GUZGUN v Minister for Immigration

[2016] FCCA 2585

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUZGUN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2585

Catchwords:
MIGRATION – Review of a decision of the Second Respondent – application for a Student (Temporary) (Class TU) Subclass 572 visa – no jurisdictional error – application lodged within time but payment failed – error by migration agent – whether fraud “on” the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.46(1)(ba), 368A

Migration Regulations 1994 (Cth), cl.572.211(3)(b), Item 1222(2)(iv) of Sch. 1, cl.572.211 of Sch.2, cl.572.211(3)(c), cl.572.211(3)(d), cl.572.211 of Sch.2

Cases cited:
Mohammed v Minister for Immigration and Border Protection [2015] FCA 184
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189

Applicant: TURAN GUZGUN

First  Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 828 of 2015

Judgment of: Judge McNab

Hearing date: 4 October 2016

Date of Last Submission: 4 October 2016

Delivered at: Melbourne

Delivered on: 4 October 2016

REPRESENTATION

The Applicant In Person

Counsel for the Respondents: Mr Tran

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 20 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 828 of 2015

TURAN GUZGUN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT DELIVERED

EX-TEMPORE ON 4 OCTOBER 2016

1. By an application filed on 20 April 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 16 March 2015 to affirm a decision of the delegate of the first respondent not to grant a Student (Temporary) (Class TU) Subclass 572 visa.

2. The applicant filed two affidavits in support of his application: one sworn on 20 April 2015 and another sworn 30 August 2016. I will return to those affidavits and the grounds of his application below. 

Background

1. The applicant was granted a Visitor Visa Subclass FA600 on 5 October 2013. That visa expired on 26 March 2014.[1] On 24 March 2014, a migration agent acting on behalf of the applicant lodged an application for a student visa.[2] That was lodged two days prior to the expiry of the student visa. The evidence shows that the payment for the student visa was attempted to be made via a MasterCard payment. That payment failed because the agent’s credit card was declined.

   [1] CB 51. 

   [2] CB 5.

2. A letter from the department to the applicant’s migration agent dated

   
   

   25 March 2014, advised that agent that the application for the student visa was invalid because it did not meet Item 1222(2)(iv) of Sch. 1 of the Migration Regulations 1994 (Cth) (“the regulations”) because the payment that was required in the sum of $535 was not made because the credit card was declined.[3] On 28 March 2014, an application with a money order was made by the applicant’s agent.[4]

   [3] CB 51.

   [4] CB 54-55.

3. By a letter sent by email to the applicant’s agent on 31 March 2014, the department advised that the application for the student visa had been refused because the applicant did not satisfy cl.572.211(3)(b) of the Regulations. The applicant was advised of the refusal by his agent and lodged an application for review with the Tribunal on 15 April 2014.

4. In the reasons for the decision of the delegate, the applicant was advised that he had applied for a student subclass 572 vocational education sector visa on 28 March 2014.[5] At the time of the lodgement, he did not hold a substantive visa, and the last substantive visa he held was a Visitor subclass FA 600 visa.  As set out above, that was a visa which expired on 26 March 2014.

   [5] CB 68-71.

5. It was found that as the applicant did not hold a tourist visa at the time of the application on 28 March 2014, he did not meet the requirements of cl.572.211(3)(b), and the application was refused. The matter came before the Migration Review Tribunal (as it then was) on

   
   

   16 March 2015. The Tribunal set out the grounds of the delegate’s decision and at [7] of the decision, set out the criterion required to be satisfied in cl.572.211 as follows:

   ·the last substantive visa held was of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); and

   ·the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or it that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.572.211(3)(c); and

   ·the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).

6. The Tribunal found at [8] that in this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a substantive visa of a type specified in the criteria. As such, the applicant must meet the requirements of subclause (3) as set out above.

7. The Tribunal went on to consider whether the visa that had been held by the applicant was of the specified type. The Tribunal found at

   
   

   [9] –[10]:

   9.  The evidence on the Department file shows that the applicant had every intention to apply within the appropriate time, including confirmations of enrolment created on 14/3/2014, an application and 956 form signed on 19 March 2014, and a stamp on the documents that showed that an application was lodged on 24 March 2014, a Monday.

   10     However, that application was not deemed to be valid, as the credit card used for the payment of the $535 fee was declined.  The applicant’s agent was notified of this failure by email on 25 March 2014, including the advice that the visa that the applicant currently held was to expire on 26 March 2015.  An application with a money order for the correct amount was made on 28 March 2014, a Friday, and after the applicant’s visitor visa had expired. The 28 March 2014 with the payment was the substantive application.

