CHRYSAFITI v Minister for Immigration
[2018] FCCA 624
•14 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHRYSAFITI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 624 |
| Catchwords: MIGRATION – Application for judicial review – allegations of fraud – unregistered migration agent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7, s.66, 494B(5), 280 Evidence Act 1995, (Cth), s.128 |
| Cases cited: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 |
| Applicant: | ELESA CHRYSAFITI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2392 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 27 September 2017, 20 & 22 December 2017, 8 & 16 February 2018 |
| Date of Last Submission: | 26 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the First Respondent: | Ms Francois |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application in a case filed 25 January 2018 be dismissed.
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2392 of 2016
| ELESA CHRYSAFITI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks a spouse visa. A delegate of the Minister refused to grant the applicant a spouse visa. The applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal refused her application on the basis that it was made out of time. The applicant claims that she did not receive notice of the delegate’s decision as a result of the conduct of her agent, Mr Liomas, who was not a registered migration agent.
The applicant argues that she should be granted relief on the basis that the conduct of the unregistered agent amounted to a fraud on the Tribunal in the sense discussed in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189.
Fraud, in the sense discussed in SZFDE was conduct which also stultified the Tribunal’s processes under Pt 7 of the Migration Act 1958. In SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 the Full Court provided some guidance as to the operation of the principle in SZFDE saying:
[51] SZFDE establishes the following principles (omitting case references):
(a) in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” [8];
(b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];
(c) “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” [17];
(d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];
(e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” [22];
(f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative [25]-[27]; and
(g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised [51]-[52].
Background
The applicant arrived in Australia on 11 December 2014 on an Electronic Travel Authority (what is commonly referred to as a short stay visa). The applicant had been in a relationship with her partner from 2011, well before she arrived in Australia. The applicant did not immediately apply for a spouse visa as she and her partner did not have sufficient funds to pay the application fee (around $7,000: see court book p.60).
Neither the applicant, nor her husband, are fluent in English. Her mother-in-law is fluent and is strongly supportive of the applicant. The applicant’s mother-in-law completed the spouse visa application in handwriting for the applicant and suggested that it be lodged in that form.
The applicant and her husband were introduced to Mr Liomas by a mutual friend or acquaintance. Mr Liomas agreed to assist the applicant in making her visa application. Mr Liomas was not a registered migration agent. Significantly, there is no dispute that:
a)Mr Liomas advised the applicant that she needed to extend her short stay visa prior to making the spouse visa application;
b)Mr Liomas created an Outlook.com email address for the applicant’s dealings with the department
c)Mr Liomas lodged an application to extend the short stay visa for the applicant; and
d)Mr Liomas lodged the spouse visa application, in terms identical to that crafted by the mother-in-law, save that it included the Outlook.com email address he had established as the applicant’s means of contact.
There is no doubt that Mr Liomos was the applicant’s agent when lodging the application and providing the Outlook.com email address. As a result the Minister was prima facie entitled to rely upon the email address given for the purposes of notices under the Act: see s.494B(5).
The applicant’s original short stay visa expired on 11 March 2015. On 8 March 2015, shortly before its expiration an application was made for a further short stay visa. The Department acknowledged receipt of the application to extend the visa by email to the Outlook.com email address established for the applicant on the same day by Mr Liomas.
The application to extend the short stay visa was significant as the rules relating to the granting of spouse visas differ depending upon whether or not the application for the spouse visa was made whilst the applicant was in Australia, and if so, on a valid visa or made after the expiration of that visa. If applying for a spouse visa from within Australia, after the expiration of any other substantive visa (not a bridging visa), the applicant must establish “compelling reasons” why the relevant criteria should not be applied, in order to obtain a spouse visa.
On 29 May 2015, the Department determined that the application for the short stay visa made on 8 March 2015 was invalid because it purported to be made outside of Australia (see p.1 of the application, as confirmed on p.4 of the application where the applicant’s residential address was said to be in Greece, and that the closest Australian Government office for an interview would be in London; the form also sets out that the applicant is employed in a supermarket since 2009, providing telephone numbers from the Greek telephone system). Notice of this decision was sent to the Outlook.com email address.
This application must have been lodged by Mr Liomas, the informal unregistered migration agent of the applicant. This is apparent because the application utilises the Outlook.com email address. The application is false in the particulars it gives representing that the applicant was outside of Australia. It was entirely predictable that the application would be considered invalid and of no assistance to the applicant. A competent migration agent would know this. No reason was given for this deception, which appears to simply reflect incompetence by Mr Liomas.
