Jalagam v Minister for Immigration
[2008] FMCA 1417
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JALAGAM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1417 |
| MIGRATION – MRT decision – application to Tribunal made outside the time limit after notification to agent – valid appointment of authorised recipient in electronic visa application lodged by migration agent – communications with applicant and Department by partners and employees of agent’s firm – no abandonment of appointment by agent – allegations of fraud not supported by evidence – Tribunal correctly held that it lacked jurisdiction – application dismissed. |
| Migration Act 1958 (Cth), ss.45, 46, 276, 280(1), 347(1)(b)(i), 494B(5), 494D, 494D(2), 494D(3), Pt.9 Migration Regulations 1994 (Cth), regs.1.03, 1.18(2)(b), 2.07, 4.10(1)(a), Sch.1 item 1128CA |
| AB v LB (Mental Health Patient) [1980] 1 WLR 116 Briginshaw v Briginshaw (1938) 60 CLR 336 Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 Le v Minister for Immigration and Citizenship (2007) 157 FCR 321, [2007] FCAFC 20 Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 McRae v Coulton (1986) 7 NSWLR 644 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485 SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199 SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152 SZMBL v Minister for Immigration & Anor [2008] FMCA 1162 VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190, [2004] HCA 50 |
| Applicant: | VENGAL RAO JALAGAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1404 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 2 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1404 of 2008
| VENGAL RAO JALAGAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Jalagam employed a firm of solicitors to lodge an application in an electronic form for a skilled ‑ independent overseas student (class DD, subclass 880) onshore visa. The application was lodged on 15 September 2006 by someone at the firm, Tan & Tan Lawyers & Consultants. There then ensued a series of exchanges between various employees and partners of the firm and officers of the Department of Immigration by way of email, facsimile, courier and post.
A particular difficulty facing the visa application emerged in the correspondence, because Mr Jalagam could not present the requisite evidence of his English language proficiency. After further time was allowed, and no satisfactory evidence was forthcoming, a delegate made a decision on 17 January 2008 refusing the application. The decision and the decision record was sent by email to an identified person, Mr Yat Tan, at Tan & Tan, by email sent to the email address nominated for the receipt of such correspondence in the original visa application.
It is not disputed that the email was received by the firm at that address on 17 January 2008. Nor is it disputed that, if Mr Yat Tan had been properly appointed and was still acting as Mr Jalagam’s authorised recipient under s.494D of the Migration Act 1958 (Cth), the decision was deemed to have been duly received on that day by Mr Tan on behalf of Mr Jalagam pursuant to s.494D(2) (see also s.494B(5), and SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199, and Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181).
No issue is taken by Mr Jalagam with the contents of the notification of the delegate’s decision, nor that under relevant provisions of the Act and Regulations a mandatory time limit for seeking review by the Migration Review Tribunal expired on 7 February 2008 after the expiry of 21 days (see s.347(1)(b)(i) and reg.4.10(1)(a)). It is conceded that no application for review was lodged within that period.
On 15 February 2008, Mr Jalagam sent a facsimile to the Tribunal, being an application for review of the delegate’s decision, on which he wrote:
Decision was received by email to my lawyer Yat Tan on 17.01.2008. This was e‑mailed to me by my lawyer today ‑ 15.02.08.
In subsequent correspondence with the Tribunal, Mr Jalagam endeavoured to establish the truth of his assertion that he did not receive actual notice of the decision until the appeal time had expired. He presented a photocopied document, which he said was an index to a personal email account, which did not show him receiving an email from Tan & Tan over the relevant period. He blamed Tan & Tan for a delay in forwarding the decision to him.
These assertions were also put to Tan & Tan by Mr Jalagam’s current solicitor. Mr Yat Tan strongly denied the allegation, and in correspondence asserted that “the refusal of your visa did not occur through any fault of ours”, and that “records on our system confirm that our email notifying you of DIAC’s decision was sent to you at 11.27 am on 17 January 2008 by one of the members of our staff, who can provide an affidavit to attest to this”.
