Cheng v Minister for Immigration & Citizenship

[2011] FMCA 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 461

MIGRATION – Application to review a decision of the Migration Review Tribunal that it did not have jurisdiction to review a decision refusing to grant the applicant a student visa where the review application was lodged out of time – whether Tribunal failed to put adverse information to applicant for comment – whether the Tribunal decision was induced or affected by fraud of a third party.

Migration Act 1958 (Cth), ss.65, 66, 280, 281, 338, 347, 348, 357A, 422B, 494B, 494C

Migration Regulations 1994 (Cth), regs.2.16, 4.10

Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501; [2008] FCAFC 17
Singh and Another v Minister for Immigration and Another (2011) 190 FCR 552; [2011] FCAFC 27
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35
SZHVM v Minister for Immigration and Citizenship and Another (2008) 170 FCR 211; [2008] FCA 600
SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170; [2008] FCAFC 152
SZNZL v Minister for Immigration & Citizenship [2009] FMCA 1301
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621
VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Applicant: JIHUI CHENG

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2093 of 2010

Judgment of: Barnes FM

Hearing date: 21 March 2011

Delivered at: Sydney

Delivered on: 24 June 2011

REPRESENTATION

Solicitors for the Applicant: Paul Guan & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2093 of 2010

JIHUI CHENG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal dated 27 August 2010 that the Tribunal did not have jurisdiction to determine the review of a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. On 10 March 2010 the applicant, who was then the holder of a Subclass 572 Student Visa, lodged an online application for a further student visa.  His evidence is that the application was lodged on his behalf by a “Mr Denver Lee of Sino-Australia Culture Group” who had provided him with advice on course enrolment and visa applications from 2008.  In response to a question in the visa application form as to whether the applicant had received any assistance from any person in completing the form, the answer “No” was given.

3. Relevantly, in that visa application form the details provided both for the applicant’s residential address and postal address in Australia were as follows: “06/31-37 Hassall Street…Parramatta…New South Wales 2150”.  The applicant agreed to the Department communicating with him via email and/or fax in the application form.  An email address was also provided.

4. The Department wrote to the applicant at the email address provided on 23 March 2010 seeking further information in relation to a number of matters relevant to the visa application.  Further information was provided to the Department in response.  By email of 25 March 2010 the Department acknowledged receipt of such material but sought further evidence on outstanding issues, including evidence of the applicant’s studies between 3 October 2008 and 27 July 2009.

5. By email of 8 April 2010 the applicant gave the Department an explanation for his failure to attend school and study in the period in question, based on a claim that his bank account had been “hacked” on 23 October 2008 and “all” his “savings for tuition” removed. 

   
   

   The Department again wrote to the applicant at the same email address on 13 April 2010 raising concerns about this explanation in light of the applicant’s enrolment in and payment for another course during this period.  The letter questioned the applicant’s failure to continue his studies in that course and sought further information from the applicant’s bank about the claimed theft.  There is no evidence of any reply to this request.

6. By letter dated 30 April 2010 addressed to the applicant at the residential and postal address provided in his visa application a delegate of the Department advised him that she had decided to refuse to grant the Subclass 572 Student Visa.

7. The delegate’s decision was to the effect that the applicant did not satisfy one of the criteria for the grant of a Subclass 572 Student Visa as he was unable to provide evidence of any course of study undertaken during a period of almost nine months while he held his earlier student visa.

8. As discussed below, this letter was posted on 4 May 2010.  The index to the Court Book records that a copy of this letter was “marked ‘returned to sender’ 05.05.10”.

