Hamad v Minister for Immigration
[2006] FMCA 1510
•27 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMAD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1510 |
| MIGRATION – Visa – Temporary Business Entry (Class UC) visa – application for review of MRT decision that application ineligible for review – prescribed fee was not paid within the prescribed period under s.347 of the Migration Act 1958 – time limit mandatory – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.347, 348 Migration Regulations 1994 (Cth), reg.4.10(1)(a) |
| Al Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 referred to. M172 v Minister for Immigration & Anor [2004] FMCA 23 followed. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to. Taylor & Ors v Minister for Immigration [2005] FMCA 281 followed SZBBL v Minister for Immigration [2004] FMCA 185 referred to. SZGQL v Minister for Immigration [2006] FMCA 446 referred to SZHMK v Minister for Immigration [2006] FMCA 1370 referred to. |
| First Applicant: | PIERRE ABOU HAMAD |
| Second Applicant: | SABINE ABOU HAMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3301 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 September 2006 |
| Date of Last Submission: | 27 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2006 |
REPRESENTATION
| The Applicants: | Appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow twelve (12) months to pay.
A Copy of this decision is to be forwarded to the Migration Agents Registration Authority.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3301 of 2005
| PIERRE ABOU HAMAD |
First Applicant
| SABINE ABOU HAMAD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal decided that the application by the two applicants for review of a decision of the delegate of the Minister was ineligible because the prescribed application fee was not paid to the Tribunal within the prescribed time under s.347 of the Migration Act.
There are two applicants, a brother and a sister. They are both adults. They applied to the Migration Review Tribunal on 23rd June 2005 for review of a decision of a delegate of the Minister to refuse a Temporary Business Entry (class UC) visa to them, that decision having been made on 30th May 2005.
The facts of the case are very simple. The applicants had engaged a migration agent to assist them, one Polina Domburga, who engaged in practice as a migration agent under the business name Ardem International. It is beyond issue that the application for review was lodged on 23rd June 2005. With the application was a cheque for the filing fee. However, this cheque was dishonoured on 7th July 2005. The Tribunal held that the last day within the prescribed period that the visa applicants could have made the application for review was
29th June 2005 and that the application fee was not paid by that date. The Tribunal wrote to the applicants on 14th July asking their comment about the eligibility of their application. The migration agent wrote an email to the Tribunal on 22nd July setting out an explanation. A copy of that email appears at page 157 of the Court Book. The explanation given, and I quote, is as follows:
We further note that on the date of lodgement of matter for Pierre Abou Hamad, No 5-03552, and Ms Sabine Abou Hamad, MRT have advised us that matter for Sabine Abou Hamad should be combined with the matter of Pierre Abou Hamad for the purposes of lodgement as two applicants were dependants included in the original DIMIA application for visa. At that time our courier was at the desk of MRT with two separate applications, one being for Pierre Abou Hamad and another for Sabine Abou Hamad.
Two separate cheques have been attached to two separate applications for the purpose of lodgement at the time. Upon the receipt of advice from MRT the two applications should be combined in one for the purpose of MRT lodgement we have advanced our courier by way of telephone to write in Sabine Abou Hamad name into Pierre Abou Hamad application to lodge one application for Pierre Abou Hamad and return the unlodged application for Sabine Abou Hamad with the cheque back to the office. We have, upon the receipt unlodged application for Sabine Abou Hamad back in our office, requested our bookkeeper to cancel the cheque for unlodged application of Sabine Abou Hamad and also to cancel the cheque for lodged application of -
(here the agent referred to another applicant)
by client instructions to do so. We understand that the mistake has happened and the cheque was also cancelled for lodged application of Pierre Abou Hamad which was never intended to be cancelled.
The Tribunal noted that response and summarised it but still took the view that the application for review was lodged within the prescribed period of making the review but was not accompanied by the prescribed fee. The Tribunal decided that the application for review was ineligible because the prescribed fee was not paid to the Tribunal within the prescribed time under s.347 of the Act.
The applicants seek a review of that decision by means of an application filed on 11th November 2005. They claim that the Tribunal erred in finding that the applicants' application for review is ineligible because the prescribed application fee was not paid to the Tribunal within the prescribed time under s.347 of the Act. They set out three grounds which I will quote in full:
(1)The applicants previously instructed Ms Polina Domburga of Ardem International Pty Ltd as their registered migration agent and specifically instructed her to pay the prescribed application fee for the review of the matter.