8. The Tribunal held that the applicant applied for a student visa on

   
   

   28 March 2014 after the expiry of his visitor visa. The visitor visa does not meet the requirements of clause 572.211(3)(b) and, on that basis, the Tribunal held that the applicant did not satisfy the requirements of cl.572.211 of Sch.2 to the Regulations.

9. The grounds of review may be summarised as follows:

   a)that the copy of the decision that was initially provided to the applicant was unintelligible and appeared to refer to the wrong party;  and

   b)that any filing of an application after 26 March 2014 was wholly and solely as a result of the negligence or inattention of the agent, and the evidence supports a finding that the applicant had always intended to make a valid application and therefore the Tribunal was in error in not taking into account the negligence of the agent.

10. In respect of the first ground, it is true that the decision that was initially provided to the applicant by the Tribunal was a combination of a number of decisions and was clearly sent in error. That error was explained to the applicant in a letter written to the applicant by the solicitor for the first respondent on 29 September 2015. In that letter, it was explained that the Migration Review Tribunal (as it was then) had sent to the applicant only the first two pages of its statement of reasons and the balance of the reasons that were provided plainly referred to a different case number, as there is a different case number on the bottom of the pages provided.

11. No doubt, this would have been confusing to the applicant, but it does not, in my view, provide a ground for the orders that he seeks. Pursuant to s.368A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal must notify the applicant of a decision on a review by giving the applicant a written statement that sets out the decision of the Tribunal and the reasons for the decision. However, subsection 368A(3) of the Act provides:

    A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

12. On that basis, the first ground does not succeed.

13. The second ground that I have sought to articulate, arises from the matters deposed to and referred to in the affidavit of the applicant sworn 30 August 2016 relating to the negligence of the migration agent. The Tribunal accepted, as I have set out, that the applicant had every intention to apply within the appropriate time. Further, no issue has been taken with any of the matters which are set out in the brief history which is attached to the affidavit. The applicant states that he got in touch with an Immigration agent who then referred him to another migration agent by the name of Idris Muslu. He states in the history:

    I paid my enrolment fee after Mr Idris completed the necessary procedures (10/03/2014). I then received my enrolment confirmation from Baxter Institute (14/03/2014) and proceeded to commence my language studies on 21/03/2014.  My migration agent advised me a month and a half later that my visa application had been refused but that I could appeal the decision to the MRT. I decided to apply to the MRT and an application to the MRT was made on 15/04/2014. During my MRT hearing on 02/03/2015, I found out that my visa refusal was due to the visa application having been made after the expiry of my tourist visa and that I was in Australia unlawfully at the time.

14. The materials attached to the affidavit show that he was enrolled in a course with Baxter Institute and had paid the sum of $3137 to that body for tuition fees on 10 March 2014. I accept the submission made by the first respondent that even if it is established that the failure to lodge the visa application within time was because of the negligence of the applicant’s migration agent, it is well-established that mere negligence, inadvertence or incompetence will not constitute fraud so as to warrant judicial intervention. The Minister referred to a number of authorities set out in [25] of its outline of written submissions. In that regard, I refer to a decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189. At [53] the High Court stated:

    There are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.

15. In SZFDE, the High Court held that the conduct of a rogue who wrongly claimed to be entitled to practice as a solicitor and migration agent advised the applicant family not to attend the Tribunal hearing.  The family followed the rogue’s advice and, in its reasons, the Tribunal relied on the family’s failure to appear as a ground for rejecting the applications for review.  At [51], the court held that:

    No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud on the Tribunal.

16. That circumstance is not the one present in this case and there is no basis for this court to find that there was a fraud on the Tribunal or a fraud which affected the delegate. 

17. Counsel for the respondent also referred me to a decision of Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 (“Mohammed”) in relation to an argument that might be made that:

    a)the true application was the application made on 24 March;

    b)the payment on 28 March was, in fact, a payment relating to a valid application made on 24 March; and

    c)the Tribunal should have found that the true application was made on 24 March, because the payment on 28 March was referable to the application lodged on 24 March.  

18. The decision of Mohammed at [26] confirms that it is a requirement of s.46(1)(ba) of the Act that, to be valid, any visa application charge to be paid when the application is made, had been paid. It follows that because the fee that was required to be paid on 24 March 2014 with the lodgement of the visa was not paid on that day, no valid application was made on 24 March 2014.

Conclusion

1. In conclusion, this is a difficult and sad case and I endorse the comments of the learned judge, Perry J, in Mohammed at [32] and [33] in relation to the unfortunate consequences of the application of time limits, in the way that they have been imposed in that case and in this case. I understand that there is a good reason within the Department for having time limits, but the consequences in this case, where there is no suggestion that the applicant was nothing other than a genuine applicant for a student visa, the consequences are difficult, if not harsh.

2. In these circumstances, I am required to dismiss the application filed on 20 April 2015.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 11 October 2016