On 1 June 2015, the application for a spouse visa was made by Mr Liomas on the applicant’s behalf. It was supported by various documents as required by the form. The Department acknowledged receipt of the spouse visa application on 3 June 2015 by way of email to the Outlook.com email address.
On 10 December 2015 the Department wrote to the applicant, at the Outlook.com address, advising that she was not the holder of a substantive visa at the time that she lodged her spouse visa application and, therefore, the visa rules required that she establish “compelling reasons” why this criteria should not be applied (given that she did not apply offshore or as the holder of a substantive visa), in order to enable her spouse visa to be granted.
It does not appear that this emailed letter received a response. A further copy was sent by registered post to the applicant’s home address on 12 February 2016: see court book p.54. When the letter arrived, the applicant immediately sent a text message to Mr Liomas (sent 14 February 2016). There is also a Departmental record that the applicant’s mother-in-law (described as her aunt in the short stay visa application) telephoned the Department to inquire about the case.
Mr Liomas drew a letter to the Department, which he emailed to the applicant on 2 March 2015. This email came from his work email address where he is employed as a security guard by the federal law courts. This letter is brief, and simply sets out that an application for an extension of the short stay visa was made on 8 March 2015 (a reference to the invalid application for a short stay visa discussed above), and stating that it was the lack of funds that precluded the applicant applying for a spouse visa prior to the expiration of her Electronic Travel Authority.
These documents were scanned and sent on behalf of the applicant from a friend’s email address. Whilst the friend copied another person in to receive the email, they did not include a copy to the applicant at either her Outlook.com, Gmail email address, or any other email address for her, her husband or mother-in-law.
Entirely predictably, given the reasons relied upon by the applicant in the letter drawn by Mr Liomas, the delegate refused the application for the spouse visa on the basis that compelling reasons had not been established: see court book pp.80-83. This refusal by the delegate was also sent to the Outlook.com email address.
The applicant did not become aware of the refusal until she received a telephone call from Mr Liomas many weeks later. Mr Liomas advised the applicant that the visa application had been refused and referred her to a solicitor.
The applicant says that the solicitor advised her that the time limit for appealing the application had expired and that she ought to return to Greece and re-lodge her spouse visa application from there. The applicant says that the solicitor was confident that she would be able to obtain a visa to return to Australia within a very short period. This was clearly appropriate advice, albeit not what the applicant wished to hear.
The applicant then met with a migration agent, Mr Kizana, and provided Mr Kizana with the documents that she had, including a copy of what purported to be her application form. The copy of the application was, in fact, the form that her mother-in-law had completed in handwriting, which she had provided to Mr Liomas. The form actually lodged with the Department by Mr Liomas was a typewritten copy of this form, with a significant alteration: Mr Liomas had included as the address for notification the email address at Outlook.com, which was not contained in the handwritten form completed by the mother-in-law. The handwritten form completed by the mother-in-law provided the residential address in Sydney, and although she had ticked yes to question 26 (which asked whether or not the applicant would agree to communication by way of electronic means), no fax number or email address was provided.
Whilst Mr Kizana was not called to give evidence in these proceedings the court book indicates that he, relying upon the application form provided to him by the applicant (the handwritten version completed by her mother-in-law) formed the view that the notification by the Department of the decision of the delegate to the Outlook.com email address was not a notification in accordance with s.494B of the Act because that email address did not appear on the application form with which he was provided by the applicant.
The simple solution (on what was provided to Mr Kizana) was to request that the Department notify the applicant at the correct address, and for the applicant to lodge a review application if she saw fit at that time. The Department initially complied with this request but later, upon checking their records, concluded that the form that was lodged electronically (the one lodged by Mr Liomas) contained the Outlook.com email address and, therefore, the original notification to that email address was sufficient compliance with the Act and the time for applying for review had expired. As a result the Tribunal refused the application for review of the delegate’s decision.
The applicant says that she was never provided with the email address at Outlook.com by Mr Liomas, and thus his conduct prevented her from responding to the delegate’s decision by way of an application for review by the Tribunal within the relevant timeframe. Whilst no declaration is formally sought with respect to the application for a “visitor short stay visa” (the application that falsely stated she was outside of Australia at the time of applying) the applicant’s case remains that this application was lodged electronically by Mr Liomas on her behalf and that she was not aware of the contents of the application. There is nothing to indicate she was aware of the falsehood in that application, nor was she indifferent to it.
