CHS15 v Minister for Immigration
[2019] FCCA 2530
•13 September 2019 (delivered, by telephone , by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHS15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2530 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to file application for judicial review – consideration of factors. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.44, 75 Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.48A , 66, 98, 280, 281, 282, 283, 417, 430A, 441A, 441C, 474, 476, 477, 494B, 494C |
| Cases cited: ADN15 vMinister for Immigration & Border Protection [2016] FCA 810 |
| Applicant: | CHS15 |
| First Respondent: | MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 509 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 July and 29 November 2016 |
| Date of Last Submission: | 29 November 2016 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 (delivered, by telephone , by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondents: | Mr M Hawker (27 July 2016) and Mr A Burgess (29 November 2016) |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in which to file an originating application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 509 of 2015
| CHS15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application for judicial review (“Proposed Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) determining that the Tribunal did not have jurisdiction to determine the applicant’s matter.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Proposed Judicial Review Application;
b)the Court Book (“CB”) in which the Tribunal Decision appears at CB 115-117;
c)an affidavit of the applicant affirmed 5 October 2015 (“Applicant’s First Affidavit”);
d)an affidavit of the applicant affirmed 24 August 2016 (“Applicant’s Second Affidavit”);
e)a further affidavit of the applicant sworn 24 August 2016 (“Applicant’s Third Affidavit”)
f)written outlines of submissions filed by the Minister on 6 July 2016 and 21 October 2016 respectively;
g)the transcript of the hearing before the Court on 27 July 2016 (“July 2016 Transcript”); and
h)the transcript of the resumed hearing before the Court on 29 November 2016 (“November 2016 Transcript”).
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
The background to the matter is as follows:
a)the applicant, a citizen of Vietnam, arrived in Australia on a Visitor Visa on 27 April 2010: CB 13;
b)on 22 July 2010 the applicant lodged an application for a Protection (Class XA) Visa (“Protection Visa”) and made the following claims:
i)the applicant was a waiter and one night after work he was stopped by three men who were underworld criminals and he knew did illegal things. The men asked the applicant to join them and he refused: CB 17;
ii)after refusing the underworld criminals this caused trouble to the applicant and they again threatened him and sought that he join them, and this caused him to quit his job as he felt he was not safe wherever he went and that he was always under surveillance by these men: CB 17; and
iii)the “criminal underworld” will harm the applicant if he returns to Vietnam as he reported them to the police, who cannot help the applicant because they do not have full power, and that the men scared the applicant and wanted to harm or even kill him: CB 18-19;
c)the applicant indicated on the Protection Visa application he did not have assistance with completing it, and that all mail was to be posted to the Post Office Box he specified, the applicant making particular note on the application that it was not to go to his residential address: CB 8 and 12;
d)on 14 September 2010 the applicant was sent, via registered mail, an invitation to attend an interview with a delegate (“Delegate”) of the first respondent, the then Minister for Immigration and Border Protection (“Minister”), in which the applicant was advised that if he did not respond to the letter a determination would be made without his appearance before the Delegate: CB 34. The applicant did not respond;
e)on 29 September 2010 the Delegate made a decision (“Delegate’s Decision”) to refuse the applicant the Protection Visa and notification was sent via registered mail to the Post Office Box: CB 35-44;
f)on 1 November 2010 the applicant applied for review of the Delegate’s Decision with the then Refugee Review Tribunal (“RRT”);
g)on 11 January 2011 the RRT affirmed the Delegate’s Decision not to grant the applicant a Protection Visa (“RRT Decision”): CB 46-55;
h)on 15 February 2011 the applicant made a request for Ministerial Intervention pursuant to s.417 of the Migration Act, and on 28 April 2011 the applicant was advised that the request for Ministerial Intervention was unsuccessful: CB 56-58 (“Ministerial Intervention Decision”);
i)on 9 June 2015 a registered migration agent, Matt Rumley (“Mr Rumley”) emailed the Department of Immigration and Border Protection (“Department”) enclosing an application for a Bridging Visa E (“BVE”). The letter stated the applicant was an unlawful non-citizen and sought the grant of the BVE to enable him to apply for a further substantive visa: CB 59-67;
j)on 12 June 2015, Mr Rumley sent an email to the Department withdrawing the BVE application in light of his being advised the applicant had previously been refused a visa: CB 69;
k)on 14 June 2015 the applicant, with the assistance of Mr Rumley, lodged an application with the Tribunal for review of the Delegate’s Decision: CB 71-72;
l)on 22 June 2015 the applicant, again with the assistance of Mr Rumley, applied for a second BVE on the basis he was making arrangements to depart Australia: CB 74-78, but noted at CB 76 the following:
I HAVE SUBMITTED AN APPLICATION TO REVIEW A DECISON TO REFUSE THE GRANT OF A PROTECTION CLASS XA VISA, HANDED DOWN BY THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION, WITH THE REFUGEE REVIEW TRIBUNAL AND HAVE CITED AN ADMINISTRATION ERROR IN THE HANDING DOWN THIS DECISION ANDHAVE ADVISED THE REFUGEE REVIEW TRIBUNAL THAT I HAVE TAKEN TO HAVE RECEIVED THIS DECISION ON THE 12TH OF JUNE 2015 AND HAVE SUBM,ITTED AN APPLICATION FOR REVIEW ACCORDING AND WITHIN THE PRESCRIBE TIME LIMITS HAVING BEEN NOTIFIED OF THIS DECISION ON THE 12/6/2015
(Transcribed without alteration);
m)on 22 June 2015 the applicant was granted the BVE, to remain in effect until 13 July 2015: CB 82;
n)on 23 June 2015 Mr Rumley was sent an email by the Tribunal attaching a letter in which the applicant was invited to comment on the validity of the application to the Tribunal and inviting a response by 7 July 2015: CB 85-88. There was no response to this email;
o)the applicant again applied for and was granted further BVE’s to enable him to stay in Australia: CB 89-111;
p)in the Tribunal Decision dated 4 September 2015 the Tribunal determined it did not have jurisdiction to hear the applicant’s application for review: CB 115-117, and the Tribunal Decision was sent to the applicant (via Mr Rumley) on 8 September 2015: CB 112-114;
q)the applicant, without the assistance of Mr Rumley, applied for and was granted further BVE’s on 5 and 19 October 2015 respectively (“First October 2015 BVE” and “Second October 2015 BVE” respectively), on the basis he had applied for judicial review in this Court; and
r)on 2 November 2015 the applicant applied for and was granted a further BVE (“November 2015 BVE Application”): CB 143-151, noting that he was making arrangements to depart by “airplane” and “will buy a ticket”, stating that he did not depart previously because “the law[y]er tell me not to leave”: CB 145.