(2)Ardem International Pty Ltd was ordered into liquidation by the Supreme Court of New South Wales and an official liquidator was appointed.
(3)The applicants entrusted that the application fee would be paid by Ardem International Pty Ltd.
The applicants have provided a document prepared in the form of an affidavit but accepted as a submission by the first applicant Pierre Abou Hamad. They have also provided a statement from their younger sister who is aged 15 and a character reference for their father from his current employer. The first applicant, Mr Abou Hamad, also made oral submissions today. In his affidavit or submission he set out that he had been included in his parents' application as a dependant child notwithstanding the fact that he is an adult and said that he continued to be dependent on his parents for financial, emotional and psychological support. He then sets out a description of correspondence that took place between Ardem International and the Department of Immigration. That included being informed on 30th May 2005 that a decision had been made to refuse both applications. The applicant says that the decision letter was addressed to Ms Polina Domburga and neither he nor his sister have ever been notified. The applicant also signed an application for review nominating Ms Domburga as their authorised agent for the purpose of the review.
The applicant sets out his claim that it was not his cheque that was dishonoured but the agent's cheque that was dishonoured. Indeed he submits that this is a ground for distinguishing the situation in this case from authorities referred to by the Minister. He makes the submission that if the Tribunal had given him an opportunity to be contacted and to appear before it, he would have taken prompt steps to appear before it. He would have explained the matter to the Tribunal and would have argued that his father has assets in Lebanon and had been working extremely hard in Australia to meet his family's needs. He has provided evidence in the way of documentation to show that his father had already paid Ardem International $11,000.00 so another $1,400.00 application fee to the Migration Review Tribunal would not have been a burden at all. He says at [17]:
The Migration Review Tribunal did not notify me of the dishonoured cheque until October 2005. I was disadvantaged and badly hurt by Ardem International because they took our money and because of their bounced cheque the Tribunal ignored the contents of the letter in Court Book 157 and misunderstood the contents of the letter which was emailed to it. The Tribunal did not act as requested by letter Court Book 157 and that gave rise to a jurisdictional error.
The applicant has attached to his submission a number of items of correspondence from Ardem International, including a letter from
7th June to the applicants' father showing that his application for a subclass 457 visa had been approved. There are also annexed copies of various trust account statements and a fees agreement between the first applicant and Ardem International. There is also attached a letter dated 22nd August 2005 from Polina Domburga addressed to both applicants. The relevant parts of the letter say:
Due to a number of unfortunate events such as breakdown in partnership, cash flow problems and my poor health, my business Ardem International Pty Ltd and Ardem Group Pty Ltd have ceased trading. I have been very ill and hospitalised over the last week which stops me from being able to provide any further services to you in relation to your matter. Because of the above circumstances, I had to make all my staff redundant from last week and close the business. I have informed the required licensing authorities and Australian Securities and Investment Commission that the business has stopped trading and that I have stopped trading as a migration agent. I understand that you have relied on my ability to represent you in your migration matter. However, in light of the above I cannot continue any work at all. I recommend that in order to avoid any further detriment that may have been caused to you by this you take the following course of actions:
(1)Decide whether to appoint another migration agent or solicitor.
(2)Contact Migration Review Tribunal and advise them of your circumstances and see if there are any further documents or information that you are required to provide to them in relation to your matter.
(3)Contact Migration Agents Registration Authority should you wish to complain. Please note their details below: MARA, Post Office Box Q151, QVB NSW 1230, Sydney.
No doubt this letter came as a heavy blow to the applicants.
The applicants have produced, as I said, a submission from their younger sister who is 15 years of age. She sets out how she lived in Lebanon for 13 years before coming to Australia, how she came to Australia with her family leaving behind family friends in their beloved country. She sets out how she and her family have worked hard in Australia and have blended in the Australian community. She has clearly done well at school and describes the shattering effect of the rejection of the visa application for her elder brother and sister.