Witnesses at the hearing
During the course of the hearing I heard evidence from the applicant, her husband, her mother-in-law, and Mr Liomas, each of whom were cross‑examined. The evidence from Mr Liomas was the subject of a certificate under s.128 of the Evidence Act 1995 as he was concerned he may incriminate himself. In addition there was affidavit material and the court book.
A Greek interpreter was required for the evidence of the applicant and her husband. The use of an interpreter makes it more difficult to assess the credibility of a witness, having regard to the impression one receives of the witness in the witness box. I also take into account that there is inevitable slippage in language when questions and answers have to be interpreted, making it important to bear this in mind when considering the accuracy of the evidence given.
The applicant in this matter is not educated to a high level. She completed a bread making and pastry course as a trade qualification in Greece before coming to Australia. The applicant was relatively emotive during the course of giving evidence, no doubt particularly distressed by the course that her visa applications have taken. The presentation of the witness is perhaps best described as a rather naive.
In light of my findings with respect to the Outlook.com email address (see below) I am not satisfied she was entirely truthful. However, I am not satisfied that every inconsistency in her evidence was the result of a lack of truth, rather, that on a number of issues she was confused and often overstated what had occurred. For example, the applicant’s claims of the number of telephone calls to Mr Liomas are not borne out by the telephone records that were produced.
Ultimately, I do not place great weight on the evidence of the applicant with respect to the events relating to the visa application and Mr Liomas, although I have no reason to doubt that she was reliant upon Mr Liomas with respect to the visa applications and is genuinely the spouse of her husband, as each of them claim in the proceedings.
The applicant’s husband also gave evidence, and required the assistance of an interpreter. It was not clear that he had read and understood his affidavit before he gave evidence. The husband’s evidence suffered similar difficulties to that of his wife in that it contained some inconsistencies and vagueness. I am not persuaded that his evidence was untruthful; however, I have real doubts about the accuracy and reliability of his evidence.
The applicant’s mother-in-law also gave evidence. The mother-in-law did not require the assistance of an interpreter. She was an impressive and forthright witness, reacting strongly to suggestions that she was untruthful, making the point that she had a clear recollection because, “We’re talking about my children here. I sure do”, and, “When you’re disappointed in somebody [referring to Mr Liomas], you never forget”. She was cross-examined about her understanding of the detail of the structure of the Department and lawyers working with immigration. She claimed to have a clear understanding, yet it appears to me that she was unclear as to this level of nuance. However, she clearly understood Mr Liomas to have been a person undertaking work with the Department. I am satisfied that in lay terms she understood him to be a registered migration agent.
It is clear that she was opposed to utilising Mr Liomas from the outset explaining:
And, unfortunately, they met this Greek guy. Came from Greece from our island. Daki Slavos. And Daki said to Elesa, “Come with me. I know this man that works for immigration and he can fix your papers…. Unfortunately, the kids followed him. I said to them don’t do it. From the bottom of my heart I said that. Don’t do it. The papers are fine. How I filled them out. They followed him and from there on…
At one stage the mother-in-law had a very frank exchange with counsel:
And, honestly, it – it was going on and going on. And that’s how I was getting involved with immigration. To try to find out what the story is, where – what stage we’re at and what step do we take next.
Well, except if you were so critical to this your daughter-in-law gets a letter from immigration which you know she does and you don’t bother to look at it?---Well, I –I don’t even remember. That’s what I’m saying to you. I just don’t remember this letter. I don’t remember this letter. I can’t say yes or no.
And when Mr Liamos gave back the papers in May 2016 - - -?---Yes, yes, sorry.
- - - did he give you back the original of the form that you had completed in your handwriting?---I can’t remember if it was the original or if it was a copy of the original.
Do you - - -?---Honestly.
Do you know why he would have made a copy - - -?---Actually, I can’t remember.
- - - of the original if he had the original?---Sorry?
Do you know why he would have made a copy of the original if he already had the original? I’m just asking you did he - - -?---No.
And how often do you think you called Mr Liamos?---I probably spoke to him about – all up probably four to five times on the phone. I – I don’t know.
