Hassan v Minister for Immigration & Border Protection

[2013] FCCA 1917

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASSAN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1917

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal had jurisdiction to conduct a review of an adverse decision made by a delegate of the first respondent in circumstances the applicant failed to lodge an application for review in the approved form – whether the Migration Review Tribunal was correct to find that it had no jurisdiction – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 347, 474, 495, 496, Pt.8

Cases cited:
SZJDS v Minister for Immigration & Citizenship [2012] FCAFC 27
SZFDE v Minister for Immigration & Citizenship [2007] 232 CLR 189
Minister for Immigration & Citizenship v SZLIX [2008] 245 ARL 501
SZHLPv Minister for Immigration & Citizenship [2008] FCA 152
SZFNXv Minister for Immigration & Citizenship [2007] FCA 1980

Applicant: HILAL HASSAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2628 of 2012

Judgment of: Judge Emmett

Hearing dates: 13 & 14 March 2013

Date of Last Submission: 4 November 2013

Delivered at: Sydney

Delivered on: 26 November 2013

REPRESENTATION

The applicant appeared in person with the assistance of an Arabic interpreter

Solicitor for the Respondents: Ms Adele Carr
Mr Lenny Leerdam
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2628 of 2012

HILAL HASSAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION  REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writ of relief against a decision the Migration Review Tribunal (“the MRT”), dated 19 October 2012 and handed down on 22 October 2012, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”).

2. The issue for determination is whether the MRT erred in finding that it did not have jurisdiction to review the decision of a delegate of the first respondent (“the Delegate”) refusing the applicant’s application for a Partner (Migrant) (Class BC) visa. The MRT refused to review the Delegate’s decision on the basis that the application for review of the Delegate’s decision, being an MRT reviewable decision, was not made on the approved form and that, in the circumstances, the MRT did not have jurisdiction to conduct the review.

3. Part 5 of the Act details the legislative framework for the MRT’s jurisdiction to review the Delegate’s decision.

   
   
   

4. Section 347 of the Act relevantly states that:

   “(1)  An application for review of an MRT-reviewable decision must:

   (a) be made in the approved form”

5. Section 495 of the Act states:

   “The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.”

6. Section 5(1) of the Act states:

   "approved form", when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.”

7. The applicant’s initiating application for judicial review was filed on 13 November 2012, and stated the following grounds:

   “1. The Tribunal acted contrary to the information provided.

   2. The Migration Agent misled the Tribunal as well as myself.

   3. The Tribunal in reaching its conclusion failed to consider the      factors which are essential elements to determine the case and      proceed.”

8. On 22 February 2013, the applicant appeared before me at a directions hearing. On that occasion, the applicant was given leave to file and serve an amended application and any additional evidence by 7 March 2013 as well as submissions in support of his application. The applicant was also given contact details of legal services providers and interpreting and translating services in a document headed in his own language.

9. The matter was heard by me on 13 March 2013 and the applicant made submissions on that occasion with the assistance of an Arabic interpreter. The substance of the applicant’s submissions was that his migration agent was at fault, and that he had paid his migration agent $4,000 to lodge an application for review of the Delegate’s decision refusing his visa application for a Partner (Migrant) (Class BC) visa.

10. On 14 March 2013, the applicant was given a further opportunity to file and serve an amended application, evidence and submissions in support of his application. Again, the applicant was given contact details of legal services providers and interpreting and translating services in a document headed in his own language.

11. However, to date the applicant has not filed any documents in support of his application. Further, there has been no request received by the applicant to relist the matter for further submissions, despite being given a further opportunity to do so.

12. On 3 August 2012, the Delegate refused the applicant’s visa application. The notification was sent to the applicant on 3 August 2012 via mail to the applicant’s authorised migration agent.

13. The notification letter informed the applicant that he could seek review of the Delegate’s decision by an application to the MRT and enclosed a brochure in relation to the review process of the MRT. Inter alia, the brochure stated as follows:

    “How to apply

    To apply for review, you must complete and lodge an “Application for Review” form and pay the application fee (or 50% of the application fee together with an application for fee reduction) within the time limit.