In a decision forwarded to the applicant on 15 May 2008 and dated 14 May 2008, the Tribunal considered Mr Jalagam’s correspondence. However, it found that the time limit had elapsed, and had the effect that the Tribunal did not have jurisdiction to entertain the application for review.
Mr Jalagam now asks the Court to give various forms of relief, in effect, requiring the Tribunal to perform a jurisdiction to review the delegate’s decision. Although the grounds of review are framed as assertions of jurisdictional error by the Tribunal, I do not think it necessary for me to closely examine how the Tribunal itself decided the question of its jurisdiction. Rather, in my opinion, and this was not contested by the Minister, the factual and legal issues determining the existence of the Tribunal’s jurisdiction are matters which the Court itself should decide on the evidence now before me. In my opinion, the application of the time limit involves issues of jurisdictional fact which are determinable by the Court. However, it is appropriate to treat the three grounds of review which were pressed in argument before me as, in effect, inviting the Court to find that the Tribunal has jurisdiction for the reasons which were argued.
Essentially, Mr Jalagam’s three grounds of review challenge whether there was a legally operative appointment and notification to the Department of Immigration of Mr Yat Tan as Mr Jalagam’s authorised recipient under s.494D. It is argued that, if Mr Tan did not have that capacity at the time that the delegate’s decision was emailed to him, then a time would not have commenced to have run, and would not have expired before Mr Jalagam’s application lodged on 15 February 2008.
Alternatively, he invokes principles of fraud affecting administrative procedures which were recently addressed and considered in the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189. It is contended Mr Jalagam’s dealings with Mr Yat Tan and the firm of Tan & Tan involved dishonest or fraudulent conduct by them of the sort found in SZFDE, and that this allows the Court to find that the Tribunal has jurisdiction over the application for review lodged on 15 February 2008, notwithstanding the prior expiry of the prescribed period after due service of the delegate’s decision on a duly appointed authorised recipient.
The relevant background circumstances which I find are as follows.
The electronic application for the visa does not, within its contents as reproduced in a print‑out which is in the Court Book, identify a particular person who sent the transmissions which completed a series of questions in an internet exchange directed by the interactive electronic application form. According to the language of the responses which are recorded, the form purports to be completed by the person seeking the visa, that is, Mr Jalagam himself. Thus, acknowledgements and statements of fact are all framed in terms of, for example: “I have read and understood the information provided to me in this application”, answer: “yes”. The parts of the internet form of application which provide “your contact telephone numbers”, and instructions about “options for receiving written communications” are, in form, instructions given by Mr Jalagam himself to the Department.
The relevant parts of the hard copy of the completed form concerning this show:
Options for receiving communications
All written communication about this application should be sent to
Migration agent
- This includes migration agents registered with the Migration Agent Registration Authority (MARA) as well as overseas agents that are not registered with MARA.
Migration agent details
Provide contact details for your migration agent.
Migration Agent Registration Number (MARN) or offshore Agent ID (if allocated by DIMIA)
51667
Family name
TAN
Given names
YAT
Business or company name
TAN & TAN LAWYERS & CONSULTANTS
Postal address details
Address
LEVEL 7, 140 BOURKE STREET
Suburb/Town
MELBOURNE
State or Territory
Victoria
Postcode
3000
Country
AUSTRALIA
Phone
61 (3) 96638818
Communicating with the migration agent
We can communicate about the application more quickly using e‑mail or facsimile. Under Australian law, if your migration agent wants to receive electronic communications from the Department, we require their consent. If you provide an e‑mail address and/or facsimile number for your migration agent, the migration agent will be given the opportunity to provide this consent when signing the printed application.
E‑mail address
enquiries@tan‑tan.com.au
Facsimile number
61 (3) 96639668
If you do not provide e-mail and/or facsimile details, or your migration agent does not consent to receive electronic communications from the Department, all written communications will be sent to your migration agent’s postal address. This may result in delays in receiving communication about the application.