9. The applicant’s affidavit evidence is that Mr Lee had assisted him with enrolment in a “Business Management” course and had advised him that he “had to apply for a subclass 572” visa and on how to apply for the visa in question.  He also claimed that at Mr Lee’s request, he left documents with Mr Lee in March 2010 and that Mr Lee said he would lodge the application for the visa in question.  According to Mr Cheng, in May 2010 Mr Lee contacted him by telephone and told him the application had been refused.  Subsequently at Mr Lee’s office, Mr Cheng was advised by Mr Lee that the decision letter had been returned to the Department as “unclaimed”.  Mr Cheng told Mr Lee the address in the visa application was incorrect (the correct unit number being “506” not “06”).  Mr Cheng also claimed that Mr Lee then gave the Department his correct address by telephone and then told him that they would send another letter to him.  Mr Cheng claimed that he was telephoned by a Departmental officer on about 2 June 2010.  Mr Cheng told the officer the address with the unit number “506” was correct but that he had moved to another address in Rhodes on 24 May 2010.  According to Mr Cheng the officer told him he only had six days to appeal to the MRT or to depart Australia.

10. Mr Cheng’s evidence is that he “now” knows Mr Lee is not a registered migration agent.  It is not in dispute that there is no record of a

    
    

    Denver Lee being a registered migration agent.

11. Mr Cheng applied for review of the delegate’s decision on 21 June 2010.  In a letter accompanying the review application his solicitor/migration agent claimed that Mr Cheng told him he received the decision dated 30 April 2010 (in a registered post envelope marked as posted on 4 June 2010) on 8 June 2010 and submitted that the time for lodging the review application should be calculated from 8 June 2010.

12. On 8 July 2010 the Tribunal wrote to the applicant care of his solicitor/migration agent inviting him to comment on the validity of the application for review.  The letter advised:

    The time limit is 21 days from the day on which you are taken to have been notified of the primary decision.  The primary decision was posted to you on 4 May 2010 and, on the basis that 11 May 2010 was the date on which you are taken to have been notified, the last day for lodging the application for review was 1 June 2010. As the application was not received until 21 June 2010, it appears to be out of time.  However, this is a matter which must be determined by a Tribunal Member.

13. The letter invited a response by 22 July 2010 and also provided a contact number for any queries.  No response was received by the Tribunal.

The Tribunal decision

1. By decision dated 27 August 2010 the Tribunal found that the delegate’s decision of 30 April 2010 to refuse to grant the visa was notified to the applicant by letter posted on 4 May 2010.  It stated that the issue of whether the Tribunal had jurisdiction depended on whether the review application lodged on 21 June 2010 was an application “properly made” under s.347 of the Migration Act 1958 (Cth) (the Act) for review of the delegate’s decision.

2. The Tribunal referred to the fact that it had “formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement” and that it had written to the applicant inviting submissions on this issue, but had not received a response to that letter.

3. The Tribunal set out the relevant law. No issue is taken in these proceedings with its understanding of the law. As the Tribunal stated, its jurisdiction would arise if an application was properly made under s.347 of the Act for review of a MRT-reviewable decision (see s.348 of the Act). A decision to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Act is an MRT-reviewable decision (see s.338(2)).

4. Section 347(1)(b) of the Act requires an application for review to be given to the Tribunal within the prescribed period as set out in reg.4.10 of the Migration Regulations 1994 (Cth). The Tribunal correctly observed that having regard to the prescribed period in a case such as this the application had to be lodged within a period not later than 21 days after the day on which notice of the delegate’s decision was received by the applicant (s.347(1)(b) and reg.4.10(1)(a)). It pointed out that there is no provision for an extension of time.

5. The Tribunal also addressed the provisions in the Migration Act and Regulations dealing with notification of a decision to refuse to grant a visa. As it observed, s.66(1) of the Act provides that “[w]hen the Minister grants or refuses to grant a visa, he or she is to notify the applicant of  the decision in the prescribed way”. Under reg.2.16 the Minister must notify the applicant of the decision to refuse the application by one of the methods specified in s.494B of the Act. Section 494B sets out alternative methods for giving a document to a person.

6. Relevantly, one of the methods specified in s.494B consists of the Minister dispatching a document by prepaid post within three working days of its date to the last address for service or “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents” (see s.494B(4)). If a dispatched document is given to a person by this method from a place in Australia to an address in Australia the person is taken to have received the document seven working days after the date of the document (s.494C(4)(a)) even if the document was never in fact actually received by the person.