Tribunal Decision
In the Tribunal Decision the Tribunal determined it did not have any jurisdiction in respect of the applicant’s application for review. The relevant reasoning in the Tribunal Decision at CB 116-117 at [4]-[9] is as follows:
…
4. The Tribunal notes the Tribunal’s file records that an officer of the Tribunal telephoned the applicant’s representative on 22 June 2015 and left a message on the representative’s voicemail system. The message by the Tribunal officer requested the representative telephone the Tribunal office to discuss the apparent absence of a reviewable decision. As at the date of the Tribunal’s decision, the Tribunal finds no record to indicate that the applicant’s representative has returned the Tribunal officer’s telephone call or that the representative has otherwise made contact or corresponded with the Tribunal in respect of this matter.
5. On 23 June 2015, the Tribunal also wrote to the applicant, through his representative and put to the applicant its preliminary view that the Tribunal does not have jurisdiction to review the application. Specifically, the letter to the applicant states:
[The] Department of Immigration and Border Protection (DIBP) records show you were refused a Protection visa on 29 September 2010 and the RRT affirmed the decision on 11 January 2011. You made a request for Ministerial Intervention on 15 February 2011 and on 28 April 2011 you were notified of the Minister’s decision not to intervene in your case. It appears that no other visa applications have been made since these decisions.
In order for there to be a valid application for review, a decision by the Department of Immigration and Border Protection (DIBP) must in fact be in existence. Information on the electronic DIBP database indicates that the DIBP has not refused you a visa or cancelled your visa at the time you lodged your review application on 14 June 2015. Therefore, I do not believe that your application is valid. However, this is a matter which must be determined by a Tribunal member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 7 July 2015.
6. A review of the Tribunal’s paper and digital files shows no reply has been received to the above natural justice letter.
7. After considering this matter, the Tribunal finds that the evidence before it indicates that a delegate of the Minister for Immigration and Border Protection refused to grant a Protection visa to the applicant on 29 September 2010. The Tribunal also finds that an application to the Refugee Review Tribunal (RRT) was made on 1 November 2010 and that the RRT affirmed the decision of the delegate on 11 January 2011.
8. Having reviewed all of the evidence before it, the Tribunal finds that no other visa applications have been made since these decisions. It follows that if there have been no other visa applications made since the application that was decided by a delegate on 29 September 2010, there is no subsequent reviewable decision by a delegate in respect of the applicant. The Tribunal therefore finds that there is no reviewable decision before the Tribunal for review.
9. As there is no reviewable decision, it follows that the application for review was not properly made, and the Tribunal does not have jurisdiction in this matter.
(Emphasis in original).
Proposed Judicial Review Application
The Proposed Judicial Review Application was lodged on 3 November 2015.
In the Proposed Judicial Review Application the applicant sought review of:
a)the Tribunal Decision, and indicated he had not applied for a protection visa; and
b)the Ministerial Intervention Decision, said to have been made on 15 February 2011,
while the relief he sought was a writ of mandamus directed to the Tribunal, the Immigration Assessment Authority (“IAA”) or the Minister.
The Proposed Judicial Review Application contained six grounds of review as follows (transcribed without alteration):
1. Applicant claims a Jurisdictional error has been made by the Department of Immigration and Citizenship, now, the Department of Immigration and Border Protection in relation to an application for Class XA Protection Subclass 866 visa apparently lodged on the 29th of September 2010.
Applicant claims now such application was ever prepared, signed off on, and or filed or submitted by the applicant to the Department of Immigration and Citizenship, and claims any application submitted to the Department of Immigration and Border Protection should be deemed an invalid application as it was not prepared, signed off on, and or lodged by the applicant.
2. Applicant claims that a preceding affirmed decision by the Refugee Review Tribunal apparently issued on the 11th of January 2011 to be also a Jurisdictional error, as applicant claims no such application was prepared, signed off on and /or submitted to the Refugee Review Tribunal
3. Additionally, Applicant claims that any such decision handed down by the Department of Immigration and Citizenship on the 29th of September 2010 would also be subject to an Administrative error as no decision was received by the applicant.
