CHADHA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a judicial review pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) made 17 December 2013 refusing the applicant a Skilled (Residence) (Class VB) Subclass 885 Visa (“the visa”). The application was originally filed 24 January 2014. An amended application was filed 22 July 2014.

2. The respondent argues that the application be dismissed as being without merit.  The respondent further argues that the applicant should not be granted an extension of time on the application, which was filed outside of the 35 days provided in the legislation.  I calculate that the application was filed some three days out of time. 

Background

1. The applicant is a citizen of India.  He was born on 27 March 1988 and is therefore 26 years old.  He came to Australia in November 2008 on a valid student visa and successfully completed a degree in Information Technology from the University of Ballarat in July 2010. 

2. On 22 February 2011 the applicant applied for a Skilled Migration Visa.  That General Skilled Migration Applicant Form nominated a migration agent and an email address for that agent as the preferred means of communication.  The migration agent was Vijay Kumar Sharma “Disha Education and Migration Consulting”.  The email address provided was [email protected].

3. On 20 September 2013 the Minister’s delegate refused the application for a visa.  The letter of advice and Decision Record were sent by email to the nominated migration agent at 3.21 pm on 20 September 2013.

4. On 14 October 2013 the Migration Review Tribunal received an application for review from the applicant.  Vijay Sharma was again nominated as the applicant’s representative with the same contact and email details.

5. By letter of 4 November 2013 the Tribunal rendered an invitation to the applicant to comment on the validity of his application for review.  The letter was sent to Vijay Sharma and by registered post.  The applicant was advised of an issue in respect of the application being filed out of the prescribed time limit.  He was requested to respond by comment in writing within 14 days of receipt of the invitation, but allocated as 28 November 2013.

6. The applicant did not take up the invitation to comment and respond.

7. By its decision of 17 December 2013 the Tribunal determined that it did not have jurisdiction to hear the application.  The Tribunal at CB62 provided short reasons in the following terms:

   1. An application has been lodged for review of a decision of the delegate of the Minister for Immigration dated 20 September 2013, to refuse to grant a Skilled (Residence) (Class VB) Visa under s65 of the Migration Act 1958 (“the Act”).

   2.  The review application was lodged with the Tribunal on 14 October 2013.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

   3. Pursuant to s347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994, an application for review of this decision has to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

   4.  The material before the tribunal indicates that the applicant was notified of the decision by a letter dated 20 September 2013 which was dispatched by email to the email address provided by the applicant in his visa application.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

   5.  On 4 November 2013 the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review on the basis that the last day for lodging the application was 11 October 2013, however, it had been received by the Tribunal on 14 October 2013.  A response was requested by 28 November 2013.  No response to the invitation has been received.

   6. The Tribunal finds that in accordance with s494C of the Act, the applicant is taken to have been notified of the decision on 20 September 2013. Therefore, the prescribed period within which the review application could be made ended on 11 October 2013. As the application for review was not received by the Tribunal until 14 October 2013, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

Grounds of Application

1. The applicant addresses both the Tribunal decision and the need for an extension of time here in his amended application, which can be summarised as:

   a)That his migration agent had been dilatory in lodging his application and confessed to mixing the applicant’s file with that of another client;

   b)That the migration agent had urged the lodging of the application for review, although out of time, and that “everything would be sorted out and asked me to wait for the Tribunal to take decision on the file”;

   c)The agent was dilatory in not advising the applicant of the fact of and time limits for an application to this Court;

   d)The applicant did not have a credit card and was advised by the agent that his own credit card would be used to lodge the application, but that he failed to do so on time;

   e)That the applicant himself wanted to make the application on time, but his failure to do so was due to inaction and “misguidance” from the migration agent;

2. The applicant relied on his amended application together with his affidavit filed 22 July 2014.  That document effectively repeats the matters set out above although perhaps differs in some particulars.  The applicant had also filed an affidavit in similar terms on 24 January 2014;

3. The applicant appeared before me unrepresented.  He confirmed that he did not seek or require the assistance of an interpreter.  When given the opportunity to make submissions in relation to his affidavit evidence, the applicant proceeded to give evidence from the bar table.  He was consequently affirmed in the witness box.  He then gave evidence that he was not even aware of his right to bring an application to this Court.  He conceded receiving the letter of 17 December 2013 from the Tribunal.  He confirmed that his “lawyer” was of no assistance. He said that his lawyer then went on holidays on 27 or 28 December and that he sought assistance from four different firms of migration agents or lawyers.  A number of those firms told him that nothing could be done in respect of his application and he then settled on Grace Group Services, who are apparently migration agents.  An initial interview and advice session took place in early January.  He was told to obtain his file from his previous representative.  The thrust of his evidence was that he (and his advisors) did not become aware of the need for, and time limits in respect of, an application in this Court until about 15 or 16 January 2014.