7. As the Tribunal stated:

   …if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal [would commence] 7 working days after the date of the notice. 

8. The Tribunal found on the material before it that the applicant was not in immigration detention when notified of the delegate’s decision and that he was seeking review of an MRT-reviewable decision within s.338(2) so that the applicable prescribed period was 21 days starting when the applicant was validly notified of the decision in accordance with s.347(1)(b)(i) of the Act and reg.4.10(1)(a). The Tribunal was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Act.

9. The Tribunal continued:

   The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 30 April 2010, was sent by prepaid post on 4 May 2010 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.

   As the decision notice was sent by registered mail, the Tribunal made enquiries with the Department’s mail and distribution services, Converga, to determine whether the documents were dispatched within 3 working days.  On 1 July 2010, Converga confirmed that the documents were posted on 4 May 2010, within 3 working days of the date of the decision notice. 

   The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4).  Therefore, the applicant is taken to have received the notice on 11 May 2010, being 7 working days after the date of the notice. 

   The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 11 May 2010.  Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 1 June 2010.

   The application for review was not received by the Tribunal until 21 June 2010, after the prescribed period had expired. 

   For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter. 

10. Subsequently, on 31 August 2010 the applicant’s solicitor/migration agent wrote to the Tribunal about its decision, suggesting that it contained “judicial error, because the tribunal ha[d] failed to take into account relevant information submitted with the application’’.  In particular the solicitor/migration agent referred to the postmarked envelope said to show that the delegate’s decision was posted on 4 June 2010 and “[t]he statement made by the agent including relevant talks between the applicant and department decision maker and talks between the agent and the department officer”.  It was contended that the department’s decision had not been dispatched within three working days of the date of the letter.  The Tribunal was asked to “change” its decision.

11. The Tribunal wrote to the applicant’s solicitor/migration agent on 20 September 2010 advising that it had made its decision on 27 August 2010 and was functus officio and had “no power to take any further action on the review”.

12. The applicant sought review of the Tribunal decision by application filed in this court on 23 September 2010.  He now relies on an amended application filed on 6 December 2010 and an affidavit affirmed by him on 2 December 2010 also filed on 6 December 2010.

13. There are four grounds in the amended application.  In written submissions it was stated that ground three was not pressed.  Ground four was not addressed.  At the hearing the solicitor for the applicant confirmed that only grounds one and two in the amended application were pressed.

Natural justice

1. The first ground in the amended application is as follows:

   The Second Respondent has fallen into jurisdictional error because it has breached the rules of natural justice occurred (sic) in connection with the making of the decision.

   Particulars

   (a) The Second Respondent has not provide (sic) relevant adverse information for the Applicant to comment, which includes:

   (i) whether the refusal letter sent to 06/31-37 Hassall Street Parramatta NSW on 30 April 2010 returned unclaimed or not;

   (ii) whether the First Respondent resent the refusal letter to 506/31-37 Hassall Street, Parramatta NSW on 6 May 2010 (sic) and it was returned unclaimed or not. 

2. The solicitor for Mr Cheng submitted that while in its letter of 8 July 2010 the Tribunal had invited the applicant to comment on the purported fact that the notification was sent to him on 4 May 2010, he was not given the opportunity to comment on any information that could be adverse to him in relation to three addresses for him in the Department’s records; whether notifications sent to each of those addresses were received by him or were returned unclaimed; or why such confusion had occurred. 

3. The applicant submitted that the Tribunal had “breached the rules of natural justice in making the decision not to entertain his review application”.  It was submitted that the electronic application form for the student visa dated 10 March 2010 incorrectly gave the applicant’s postal (and residential) address as 06/31-37 Hassall Street, instead of 506/31-37 Hassall Street, but acknowledged that the first respondent had initially sent the notification dated 30 April 2010 to the address as it appeared in the student visa application.

4. It was pointed out that after Mr Cheng actually received a subsequent notification on 8 June 2010 he had lodged the review application and that his agent had supplied the Tribunal with information about the incorrect address contained in the visa application.  Mr Cheng’s actual receipt of a later notification on 8 June 2010 was said to be consistent with Departmental file notes in the Court Book. 