4. Applicant made contact with the Department of Immigration and Border Protection on the 12th of June 2015 by means of submitting an application for a bridging visa E (BVE) on the grounds of the intention to submit a further visa application. namely a Temporary Business Subclass 457 visa, and was notified on this day of a previous refusal of a Protection visa application.
5. Having been correctly notified on the 12th of June 2015 of a decision to refuse the grant of a Protection Class XA Subclass 866 Visa the applicant continued to submit an application for review to the Administrative Appeals Tribunal on the 14th of June 2015 as per prescribed time limits.
6. Applicant requests a writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the validity of the applicant’s application for a Protection Class XA subclass 866 according to law and any preceding administrative errors since this application.
The applicant also applied for an extension of time in which to file the Proposed Judicial Review Application on the following ground (transcribed without alteration):
THE INITIAL APPLICATION WAS LODGED ON TIME, HOWEVER THE COURT REQUIRED AMMENDMENTS TO ORIGINAL AND REQUIRE AN EXTENSION TO RESUBMIT.
In relation to the six grounds of review in the Proposed Judicial Review Application the Court notes that:
a)in the second paragraph of ground 1 the word “ever” should, in context, read “never”; and
b)the reference in ground 6, and also in the relief sought, to the “Immigration Assessment Authority” is obviously an error, the IAA never having had any role or involvement in relation to the applicant’s application for the Protection Visa.
Accompanying the Proposed Judicial Review Application was the Applicant’s First Affidavit in which he repeated verbatim the grounds of review of the Proposed Judicial Review Application.
A Registrar of this Court made orders on 25 November 2015 programming the matter to hearing, and allowing the applicant the opportunity to file any amended Proposed Judicial Review Application and affidavit evidence in support thereof. The applicant filed no further documents and the matter came on for hearing on 27 July 2016.
At the hearing on 27 July 2016 the applicant sought an adjournment to find a lawyer. From what the Court could discern, the applicant indicated that after appearing before the Registrar a lawyer, from Wanneroo (an outer northern suburb of Perth), whose name the applicant could not remember and whose address he said he did not know, had told the applicant he would help him prepare the paperwork, and he sent all the documents to the lawyer to lodge, and that the lawyer had not done so: July 2016 Transcript, pages 3-4. Ultimately, the Minister did not oppose an adjournment: July 2016 Transcript, pages 5-6. The orders made by the Court on 27 July 2016 were as follows:
1. The hearing today be adjourned.
2. The applicant is to file and serve:
a. any affidavit in support of application for an extension of time in which to file the application filed 3 November 2015; and
b. any affidavit in support of the grounds of review in the application filed 3 November 2015,
by 24 August 2016
3. Any affidavit deposed to by the applicant personally pursuant to order 2 is to include the name, street address, postal address, email address, telephone number (both fixed and mobile), and facsimile number of any:
a. lawyer;
b. registered migration agent; or
c. other person,
who has assisted the applicant in the preparation, filing, and subsequent steps taken in relation to the application filed on 3 November 2015, provided that it will not be necessary to provide those details if any such lawyer, registered migration agent, or other person deposes to an affidavit and that affidavit is filed and served pursuant to order 2.
4. The matter is to be listed for further directions on 26 August 2016 at 2pm.
5. Costs be reserved.
On 24 August 2016, a migration agent, Mr Rumley purported to file a notice of appearance for the applicant, though the date stated on the notice of appearance is 25 August 2016.
The applicant also filed the Applicant’s Second Affidavit on 24 August 2016. The Applicant’s Second Affidavit:
a)set out certain matters of alleged fact, which are set out at [19] below;
b)set out case law and a conclusion which are dealt with at [23] below; and
c)made certain assertions as to the nature of the case before the Court, including assertions as to the questions before the Court on the Proposed Judicial Review Application, which are set out at [16]-[18] of the Applicant’s Second Affidavit as follows (transcribed without alteration):
16. The essential question(s) in this case is whether the applicant was validly notified of the delegate’s decision on the 29th September 2010, and decision to affirm the Departments decision by the RRT on the 12th of January 2011.
17. Additionally the question is whether the applicant has made any valid applications at all and exempt from S48 of the Migration Act, having no knowledge of any Protection Visa, Review Application and Ministerial requests made on his behalf without his consent and or declaration and which are in there entirely fraudulent and prepared by a person acting as a Migration Agent whilst receiving a fee and in breach of S280, S281,S282 and S283 of the Migration Act.
18. The question before the court is,
a. whether the applicant has been deemed to have made any valid application(s) and whether being affected by S48 is appropriate
b. And if the applicant has been deemed to have made a valid application whether the applicant has been applicant had been validly notified of the delegate’s decision
The applicant also filed the Applicant’s Third Affidavit on 24 August 2016, seemingly in support of the application for an extension of time, and relevantly as follows:
Applicant applies for an order that the time for making an application be extended under section 477 of the Migration Act 1958 due to illness.
…
Applicant had prepared an APPLICATION – Migration Act on the 5th of October 2015 and submitted an incomplete application accordingly.
Since this lodgement applicant fell ill and was unable to undertake day to day duties for a period of two weeks.
Upon improved health applicant submitted application on the 13th of November 2015.
When the matter returned to the Court for directions on 26 August 2016 the applicant appeared in person (with an interpreter). The Court made orders listing the application for an extension of time for hearing on 29 November 2016, and for the filing of submissions, and noted on the order that no application for leave to appear had been filed by the migration agent who filed what purports to be a notice of appearance on 24 August 2016. The necessity for an application for leave to appear arose because, on the face of it, a migration agent does not have a right of appearance before this Court: Federal Circuit Court of Australia Act 1999 (Cth), s.44.
