Cheer v MIMIA
[2002] FMCA 91
•22 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEER v MIMIA | [2002] FMCA 91 |
| MIGRATION – Application for review of a decision of the Migration Review Tribunal – duty to enquire – jurisdiction of Court to review decision. |
Judiciary Act 1903(Cth) s.39B
Migration Act 1958 (Cth) ss. 359, 379A, 474
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353
Korovata v Minister for Immigration & Multicultural Affairs [2001] FCA 1446
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263
NABM 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335
| Applicant: | PATRICK JAMES CHEER |
| Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File No: | SZ 175 of 2002 |
| Delivered on: | 22 May 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 7 May 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman of Newman & Associates |
| Solicitors for the Respondent: | Mr Z Chami of Clayton Utz |
ORDERS
Application dismissed.
The applicant pay the respondent’s costs in accordance with Part 20 Rule 20.10 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 175 of 2002
| PATRICK JAMES CHEER |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal made on 3 January 2002. The Tribunal declined to grant the applicant (and his wife and daughter who were also included) a Temporary Business Entry (Clause UC) Visa.
The grounds upon which the visa was refused was that the visa applicant’s proposed employer had not been approved as a business sponsor as required by either sub-clause 457.223(4) or sub-clause 457.223(5) and therefore the visa applicant did not meet the criteria for a Sub-Class 456 Visa, or the criteria for a Sub-Class 457 Visa.
The applicant claims relief in the application in the following form:
“6 The applicant seeks relief under s.39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent:
(a)Exceeded jurisdiction in making the decision to affirm the second respondent’s decision not to grant the applicant a temporary business entry (Class UC) Visa, and
(b)Erred in law in arriving at the decision to affirm the second respondent’s decision not to grant the applicant a temporary business entry (Class UC) Visa.
Prior to the hearing both the applicant and the respondent provided me with helpful outlines of submissions. The applicant’s outline and the submissions which were made to me at the hearing effectively brought the case within a short compass which related to the decision of the Tribunal not to allow the applicant an opportunity to be heard in relation to his application.
The Migration Act as applied in October 2001 which the parties agree was the relevant time provides s.359 as follows:
“[s 359] Tribunal may seek additional information
359(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3)If an invitation is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies – by one of the methods specified in section 379A; or …”
Section 379A of the Act provides as follows:
“[s 379A] Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
379A(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(a) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows.
Giving by hand
(2)One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3)Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handling the document to another person who:
(a)is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c)appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
In this case a letter in what would appear to be the standard form [doc 59] was sent to the applicant by recorded dispatch care of Dyson & Associates, 1st Floor, 26 Thomson Street, South Melbourne, VIC, 3205. The letter invited the applicant to provide certain further information and stated the following:
“If the Tribunal does not receive any comments within the period allowed, it may, under s.359C of the Act, make a decision on the review without taking any further action to obtain your comments. In addition, you will not be entitled to appear before the Tribunal.”
A copy of this letter was sent to Mr Bill Wallis of Dyson & Associates at the Thomson Street address.
No response was received to that letter by the Tribunal. However, on 30 November 2001, Dyson & Associates, through its principal, Mr Tony Dyson, wrote the following letter [Doc 61]:
“I refer to your letter dated 23 October 2001 in which you sought additional information relating to the above application.
Our case officer who has been responsible for this and a number of other cases has had medical problems recently and we have just reviewed all of our outstanding and current projects in his office. The above case has come to light and we have noted the absence of a response to you.
I have now taken over this case and made urgent contact with the applicant. The applicant has of course been relying on our professional attention.
In the light of this position, I would be grateful for you to grant a limited extension of time in which to provide the requested documents. The matter is receiving our priority attention and you are assured we will respond in the next few days. Thank you for your consideration.
Yours sincerely
Tony Dyson”
That letter appears to have been faxed to the Tribunal who responded on 3 September [Doc 62]:
“Your request for an extension has been refused. The Tribunal considers that you have had sufficient time to respond to requests for further information.”
