Chrysafiti v Minister for Home Affairs
[2019] FCA 445
•25 March 2019
FEDERAL COURT OF AUSTRALIA
Chrysafiti v Minister for Home Affairs [2019] FCA 445
Appeal from: Chrysafiti v Minister for Immigration [2018] FCCA 624 File number: VID 389 of 2018 Judge: BROMBERG J Date of judgment: 25 March 2019 Catchwords: MIGRATION – appeal of a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) – whether Tribunal had jurisdiction to review a decision of a delegate of the Minister to refuse to grant a visa to the appellant – whether the appellant had been notified of the delegate’s decision in accordance with the requirements of the Migration Act 1958 (Cth) – whether the notification process was stultified by third party fraud – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 276(1)(a), 280, 281, 494B(5)(d) Cases cited: SZFDE v Minister for Immigration and Border Protection (2007) 232 CLR 189
SZSXT v Minister for Immigrationand Border Protection (2014) 222 FCR 73
Date of hearing: 25 March 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: Mr O Jones Solicitor for the Appellant: Firmstone & Associates Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 389 of 2018 BETWEEN: ELESA CHRYSAFITI
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
25 MARCH 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from a judgment of the Federal Circuit Court of Australia published as Chrysafiti v Minister for Immigration [2018] FCCA 624. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) that the Tribunal did not have jurisdiction to review a decision of a delegate of the first respondent (“Minister”) to refuse to grant the appellant a Partner (Temporary) (Class UK) visa.
The Tribunal held that it did not have jurisdiction to review the decision of the Minister’s delegate because the application made to it was out of time. The Tribunal found that the appellant had been notified of the delegate’s decision in accordance with the requirements of the Migration Act 1958 (Cth) (“Act”) by an email sent to the address specified in her application. The Tribunal relevantly reasoned as followed:
3.Pursuant to s 347(1)(b) of the Act and r 4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the [appellant] was notified of the decision in accordance with the statutory requirements.
4.The Departmental file contains a Form 47SP lodged with the Department by the [appellant] on 1 June 2015, which on Page 8 of this form at Question 26 - Do you agree to the Department communicating with you by fax, email or other electronic means? Has a tick in the box next to the word Yes. In the box provided to detail an email address the applicant typed the email address [email protected]
5.The material before the Tribunal indicates that the applicant was notified of the decision of a delegate of the Minister for Immigration, dated 11 March 2016, to refuse to grant a Partner (Temporary) (Class UK) visa's decision by letter dated 11 March 2016 and dispatched by email addressed to the applicant at [email protected]. The Tribunal is satisfied that the [appellant] was notified of the decision in accordance with the statutory requirements.
…
9. The Tribunal finds the applicant gave the Department permission to communicate with her by email when she lodged the Form 47SP on 1 June 2015. The Tribunal finds the applicant provided an email address to enable the Department to communicate with her by fax, email or other electronic means. The Tribunal finds the delegate's decision was sent to the applicant at the email address she had specified, namely, [email protected].
It is uncontroversial that the Minister was obliged to give the appellant notification of the delegate’s decision to refuse her application for a visa. The method utilised by the Minister was that made available by s 494B(5)(d) of the Act of transmitting the notification by email to the last email address provided to the Minister for the purpose of a visa applicant receiving documents.
Beyond that provision in the Act, there are other provisions of the Act relevant to this appeal that should be mentioned. Section 280 of the Act makes it an offence for a person who is not a migration agent to give immigration assistance. Section 281 creates a further offence where the person gives the immigration assistance for reward. Section 276(1)(a) of the Act defines “immigration assistance” to include preparing or helping to prepare a visa application.
It was uncontentious before the primary judge that the appellant was assisted in making her visa application by a Mr Liomas. Mr Liomas had lodged the application. He had created an Outlook.com email address for the appellant (“the email address”) and had included that address in the appellant’s application for the visa as her address for receiving documents. Mr Liomas was not a registered migration agent.