5. The first of these is a file note of 6 May 2010 (although it is not clear from the file note whether the conversation referred to occurred on that date).  The file note recorded that Mr Cheng contacted the MSC (the Melbourne Service Centre) “in regards to student visa decision letter” and “stated he hasn’t received any correspondence from the department since lodging his application”.  Mr Cheng is recorded as having told the MSC that his postal address was 506/31-37 Hassall Street and requested that the decision letter be resent, he also provided a mobile telephone number on which he could be contacted.  According to Mr Cheng it was Mr Lee who had this conversation with the Department.

6. There is also a further (unfortunately undated) Departmental file note said to involve a contact with the applicant in relation to a “refusal letter” which is as follows:

   Refusal letter was returned to me unclaimed, I contacted the student to clarify address which was correct, I explained to the student the decision outcome and that he has 6 days to either make arrangements to depart the country or lodge a review with the MRT.  Student advised if we could send the decision letter again to a different address [a Rhodes address which he provided]…

7. It is not clear whether the reference to the refusal letter returned as unclaimed was a reference to the letter sent on 4 May 2010 or to any subsequent letter sent to the correct Parramatta address after the first conversation.  It appears that the applicant moved to Rhodes without notifying the Department of the change of address prior to this contact with him by the Department.

8. The solicitor for the applicant suggested that it could be inferred from this undated file note that on or about 24 May 2010 (a date that was calculated on the basis that the prescribed time for lodging a review application expired on 1 June 2010 and the officer had told the applicant that he had six days to seek review by the Tribunal) the decision notification was returned to the Department unclaimed, prompting this contact.  In any event, the Tribunal sent a further letter to the applicant at the Rhodes address by registered post by letter stamped 4 June 2010.  The applicant claimed to have received this letter on 8 June 2010 (consistent with the information his adviser gave the Tribunal).

9. According to Mr Cheng’s evidence, he had been to Mr Lee’s office approximately 20 to 30 times from 2008 on.  Of these visits some five or six were in connection with the visa application in question. 

10. As indicated, Mr Cheng’s evidence was that in early May 2010 Mr Lee told him that his application had been refused and subsequently that his decision letter had been returned to the Department unclaimed.  Mr Lee then checked with Mr Cheng whether the address on the online student visa application was correct and called “Immigration” and told them the applicant’s correct residential and postal address.  Mr Lee told Mr Cheng that “Immigration would send a letter” to him. 

1. Mr Cheng claimed that he then “received a call from the Immigration officer” which he believed was on 2 June 2010, and the officer asked him whether his 506/31-37 Hassall Street address was correct.  The applicant advised that this was correct but that he had moved to a Rhodes address on 24 May 2010.  Mr Cheng claimed that the officer told him that he had only six days to appeal to the MRT or to leave Australia and provided him with a new registered post number so that he could contact Australia Post to locate another notification letter. 

2. Issue was taken with the fact that the Tribunal made no mention of the applicant’s circumstances in relation to his actual receipt of the notification of the delegate’s decision.  It was submitted that the Tribunal did not take into account any of the information that the applicant’s solicitor/migration agent had raised in the letter of 21 June 2010.

3. It was submitted that by failing to consider such matters the Tribunal did not fully discharge its duties under s.494C of the Act and failed to accord the applicant procedural fairness. In particular, it was submitted that as the applicant had provided information to support his claim that he actually received the decision notification on 8 June 2010 the Tribunal was under a statutory duty to consider whether the Minister had made any error in giving notice to the applicant and whether s.494C(7) applied so that the applicant should have been taken to have received the decision notification on 8 June 2010.

4. Section 494C(7) is relevantly as follows:

   If:

   (a)  the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

   (b)  the person nonetheless receives the document or a copy of it;

   then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

5. The first part of this ground (the part referred to in the amended application) is a contention that the Tribunal “breached the rules of natural justice”, which were said (without reference to any authority) to be applicable.  Counsel for the first respondent submitted that as the Tribunal was without jurisdiction it could not exceed or fail to exercise that jurisdiction in the manner contended, that no procedural fairness obligation arose in circumstances where the Tribunal had no jurisdiction and that the only relevant issue was whether the Tribunal had jurisdiction or not (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172).

