Hassan v MIBP
[2015] FCCA 894
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASSAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 894 |
| Catchwords: MIGRATION – Application to Migration Review Tribunal for review of decision of delegate of Minister for Immigration and Border Protection refusing to grant a visa – whether application for grant of the visa had been valid – whether form of application had been "completed" – "substantial compliance" with requirement that approved form of application be completed – no matters of principle. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25C Migration Act 1958 (Cth), ss.347, 348 |
| Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566; 69 ALD 634 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; (2000) 169 ALR 400; (2000) 74 ALJR 490; (2000) 60 ALD 342; (2000) 106 LGERA 419; (2000) 21 Leg Rep 19 SZQYM v Minister for Immigration and Citizenship [2014] FCA 427 |
| First Applicant: | SHARMARKE DAHIR HASSAN |
| Second Applicant: | NURA IBRAHIM SHIIL |
| Third Applicant: | SHAHRAZAD SHARMARKE HASSAN |
| Fourth Applicant: | SHEHNAZ SHARMARKE HASSAN |
| Fifth Applicant: | SHAKEEL SHARMARKE HASSAN |
| Sixth Applicant: | SHAHINDA SHARMARKE HASSAN |
| Seventh Applicant: | SHARIF HASSAN |
| Eighth Applicant: | MOUKTAR HASSAN DAHER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 354 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 27 January 2015 |
| Date of Last Submission: | 27 January 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Hurley |
| Solicitors for the Applicant: | Erskine Rodan and Associates |
| Counsel for the First Respondent: | Mr J.M. Forsaith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT DECLARES THAT:
The Review Application lodged with the Tribunal on 29 January 2014 is a valid application for review of the decision of the delegate referred to therein.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 354 of 2014
| SHARMARKE DAHIR HASSAN |
First Applicant
NURA IBRAHIM SHIIL
Second Applicant
SHAHRAZAD SHARMARKE HASSAN
Third Applicant
SHEHNAZ SHARMARKE HASSAN
Fourth Applicant
SHAKEEL SHARMARKE HASSAN
Fifth Applicant
SHAHINDA SHARMARKE HASSAN
Sixth Applicant
SHARIF HASSAN
Seventh Applicant
MOUKTAR HASSAN DAHER
Eighth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application, for a declaration that an application for review to the Migration Review Tribunal (“the Tribunal”) lodged with the Tribunal on 29 January 2014 is a valid application for review of the decision of the delegate referred to in Part C of that application form.
An application for review of that type of decision is governed by ss.347 and 348 of the Migration Act 1958 (Cth) (“the Act”). Section 347 lists a number of requirements for an application for review by the Tribunal. In this case, those requirements are relevantly:
a)the review application must be made in the approved form (s.347(1)(a));
b)the application must be made within the prescribed time (ss.347(1)(b);(c));
c)the application must be accompanied by the prescribed fee (s.347(1)(c));
d)the application must be made by the person who is the subject of the decision (with respect to this particular visa category, as opposed to other visa categories) (s.347(2));
e)the applicant must be physically present in the migration zone (s.347(3)).
In this case, there is no question that the approved form (as printed by the Department) was utilised. Nor is there any question as to the form being lodged within the prescribed period, the fee being paid and the non-citizen being present in the migration zone.
The issue that arises is the question of whether or not the non-citizen visa applicant (in this case being a man with a wife and a number of children, all of whom were jointly applying for the visa) was the one who made the application and, if so, whether or not the way in which the form has been completed is sufficient to result in the application being made in the approved form under s.347(1)(a).
The imperatives of s.347 are clear from the terms of s.348, which states as follows.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
…
(1)Subject to subsection (2), if an application is properly made under section 347 for review of an MRT‑reviewable decision, the Tribunal must review the decision.
The facts that arose in this case are most unusual. The Applicant, who had previously had different advisers, attended upon a solicitor in Melbourne after the decision by the delegate. He obtained some advice. However, the fees involved in making an application to the Migration Review Tribunal are not small. The filing fee alone is over $1,600.00. The Applicant then attended again upon his solicitor. Discussions were had. Advice was given with respect to the prospect of obtaining a filing fee waiver. A draft application form was completed. At this point, time was fast running out, and the solicitor advised the Applicant that he should also have his wife sign the form.
The following week the client returned, providing the majority of the filing fee and produced the balance of it the following day. He also returned the form the following day signed by his wife. The solicitor then, although intending to have the form typed, lodged the form as completed, as time was soon to expire.
The application, when lodged, was under the cover of a letter from the solicitor on 29 January 2014. The application was hand-delivered to ensure that it was lodged in time, no doubt the solicitor having in mind the cases concerning post office boxes and the difficulties that could ensue in that regard.
Question 3 of the form inquires as to the details of the person applying for review. The sponsor of this family for their visa application, as it transpires, is named as the Applicant in Question 3 of the form. The address given at item 5 for contact details appears to be that of the sponsor, although there’s no specific evidence of this before me, save that it is not the address of the visa applicants nor the solicitor.