The applicant filed no further materials prior to the hearing on 29 November 2016. At the hearing on 29 November 2016 the applicant again appeared in person (with an interpreter), and was called to give evidence: that occurred because where an applicant alleges fraud against a third party vitiating the Tribunal’s decision-making process an applicant must have an opportunity to go into the witness box to give evidence, with the knowledge of the issues that need to be addressed: SZRUR v Minister for Immigration & Border Protection & Anor [2013] FCAFC 146; (2013) 216 FCR 445; (2013) 305 ALR 557; (2013) 138 ALD 46 (“SZRUR”) at [39]-[40] per Robertson J, [53] per Allsop CJ and [59]-[60] per Mortimer J. The Minister cross-examined the applicant and the applicant’s evidence is outlined at [20] below.
The applicant’s evidence
The allegations of fact in the Applicant’s Second Affidavit are as follows (transcribed without alteration):
3. The applicant states that an application for a Protection Visa Class XA subclass was submitted on 22 July 2010 on his behalf without his consent.
4. The applicant claims to have no knowledge of this application, has not made any declarations within this application, and that this application is fraudulent in its entirety and prepared by a person acting as a Migration Agent.
5. Applicant states reputes a decision that he had been validly notified of the delegate’s decision to refuse the grant a application for a Protection Visa XA Subclass 866 handed down on the 29th of September 2010
6. Applicant states that he had no knowledge of an application for review being submitted to the Refugee Review Tribunal on the 1st of November 2010 and that any declarations and or statements within this application are fraudulent and without the knowledge and or consent of the applicant.
7. Applicant states he was not validly notified of the delegate’s decision to affirm the original decision to refuse the grant of a Protection Class XA Subclass 866 visa
8. Applicant states he has no knowledge and or consent for an application to Minister under S417 and that signatures and declarations within this request for Ministerial intervention are not his own and where made without the knowledge and or consent of the applicant.
9. Applicant states that he was introduced to a person acting as a Migration Agent in June 2010 whom “guaranteed him permanent residency and a large sum of money was handed to this person.
10. Applicant states that since payment to this authorised Migration Agent, agent continued to state that application was in process and provided him with a copy of a bridging visa only which stated that applicant held a visa to remain in Australia indefinitely
11. Applicant became aware that he was not the holder of a visa in Australia in June 2015 when approaching registered Migration Agent together with his uncle
12. An application for a temporary business visa submission was attempted on 6th of June 2015 by the Migration Agent in which it became apparent that applicant was subjected to S48 and unable to make a second application in Australia
13. Applicant was granted a bridging visa E (BVE).
14. On the 14th of June 2015 a further application for review of a decision to refuse the grant of a Protection Class XA Subclass 866 visa was submitted.
15. On the 4th of September 2015 the Administrative Review Tribunal forwarded a decision that the Tribunal does not have jurisdiction in the matter.
...
19. The application has been a victim of Migration Fraud which has had a devastating effect on his future and Australian Immigration history
20. The applicant declares he had no knowledge of any applications for a Protection Visa Class XA nor its contents.
21. The applicant declares he had no knowledge of any application for review and or any knowledge of its content
22. The applicant declares he has not been validly notified of the delegate’s decision of any application and or proceeding review and or Ministerial request
The applicant was cross-examined, and his evidence under cross-examination can be summarised as follows:
a)in June 2010 the applicant had to submit an application to the Department but he was not sure what that application was about as someone had helped him prepare it and he was told a visa was granted with no expiry date: November 2016 Transcript, page 4 at [34]-[37];
b)the applicant signed the Protection Visa application form, identifying his signature on the form, but he did not fill it out and was shown only two pages, and he did so in a shop said to be located at “Newpark Shopping Centre” in Girrawheen (a northern Perth suburb) and he was told by someone to be there: November 2016 Transcript, page 5 at [12]-[39];
c)somebody “helped” the applicant fill in the address on the Protection Visa application form (CB 24), but he was not living at the address on the form: he was living in Nollamara (a northern Perth suburb) and while his signature was witnessed by a Justice of the Peace in New South Wales he has never been to New South Wales: November 2016 Transcript, page 6 at [14]-[36];
d)the person that helped with the Protection Visa application, “Andy”, who the applicant met at a restaurant in Girrawheen (but whose surname he does not know) may have gotten information for the Protection Visa application from his uncle, as Andy knows his uncle, which may be why it correctly states in the Protection Visa application that the applicant worked as a waiter, because the applicant did not tell Andy this: November 2016 Transcript, pages 7 at [22]-[45] and 9 at [1]-[14];
e)the applicant was present when the Protection Visa application was filled out, and he told Andy the date the applicant arrived in Australia but he did not know what the application was about and simply signed it: November 2016 Transcript, page 8 at [20]-[37];
f)Andy, not wanting the applicant to suspect him of being fraudulent, took the applicant, together with the Protection Visa application, to the Department where a Vietnamese-speaking official told the applicant the application was for the applicant to stay in Australia permanently and did not explain any further: November 2016 Transcript, page 10 at [1]-[22];
g)the applicant was not at the Department when the Protection Visa application was lodged and he was concerned his “visa” was not legal, so he returned to the Department about eight times and was told the visa was permanent: November 2016 Transcript, page 10 at [30]-[40];
h)the applicant does not have a copy of that “visa” as a burglar broke into the applicant’s house and stole a bag with the “visa”, his passport and some money. The applicant reported to the Department that his passport was stolen sometime in September or October 2010 and he applied for a new passport: November 2016 Transcript, page 11 at [1]-[22];
i)the applicant returned to the Department in 2012 and asked for his “visa number” and was told that the visa was valid and he would receive a letter when it expired. It was not until around June 2015, when the applicant was applying for a job and went to see a lawyer, that he learnt he did not have a visa: November 2016 Transcript page 11 at [30]-[47];
j)the applicant went to see Mr Rumley and told Mr Rumley he was unlawful, and he recalls signing a document asking the Minister to intervene in his case, though the signature at the bottom of the letter to the Minister was not his signature, and he was not sure if that was after he received the RRT Decision as he was not sent “any paper”, and the address the RRT sent the decision to is not his address: November 2016 Transcript, pages 12 at [21]-[45], 13 at [1]-[14] and 14 at [19]-[28]; and
k)the applicant tried to contact Andy but could not get in touch with him after 2010, he paid Andy $8000 cash in July or August 2010 to assist him with the Protection Visa application. He did not know it was a Protection Visa application, he did not care to ask him what type of visa it was or what claims were made in the application, rather he was told that it was a visa with work rights and without an expiry date: November Transcript, pages 14-15.