4. There was some short cross-examination of the applicant by counsel for the first respondent. 

5. The Court had the benefit of a Court book (CB) containing all of the relevant historical documents.

Consideration

1. The first issue is whether an extension of time should be granted the applicant in respect of the application filed 24 January 2014.  The second issue is in respect of whether there is jurisdictional error in the decision of the tribunal.  A consideration of the merit of the substantive application for judicial review is one of the considerations in whether or not to grant an extension of time.  I must also consider the following: 

   a)The length of the delay; 

   b)the reasons for the delay; and

   c)whether there is prejudice to the applicant or the respondent on either refusing or granting the extension of time.

2. The duration of the delay is minimal and of only a few days.  The explanation for the delay is particularised and, in my view, offers a reasonable explanation.

3. The respondent concedes no practical prejudice in respect of the delay although, of course, all parties to litigation should expect compliance with the statutory time limits and, hence, could be seen as being prejudiced by not achieving an anticipated end of the litigation.

4. The prejudice or detriment to the applicant is that he would not be able to progress his substantive application for a visa.

5. The thrust of the respondent’s argument is that there is no merit to the substantive application for judicial review and, therefore, the Court should not exercise its discretion to extend time.

Substantive Application

1. The tribunal must, pursuant to s.34(1) of the Act consider “MRT-reviewable decision”, if an application for a review of that decision has been properly made under s.34(7) which sets out the form and conditions of an application. Subsection (1)(b) sets out the prescribed time limits for lodgement.

2. The respondent concedes that the delegate’s decision was an “MRT‑reviewable decision” pursuant to s.338 of the Act.

3. S.494B sets out the methods by which the Minister gives documents to a person.  Subsection (5) provides for transmission by fax, email or other electronic means to:

   the last fax number, email address or other electronic address as the case may be, provided to the Minister for the purposes of receiving documents.

4. Transmission by email deems the person to have received the document at the end of the day on which the document is transmitted as provided in s.494C(5).

5. In his “General Skilled Migration Application Form”, the applicant elected communication with his migration agent, Vijay Sharma.  Mr Sharma’s email address was provided.

6. On 20 September 2013 at 3.21 pm, correspondence was sent to Vijay Sharma via his email address on behalf of the applicant.  Attached to that letter was the following: 

   ·Refusal notification

   ·Client service information

   ·Decision record

   ·Form 1026(i) Limits on Application in Aus

   ·M(x) Migration Review Tribunal Brochure

7. The attached notification of refusal of application offers the following at CB 29: 

   No further assessment of this visa application can be taken at this office.  However, you are entitled to the Migration Review Tribunal (MRT) for a review of this decision.  An application for review of this decision must be given to the MRT within 21 calendar days after you are taken to have received this letter.

   Please note that this review period is prescribed in law and an application for merits review may not be accepted after this date.

8. The notification then proceeds to offer information and contact details of the tribunal registries.

9. Included in the attachments to the letter of 20 September 2013 is a document titled “Migration Review Tribunal – The Review Process”.  That document also gives notice of the time limits with a warning that the tribunal cannot extend time limits or accept applications made outside a time limit.  The document again provides address and contact details.

10. The applicant’s application for review to the tribunal was stamped as received on 14 October 2013 (CB 42).  I calculated that it was, therefore, outside of the 21-day time limit for lodgement albeit only by some three days.  The application consistently provided Vijay Sharma as the applicant’s representative and nominee for service.

11. At CB 54, the tribunal registry acknowledged receipt of the application by letter of 16 October 2013 sent by registered post to Vijat (sic) Sharma at his consistent address.

