El Achkar v Minister for Immigration

[2016] FCCA 760

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL ACHKAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 760

Catchwords:
MIGRATION – Application for extension of time – considerations for costs – deeming provisions as to service – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: LUAY ROUBLINE EL ACHKAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 410 of 2015

Judgment of: Judge McGuire

Hearing date: 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Ghabrial

Solicitors for the Applicant: Sabelberg Marcos Lawyers

Counsel for the First Respondent: Mr Young

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the application for leave to extend time to bring an application for judicial review be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 410 of 2015

LUAY ROUBLINE EL ACHKAR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed his application on 4 March 2015 seeking judicial review of the decision of the Migration Review Tribunal, MRT (“the Tribunal”) (as it then was) made December 2014 finding that it did not have jurisdiction to deal with the application pursuant to s347 of the Migration Act 1958 (Cth) (“the Act”) and rule 4.13 of the Migration Regulations 1994 (Cth) (“the Regulations”).

2. The applicant requires the leave of the Court to bring his application being on my calculations approximately 40 days out of time.

3. The application for an extension of time is opposed.

Background

1. The applicant applied for a Partner (Temporary) (Subclass 820) visa (“the visa”) on 9 December 2011.

2. On 29 October 2014 the Minister’s delegate refused the application on the basis that the applicant’s last held substantive visa had ceased more than 28 days prior to him making the application for the relevant visa and that there were no compelling reasons not to apply the requirements of schedule 3 to the Regulations and that the applicant did not therefore satisfy clause 820.211(d)(ii) of schedule 2 of those Regulations.

3. The applicant made the application to the Tribunal for a review of the delegate’s decision on 12 November 2014.  A fee is payable on the lodgement of such an application.  At CB140 there appears the relevant part of the application in respect of the fee.  It is clear that the applicant has provided his credit card details but left blank the box titled “amount”.

4. A “request for fee reduction” dated 19 November 2014 appears at CB145-147.

5. The Court book at 144 evidences a telephone call from the Tribunal to the applicant’s representative on the record.  That case note states:

   Spoke to rep (Latifah) about payment details being blank.  She advised she sent a Fee Reduction Request.  I advised wee [sic] have not received that document.  Rep advised she would [sic] the facts again.

6. By email letter of 24 November 2014 the Tribunal wrote to the applicant advising that the application for a fee reduction had been refused.  That letter was provided to the applicant’s representative, being Mr Patrick Francis Sabelberg of Sabelberg Morcos Lawyers, and by email.  The letter advised that the payment of the fee of $1604 was to be paid by 8 December 2014 and specifically:

   If you do not pay the fee, the member may decide you have not made a valid application.  If your application is invalid, the Tribunal cannot review the decision.

7. It is not disputed that no response was provided to that letter of 24 November 2014.

The Tribunal’s Decision

1. The Tribunal found it had no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation, namely, the payment of the requisite fees, noting that an application for reduction of the fee had been refused and advised by letter of 24 November 2014.

Application to this Court

1. On the applicant’s application for an extension of time I must consider the following:

   a)The length of the delay;

   b)the reasons for the delay in filing the application;

   c)mutual considerations of prejudice to the applicant and the first respondent in the granting of leave or otherwise; and

   d)the merits of the substantive application.[1]

   [1] Migration Act 1958 s477(1)(2)

2. The delay in this matter is not a long one and would not of itself argue against the granting of leave.

3. The applicant says simply that he was not advised of the Tribunal’s determination until the day prior to him lodging his application to this Court whereupon he acted prudently in making that application.  In summary, therefore, the applicant says that he did not receive:

   (a)the communication of 24 November 2014 advising the refusal of his application for a reduction of the filing fee; or

   (b) correspondence from the Tribunal of 22 December 2014 advising him of the hearing and determination of the Tribunal on 19 December 2014.

4. In general terms, the duration of the delay here and the applicant’s explanation for the delay, if accepted, might argue towards the granting of an extension of time to bring this application.

5. The applicant’s position in respect of the merits of the substantive application are more problematic for him.

6. Firstly, it seems that there was a period during which the applicant represented himself.  I am now told that he re-engaged Sabelberg Morcos Lawyers approximately two weeks ago although no Notice of Address for Service was prudently filed and I accept that even the courtesy of advising the solicitors on the record for the first respondent was not afforded them.