The Court has taken into account the applicant is not English speaking and that the questions he was asked including questions as to events occurring more than six year earlier. Despite this, the Court is not satisfied that the applicant’s evidence is credible. The Court accepts the applicant may not have personally received the Delegate’s Decision or the RRT Decision, but the Court does not accept that the applicant did not knowingly apply for the Protection Visa. The Court also does not accept the applicant’s evidence that he attended the Department’s offices on a number of occasions and was told he had a visa, particularly so in circumstances where the applicant himself approached Mr Rumley for assistance with applying for a work visa with the knowledge he was unlawful. Further, it is simply untenable that he says he went to the Department, seemingly eight or nine times, and was told he had a “permanent” visa when in fact he had no visa.
The applicant was aware he applied for a visa, with the assistance of Andy, and that at the time of doing so he was in fact unlawful. When it was put to the applicant that he did not care what visa he got, how that visa was obtained or what claims were made to obtain that visa, the applicant did not deny this. It was apparent from the applicant’s evidence he was simply seeking to stay in Australia “with work right and... without an expiry date”. Having considered the applicant’s evidence as a whole, and bearing in mind the language difficulties he faced and his being unrepresented, the Court makes the following findings:
a)the applicant was aware he applied for a visa in 2010 and he did so for the purpose of remaining in Australia. He provided some information of his details in order for the Protection Visa application to be completed and he willingly and consciously signed the Protection Visa application without inquiring as to what the content was;
b)the applicant was aware that he was unlawful when he approached Mr Rumley with the intention of seeking a work visa; and
c)the evidence established that the applicant was a willing participant in the visa application process who was uncaring as to the nature or content of the relevant application forms.
Applicant’s submissions
As noted, the Applicant’s Second Affidavit contained what can be considered as submissions, and the Court also notes the applicant’s grounds of review can also be considered as submissions to some extent. The Court also provided the applicant an opportunity to make oral submissions at the hearing in support of the Proposed Judicial Review Application. The applicant’s submissions can be summarised as follows:
a)in Newaz v Minister for Immigration & Anor [2013] FCCA 545 at [65]-[68] per Judge Riley, this Court noted the circumstances in which a visa applicant should not be held responsible for a migration agent or other person providing immigration assistance providing fraudulent documents to the Department;
b)in Kim & Ors v Minister for Immigration & Anor [2008] FMCA 1553 the Court quashed the decision of the Migration Review Tribunal as the migration agent acted dishonestly in providing assistance and breached s.281 of the Migration Act;
c)the applicant was told that the Protection Visa application was for a working visa, he did not know that it was something unlawful, he did not sign the letter requesting Ministerial Intervention and while he did sign the Protection Visa application nobody helped him with the translation of it;
d)the applicant is a victim of fraud carried out by another person in breach of ss.280-283 of the Migration Act and the fraud has resulted in the applicant being subjected to s.48A of the Migration Act; and
e)the applicant has not validly been notified of the Delegate’s Decision, or impliedly the RRT Decision, pursuant to s.66 of the Migration Act.
Minister’s submissions
With respect to the application for an extension of time, the Minister submits that an extension of time is not in the interests of the administration of justice on the basis that there is insufficient evidence to support the explanation for the delay in the Proposed Judicial Review Application, the purported explanation is inadequate, and the Proposed Judicial Review Application has no reasonable prospects of success.