That letter was sent to the applicant C/o Dyson & Associates.
A decision on the case was made on 12 December 2001 which is the decision under review.
The applicant argues that the request for information was never received by him. He points to the fact that the application for review Form MRT01 asks in section 1 for his details. It requests his given name, other names, date of birth and then residential address. In the form which was completed by the applicant [Doc 52] this is set out as C/- Dyson & Associates, 26 Thomson Street, South Melbourne, 3205. A day time telephone number is given which is the same as that of Dyson & Associates on its letterhead and a night time phone number is given but no indication was provided to me as to whom that number belonged. The form continues [Doc 53] relevantly with Section 3 “Eligibility to apply for review”. There are the following boxes to be ticked:
“I am/we are (choose one):
The visa applicant.A former visa holder whose visa has been cancelled while in Australia. A sponsor or nominator or close relative of the visa applicant(s). The former holder of a subclass 309 or 310 visa granted overseas prior to being refused a subclass 100 or 110 visa in Australia. Applying in respect of a business sponsorship ie refusal or revocation of status as pre-qualified or standard sponsor, refusal or renewal as pre-qualified business sponsor, refusal of nomination of business activity or refusal of my employer nomination.”
The first box (The visa applicant) was ticked.
The form continues with Section 4 under the heading “Representative” and states:
“The following details should be provided if you wish to have a representative assist you with this application.”
The section gives space for the name and details of the representative and then boxes to tick as to whether the representative is e.g. a migration agent, a lawyer, friend or relative or other. That section was not completed.
The next section completed was Section 6 which detailed the decision to be reviewed and it set out that the decision to be reviewed was the refusal to grant a visa and gave the class and sub-class, the place where the decision was made and the file number.
Section 7 dealt with the address for correspondence and says:
“If you wish the Tribunal to send all documents to an address other than the first residential address advised in s.1, please indicate below:
Organisation (if applicable)
Address”
This part was completed with the name of “Dyson & Associates” and their address at Thomson Street, South Melbourne.
Section 8 was also completed. That section asks “Why do you think the DIMA decision was incorrect?”
Finally, Section 9 was completed. That section is headed “Declaration of person signing application for review”. It makes the following declarations [Doc 56]:
“I declare that to the best of my knowledge the information in this application is correct and complete.
I have read the Privacy statement and acknowledge that information provided to the Tribunal may become public during proceedings or when a decision is published.
I have read and understood the information supplied to me in this application form.
I acknowledge that, in completion section 4 of the application form, I am authorising the representative named to act on my behalf in relation to this application for review.”
It then has boxes to complete.
“Signature
Name of person signing application
Relationship to Review applicant 1
Date”
The form has been completed by Mr Bill Wallis who signed the application and who says his relationship to Review Applicant 1 is “Migration Agent”.
The applicant in his written submissions says of the declaration:
“There can be no doubt that those words envisage an acknowledgment being signed by the applicant himself and by no other. Yet the agent, inexplicably purported to have appointed himself to act for the applicant and was so treated by the MRT. Mr Wallis also incorrectly stated that Mr Cheer’s residential address was the office address of the agent. Section 4 of the form, which was designed to inform the Tribunal of the agent’s details, and intended to be read in conjunction with section 9, was left blank.”
The applicant is reluctant to call the form a nullity. He accepts that if it was a nullity then there was no application to review the delegate’s decision and thus both the decision and the application before me are otiose. The applicant suggests that the form is deficient. The result of the deficiency is that the communication from the Tribunal requesting the further information never complied with s.379A(4) of the Act and could never be said to have reached the applicant. The wording of s.379A(4) appears to allow the letter being posted to the applicant at the address contained in Section 7 (which happens to be the same as the address contained in Section 1). I cannot therefore see any force in this argument at all.