The central issue in the proceeding before the primary judge was whether Mr Liomas had behaved fraudulently and stultified the notification provisions in s 494B(5)(d) of the Act.
The primary judge’s findings and critical reasoning is at [51]-[52] of his Honour’s reasons:
[51]In substance, the relevant fact findings for the purpose of the legal argument as put in this case are as follows:
a)I accept that the applicant relied upon Mr Liomas as a migration agent for the purpose of undertaking work on her behalf to obtain a visa;
b) I accept that the applicant paid Mr Liomas;
c) I accept that Mr Liomas established the Outlook.com email account;
d)I accept that the conduct of Mr Liomas was in breach of s.280 of the Act.
e)I accept that the applicant was unaware of communications from the Department other than the letter sent by registered post;
f)I do not accept that the failure of Mr Liomas to notify the applicant of the delegate’s refusal decision was in order to deceive or defraud or was in any sense fraudulent, rather the consequence of him negligently failing to check the email address regularly;
g)I accept that the referral of the applicant to a lawyer, who gave appropriate advice, demonstrates that Mr Liomas was not attempting to perpetrate a fraud.
[52]When considering the circumstances of this case and the meaning of fraud I bear in mind that the term ‘fraud’ has a meaning unique to public law proceedings. In this case, whilst the conduct of the agent was in breach of the registration requirements, I am not persuaded that he was deliberately dishonest or acting in bad faith, save with respect to the claim that the applicant was not onshore when making the short stay visa application. I am not persuaded that he sought to hide the details from the applicant, particularly given that he referred the applicant to a solicitor once the problems became apparent and appeared incapable of resolution. Rather, on the balance of probabilities I am persuaded that he was negligent in carrying out the tasks that he agreed to perform for the applicant. I am not persuaded that the fact he was unregistered (and therefore prima facie providing assistance unlawfully) is sufficient to show a fraud on the tribunal or legislative scheme in the absence of some other dishonesty or bad faith.
For the purposes of dealing with a contention not raised in the appellant’s written submissions but first raised orally, I need also to set out [47] and [48] of his Honour’s reasons. Those paragraphs are in the following terms:
[47]Whilst the application for the short stay visa appears to contain a falsehood created by Mr Liomas rather than the applicant, there is nothing in the spouse visa application (which is effectively a copy of the mother-in-law’s draft of the form) that appears to be designed to ensure that Mr Liomas is not discovered. Having said this, however, it is clear that Mr Liomas did not add his details as an agent as he was not, and remains not a registered migration agent.
[48]Ultimately I am not persuaded that the conduct of Mr Liomas in relation to the Outlook.com email address and password was part of a fraud upon the processes of the Tribunal: rather it was simply part of his management of the applicant’s migration affairs.
The appellant’s single ground of appeal is that:
The primary judge erred by concluding that there had not been a fraud on the processes of the Tribunal or the legislative scheme such that the first respondent was entitled to rely upon the email address used for the notification of the refusal of the visa dated 18 August 2016.
The appellant was legally represented and filed submissions in support of the appeal. Oral submissions were also made on behalf of the appellant and there is one aspect of those submissions to which I will return. On the written submissions of the appellant, it was submitted that the essence of the error of the primary judge was that he incorrectly focused on the conduct of Mr Liomas after providing the email address to the Minister’s Department and asked whether that conduct had been fraudulent or negligent. The appellant contended that the critical question concerned Mr Liomas’ conduct at the moment he provided the email address to the Department on 1 June 2015.
The provision of that email address was said by the appellant to form part of Mr Liomas acting as the appellant’s migration agent, a status which he lacked. The appellant’s primary submission, as put in her written submission, was that it must follow from those circumstances that Mr Liomas engaged in fraudulent conduct and that the proper notification of the delegate’s decision was thereby stultified.