12. On 4 November 2013 the tribunal wrote to the applicant’s representative with an “invitation to comment on validity of application for review”.  That correspondence raised the issue of the validity of the application given it being filed outside the time limit.  An invitation was offered for the applicant to make comment in writing within 14 days and with a request for a response by 28 November 2013.

13. There being no response, the tribunal proceeded to make its determination on 17 December 2013 and notified the applicant’s representative on the same day of its decision to refuse the grant of the visa.  A copy of the reasons (CB 62) was enclosed setting out its conclusion: 

    …that the application for review as not made in accordance with the relevant legislation and the tribunal has no jurisdiction in the matter.

14. Given the chronology set out above, together with the requirements of the legislation, I am satisfied that the tribunal’s decision was one open to it, was sound, and not infected by jurisdictional error.

15. The applicant, in both his written and oral evidence and submissions, attributes blame to his migration agent, Vijay Sharma.  He says that he was let down by Sharma.  He particularises negligent attention to his file.  He says that he was misled as to the requirements of the statute and the tribunal.  The tenor of the applicant’s complaint in respect of Vijay Sharma traverses the entirety of the process from the application to the delegate through to the application to the tribunal and the application to this Court.

16. The High Court in SZFDE & Others v Minister for Immigration and Citizenship & Anor[1] considered a situation where a rogue falsely claiming to be entitled to practise as a solicitor and migration agent advised a family not to attend a tribunal hearing.  The family, acting on the rogue’s advice, had its application for review rejected.  The High Court found that the conduct of the rogue in his dealings with the family was fraudulent.  Significantly, however, at [53] the High Court observed:

    The significance of the outcome of this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of PT 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss.425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap, should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such consideration.

    [1] [2007] HCA 35

17. In SZQVV v Minister for Immigration and Citizenship[2] Flick J considered the conduct of the applicant’s “agent” who, interestingly was described as an “Education Agent” and was not a registered migration agent.  The applicants relied on advice from the agent as to service and time limits.  That advice was incorrect.  As in the matter now before me, the Tribunal determined that it did not have jurisdiction.  Flick J considered the distinction between negligent and fraudulent behaviour on the part of the agent.  His Honour considered the decision in SZFDE and commented at [19]:

    But the conduct of a third party can unquestionably stultify any attempt by a claimant to even invoke the Tribunal’s jurisdiction.  Had it been necessary to resolve the Minister’s submission, it would most probably have been concluded that the principles set forth in SZFDE are not to be confined to fraudulent circumstances which arise only after the jurisdiction of the Tribunal has been properly invoked.  Indeed, to so conclude would be to run the risk of potentially encouraging even more reprehensible conduct on the part of third parties by frustrating an individual’s ability to even lodge a claim with the Tribunal.  Such cannot be the necessary limitations upon the principles set forth in SZFDE.

    [2] [2012] FCA 1471

18. Subsequent to SZFDE the Full Court in Minister for Immigration and Citizenship v SZLIX and Anor[3] dealt with a factual platform where it was alleged that the Tribunal’s decision-making process was compromised by third-party fraud.  The applicant’s agent had not advised him of the hearing date.  The applicant did not attend.  His application was refused.  At [33] the Full Court observed:

    An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s426A in the applicant’s absence.  But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant.  SZFDE at [51].  The simple fact of a failure to inform or bear negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.  As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] 60 CLR 336 at 363 and 368;  [1938] ALR 334 at 342-2 and 344-5, in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

    [3] [2008] FCAFC 17

19. The applicant in the matter before me does not specifically allege fraud by his agent.  The tenor and particulars of his submissions do not connote fraud and certainly not to the higher end of the Briginshaw standard of proof. Taking the applicant’s complaints at their highest, the behaviour and advice of the agent was certainly dilatory and perhaps negligent.  The applicant claims acknowledgements accordingly by his agent.  There is simply no evidence of dishonesty or fraud in the agent.  Negligence itself is insufficient to ground any finding of fraud.  Poor advice or even negligence, as unfortunate as it is for the applicant, does not ground what I infer to be his argument that the Tribunal was disabled in the discharge of its statutory functions.  Consequently, I find no merit in the substantive application for judicial review.

Conclusion

1. I am satisfied that the application for extension of time should be refused and hence, the substantive application for judicial review be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  16 October 2014