I have some sympathy with the argument that the completion of the form was defective. The address given as the residential address of the applicant is quite patently not the applicant’s residential address. This would have been known to the recipient of the form because the form was accompanied by letter from Dyson & Associates signed by Mr Wallis [Doc 51] that indicates its address. Secondly, the form is clearly signed by Mr Wallis, the migration agent, although the migration agent is not a person who appears in Section 3 of the form. A migration agent is in Section 4 but that section is not completed. I think the applicant is right in suggesting that Section 9 clearly should be signed by the applicant. It requires important declarations and acknowledgments which should properly be the responsibility of the applicant.
Against this, the respondent argues that the Tribunal was entitled to treat the application as valid and properly signed by the virtue of the doctrine of agency by estoppel and apparent authority described at para 1-009 of Bowstead on Agency:
“By a further extension, the law may treat a third party dealing with a person who appears to have authority from a principal as entitled, by virtue of the principal’s words or conduct manifested to him, to assume that the person in question has such authority, regardless of whether anything has occurred from which the law would draw that conclusion if the matter were an issue only between the supposed agent and the supposed principal.”
The respondent points to the letter which accompanied the form and to the appointment of Dyson & Associates as agent in Form 956 [Doc 015] in relation to the business sponsorship application and to the inclusion of Mr Dyson’s address as a contact address and correspondence address in Form 1066 – Application for a Long Stay Temporary Business Visa [Doc 1].
Given the history of the matter in which all contact between the Department and the applicant was through the migration agent, I was prepared to hold that an agency by estoppel had come into existence. However, before I determined that matter finally I gave the applicant an opportunity to make further representations with authorities. Those submissions were to go to the question of whether the Department had some responsibility to point out to the applicant that the form had not been correctly completed.
In response to my offer the applicant provided three authorities. Prasad v MIEA (1985) 6 FCR 155 where at 170 Wilcox J said:
“It is no part of the duty of the decision-maker to make the applicant’s case. It is enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may be properly described as an exercise of the decision making power that is so unreasonable that no reasonable person would have so exercised. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”
MIEA v Ah Hin Teoh (1995) 128 ALR 353 and Korovata v MIMA [2001] FCA 1446 at para 40.
The respondent submitted that these authorities went no further than to remind the court of the duty to inquire” as defined by Wilcox J in Prasad. That duty which was expressed in a decision under the ADJR Act can only be triggered by unreasonable conduct on the part of the decision maker (see Mason CJ and Deane J in Teoh at para 32). Unfortunately, so far as this applicant is concerned his application falls under the Migration Act and unreasonableness was excluded as a ground of judicial review under the repealed Part 8 of the Act – s.476(2)(b). The Act as it now stands excludes all appeals subject to those which fall under the Hickman principles. In NAAX v MIMA [2002] FCA 263 Gyles J analysed the extent to which judicial review was still available since the inception of s.474 of the Migration Act (privative clause section) and came to the view at [35] that there was no implied duty to afford procedural fairness except to the extent set out in the Act and then even if the duty was breached it was not capable of remedy as it did not fall within the Hickman principles.
In NABM2001 v MIMA [2002] FCA 335 Beaumont J said at [76] and [77]:
“The decision in Prasad stands for the proposition that, in reviewing an administrative decision, the Court is entitled to consider those facts which were known to the decisionmaker, actually or constructively, together (only) with such additional facts as the decisionmaker would have learned, but for any unreasonable conduct by him or her Prasad per Wilcox J at 169; see also Ramon per French J at (31).
As noted by French J in Ahmed at [12] Prasad was a case under the ADJR Act: which was decided before the introduction of Part 8 of the Migration Act and the provisions which previously confined judicial review to the grounds set out in section 476. With the recent amendments to the Act, we are now one step further removed from that position. (my emphasis)”
It is my view that even if there was a duty to enquire it would not apply in this case because the Department were entitled to accept the form on its face. The decision to refuse to extend the time was a harsh one. But it is not that decision which is under review. It is the decision which followed from it. That decision is clearly outside the power of this court to review.
I dismiss the application. I order that the applicant pay the respondent’s costs in accordance with Part 20 Rule 20.10 of the Federal Magistrates Court Rules. I certify that the matter is appropriate for the employment of an advocate pursuant to Rule 21.15.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
5
0