In total?---Probably, yes.
Okay. And Mr Liamos, in May, said that your daughter-in-law should see a lawyer; is that right?---If that was the day that he had given the file back, yes. He had said that he can’t do anything more and he sent us to a lawyer on that same day which I could take you there but I don’t know address and that. And we went to this lawyer – excuse me. We went to him. He was Indian. And he said, “I am sorry but we cannot help you anymore because your papers are out of timing.” And this was what the whole issue was from the beginning. Everything was out of time.
The mother-in-law explained that the family friends had been utilised to send the email response to the Department letter concerning compelling reasons because she did not have a computer at home and they were friends of hers.
Whilst the mother-in-law did not have a perfect recollection I accept her as a forthright and honest witness, and, importantly, I accept her evidence that she completed the handwritten application form, and saw money being paid by her son to Mr Liomas.
Mr Liomas presented as a quiet and nervous witness in the witness box. This is unsurprising given the difficulties that this case presents for him as a security guard at the Court who, even on his case, is not a registered migration and has been assisting people with migration applications. Mr Liomas denied that he received any payment despite the claims to the contrary by the applicant and her witnesses. Mr Liomas does not appear to have had any previous connection with the applicant and explained his involvement on the basis that he was just trying to help somebody out as a friend. He clearly gave migration advice with respect to the need to have a substantive visa before applying for the spouse visa. He agreed that he established the Outlook.com email address. He clearly had continued access to the Outlook.com email address (as he was the one who discovered that the spouse visa application was refused).
I note that Mr Liomas, in lodging the application to obtain a second short stay visa, was actively involved in making dishonest statements to the Department. I do not accept that he is a credible witness in these proceedings. On the whole I found Mr Liomas’s evidence unconvincing.
A significant issue that arose on the facts was the question of whether or not the applicant had an email address prior to meeting Mr Liomas. Mr Liomas’ evidence was that he established the Outlook.com email account for the applicant as she did not hold an existing email account, and that he gave her the email address and password for the account. The applicant maintained that she held a Gmail account well before then and that she never received the email address or password for the Outlook.com account.
The Minister produced a copy of the applicant’s entry card into Australia, where an option is given to provide an email, phone number or mail address; however, the applicant provided her mother-in-law’s landline telephone number and not an email address.
The applicant produced some limited printouts of her Gmail account by way of screenshots; however, they did not show any email sent or received prior to March 2016.
Orders were made for the applicant to provide a copy of her Gmail account archive to the solicitors for the Minister in order to establish the precise date the Gmail account had been established. The solicitors for the Minister did not receive the document despite forwarding a letter (after the order) setting out in precise terms the necessary steps one must take to obtain a copy of the archive file. The failure of the applicant to provide this information was raised with counsel for the applicant on the resumed date, and counsel had no explanation for the failure to provide that material.
Whilst it appears remarkable that a person of the applicant’s age would not have had an email account prior to 2016, I do not accept that it is realistic to draw any other inference in light of her failure to produce any email to her or from her prior to 2016, and her failure without explanation to provide the archive file of her Gmail account, or any other evidence of an email account. On the material before me I find that the applicant did not have an email account prior to March 2016.
I accept Mr Liomas’ evidence that he created the email address for the applicant at the Outlook.com email service and lodged the visa application utilising this email address. It is apparent that Mr Liomas had access to the email address as he was the one who informed the applicant that she had not been successful in her visa application.
A difficult issue arises as to whether or not Mr Liomas had provided the applicant with the email address and password for the Outlook.com email account. Mr Liomas says that he provided the account name and password to the applicant so that she could check the email address and retained a copy of the password himself. The applicant denies receiving this information.
Whilst there is much to be said for the proposition that the information could have been given to the applicant and she not appreciated the significance of it because she was relying upon Mr Liomas to manage her application, I am also mindful of the reliance that she had placed upon her mother-in-law with respect to the matter generally. It would be surprising, if the applicant had received this information from Mr Liomas, that she would not have shared it with her mother-in-law whom she had telephone the Department on another occasion to make inquiries as to the application that was pending. Similarly, it would be surprising that Mr Liomas would not use the Outlook.com email address to communicate with the applicant if he believed she had the password. On balance, I am not persuaded that the email address and password were held secretly by Mr Liomas, but similarly I am not satisfied that the applicant was specifically given the password (nor was it ever provided to her later, even once it must have been plain she was not checking the email address). Rather, I am persuaded that the applicant was reliant upon Mr Liomas with respect to communications through this email address and that he ought to have been aware of this from his dealings with her.