Assistance with this form
Did this migration agent provide assistance in completing this form?
Yes
The Court Book also contains a copy of a letter on letterhead of “Tan & Tan Lawyers & Consultants” containing the same “direct email” address as was given to the Department in the visa application, and the same location and telephone and facsimile numbers for their office. It is signed “Fred Tan, Managing Partner”, and commences:
We refer to the above electronic visa application which was lodged on 15 September 2006. Please find enclosed the following documents: …
There is then a list of various certified documents concerning the applicant’s education history, character checks, et cetera, which is shown as being sent “by courier” to the “Adelaide Skilled Processing Centre”, of DIMIA. The letter is dated 15 September 2006, and thus appears to have been dispatched on the same day as the electronic application form was completed.
The inference which I would draw from these documents, is that some employee or partner at Tan & Tan was responsible for completing the electronic application form, including the notification of a migration agent authorised to receive all written communications about the application. Absent any denial from Mr Jalagam, it is reasonable to infer that they did both of these things at his request and with his authority.
I would also draw these inferences from the applicant’s evidence to the Court. He gave evidence in an affidavit and orally, which was not completely satisfactory in its precision and consistency. In his affidavit sworn on 28 July 2008, he said:
(2)I applied for skilled migration subclass class 880 visa on 15/09/06.
(3)I applied through Tan & Tan, Lawyers and Consultants, Level 7, 140 Bourke Street, Melbourne, VIC 3000.
(4)Although I knew that Tan & Tan would represent me with the Department of Immigration I never signed a 956 Form or any other document authorising Yat Tan or any other person to be my migration agent or authorised recipient. I was never told who my migration agent was. In fact I was under the impression that Anne Kwan was my migration agent as she was the one sending me correspondence.
(5)This was also much later confirmed by the fact that when I called Tan & Tan on 14/02/08 to inquire about the status of my application the receptionist told me “Your lawyer Anne is on leave and she is coming back tomorrow, call tomorrow”.
(6)This was the 28th day after 17/01/08, the purported date of notification. Had I been given the decision record at least on that day I would have applied for RRT review on that day itself. On that day I was neither directed to Yat Tan nor any other person. In fact I did not know that he was supposed to be my agent and the authorised recipient.
(7)The reason why I called Tan & Tan on 14/02/08 was that when I checked with the DIAC online information my file was shown as finalised on 17/01/08, which was a shock to me, but it did not indicate whether it was positive or negative.
Under cross‑examination, Mr Jalagam confirmed that he had not himself completed the online application form, and referred to his employing “Tan & Tan” to make his application and act for him in relation to it. As in most of his written and oral evidence, he did not identify any particular person, whether partner, employed solicitor or clerk of Tan & Tan, whom he believed he was personally employing. I find on all of his evidence, that he was probably aware that Tan & Tan were a firm of solicitors consisting of partners and employees, and that he regarded himself as employing the firm of solicitors, rather than any particular person at that firm to assist him to make his visa application.
On all the evidence before me, I find that it was not a matter of particular concern to Mr Jalagam to know which of the persons he dealt with, or indeed, which other person within the firm of Tan & Tan, held registration as the migration agent responsible under the Migration Act for the provision of the immigration services given to Mr Jalagam.
The above findings find confirmation in evidence as to the contractual relations of Mr Jalagam with the firm of Tan & Tan, which was elicited in the course of re‑examination of Mr Jalagam. One tender was a costs agreement, which is in terms of his engaging the firm Tan & Tan, rather than any particular lawyer or other person within the firm to provide “the work”. The work is then defined in the schedule as:
Preliminary interview with applicant, advising on legal and evidential requirements for the visa subclass, acceptance of application, correspondences requesting information and supporting documents, research into legal criteria to be satisfied, collating information and detailed review of all supporting documents, examination of your tertiary qualifications and if applicable, employment experience, ascertaining your ‘nominated occupation’, application for skills assessment from the relevant assessing body on your behalf, drawing and engrossing Forms 47SK, and 80, assistance in procuring loan for capital investment, assistance in completing Form 1134.