She points out how she and her family are a close family and believe that their family should be together. She speaks very highly of her brother, who is clearly a very supportive person to her, and she expresses serious concern about the strain on her father as a result of this unfortunate situation that has befallen her family. She expresses the fear that if her elder brother and sister are refused a visa in Australia, that the whole family would have to pack up and leave Australia. It is a very moving statement from the young lady and expresses very clearly her strong family feelings and her support for her elder brother and sister.
I also have received a testimonial letter from the applicants' father's employer setting out the high regard in which the applicants' father is held in his employment. I have no doubt that the applicants' father is indeed a man of good character and in fairness I would say that there has never been any suggestion by the Minister or her legal advisers that either of the applicants, or the applicants' father for that matter, are other than people of good character. What has to be decided, however, is not the humanitarian matter which is quite clearly evident in these proceedings, but whether at law the Migration Review Tribunal has fallen into jurisdictional error.
The Tribunal takes the view that s.347 of the Migration Act imposes a mandatory time limit and that by the cheque not being met upon presentation, whilst the application was lodged within time; the application was not accompanied by the prescribed payment within that period of time. The applicants say that this is something that is beyond their control. They employed a migration agent in good faith.
They nominated the migration agent as their representative to receive correspondence on their behalf. Copies of those forms of appointment appear at pages 142 and 143 of the Court Book. A further nomination of Ms Domburga appears in the application for review itself in section E. Quite clearly then the applicants have appointed the agent as their agent to deal with the Tribunal in all matters relating to their application.
The argument is raised that this case differs from the authority referred to by the solicitors for the Minister, which is Taylor & Ors v Minister for Immigration [2005] FMCA 281, in that it was not the applicants' cheque that was dishonoured but the migration agent's cheque.
The applicants say, and there appears to be no issue, that they paid the appropriate money to the migration agent and that it was a cheque from the migration agent that was dishonoured. In the explanation in the email at page 157 of the Court Book the migration agent makes clear that it was an error by the bookkeeper.
The first point that needs to be made is that I am satisfied that the time limit in s.347 of the Migration Act is mandatory. I am referred to the decision of Taylor & Ors v Minister for Immigration (supra) which is a decision of her Honour Hartnett FM where she deals with a similar situation, albeit in that case it was the applicant's own cheque that was dishonoured rather than the cheque of the migration agent. Her Honour at [4] of the decision sets out the time for lodgement of applications as set out in reg.4.10 (1) (a) of the Migration Regulations 1994. Her Honour sets out the provisions of s.347(1)(a) which says that:
An application for review of an MRT-reviewable decision must:
(a)be made in the approved form; and ...
(c)applications must be accompanied by the prescribed fee.
Her Honour refers to sub-s.348(1) which says:
(1)Subject to sub-s. (2), if an application is properly made under s.347 for review of an MRT-reviewable decision, the Tribunal must review the decision.
Her Honour considered whether in the event of an application not being accompanied by the prescribed fee the Tribunal has jurisdiction to review the application. Her Honour held at 11:
The Tribunal only has jurisdiction to review an application that is properly made under s.347. Pursuant to s.347 (1) (c), an application for review "must be accompanied by the prescribed fee (if any)".
Her Honour went on to reject the applicant's submissions that s.347 (1) (c) was not a mandatory requirement and her Honour at [13] reviewed relevant decisions. Her Honour went on to say at [15]:
Having regard to the language of the relevant provisions and the scope and object of the Act, I find that it is the purpose of the legislation that a breach of s.347 (1) (c) means that the application was not properly made, with the consequence that the application was not valid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390). These legislative provisions are highly prescriptive in nature, albeit that in this instance the application of such mandatory provisions appears to operate harshly as against the applicants. The applicants accepted that ss.347 (1) (a) and (b) and 347(2) all imposed mandatory requirements. I accept the submissions made by the respondent that there is no reason at all that the legislature would have intended that a failure to comply with 1(c) would not have meant that an application was not "properly made". The words are clear and unambiguous. They impose, as said by the respondent, a requirement which is an essential preliminary to the Tribunal's jurisdiction being engaged.
Her Honour went on to find at [16]:
The applicants did not tender the prescribed fee at the time of application or at any time before the end of the period within which the application must be given to the Tribunal or at any time before the Tribunal made its decision and nor was any waiver of the prescribed fee sought.