    Applicants in immigration detention must use form M2. All other applicants must use form M1. The forms are available from any of the offices listed at the end of this form and are also available on the tribunal website.” (Emphasis added)

14. On 24 August 2012, the applicant lodged a document described in the first respondent’s submissions as follows:

    “7.1 The first six pages comprised of Form M1 dated July 2011 (bottom left hand corner of the form) (the old form).

    7.1.1 At page 62 of the Court Book (the fourth page of the first six pages) the form contained details of an 'appointment of representative.' The details of a named individual, 'ES', at the organisation 'Challenge Migration Services Pty Ltd' were provided. A registered migration agent number was specified, together with contact information. A signature appeared in the box marked '[r]epresentative’s signature', and the date 24 August 2012 was recorded.

    7.1.2 At page 63 of the Court Book (the fifth page of the first six pages) the form contained details in response to the question '[w]here do you want us to send correspondence about your application?' The named migration agent ES was specified as the applicant's nominated authorised recipient.

    7.2 The seventh through to the ninth pages of the 20 page facsimile bear fax markings dated 23 August 2012, and 24 August 2012 (the latter being the date of the facsimile to the MRT). The seventh and eighth pages are on Form M1 dated June 2012 (the new form).

    7.2.1 The seventh and eighth pages comprise Part H (payment details), and Part I (declaration dated 21 August 2012).

    7.2.2 The ninth page is a separate Form (MR5, dated June 2012) which is headed 'Appointment of Representative Appointment of Authorised Recipient'. This form again appointed the named migration agent ES, as the applicant's representative and authorised recipient. This ninth page bears two signatures (indicated as being the applicant and the representative/ authorised recipient), both of which are dated 21 August 2012.

    7.3 The remainder of the pages comprising the 20 page facsimile to the MRT were the first respondent's delegate's decision record and its enclosed extract from the Migration Regulations 1994 (Cth).”

    
    
    

15. On 27 August 2012, an officer of the MRT contacted the applicant’s migration agent and informed him that the M1 form lodged by the applicant was an earlier version of the form and was not valid. The officer’s file note of the conversation records that the migration agent indicated that she would print off the current M1 form and resubmit the application. The file note also states that the applicant’s migration agent was informed that the credit card used when the form was attempted to be lodged was declined twice. The officer noted that the migration agent said that she would fill out new details on the new M1 form and that payment could be processed when that was received. The officer noted that it gave the migration agent the new case number and that it would be written on the new form.

16. On 4 September 2012, the MRT wrote to the applicant informing him that the review application received by him on 24 August 2012 had been received, but that its validity had not yet been assessed.

17. The letter informed the applicant that the MRT could only review a decision if a valid application for review had been made and that the applicant would be advised if it appeared that his application may not be valid.

18. Further, on 4 September 2012, an officer of the MRT emailed the applicant’s migration agent in the following relevant terms:

    “I attempted to contact your offices today but the phone was not answered. Further, the mobile number you have provided… appears to be disconnected. An alternative mobile number was provided … but was not designated your contact number. Could you please confirm which telephone numbers are best to contact you on.

    I refer to our phone conversation of 27 August 2012 that an invalid M1 form was submitted. The M1 form submitted is no longer a valid form as of 1 July 2012. We updated this form in January 2012 and are using the new M1 form only since July 2012. I also note that we have not received payment for this application as the credit card was declined twice. I note that you advised you would submit new details of a credit card on the new M1 form and submit this to us.

    To date this has not been received. I note that it also appears that the last day to lodge a valid application is today 4 September.”

19. On 26 September 2012, an MRT officer noted that the applicant called with his brother and wanted the officer to call him back with an Arabic interpreter. The MRT officer called the applicant back and spoke with his brother. The applicant’s brother asked if there were problems with the applicant’s application. The MRT officer noted that there were two problems; that an old application form was used; and that the fee was not paid. The MRT officer noted that the applicant’s brother asked what they could do. The MRT officer noted that the applicant was directed back to his migration agent for advice and that the MRT officer would write to the migration agent with the problems and asked for a response.