6. There are, however, cases in which the view has been expressed that the procedural fairness obligations contained in Division 5 of Part 5 of the Migration Act (and the equivalent provisions of Division 4 of Part 7 in relation to the RRT) have no application in circumstances where the Tribunal has found that it has no jurisdiction and no review is undertaken. This also means that the common law requirements of natural justice are not affected by the exclusions contained in ss.357A and 422B of the Act (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]).

7. Hence, while the Tribunal has no power to override the statutory time limitation on review applications in the Act (see VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [32]-[33]), it may nonetheless be the case that there are common law procedural fairness obligations (see SZNZL v Minister for Immigration & Citizenship [2009] FMCA 1301 and, in particular, SZEYK (at [36] – [38]) per Bennett J).

8. However, if the Tribunal was obliged to provide common law procedural fairness in respect of its consideration of whether it had jurisdiction to consider the review application, in its letter of 8 July 2010 it met any obligation to give the applicant a reasonable opportunity to deal with matters adverse to his interest that the Tribunal as decision-maker proposed to take into account in exercising its power (SZEYK at [36] – [37]). In that letter the Tribunal invited the applicant to comment on the validity of the review application in light of the Tribunal’s provisional view about the applicable time limits. This was the significant issue on which the Tribunal’s decision in relation to jurisdiction turned.

9. It has not been established that any such obligation in this regard (and see SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [46] – [47]) required the Tribunal to put to the applicant for comment any issue as to whether the notification letter dated 30 April 2010 was returned to the Department unclaimed or not; or whether the Department re-sent the notification letter to 506/31-37 Hassall Street on 6 May 2010 or on any other date; or whether any such further copy of the notification letter was returned unclaimed or not. What was in issue for the Tribunal was whether the applicant was taken to have been notified of the delegate’s decision (as stated in its letter of 8 July 2010), by the letter dated 30 April 2010 posted on 4 May 2010.
   If it was satisfied that the Minister’s delegate gave the notification to Mr Cheng in accordance with a method specified in s.494B of the Act no issue of whether there was actual notification to him or return of any notification letter to the Department arose for consideration.

10. Insofar as it was contended that the Tribunal was under an obligation to address in its decision whether the delegate had made any error in sending out the notification of the decision and also whether the applicant’s circumstances were such that he should be taken to have received the notification letter at a later time under s.494C(7) of the Act, while the Tribunal did not refer specifically to s.494C(7) of the Act, it did consider whether the Minister gave the notification letter to the applicant in accordance with s.494B of the Act. Having found that the Minister met the requirements of that section, in circumstances where no error has been established in relation to that aspect of the Tribunal decision, it followed that in accordance with s.494C(4)(a) of the Act the applicant was taken to have received the documents seven working days after the date of the document, as the Tribunal found. In such circumstances there was no obligation on the Tribunal, whether arising out of a procedural fairness or natural justice requirement or otherwise, to refer to s.494C(7) of the Act. In particular there was no reason for the Tribunal to consider whether the applicant’s circumstances could have satisfied s.494C(7)(b) of the Act.

11. As Counsel for the first respondent pointed out, the recent decision of the Full Court of the Federal Court in Singh and Another v Minister for Immigration and Another (2011) 190 FCR 552; [2011] FCAFC 27 confirms that s.494C(7) of the Act will not arise for consideration unless the initial notification is defective (at [44]).