Mr Liomas was clearly not checking the email address as he was unaware of the letter sent to the email address requesting further information until such time as a copy of it was sent by registered post to the applicant. The letter sent by the Department to the applicant by registered post did not alert her of the fact that they had previously sent the letter by email. Had Mr Liomas believed he was the only one with access to the email, it is surprising that he would compose a letter for her and not have her send it back to him to enable him to send it from the designated email address. However, the receipt by her of the letter by registered post (particularly if he had checked the email account) should have alerted him to the fact that the applicant was not accessing the email account.
When Mr Liomas discovered that the application had been refused and that she was out of time to seek review by the Tribunal, he did refer the applicant to a lawyer who gave her appropriate advice. This is not the conduct of a person seeking to ensure that the difficulties which had occurred would not come to light, as has occurred in some of the other cases involving fraudulent migration agents who, for example, have told applicants not to attend hearings so that it would not become apparent that the agent had any involvement.
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.
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 result is that, on my view of the material, the applicant has engaged a person who appears to have unlawfully conducted themselves as a migration agent and who failed to take reasonable care in the conduct of the visa applications. This resulted in two significant problems for the applicant: first, she was without a substantive visa when she applied for the spouse visa; and secondly, the applicant did not become aware of the delegate’s decision in sufficient time to lodge a review application with the Tribunal. A potential third difficulty that may arise, as a result of Mr Liomas’s conduct in the future is that the short stay visa application contains a falsehood, which may be taken to enliven PIC4020 if that application is taken to be the application of the applicant, however this was not argues in these proceedings.
Whether Mr Liomas was paid is a difficult question that arises in these proceedings as the evidence on the subject is poor. The applicant and her husband failed to provide any documents (such as a bank account statement) to show that the money they say that they paid to
Mr Liomas was drawn from a particular account. The husband said that relatives lent him some money. However, the applicant and her husband were steadfast in their evidence that payment had been made. So too was the mother-in-law, who was obviously angered by the situation (unsurprisingly given the problems that have ensued, and that her draft of the content for the form was used). I have doubts about the evidence of both the applicant and Mr Liomas as a result of the lack of evidence of an email account by the applicant (at the relevant time) and the nature of the short stay visa application lodged by Mr Liomas containing a falsehood. I also accept that the evidence about the frequency of contact with Mr Liomas by the applicant and her husband appears exaggerated compared to the telephone records. It also seems unlikely that Mr Liomas would provide such assistance without fee for someone who was not a friend or family member. Ultimately, considering the evidence as a whole I am persuaded that the applicant and her husband did pay fees to Mr Liomas of $300 for the short stay visa application and $1,000 for the spouse visa application as stated by the applicant.
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.
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 form 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.
Whether unlawfully acting as an agent in a way that is negligent or reckless is sufficient in a protection visa case (where the remedy of damages against the agent is obviously inadequate) is not a matter that I need consider in this case. Damages are clearly an adequate remedy to compensate the applicant for any negligence on the part of Mr Liomas.
Having come to the conclusion that there was not a fraud on the Tribunal or legislative scheme, in the relevant sense, it is appropriate that the application be dismissed on the basis that the email notice to the applicant at the Outlook.com email address was sufficient notice under the legislation.
As a result I therefore dismiss the applicant’s application.
After judgment in this matter was reserved the Department commenced an investigation into the conduct of Mr Kizanna with respect to his conduct in relation to the application (see above). This prompted an application from the solicitors for the applicant to seek to force the minister to put further matters to the applicant or otherwise restrain the minister form investigating Mr Kizanna. The application was not well drawn, and no authorities were provided. There appears to me to be no basis for forcing counsel for the minister to run the respondent’s case differently, even if the Department is presenting a more strident case against Mr Kizanna in an administrative process relating to his registration. I was concerned that the Department may be pursuing an advisor in this case pending the litigation, although was not assisted with any authorities on this type of issue. As it transpires I have been able to give judgment before any further steps have been taken against Mr Kizanna, making the later point academic, as clearly it is open to the Department to bring administrative proceedings as it sees fit, if they do not interfere with pending court proceedings.
I therefore dismiss the application in a case.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 14 March 2018
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