The Minister contended that there was no such act of fraud and, in particular, that there was no basis for a finding of fraud in relation to Mr Liomas’ conduct of providing the email address. Contrary to the appellant’s submission, the fact that that conduct of Mr Liomas may have constituted a breach of the Act was not, on the Minister’s submission, sufficient to establish fraud.
I accept the Minister’s submission that a breach of the Act (in this case a breach of ss 280 and/or 281) is insufficient of itself to establish fraud. Mr Liomas’ conduct in providing the email address to the Minister or the Minister’s Department may have contravened the Act, but absent some kind of dishonesty or fraudulent motivation on the part of Mr Liomas, that conduct was not fraudulent. Subject to one matter to which I will return, there was nothing before the primary judge which established that Mr Liomas knew that he was acting unlawfully let alone that he was acting with a fraudulent motivation.
Although a contravention of s 281 of the Act is not of itself sufficient to constitute fraud seems self-evident, so much may also be gleaned from the facts of SZFDE v Minister for Immigration and Border Protection (2007) 232 CLR 189 and, in particular, the High Court’s reasoning at paragraphs [45] to [46] where, in the context of a s 281 contravention, the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) noted the fraudulent motivation which accompanied the impugned conduct. The need for dishonesty to be established is also implicit from the judgment of the Full Court (Perram, Robertson and Griffiths JJ) in SZSXT v Minister for Immigrationand Border Protection (2014) 222 FCR 73 where, at [52], the Full Court observed:
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. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, the Full Court (Tamberlin, Finn and Dowsett JJ) 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. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent's dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probable that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said:
“ … [A]n 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 Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects [[sic]] 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-a-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) 60 CLR 336 at 363 and 368; [1938] ALR 334 at 342-3 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”
In oral submissions, counsel for the appellant raised an additional point in support of the appeal. Counsel contended that if a matter additional to a mere contravention of ss 280 or 281 the Act was necessary to be shown in order for fraud to be established, it was here shown by the fact that Mr Liomas had withheld from the Department the fact that he was acting as, or purporting to act as, the appellant’s migration agent.
This was said to be demonstrated by Mr Liomas’ failure to identify himself to the Department as the migration agent for the appellant. I raised with counsel for the appellant whether that contention had been raised before the primary judge. Counsel thought it had been raised in oral submissions, although counsel could point me to no passage in the reasons of the primary judge which dealt with any such contention. It was not possible to take me to the transcript as the transcript is unavailable. The recollection of counsel for the Minister was that the contention had not been raised.
Given that those circumstance created some difficulty for the Court determining whether or not the argument had or had not been raised below, counsel for the appellant sought leave to rely on this contention on the appeal. I need not determine whether, in the interests of justice, leave should be granted because I am of the firm view that even if leave is granted, the point sought to be raised would fail.
Counsel for the appellant correctly conceded that his argument relies upon a finding having been made by the primary judge of some dishonest conduct on the part of Mr Lionas. Counsel for the appellant pointed to the last sentence of [47] (set out above) as a finding of dishonest conduct.
Whilst read alone and out of its context, the last sentence of [47] might be open to be read as suggesting some deliberate conduct on the part of Mr Liomas to not provide his details as a agent or as a registered agent, read in context, it seems to me that the primary judge was not making any such finding. The last sentence in [47] needs to be read with [48] and also with [52] and in particular the second, third, fourth and fifth sentences in that paragraph. Each of those paragraphs have been set out already.
It seems to me apparent from those passages that the primary judge was not persuaded of any dishonest conduct on the part of Mr Liomas, save for the matter identified in the second sentence of [52]. There was no finding of dishonesty of the kind asserted by the appellant and upon which this alternative argument relies made by the primary judge.
Accordingly, the appellant has failed to demonstrate that on the evidence before him, the primary judge erred in failing to find that Mr Liomas’ conduct in providing the email to the Minister, involved fraud.
The appeal must be dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 3 April 2019
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