FAHME v Minister for Immigration

[2016] FCCA 3023

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAHME v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3023

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) that it did not have jurisdiction to review application lodged by the applicant for review of a delegate’s decision not to grant the applicant a Combined Partner (Class UK-820/BS-801) visa – whether Tribunal erred in holding it did not have jurisdiction - whether matters applicant alleged against migration agent raises arguable case the Tribunal did have jurisdiction to determine application for review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66(1), 338, 338(1), 338(2), 347(1)(b), 348(1),

425, 425(1), 494B, 494B(5), 494C(5)

Migration Regulations 1994 (Cth), regs.2.16(3), 4.10

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

SZFDE v Minister for Immigration (2007) 232 CLR 189

Applicant: ADNAN FAHME

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE REVIEW TRIBUNAL

File Number: SYG 753 of 2016

Judgment of: Judge Manousaridis

Hearing date: 19 October 2016

Delivered at: Sydney

Delivered on: 25 November 2016

REPRESENTATION

Applicant in person

Solicitors for the Respondents:

Ms A Lucchese of

Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 753 of 2016

ADNAN FAHME

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for judicial review of a decision made by the second respondent (Tribunal) that it does not have jurisdiction to determine an application for review which the applicant lodged with the Tribunal.

Background

1. The application for review to the Tribunal related to a decision made by a delegate of the first respondent (Minister) on 18 December 2015 not to grant the applicant a Combined Partner (Class UK-820/BS-801) visa (Partner visa).

2. On 8 February 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The application for review was lodged by a migration agent (Migration Agent) on behalf of the applicant.

3. By letter attached to an email sent on 18 February 2016 to the Migration Agent,[1] the Tribunal informed the applicant the application he lodged with the Tribunal was not a valid application because it was not lodged within the relevant time limit. The letter stated the time limit was 21 days from the day on which the applicant was taken to have been notified of the primary decision. The letter further stated that the delegate’s decision was emailed to the applicant’s authorised recipient on 18 December 2015, which meant that the 21 day period for the making of an application for review to the Tribunal expired on 8 January 2016. The letter invited the applicant to make any comments he wished to make in writing.

   [1] CB207

4. The Tribunal received a letter dated 24 February 2016 apparently signed by the applicant.[2] The letter acknowledged the applicant lodged his application out of time. The letter further stated that when the applicant was notified of the delegate’s decision, he did not wish to proceed with an application for review because he intended to make an offshore application. The applicant changed his mind, however, because his wife’s health deteriorated.

   [2] CB212

5. By email sent on 7 March 2016 to the Migration Agent, the Tribunal notified the applicant of its decision that the Tribunal did not have jurisdiction to review the applicant’s application for review.[3]

   [3] CB213-217

6. Sometime after 11 March 2016 the applicant sent a letter to the Tribunal.[4] Given the matters the applicant, who is not legally represented, raised at the hearing before me, it will be necessary to set out in some detail the contents of that letter.

   [4] CB220-222

7. In his letter, the applicant stated as follows:

   a)The applicant was not informed of the delegate’s decision until 28 January 2016. On that day the applicant met the Migration Agent who told the applicant he had no option but to leave Australia because the applicant had “no time for an appeal”, and the Migration Agent “made me sign that I understood the above”.

   b)The applicant then consulted a friend who looked through the applicant’s file and explained to the applicant “everything the lawyer did not”.

   c)All “required documents that the department of immigration and border protection had asked by me to supply was not supplied by me this is not true, this was due to [the Migration Agent] who didn’t ask me for anything or informed me to supply anything”.

   d)The applicant put together documents for the purpose of applying to the Tribunal and the applicant lodged an application with the Tribunal.

   e)The application for review “was late due to his [i.e., the Migration Agent’s] poor effort”.

8. The applicant’s letter referred to other matters, including the health of his wife, and the nature of his relationship with his wife. The letter also referred to the Migration Agent having replied to an email from the Department of Immigration and Border Protection (Department), but the Migration Agent “didn’t tell me that he was contact and replied on my behalf, I found out this through the tribunal when I was sent the decision”.

9. At the hearing before me, the applicant said that it is his signature that appears on the letter dated 24 February 2016, but he claimed that the Migration Agent had altered the document which the applicant had signed. The applicant also referred to two documents in the Court Book. Both are letters purportedly written by the applicant’s wife. One is a letter addressed to “To whom it may concern” dated 1 February 2016 which the applicant told me was authentic.[5] It makes statements about the circumstances in which the applicant’s wife met the applicant, and what the applicant means to her. The second document is a letter dated 8 February 2016 purportedly signed by the applicant’s wife to the Tribunal.[6] The applicant claims this letter is fake, and the signature that appears on the letter is a “fake signature”. That letter purports to describe the circumstances in which the applicant and his wife met, and what the applicant means to his wife. The letter also stated that, after the applicant received the delegate’s decision, the applicant and his wife decided the applicant should leave Australia and make a new partner visa application from Lebanon; but they changed their mind due to the applicant’s wife’s health getting worse.