12. Insofar as the applicant’s contentions involve a submission that the Tribunal failed to have regard to the applicant’s solicitor/migration agent’s submission to the Tribunal accompanying the review application, after receipt of that submission the Tribunal wrote to the applicant’s solicitor/migration agent by letter of 8 July 2010 inviting his comment on the Tribunal’s preliminary view that the application was not received within the prescribed period for lodgement.  In circumstances where the initial submission was based on the contention that the actual receipt of the notification on 8 June 2010 was in some way determinative and where the Tribunal wrote to the applicant putting to him that what was in issue was the date on which he was taken to have been notified, there is no substance in any suggestion that the Tribunal fell into jurisdictional error because it breached the rules of natural justice based in some way upon a failure to address aspects of the applicant’s submission in the letter of 8 July 2010.  Even if the Tribunal had a procedural fairness obligation it was not obliged to put its reasoning process to the applicant for comment.

13. It appeared from oral submissions that part of the applicant’s contention was that the two notification letters sent to the applicant by the Department after the initial notification, first in response to the telephone enquiry on his behalf and subsequently in relation to the follow-up by the Department, somehow had legal consequences.  However such a contention is not made out.

14. The Tribunal’s consideration of the notification of the delegate’s decision has not been shown to involve any error.  The notification letter was sent to the last residential and postal address provided prior to the time of making the decision.  The notification of 30 April 2010 was not defective.  Even if the applicant understood (particularly from the second conversation with the Department) that there was additional time to lodge an application for review with the Tribunal (and I note in that respect that there is some lack of consistency between the applicant’s solicitor’s contention that such a conversation must have occurred on or about 24 May 2010 and the applicant’s evidence in his affidavit that he believed it was on or about 2 June 2010) such a conversation could not alter the time at which an applicant would be taken to have received an application for review under the Act.  I note in passing that the applicant did not lodge the review application within six days of either 24 May 2010 or 2 June 2010.

15. Nor could the fact of a second notification (or even a third notification) by the delegate alter the circumstances if the original notification was in accordance with the provisions of the Act and the Regulations.

16. In this case the notification of the decision of the delegate dated 30 April 2010 sent to the address provided in the visa application complied with the requirements of the Migration Act and Regulations for the reasons given by the Migration Review Tribunal, notwithstanding that it was sent to an address which was not in fact the correct address for the applicant. At the time of the decision the incorrect address was the last postal and residential address provided to the Department for the applicant. There is no suggestion to the contrary. It was open to the delegate to send the notification letter to such address in accordance with the provisions of s.494B(4) of the Act. As the requirements of s.494B(4) were met, the applicant was taken to have received the notification of the decision seven working days after the date of the document under s.494C(4) of the Act. The time limit for the lodging of his review application was correctly calculated in accordance with s.347(1) and reg.4.10(1). There is no provision for an extension of time.

17. I note that in Singh it was contended, among other things, that a second notification of the delegate’s decision had estopped the Minister from asserting that a review application had been lodged out of time.  It was sought to be argued on appeal that the fact of a second notification had frustrated or negated the appellant’s entitlement to apply to the Tribunal for review.  In that context, the Full Court of the Federal Court found that the Tribunal did not conduct itself in any way which might estop it from declining to entertain an application received out of time.  There is no such argument in the present case. 

18. More pertinently, in Singh the Full Court took issue with the assumption underlying a contention that officers of the Department (or indeed the Tribunal) might be taken by an applicant to have power to alter the time frame for a review application laid down by the legislature (at [47]). The Court rejected any proposition that there could be an estoppel against a statute (at [47]) and held that neither officers of the Department of Immigration nor the Tribunal had “any legal authority to vary the prescriptions of the Act and Regulations” and, in particular, “could not, by express agreement with the [visa applicants], alter the timetable applicable under the Act and Regulations: a fortiori, their conduct could not give rise to an estoppel” having such effect (at [48]).

19. In other words, the time frame could not be extended by officers of the Department, the Tribunal or indeed by the Court.  Even if such an impression had been conveyed to the applicant by a Departmental officer in error, that would not extend the time for review or otherwise give rise to jurisdictional error on the part of the Tribunal (see Singh at [49]).

20. Ground one is not made out.

Fraud

1. The second ground in the amended application is that the Tribunal fell into jurisdictional error:

   …because it has failed to make a finding that this decision was induced or affected by fraud.  