7. This matter was listed before me at 10.00 a.m. on 6 April 2016.  Due to a Court commitment, I did not call the matter on until approximately 10.15 a.m.  At that time the applicant was appearing in Court together with his interpreter. The applicant informed the Court that he had instructed solicitors. Mr Ghabrial of the firm Sabelberg Morcos Lawyers then entered the Court and apologised for his tardiness.  Mr Ghabrial informed the Court that he was not the solicitor in his firm having carriage of the matter but that the solicitor with carriage had been taken ill and was unable to attend Court.  Mr Ghabrial then made an oral application for an adjournment but, in doing so, volunteered to the Court that he was in a position to argue the substantive merits of his client’s application but (presumably) not the other issues as to length of the delay, reasons for the delay, and relative prejudice.  The application for the adjournment was opposed with the Court asked to note that the matter had been listed for many months and that the directions of the Registrar were made as long ago as June 2015.  The Counsel for the first respondent also noted that no Notice of Address for Service had been filed and no written submissions filed despite the solicitors having previously been on the record in this matter and now having received instructions some two weeks prior to the hearing.  The application for an adjournment was refused and is the subject of separate oral reasons.  Mr Ghabrial was, however, given the opportunity for the matter to be stood down for approximately 30 minutes to get necessary instructions from his client.

8. During his initial statements to the Court, Mr Ghabrial had indicated that his argument in respect of the substantive application was simply that his firm had not received from the Tribunal the emails of 24 November and 22 December 2014 referred to above.  That argument was continued in that the applicant, therefore, was not appraised of the refusal of his application for a reduction in the filing fee and of the determination of the Tribunal that it had no jurisdiction accordingly.  The thrust of the application was that the applicant had, in fact, provided his credit card details in the application to the Tribunal and evidenced at CB140 with an expectation that the fee would simply be taken from the credit card if his application for a reduction of fee was refused.

9. Mr Ghabrial further submitted that he could adduce evidence from an Information Technology expert to confirm that the emails had not been received from his firm.  This resulted in some discussion between bench and counsel as to a resultant issue of credit that may be resolved by an adjournment and the provision of an Affidavit from such an expert.

10. Mr Ghabrial asked for the matter to be further stood down to take instructions, in accordance with his suggestion to adduce such evidence from an expert.  The matter resumed with Mr Ghabrial retreating somewhat from his initial submission to the Court and advising that the emails had indeed been received by his firm, but “had gone directly to junk mail” and apparently were not read by the solicitor with carriage of the matter.

11. This, of course, leads to an entirely different consideration under the statute dealing with the deeming provisions as to presumption of service than would have been the case on Mr Ghabrial’s initial submission that his firm had simply not received the communications and could therefore rebut the presumption of service.

12. Counsel for the respondent simply relied upon the presumptions of the deeming provisions.

Consideration

1. At all relevant times Sabelberg Morcos Lawyers were the Notice of Address for Service for the applicant.

2. The Tribunal communicated and provided documents to the applicant through a Notice of Address for Service and specifically in accordance with section 494B(5)(b) and (d).

3. Section 492C(5)(b) of the Act provides the presumption of receipt of an email communication from the Tribunal to a Notice of Address for Service.

4. No issue is taken, pursuant to section 494B, that the firm of solicitors was not the applicant’s authorised recipient.

5. Section 347(1)(c) provides that an application for review of an MRT-reviewable decision must:

   …(c) be accompanied by the prescribed fee (if any).

   The fee was not paid.  The Tribunal, properly in my view, determined that the application was not valid and found that it did not have jurisdiction. Matters of procedural fairness do not, therefore, arise.

6. Put simply, the Tribunal is entitled to rely upon the deeming provisions and presumptions as to service and any onus would therefore sit with the applicant to rebut those presumptions.  A scenario, even if accepted, that technological circumstances within a solicitors’ office operate to defeat or rebut a statutory presumption is not a persuasive or strong argument.  I find, therefore, that the Tribunal was, and the first respondent here is, entitled to rely upon the presumption and it is not rebutted.

7. Consequently, I find no merit to the substantive application, and on balance of the considerations in respect of the granting of an extension of time, I find against the applicant.

8. The application will be dismissed with an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 May 2016