In respect to the grounds of the Proposed Judicial Review Application the Minister submitted:
a)there is no evidence establishing any error in the Tribunal’s Decision that it had no jurisdiction in the matter;
b)whether the applicant lodged a valid visa application is a question of jurisdictional fact to be determined by the Court on the basis of evidence before it and the application for the Protection Visa indicated that the applicant did not receive assistance in completing his Protection Visa application form;
c)pursuant to s.98 of the Migration Act, a non-citizen who does not fill in their application form is taken to do so if they cause it to be filled in or if it is otherwise filled in on their behalf, and the applicant’s evidence under cross-examination confirms he caused the application to be made;
d)the matter can be distinguished from Gill v Minister for Immigration & Border Protection [2016] FCAFC 142 (“Gill”), as the applicant in this matter acknowledged that he authorised an application for a visa to be made;
e)in any event, the Tribunal did not fall into jurisdictional error and there was no error in the Tribunal failing to consider the validity of the application as the applicant was invited to comment and made no submissions to the Tribunal indicating that the application for the visa was invalid;
f)to the extent the applicant is submitting he was not validly notified of the Delegate’s Decision, no such submission was made to the Tribunal, and it is irrelevant in any event to the Tribunal Decision as the Tribunal only has the power to review a decision to refuse a Protection Visa;
g)it does not appear to be in contention that the only application for a Protection Visa made by the applicant was made on 22 July 2010, refused by the Delegate on 29 September 2010 and affirmed by the RRT on 11 January 2011, and therefore the RRT became functus officio once the RRT Decision was made and the Tribunal was correct to find it had no jurisdiction;
h)with respect to the applicant being notified of the RRT Decision, notification is not relevant to whether there is a jurisdictional error, as pursuant to s.430A(3) of the Migration Act a failure by the RRT or the Tribunal to properly notify the applicant of their decisions does not affect the validity of the RRT Decision or the Tribunal Decision; and
i)the applicant was notified of the RRT Decision by letter dated 12 January 2011 sent to the PO Box address identified in his application for review and the Protection Visa application and the RRT correctly followed the method prescribed in the Migration Act in respect of the notification of its decision and the applicant is deemed to have received the RRT decision: Migration Act, ss.430A and 441A.
Consideration
Given the Proposed Judicial Review Application was filed 25 days outside the prescribed time in the Migration Act, s.477(1), the applicant requires the Court to exercise the power under s.477(2) of the Migration Act in order to extend the time to allow him to pursue, and the Court to consider, the Proposed Judicial Review Application. The matter was listed for hearing on the issue of the extension of time and the Court, for reasons that follow, has determined that the extension of time should be refused, and consequently the Proposed Judicial Review Application must be dismissed.
Section 477(2) of the Migration Act allows the Court to extend the time in which to bring the Proposed Judicial Review Application if it considers it is in the interests of the administration of justice to do so. The factors the Court takes into account when determining this are well established, and can be summarised as follows:
a)the extent of and explanation for the delay;
b)any prejudice that may be suffered; and
c)the merits of the Proposed Judicial Review Application.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”)).
When determining the merits of the Proposed Judicial Review Application the Court must bear in mind that on judicial review the consideration of the Tribunal Decision is restricted to determining if the Tribunal has fallen into jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225.
Extent of and explanation for the delay
The Proposed Judicial Review Application was filed 25 days outside of the statutory time limit. While the Court does not consider this excessive, it is not insignificant. It should not be overlooked that a statutory limitation period represents the legislature’s judgment as to how the welfare of society is best served by specifying a particular period in which causes of action should be litigated: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1, CLR at 553 per McHugh J. While acknowledging the importance of the finality of administrative decisions, the Court does not consider the delay of 25 days weighs heavily against granting an extension of time.
When the matter first came on for hearing on 27 July 2016 the applicant acknowledged he required an extension of time, although pursuant to r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) the applicant had failed to file an affidavit to explain the reason for the delay and why it was in the interests of the administration of justice that the Court grant an extension. The Court made orders allowing the applicant to rectify this, and to some extent he attempted to do so: [13] above.
It appears the explanation for the delay in the filing of the Proposed Judicial Review Application was initially, that the Registry rejected the documents as they were incomplete. The applicant says he attempted to file the Proposed Judicial Review Application on 5 October 2015, that being four days prior to the expiration of the statutory time limit. There was no evidence to support this, but the Court notes that the applicant’s First Affidavit was sworn on 5 October 2015 and the Court is willing to extend to the applicant the benefit of the doubt that the Proposed Judicial Review Application was thought by him to be ready for filing within the time limit prescribed by s.477(1) of the Migration Act, but was deficient and required amendment, and the Court notes that the applicant, although obtaining some assistance from a “lawyer”, is non-English speaking and some regard ought to be had to that fact, at least where there is not a gross or excessive delay: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [1] and [5] per Mortimer J (“MZZIV”); ADN15 vMinister for Immigration & Border Protection [2016] FCA 810 at [29]-[30] Charlesworth J
The applicant then affirms that he became ill and was unable to attend to do day-to-day tasks for two weeks. There is no medical evidence to support this assertion, as there should be: NAKX v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffith and Mortimer JJ. Accepting this evidence in any event, by the Court’s calculation and allowing some leniency, this would have meant the applicant was able to attend to the deficiencies and filing of the Proposed Judicial Review Application by approximately 26 October 2015. The Proposed Judicial Review Application was not, however, lodged until the week following. In circumstances where the applicant was being assisted by a lawyer, and the filing of the Proposed Judicial Review Application had already being delayed by further illness, there is no particularly cogent explanation for the ongoing delay.
Having regard to such evidence as there in in relation to the explanation for the delay, the Court considers that the explanation for the delay weighs neither in favour nor against the grant of an extension of time.
Prejudice
The Minister did not contend that he would be prejudiced as a result of the delay. An absence of prejudice does not of itself, however, justify the exercise of the discretion to extend time pursuant to s.477(2) of the Migration Act: Hunter Valley Developments FCR at 349 per Wilcox J. The finality of administrative decision-making also requires some consideration, particularly where s.477(1) of the Migration Act endows a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation: Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Ex Parte Marks”) at [17] per McHugh J.