Particulars

(a)The Applicant’s visa application was assisted (sic) by an unregistered migration agent, Mr Denver Lee of Sino-Australia Culture Exchange Group.

(b)The agent advised the Applicant as to what visa to apply and how to apply for the visa, and the agent completed the Applicant’s online form for him. 

(c)The agent did not declare himself in the online student application form who had rendered assistance to the Applicant but he gave his own email address, [email protected] as the electronic method of communication with the First Respondent for the Applicant’s visa application. 

(d)The agent negligently provided the Applicant’s residential address and postal address incorrectly in the application form. 

(e)The agent purported/disguised himself as the Applicant in the course of his visa application, following up the visa application by answering the inquires (sic) from the First Respondent and submitting more documents to the First Respondent and making telephone calls to the First Respondent. 

1. In written submissions it was contended that the Tribunal had erred in failing “to make a finding that the [Department’s] decision was induced or affected by fraud, and flowing from this fraud the Tribunal failed to properly exercise its jurisdiction”.  The applicant suggested that the alleged fraud had a “disabling effect” on the Tribunal in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35.

2. The applicant’s submissions in this respect were based on the material in the Court Book and the applicant’s affidavit filed on 6 December 2010 in relation to which he was cross-examined.  The court was asked to draw inferences based on the material before the court as to actions of Mr Denver Lee of the Sino-Australia Culture Group, the person the applicant stated he consulted in relation to his student visa application.  The applicant’s evidence was that Mr Lee had assisted him since 2008, including in relation to organising his enrolment in a diploma course. 
   He claimed that he had seen Mr Lee a total of 20 to 30 times including five to six times in relation to the student visa application lodged in March 2010.  Mr Lee was not called as a witness in these proceedings.

3. The applicant’s evidence is that he was assisted by Mr Lee to lodge his online student visa application and to submit supporting documents to the Department.  For present purposes I accept that this was so.  It appears from the amended application that an aspect of the conduct that was said to constitute fraud on the part of Mr Lee was the non-disclosure of the fact that he prepared and lodged the visa application form. 
   The application form in question was an online student visa application which apparently did not contain any provision for signature by the applicant.  In that visa application Mr Cheng’s residential and postal address was (incorrectly) said to be 06/31-37 Hassall Street (instead of the correct address of 506/31-37 Hassall Street).  The form stated that no assistance was provided to the applicant in completing the form.

4. In written submissions it was contended that Mr Lee not only provided the applicant’s address details incorrectly, but also that he did so negligently or deliberately by omitting the number “5” in the unit number.  There is no evidence before the court to support any conclusion that Mr Lee deliberately provided the wrong residential and postal address for the applicant.  While there is no evidence that Mr Lee was a migration agent, the evidence before the court suggests that he was in fact endeavouring to assist the applicant and, on the applicant’s own account, that he provided information to the Department and contacted the Department in circumstances where issues arose.

5. In oral submissions the solicitor for the applicant appeared to concede (correctly) that even negligent misstatement of the residential address and postal address in the application form (as suggested in the particulars in ground two of the amended application) would not constitute fraud.  That concession is consistent with SZFDE (at [53]).

6. As the first respondent contended, the overwhelming inference is that Mr Lee simply made a mistake as to the applicant’s address when lodging the visa application.  Even if this may be negligence, without more it is not fraud.  The fact that Mr Lee completed and lodged the visa application and the absence of disclosure of his assistance does not give rise to fraud in the sense considered in SZFDE.  I have borne in mind that the applicant bears the onus of establishing fraud.  On the evidence before the court this has not been discharged, having regard to the standard of proof required in a case involving such a serious allegation (see Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501; [2008] FCAFC 17 at [33], SZHVM v Minister for Immigration and Citizenship and Another (2008) 170 FCR 211; [2008] FCA 600 and SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170; [2008] FCAFC 152).