20. On 26 September 2012, the applicant appointed Mr Toufik Laba Sarkis as his new migration agent. On the same day Mr Laba Sarkis wrote to the MRT requesting receipt of a reduced fee in respect of the applicant’s review application. Mr Laba Sarkis offered to pay a reduced fee to protect the applicant’s right to a review, and also attached a completed “Appointment of Authorised Recipient” form, as well as a request for the applicant’s documents.

21. On 27 September 2012, the MRT wrote to the applicant, via Mr Laba Sarkis, inviting him to comment on the validity of his review application. Relevantly, the MRT’s letter stated as follows:

    “I am of the view that your application is not a valid application as it was not made in the approved form. The application for review form that you used to lodge your application for review was revoked as an approved form, from 30 June 2012. This means that before 30 June 2012 the tribunal would have been able to accept applications for review made on the previous application form that you used. However, applications for review lodged with the Migration Review Tribunal from 30 June 2012 were required to be made on the revised and approved application form. Therefore, as your application for review was lodged at the tribunal on 24 August 2012 on the previous form, it appears that it is not a valid application.

    However, this is a matter which must be determined by a Tribunal Member. Further, the application fee has not been paid before the time limit for lodging valid application, having been, 4 September 2012. The tribunal made two attempts to take the application fee with the credit card details provided. Both of these attempts were declined. However, this is a matter which may be required to be determined by a Tribunal Member.

    We attempted to contact you, through your representative as soon as we became aware of these issues, without success, and it may now be too late to lodge an application for review on an approved form and pay the application fee.”
    
    

22. On 27 September 2012, an MRT officer noted that the applicant’s authorised recipient, Mr Laba Sarkis, telephoned her to explain the difficulty that the applicant was having paying the fee and that he (Mr Laba Sarkis) was happy to pay a reduced fee to “help the applicant out”.

23. The MRT officer noted that she informed Mr Laba Sarkis that a letter had been posted to the applicant care of Mr Laba Sarkis that day with details that were significant to the application. The MRT officer noted that Mr Laba Sarkis asked if she could allow the application because the applicant was very traumatised and needs help. The MRT officer noted that she explained that the decision in relation to issues raised in the letter were not hers. She said that her role was only to identify the issues, let the applicant know what they were, and give him time to respond.

24. On 6 October 2012, Mr Laba Sarkis wrote to the MRT attaching a statutory declaration by the applicant. I accept that the summary in the first respondent’s written submissions is an accurate summary of that statutory declaration. That summary is as follows:

    “18.1 He [the applicant] had engaged the services of the named migration agent (being ES).
    
    18.2 The migration agent had, on 21 August 2012, informed the applicant that his visa application was refused by the first respondent's delegate, and had emailed the applicant some forms. The applicant had signed and returned the forms, to the migration agent. The applicant annexed copies of the forms, to his statutory declaration.
    
    18.3 He [the applicant] was shocked to know that his application for review was not valid as it was not made on the approved form.
    
    18.4 He [the applicant] was not aware that the review application fee had not been paid. He was grateful for the Tribunal's attempts to contact the migration agent however strongly blamed the migration agent who did not tell the applicant of the problems with the review application.”
    
    

25. On 19 October 2012, the MRT found that it did not have jurisdiction to review the Delegate’s decision because the review application had not been made in the approved form as required by s.347(1) of the Act and is therefore not a valid application. The MRT noted that s.347(1)(a) of the Act required an application for a MRT reviewable decision to be made in the approved form.

26. The MRT noted that, pursuant to s.496 of the Act, the first respondent may delegate to a person any of the Minister’s powers under the Act and that the power to approve forms had been delegated to the Principal Member in accordance with s.496 of the Act.

27. The MRT noted that in January 2012, the Principal Member had signed an instrument approving the revised application forms for review applications to the MRT and agreed that previous forms could be accepted until 30 June 2012. In May 2012, the Principal Member signed an instrument that approved amendments to the forms, and agreed that predated forms would be accepted until 30 June 2012. However, after 30 June 2012 all applications lodged before that date were revoked.