In circumstances where the Court has (for reasons set out at [37]-[53] below) determined that the Proposed Judicial Review Application lacks merit, it follows that the applicant will not suffer any prejudice. Ordinarily that might not be of much consequence, but the Court also notes that in the most recent BVE application in the materials before the Court, the applicant indicated that he was then making arrangements to leave Australia. That fact is somewhat at odds with the assertion of the need for protection inherent in the Protection Visa application.
In the circumstances, the issue of prejudice, if anything, weighs in favour of the Minister, but is at least a factor which is neutral, and in determining whether an extension of time should be granted the Court will treat it is a neural factor.
Merits of the Proposed Judicial Review Application for the purposes of the extension of time application
When determining, for the purposes of the extension of time application, whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, the applicant need not positively establish that the application will succeed: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J (from which an appeal was dismissed; SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158). However the grounds must have at least a reasonable prospect of success as it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success, the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner and without the full consideration of all the arguments which would be necessary upon a consideration of the merits of each of the grounds of review. The issue is not whether the applicants would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveal that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their merit: SZTES at [48] Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J.
Ground 1
Ground 1 asserts jurisdictional error in the Delegate’s Decision on the basis that the Protection Visa application was an invalid application. The Court does not have jurisdiction to review the Delegate’s Decision and therefore ground 1 has no prospect of success. Further for the reasons, set out at [48]-[53] below, the Protection Visa application was not invalid.
Ground 2
Ground 2 alleges jurisdictional error in the RRT Decision. The applicant has not sought review of the RRT Decision; but rather the Tribunal Decision. If the Court were to consider the RRT Decision, the applicant would require an extension of time of 1722 days, approximately 56 months, or at least 4 years and 8 months. A delay of that length would, of itself, be sufficient to warrant refusal of the extension of time application: Ex Parte Marks at [6] per McHugh J; Tran v Minister for Immigration & Border Protection [2014] FCCA 553 at [38] per Wigney J.
Ground 2 has no reasonable prospect of success.
Ground 3
Ground 3 disputes whether the Department and RRT validly notified the applicant of the Delegate’s Decision and the RRT Decision. This ground appears to be what is stated as one of the “questions” for the Court to decide in the Applicant’s Second Affidavit at [16] and [18(b)]. In Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 (“Kim”) at [8] per Heerey, Conti and Jacobson JJ observed, that where the Migration Act:
…provides that in such a case the person is taken to have received the document seven working days after the date of the document. This means that the Magistrate, and this Court on appeal, cannot inquire into whether or not in fact the document was received. The Act conclusively provides for this effect.
(Emphasis added)
The Migration Act expressly determines when notification has taken place, that is the Migration Act determines the date of notification as a matter of fact. The Delegate’s Decision was sent to the applicant in accordance with the requirements of s.66 of the Migration Act, and in any event s.66(4) of the Migration Act dictates that a failure to give notification does not affect the validity of the Delegate’s Decision. Similarly, the validity of the RRT Decision is not affected in the event of a failure of an applicant to be notified of that decision: Migration Act, s.430A(3). Therefore there is no error invalidating the legality of Delegate’s Decision, if the Court had jurisdiction to determine such, or the RRT Decision, on the basis that the applicant was not validly notified.
In any event, the Court considers that the applicant was validly notified despite his assertion he never received “any of the papers”, for the following reasons:
a)it was clearly indicated on the applicant’s Protection Visa application that documents were to be sent to the PO Box address, and the same address was on the RRT Decision. The applicant also indicated he had no assistance with completing the Protection Visa application, the content of the Protection Visa application had been translated and that the information within it was correct: CB 1-24;
b)both the Delegate’s Decision and the RRT Decision were addressed and sent by registered post to the PO Box address and in doing so the Delegate conformed to a method specified in s.494B(4) of the Migration Act, likewise the RRT conformed to a method specified in s.441A(4) of the Migration Act: CB 35 and 45;
c)by virtue of ss.441C(4) and 494C(4) of the Migration Act the applicant is deemed to have received the “papers” seven days after their being sent. The effect of these deeming provisions created an irrebuttable presumption that the applicant has been notified of the relevant decision: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (from which the High Court refused special leave in Xie v Minister for Immigration & Indigenous Affairs [2006] HCATrans 221). As the Federal Court has observed, the critical action is the transmission of the document, not its receipt: Singh v Minister for Immigration [2015] FCA 220; (2015) 231 FCR 573 at [27]-[35] per Perry J; and
d)the applicant, or someone else at the least, received the Delegate’s Decision and was aware of the content as a review to the RRT was lodged within the applicable time limit and the applicant acknowledged, though later disputed, he had signed a document for Ministerial Intervention, though he was then “not sure” if this was after the RRT Decision. The applicant was only able to apply for Ministerial Intervention upon an unfavourable outcome at the RRT, therefore an inference can be drawn the applicant had constructive knowledge of the Delegate’s Decision and the RRT Decision.
In the circumstances, ground 3 has no, or no reasonable, prospect of success.
Grounds 4 and 5
Grounds 4 and 5 rely upon the applicant being successful in Ground 3. The applicant was deemed to have been notified of the Delegate’s Decision and the RRT Decision seven days after the notifications were sent by registered post. Therefore, the applicant cannot be taken to have been notified of the Delegate’s Decision and RRT Decision on 12 June 2015 as he claims.
Accordingly, grounds 4 and 5 have no reasonable prospect of success.