7. The applicant contended that a person who was not a migration agent may be found to have committed an offence under Division 2 of Part 3 of the Migration Act in relation to the giving of immigration assistance as an unregistered migration agent (see in particular ss.280 and 281 of the Act). However that possibility is not such that the assistance provided by Mr Lee and the manner in which the application form was completed constitutes or demonstrates fraud in a manner that affected the delegate’s or the Tribunal’s decision-making process. In SZLIX a finding that an agent was unregistered was not open on the evidence, however, the Full Court of the Federal Court went on to say that even if it was and the visa applicant was thereby misled: “we do not consider that all of the agent’s acts or omissions vis-à-vis the [visa applicant] are thereby to be characterised as dishonest” (at [32]).  The same may be said in this case.

8. Insofar as the applicant placed reliance on the fact that the agent was not a registered migration agent, even if that is so, that factor, whether alone or in conjunction with the other circumstances of this case, is not such as to constitute a fraud either on the delegate (insofar as that is alleged) or on the Tribunal (insofar as that is alleged). 

9. In particular, insofar as the applicant impliedly complains that Mr Lee did not advise him to seek review by the Tribunal within the applicable time limits, the circumstances are not such as to establish that any such omission could be characterised as dishonest.  As indicated, mere negligence, inadvertence or a failure to inform does not necessarily give rise to a fraud on the decision-maker.  As their Honours’ stated in SZLIX at [33]:

   The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this.  But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process.  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 s 426A 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 bare 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] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

1. The applicant has not suggested any motive for Mr Lee to commit fraud.  There is nothing in the circumstances of this case to suggest that making a review application within time would in any way expose the involvement of Mr Lee as a person who was not a registered migration agent or lead to circumstances in any way akin to those in which fraud was found in SZFDE.

2. The applicant also contended that Mr Lee impersonated him and called the Department on one occasion to enquire about his failure to receive any correspondence from the Department since lodging his application.  The Departmental file note records that the correct postal address and mobile telephone number for the applicant (which is the same mobile telephone number provided in the review application) were provided.  Even if Mr Lee did impersonate the applicant on this occasion, this is not such as to have occasioned fraud in the sense considered in SZFDE.

3. It is, in any event, clear that by the time at which that conversation occurred in early May the delegate had already made a decision (as Mr Lee told Mr Cheng) and sent the notification letter dated 30 April 2010 to the applicant by letter posted on 4 May 2010.  Hence, taking the applicant’s contentions at their highest, even if Mr Lee’s conduct could be said to involve dishonesty in such communication with the Department, such fraud cannot have affected any procedures leading up to the time of the decision and sending of the notification and hence cannot have affected any process before the delegate.

4. The applicant did not address the court on the precise manner in which any such alleged fraud on the delegate would provide a basis on which the Tribunal decision could be impugned beyond contending that the Tribunal erred in failing to make a finding that the decision was induced or affected by fraud.  In particular, the court was not addressed on how any such fraud would affect the jurisdiction of the Tribunal (see SZNZL [2010] FCA 621 at [45] – [47]). Insofar as the contention appears to be that the Tribunal should have been alert to the possibility of fraud on the delegate and should somehow have considered whether the delegate’s decision was void and of no effect, there was nothing before the Tribunal to support any such contention. The submission from the applicant’s solicitor/migration agent accompanying the Tribunal application dated 21 June 2010 took issue with the date of actual receipt of the decision, but did not take any issue with the conduct of Mr Lee, other than to suggest that he told the applicant that he must have the notification letter if he wanted to lodge an appeal to the MRT. Even if such advice was wrong, it was not such as to necessitate some inquiry by the Tribunal into the possibility of fraud on the delegate insofar as that appears to be contended by the applicant.

5. It is unfortunate that due to an error in recording the applicant’s address in the visa application form, that incorrect address was used by the delegate in notifying the applicant of the decision.  It may be open to the applicant to raise this issue with the Minister, but it is not such as to establish fraud on the part of Mr Lee, let alone fraud affecting the decision of the delegate, fraud that had to be considered by the Tribunal or fraud affecting the decision of the Tribunal.  Ground two is not made out.

6. Grounds three and four in the amended application were not pressed.

7. As no jurisdictional error has been established on any of the bases contended for in the amended application the application must be dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  24 June 2011