28. The MRT found that the applicant’s review application was received on 24 August 2012 on an earlier application form that was no longer in the approved form at the time the applicant lodged his application. The MRT noted that it had invited submissions from the applicant by letter dated 27 September 2012 on that issue. The MRT received submissions in response on 8 October 2012, which it considered.

29. The MRT noted the applicant’s statement that he had trusted his former migration agent to lodge the application review on his behalf and to keep him informed of its progress. The MRT noted the applicant’s statement that he had complied with requests of his migration agent and completed and returned forms as requested. The MRT noted that the applicant had described his shock that the wrong application form had been completed because his migration agent had not informed him of the serious problems involved in the lodgement of an application form that was no longer approved, and a failure to meet payment upon lodgement.

30. However, as stated above, the MRT found that the review application, having not been made on the approved form, was not a valid application.  Accordingly, the MRT found that it did not have jurisdiction to review the Delegate’s decision to refuse the applicant’s visa application.

31. The grounds of the application and the applicant’s oral submissions to this Court for judicial review of the MRT’s decision should be understood to contend that the MRT was not correct in finding that it had no jurisdiction to consider the applicant’s review application.

32. A stated above, the applicant filed no evidence or submissions in support of his application to this Court for judicial review, despite being given two opportunities to do so.

33. The first respondent read the affidavit of Denis Patrick O’Brien, sworn 21 March 2013. I accept the first respondent’s submission that the affidavit establishes that between 1 July 2007 and 30 June 2012, Mr O’Brien was the Principal Member of the Refugee and Migration Review Tribunals. Mr O’Brien annexed an Instrument of Delegation, dated 25 February 2005, to his affidavit demonstrating his delegation of the Minister’s power to approve forms pursuant to s.495 of the Act.

34. In the circumstance, I accept that no issue or irregularity arises in relation to the validity of the approval of the MRT review application form relevant to the applicant in this proceeding.

35. The Full Court of the Federal Court of Australia considered a factual situation in which an applicant had purported to use an incorrect form to apply for an MRT review in SZJDS v Minister for Immigration & Citizenship [2012] FCAFC 27 (“SZJDS”). The applicant in that case had used the form for Person in Immigration Detention, whereas the applicant was not in fact in Immigration Detention.

36. In SZJDS, Rares and Cowdroy JJ held at [25]-[28] that the principle of substantial compliance had no application as to the requirement to make an application on an approved form. At [31]-[34], their Honours held further that a similar result was intended in relation to the requirements applicable to an application for review by the MRT.

37. I accept that the form lodged by the applicant on 24 August 2012 was not the approved form. Further, I accept that, pursuant to s.347(1)(a) of the Act, in order for the applicant’s MRT application for review to be valid, it was mandatory that the applicant use the approved form.

38. In light of the decision in SZJDS, I accept that the concept of substantial compliance can have no application to the completion of an approved form. I also accept that such a finding applies to an application for review by the MRT of the Delegate’s decision to the application.

39. There is no evidence as to why the applicant’s first migration agent used the incorrect form or failed to remedy the default. However, negligence or oversight is not sufficient to establish fraud on the part of the migration agent, which must be distinctly pleaded and proved (see: SZFDE v Minister for Immigration & Citizenship [2007] 232 CLR 189 at [15], [41], [49] and [53]; Minister for Immigration & Citizenship v SZLIX [2008] 245 ALR 501 at [33]; SZHLP v Minister for Immigration & Citizenship [2008] FCA 152 at [36] and [45]; SZFNXv Minister for Immigration & Citizenship [2007] FCA 1980 at [33] per Besanko J.).

1. In the circumstances, I am satisfied that the evidence before this Court fails to establish a case of fraud in accordance with the established principles in relation to any conduct by the applicant’s first migration agent’s failure to lodge the correct form in the correct time and to ensure the correct fee was paid with lodgement.

2. Accordingly, the MRT complied with its obligations under the statutory regime in finding that it had no jurisdiction to conduct a review of the Delegate’s decision.

3. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. In such circumstances, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:26 November 2013