Ground 6
Ground 6 is the second question referred to in the Applicant’s Second Affidavit at [17] and [18(a)].
This ground suggests that the Protection Visa application was an invalid application and therefore the applicant is not barred by s.48A of the Migration Act from lodging a substantive visa application. The difficulty with this ground is that the applicant never responded to the Tribunal invitation to comment, and did not put to the Tribunal that the Protection Visa application was invalid, and therefore the Tribunal was not obliged to consider this issue as on the basis of the materials before the Tribunal there was no reviewable decision to enliven its jurisdiction. It cannot therefore be said there was any jurisdictional error in the Tribunal Decision.
In respect to whether the Protection Visa application was a valid application, it is the applicant who bears the onus of proof as to whether the visa application was invalid: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 233; (2011) 119 ALD 1 at [67] per Gummow J, [91] per Heydon J and [92] per Crennan J. Determining if a visa application is a valid application is a jurisdictional fact that falls to be determined by the Court in the event it is in dispute: Minister for Immigration & Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney JJ.
In cross-examination the applicant gave evidence that he was aware he was applying for a visa but he did not know what visa, only that it had work rights and was “without an expiry date”. Contrary to what is stated in the Applicant’s Second Affidavit, the applicant was therefore aware he was applying for a visa and he did consent to that visa application being lodged, and the applicant paid for it to be lodged. The Court accepts that the applicant may not have been aware of the content of the visa application, however, the Court is also of the view the applicant was uncaring as to the type of visa applied for or the content of the visa application, and that he was prepared to do anything he thought would obtain him a visa to stay lawfully in Australia, and he was therefore complicit in the lodgement of the visa application in those circumstances. The applicant was evasive when this was put to him in cross-examination: November 2016 Transcript, p 15.
Section 98 of the Migration Act reads:
98 Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Section 98 of the Migration Act dictates that it is the applicant who is responsible for the content of any visa application filed on their behalf, regardless of whether they are in fact aware of what is included in that application: SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [7]-[8] per Bennet J. In Gill at [48]-[49] per Kenny, Griffiths and Mortimer JJ, the Full Court of the Federal Court said that:
48 … a question which was of central significance in the particular circumstances here, namely whether the appellant’s “indifference” or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct. In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.
49 As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.
The applicant did not confirm that Andy was a registered migration agent, rather that he was someone who he met at a restaurant. He also suggested that Andy knew his uncle, though he was unable to contact Andy after 2010. The Protection Visa application form indicated that the applicant did not have assistance in completing his application form and he was fluent in Vietnamese and English. The applicant may have been indifferent to what was included, or what he was applying for, in the application, however on the balance of probabilities the Court is satisfied that the applicant was aware, or on notice, that Andy may have been acting unlawfully and dishonestly. The applicant himself said his family was concerned, however the Court is not satisfied the applicant contacted or attended the Department to make inquiries as he thought the visa application and Andy may have been fraudulent, rather he was content to remain unaware and uninformed. The applicant also admitted in cross-examination he provided some information to Andy and that he told Mr Rumley that he was unlawful when he approached his offices in 2015. The Court is satisfied, that the applicant was both complicit and uncaring in relation to the visa application process and content, and that taking into account what was stated in Gill, it is not the case that the Protection Visa application ought to be considered invalid on account of third party fraud. The Court adopts what was said in SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152; (2008) 172 FCR 170 at [94] per Graham J:
93 Even if there was such “fraud”, the appellant’s complicity in it would deny him the right to complain about it.
94 Finally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief…
In the above circumstances, ground 6 has no reasonable prospect of success.
Other matters
In the Proposed Judicial Review Application the applicant sought review of a decision made on 15 February 2011. On the materials before the Court, there was no decision made on 15 February 2011. The applicant sent a letter requesting Ministerial Intervention pursuant to s.417 of the Migration Act on 15 February 2011, and on 28 April 2011 was advised the Minister had personally considered the applicant’s case and decided it would not be in the public interest to intervene: CB 56-58. This Court does not have jurisdiction to consider an application made in relation to a procedural or substantive decision by the Minister personally: Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180; (2015) 90 ALJR 901; (2015) 334 ALR 653 at [69]-[70] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; Migration Act, ss.474(7) and 476(2)(d). Therefore, insofar as the Proposed Judicial Review Application seeks review of the Ministerial Intervention Decision, it has no prospect of success.
To the extent the applicant was seeking review of the Delegate’s Decision, this is not also a matter the Court has jurisdiction to consider: Migration Act, ss.474 and 476(2)(a), and is also, therefore, a matter with no prospect of success.
Conclusion - Merits
For the purposes of the extension of time application, the Court is of the view that none of the grounds of, or matters sought to be reviewed in, the Proposed Judicial Review Application have any, or any reasonable, prospect of success. In the circumstances, it would not be in the interests of the administration of justice that an extension of time be granted. The application for an extension of time must be dismissed.
Conclusion and orders
The Court has concluded that the grounds and the matters raised in the Proposed Judicial Review Application do not have any, or any reasonable, prospect of success, such as to warrant the exercise of the discretion to extend time under s.477(2) of the Migration Act. It follows that the applicant’s application pursuant to s.477(2) of the Migration Act for an extension of time in which to file the Proposed Judicial Review Application must be dismissed. In those circumstances, it is unnecessary to make an order dismissing the Proposed Judicial Review Application as it is incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83.
There will also be an order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 13 September 2019
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