The person who has to apply for this review is the visa applicant, who can do so on behalf of the balance of his family. The solicitor, quite honourably, sets out in his affidavit that he cannot explain what occurred or how the error occurred. He says that he was aware that the visa applicants are the persons competent to seek review but not the sponsors, when the visa applicants are on shore.
Time expired prior to the Tribunal writing to inquire as to the error in the form. The Tribunal wrote to the solicitor on 4 February 2014. On 6 February 2014, the Tribunal received a response advising that an error had been made in completing that relevant part of the form and pointing out that despite the error in that part of the form, significantly, the declaration to be signed by each person or organisation applying for review, which appears at the end of the form, had been signed by the visa applicant, clearly giving his given names and family name.
The solicitor then duly followed up on 17 February 2014 with some amended pages to correct the errors that had been made on the face of the original form. The Tribunal then took the view that the person applying for review was not the visa applicant and, therefore, there was no valid application.
In an affidavit before the Court, upon which he was not cross-examined, the solicitor set out that he had received instructions from the visa applicant. The solicitor gave evidence that he completed the form and acted upon the instructions of the visa applicant, obtained the fee from the visa applicant and duly lodged the documents with the Tribunal. It seems to me that there is no question, as a matter of fact, that the solicitor was acting on behalf of the visa applicant and that the form was lodged by or on behalf of the visa applicant even though, on Question 3 of the form, a different person’s name appears in that particular box.
The question of jurisdictional facts are a matter for the court to determine: see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; (2000) 169 ALR 400; (2000) 74 ALJR 490; (2000) 60 ALD 342; (2000) 106 LGERA 419; (2000) 21 Leg Rep 19 at paragraphs 22 and 34 and SZQYM v Minister for Immigration and Citizenship [2014] FCA 427 at paras.11 to 14. In this case I find that the jurisdictional fact as to the identity of the visa applicant is, as a matter of fact, the visa applicant himself, who was the person who signed the form and had instructed the solicitor.
The more significant question in this case is whether or not the form not correctly completed satisfies s.348 as being an application “properly” made or not or whether, alternatively, s.25C of the Acts Interpretation Act 1901, which provides for substantial compliance, is sufficient to enable this particular application form completed in the way that it was to satisfy the section.
There seems to me to be no question that the time limit is not a matter for substantial compliance. It’s only capable of compliance or non-compliance. Similarly, payment is in the same category. Cases have considered whether or not the correct form is a matter of substantial compliance, concluding that the correct form or prescribed form must, in fact, be used: see, for example, the discussions in para.34 of SZJDSv Minister for Immigration and Citizenship [2012] FCAFC 27.
More difficult questions arise with respect to the actual completion of the form. On the cover of the form the instructions include the comment:
You should complete all the details requested in this form.
There is, it seems to me, no real doubt about what the application was about, in that the Department had provided the decision with a notification letter advising the visa applicants that each of them could apply for a review. The decision itself is quite clearly identified in the body of the form at Part C with the visa class and subclass, the date of the decision, the date of the letter from the Department and the Department’s file number.
The parts of the form that are not correctly completed occur at Part A, the details of the person applying for review. The sponsor’s name and details are given at Question 3, and Question 5 contains an address which it is assumed is the sponsor’s. Question 6 appears to me, on the face of the form, to indicate that the person completing it intended to indicate that there are other persons applying for review. The form then says to go on to the next question and list them, but Question 7 is not completed.
However, all of the visa applicants’ details are set out at Question 19, following the primary applicant’s details at Question 17. Question 19 is not strictly filled in, in the sense that the title “Mr”, “Ms” or alternatives is not applied to a number of the children, nor is the column that sets out their relationship to ‘Visa Applicant 1’ or their gender completed. The details of the visa applicant at Question 17 contain the relevant details that are sought in Question 3, such as the passport number, nationality, date of birth, gender and so forth.
In cases in the Refugee Review arena, such as Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566; 69 ALD 634, a very thin and bare articulation of some form of ground has been held to be substantial compliance and sufficient to satisfy the provisions requiring grounds to be set out. The question is whether or not the information on the face of this form fulfilled the purpose of the form and substantially complied with that: that is, whether or not from the form one could determine whether a valid application had, in fact, been made.
The Tribunal focused entirely upon Question 3 of the form, which sets out the wrong name for the applicant. The form itself, though, as it has been completed contains all of the details necessary to determine whether it is a valid application. It contains full details of the decision that is sought to be reviewed. It contains all the visa applicants’ details, as would be required whether described as the visa applicant or the review applicant. It also describes all of the other visa applicants which form part of the one family. Significantly, at the end of the form, the formal declaration section, clearly identifies that the person that is seeking this review and lodging the form is the visa applicant himself. That declaration section contains the instructions:
This form should be signed by each person, or organisation, applying for review.
Clearly, the Applicant has signed that section as “Person 1”.
In the most unusual circumstances of this case, I am persuaded that this form as completed is in substantial compliance with the relevant legislative requirement and is a valid application. I therefore, make a declaration accordingly. I do not at this stage go on to make any further consequential orders. The Applicant can apply for consequential relief if necessary, although almost invariably in cases involving the Minister, a declaration is sufficient.
Quite properly costs were not pursued by the Applicants in the circumstances of this case.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 April 2015
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