In my view, whilst the decision in Taylor is not binding upon me, it is on point and I am satisfied that it is not wrongly decided. Accordingly, I am satisfied that the decision in Taylor is a persuasive decision and the rule of judicial comity would prescribe that I should therefore follow it. In my view, it is appropriate that I should follow that decision.
The applicants, however, submit that notwithstanding the finding in Taylor, their case can be distinguished on the facts because it was not their cheque that was dishonoured but that of the agent. The Court has had opportunity on a number of occasions to consider a situation where through the default of an agent an otherwise innocent and unsuspecting applicant has been deprived of the opportunity of a hearing.
The matter was considered by Driver FM in SZHMK v Minister for Immigration [2006] FMCA 1370 and in that decision his Honour held at [10]:
Both the Federal Magistrates Court and the Federal Court have held that the position set out by the former Chief Federal Magistrate in M172, is correct law. In M172, the CFM found that there was no jurisdictional error by reason of a migration agent failing to tell an applicant about the hearing and responding to the RRT that the applicant would not attend the hearing.
In SZGQL v Minister for Immigration [2006] FMCA 446 I too considered the situation in M172 v Minister for Immigration & Anor [2004] FMCA 23 as well as the decision of Driver FM in SZBBL v Minister for Immigration [2004] FMCA 185. In SZBBL (supra) at [13] his Honour said:
The issue of whether proceedings in a Migration Tribunal are rendered procedurally unfair by reason of some fault on the part of a migration agent which prevents an applicant enjoying the full benefit of a hearing before the Tribunal was considered by the Chief Federal Magistrate in the case of M172 v Minister for Immigration & Anor. The Chief Federal Magistrate considered the authorities comprehensively and concluded firmly that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review Tribunal. In my view, that issue has now clearly and conclusively been dealt with.
I arrived at a similar view in SZGQL v Minister for Immigration (supra) and referred also to the English decision of Al Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 where Lord Bridge stated at 898:
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his own behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him.
Regrettably, the default by the migration agent, and it appears to me to be a major default, has placed both of these applicants in a most unfortunate situation. The cancelling of the cheque which would have covered the application fee led to the situation that the cheque was not met on presentation and the prescribed fee was not paid within time. There was therefore a breach of s.347 (1) (c) of the Migration Act.
The applicants trusted the migration agent and they appear to have been badly let down. I am informed that they have complained to the Migration Agents Registration Authority, as well they might. In my view, it is a matter that warrants investment by the authority if that has not already been done, and I propose to direct that a copy of this decision be forwarded to the Migration Agents Registration Authority. It is all too often that this Court sees examples of people who have been deprived the opportunity of attending a hearing by means of a default by a migration agent. It is a situation that is a cause of great concern to the Court and I am certainly aware that the Minister has on occasions made complaints to the authority about the behaviour or the competence of migration agents. This appears to be such a case.
The decision is an unfortunate one for the applicants because their application must be dismissed. The applicants of course have a right to appeal against this decision should they wish to do so. They would be well advised to obtain legal advice. The applicants, however, in my view have established strong compassionate circumstances and it may well be appropriate for them at the conclusion of all legal proceedings which they wish to take, if they are unable to gain relief that way that they might consider an application to the Minister for the exercise of her discretion under the Migration Act. That is not a matter that the Court can direct or order. It is a discretion that is solely the province of the Minister for Immigration. But in the event that the applicants decide to complete their legal proceedings, they may well wish to consider such an approach. Unfortunately for the applicants, I have no discretion to rule other than that the time limit is mandatory and the payment was not made within the time. There is no jurisdictional error. The application must be dismissed with costs.
There is an application for costs on behalf of the respondent Minister in the sum of $5,000.00. This is a case where, whilst there are strong humanitarian considerations, costs should follow the event.
However, it has been put to me by the first applicant that he and his family have gone through a considerable amount of expense and that the amount paid to the migration agent for relatively little result has been an impost that has cost them dearly. I accept that a further $5,000.00 at this stage would create a great deal of difficulty and distress for the family and it would be most unfortunate for this family to suffer such an immediate financial impost. Whilst I am of the view that a costs order should be made, in my view the circumstances are such that I should allow a considerably greater period of time to pay than I normally would and I propose to allow 12 months to pay.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 October 2006
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