   [5] CB259

   [6] CB260-1

Issues for determination

1. The issue that is before me is whether the Tribunal’s decision should be set aside for any one or more of the grounds stated in the application. At the hearing, however, the applicant claimed that it was not his fault that he did not apply to the Tribunal within the required time limit. He made statements to the effect set out in the letter the Tribunal received after 11 March 2016 to which he referred. Those statements suggest negligence and dishonesty by the Migration Agent.

2. Although the matters the applicant stated to me at the hearing do not reflect the grounds contained in the application, I decided that I would consider those statements on the assumption that they are true; and I would do so for the purpose of determining whether, on that assumption, they raise any arguable case against the Tribunal’s conclusion that the Tribunal does not have jurisdiction to review the delegate’s decision refusing to grant the applicant a Partner visa. I indicated to the applicant and to Ms Lucchese, who appeared on behalf of the Minister, that if I were to conclude that those matters raise no arguable case, I would dismiss the application. If, on the other hand, I were to conclude they do raise an arguable case, I would in my judgment identify the issue, and set down the application for further hearing. I did not mention that this was subject to my first considering the grounds of application and whether the Tribunal did or did not have jurisdiction to review the delegate’s decision. It is to these matters I turn.

Grounds of application

1. The application contains the following grounds of review:

   1.The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.

   2.The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.

   3.The decision was affected by jurisdictional error in that it was unreasonable.

2. Each of these grounds was interpreted to the applicant, and he was invited to make submissions. The applicant made no submissions in relation to the first and third grounds. These are not particularised and, as stated, therefore, raise no arguable case of jurisdictional error.

3. As to the second ground, the applicant stated the Tribunal provided to the Migration Agent a bank cheque representing the refund of the fee the applicant paid when lodging his application for review in circumstances where the applicant had requested nothing be sent or provided to the Migration Agent in relation to his application. That statement does not respond to ground 2, and otherwise does not raise any case that the Tribunal erred in concluding it does not have jurisdiction. Ground 2, as stated, raises no arguable case of jurisdictional error.

4. The grounds stated in the application appear to be premised on the view that the Tribunal’s decision constitutes an exercise of discretionary power. That premise is incorrect. The Tribunal’s decision relates to its jurisdiction. Whether or not the Tribunal had jurisdiction is a jurisdictional fact which it is within the power of this Court to determine.

Does the Tribunal have jurisdiction to review delegate’s decision?

1. The Tribunal has jurisdiction to review a “Part 5-reviewable decision”. That expression is defined in s.338 of the Migration Act 1958 (Cth) (Act). For present purposes, it is sufficient to note that, under s.338(1) of the Act, the expression “Part 5-reviewable decision” includes a decision to refuse to grant a non-citizen a visa if, among other things, the visa could be granted while the non-citizen is in the migration zone, and the non-citizen made the application for the visa while in the migration zone. There is no issue that the delegate’s decision in this case not to grant the applicant a Partner visa was a Part 5-reviewable decision.

2. The Tribunal’s jurisdiction to review a Part 5-reviewable decision is subject to conditions. An essential condition is that prescribed by s.348(1) of the Act, which provides that an application for review must be “properly made under section 347” of the Act. Relevant to the case before me is s.347(1)(b) of the Act which provides that an application for review of a Part 5-reviewable decision must be given to the Tribunal within the prescribed period for decisions covered by, among other things, s.338(2) of the Act, not being later than 28 days after the notification of the decision. The period for making an application for review of a Part 5-reviewable decision covered by s.338(2) of the Act has been prescribed by reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations). Under that regulation, the prescribed period “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.

3. Subsection 66(1) of the Act provides that, when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. The manner of notification for the purposes of s.66(1) of the Act has been prescribed by reg.2.16(3) of the Regulations. It provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. Relevant to the case before me is the method specified by s.494B(5). That permits the Minister to transmit the document by, among other things, email to the last email address provided to the Minister for the purposes of receiving documents. Finally, it is necessary to refer to s.494C(5) of the Act which specifies when a person is taken to have received a document that the Minister has given by the method specified in s.494B(5); and that is at the end of the day on which the document is transmitted.

4. Part L of the applicant’s application for the Partner visa is titled “Options for receiving written communications”.[7]  Immediately under those words there is printed “All written communications about this application should be sent to”, and then there are set out three boxes, one of which must be ticked. A tick appears in the box that appears after the words “Migration agent”, and next to the ticked box are the words “You should complete form 956A Appointment or withdrawal of an authorised recipient”. There is in evidence a form 956 apparently prepared by the Migration Agent.[8] In that form, the Migration Agent states he agrees that the Department may communicate with the agent by email, and the migration agent provides his email address. There is another aspect of this document which I address later in these reasons.

   [7] CB16

   [8] CB32-34

5. The delegate sent his decision by email to the agent’s email address specified in the form 956 on 18 December 2015.[9] It follows that the applicant is taken to have received notice of the delegate’s decision not to grant the applicant the Partner visa on 18 December 2015. That meant the applicant was required to lodge an application for review at the end of 21 days after 18 December 2015. That day was 8 January 2016. The applicant did not file his application by that day. Therefore, the Tribunal did not have jurisdiction to review the applicant’s case.

   [9] CB100

6. The applicant requested that I provide the applicant an opportunity for him to present his case to the Tribunal. This Court does not have any jurisdiction to do that which the applicant requests. The Act does not confer on the Tribunal or on any person or on any Court the power to extend the 21 day period that is prescribed for the making of an application for review in relation to the class of decisions of which the delegate’s decision not to grant the applicant a Partner visa is a member.

Matters raised at the hearing

1. At their highest, the matters raised by the applicant at the hearing (Alleged Matters) suggest the Migration Agent exercised deception towards the applicant and the Tribunal. That deception, however, could only reasonably be interpreted as being directed to what the Migration Agent said and did after the Migration Agent received notice of the delegate’s decision. The matters also suggest that the Migration Agent failed to notify the applicant of the decision before the 21 day period expired, and that his failure was at the very least due to negligence.

2. That an agent of a person who applies to the Tribunal has acted fraudulently may have a consequence on the validity of the exercise by the Tribunal of its powers under the Act. A well-known example is the fraud the High Court considered in SZFDE v Minister for Immigration.[10] In that case, an agent acted fraudulently in advising the applicants not to attend before the Refugee Review Tribunal (RRT) in response to an invitation that the Tribunal made under s.425(1) of the Act. The High Court held that the agent’s fraudulent activity stultified s.425 of the Act, a provision which was of central importance to the provision of natural justice in the conduct of applications for review by the RRT. Because of the fraud, the RRT “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”, and that state of affairs merited the description of “the practice of fraud “on” the Tribunal”.[11]

   [10] (2007) 232 CLR 189

   [11] (2007) 232 CLR 189 at [51]

3. There is nothing in the Alleged Matters that could reasonably suggest that the deception they arguably disclose prevented or stultified the Tribunal from exercising its jurisdiction. The only deception that could reasonably be inferred to arise from the Alleged Matters related to the Migration Agent’s dealings with the applicant and the Tribunal after 6 January 2016; that is, after the day on which the 21 day time limit had expired at the end of 8 January 2016. It is, of course, possible, that the Migration Agent fraudulently withheld from the applicant the fact that the delegate had decided not to grant the Partner visa. There is nothing in the Alleged Matters, however, that could reasonably suggest any such fraud. Even if, however, it could be said there is an arguable case for concluding that the Migration Agent engaged in fraudulent conduct which prevented the applicant from applying to the Tribunal within the twenty one day prescribed period, there are no grounds for contending that this could have affected the 21 day prescribed period within which the applicant was required to apply to the Tribunal. There is no reasonable ground for contenting that the provisions dealing with the time by which applications for the review of a Part 5-reviewable decision are subject to extension for any reasons, including any deception that has been practised on a person whose application for the grant of a visa has been refused.

4. It is also possible that fraud committed by an agent in connection with a person’s application to the Minister for a visa may have consequences in relation to the validity of any decision the Minister himself or his delegate may make in relation to such application for a visa. That question was considered by the Full Federal Court in the rather unusual circumstances in Singh v Minister for Immigration and Border Protection.[12] Whatever effect an applicant’s agent’s fraud may have on the validity of a decision of the Minister or a delegate, there are no reasonable grounds for contending that that question arises out of the Alleged Matters. Although the applicant alleges the Migration Agent failed to provide information to the delegate in response to requests made by the delegate, that circumstance, considered in the context of the Alleged Matters, cannot reasonably suggest that the Migration Agent failed to provide material to the delegate as a result of any fraud.

   [12] [2016] FCAFC 141

Other matters

1. There is another matter which has attracted my attention, being a matter that was not raised by the applicant or by the Minister; and that relates to the form 956 to which I have already referred.[13] Under the heading “Declaration by client” there are two boxes to be ticked. One is to be ticked to signify that the person signing the form is appointing the agent identified in Part A; the other is to be ticked to signify that the person named in Part B no longer acts as the agent.

   [13] CB32-34

2. The form the applicant signed contained a tick in the second of the two boxes. Part B of the form, however, is blank; and Part A of the form contains the name of the Migration Agent. It is clear that the incorrect box was ticked. In my opinion, however, this does not affect the form 956 the applicant signed as being a form by which the applicant validly appointed the Migration Agent as the applicant’s agent for the purposes of his application for the Visa.

Conclusion and disposition

1. In my opinion, the Tribunal made no jurisdictional error in concluding it did not have jurisdiction to consider the applicant’s application for review. Further, the matters the applicant alleges against his migration agent, assuming them to be true, do not give rise to any arguable case that the Tribunal did have jurisdiction to determine the applicant’s application for a visa.

2. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 25 November 2016