All attendances necessary for the same, preparing submissions and covering letter, general organisation of supporting evidence of the application, obtaining relevant signatures and authorities, making relevant copies of file, lodging application with Adelaide Skilled Processing Centre and perusing and advising on entire file, and all communications, correspondences and attendances with you and the immigration officers up to the notification of a decision in your application.
Mr Jalagam said that he received this costs agreement by email, after having made contact with Tan & Tan by telephoning them and being referred by a receptionist to a person whom he said was Mr Fred Tan. He said that he never signed and returned the agreement. However, he was aware that Tan & Tan had embarked upon the services described in the costs agreement, and he made payments to them in accordance with the costs agreement. On this evidence, and in the light of all the other evidence, I find that the costs agreement contained terms of Mr Jalagam’s contract with Tan & Tan for services which included their making an electronic visa application on his behalf, and their sending and receiving communications with the Department of Immigration on his behalf. Their authority to do this expressly continued “up to the notification of a decision in your application”. In the context, it is reasonable to read “up to” as including the receipt of notification of the decision.
Other documents tendered by Mr Jalagam to the Court confirmed that he held a number of communications with various people at Tan & Tan, prior to the visa application being lodged and also subsequent to that date. For example, on 14 August 2006 he received an email from somebody called “Alexandrea Lu, Tan & Tan Lawyers & Consultants”, asking the applicant to complete a questionnaire of Tan & Tan’s devising, to provide instructions to the firm about relevant details. Subsequent to the lodging of the visa application, he received a number of communications by email from “Anne Kwan, Legal Assistant for Jensen Ma, Partner, Tan & Tan Lawyers & Consultants”.
It is understandable from these communications that the applicant might have thought that Ms Kwan was the person most immediately involved in the mechanics of progressing the visa application. However, the documents do not support, and I do not accept, that the applicant ever thought that Ms Kwan was holding herself out as the responsible migration agent in the matter. In the very terms of her correspondence, she was acting in a subordinate capacity as an employee of the firm engaged by Mr Jalagam. On other occasions, Ms Kwan referred to herself as being under the supervision of Fred Tan as “Senior Partner, Tan & Tan Lawyers & Consultants”.
In communications between Tan & Tan and officers of the Department of Immigration after the lodgement of the application and before the decision of the delegate, the letters from the Department are all addressed to Yat Tan, being the nominated recipient of correspondence. Some requisitions of the Department of Immigration were responded to by “Anna Choi, Tan & Tan Lawyers & Consultants”, and other people, all of whom appeared in the terms of their communications to be acting as employees or agents of Tan & Tan. However, in my opinion, none of these communications should be read as altering, or calling into doubt, the original nomination of Mr Yat Tan as Mr Jalagam’s authorised recipient for correspondence from the Department.
There is in evidence before me an extract from the Register of Agents administered by the Migration Agents Registration Authority (MARA), which has “Yat Hoo Tan” as a registered migration agent, showing his details as being “Business name: Tan & Tan”, being in the relationship to the business of “Partner”, and having a postal address, et cetera, consistent with other evidence before me. One inconsistency was pointed out by Mr Jalagam’s solicitor as being that an email address is given which is not the “enquiries@tan‑tan.com.au” which was given to the Department as the email address for the authorised recipient nominated in the visa application. However, I would not draw any particular inferences from this, since it is common for people to have several email addresses.
Considering all the evidence before me, I would not draw the inference that Mr Yat Tan did not take responsibility under the Migration Act and within the firm of Tan & Tan for Mr Jalagam’s migration work. The contrary is strongly suggested by the correspondence from Tan & Tan to the applicant’s solicitor, in which Mr Yat Tan strongly denies that his firm failed speedily to communicate the delegate’s decision to Mr Jalagam. Mr Jalagam did not attempt in his case before this Court to explore the arrangements within the firm Tan & Tan for the performance of immigration work for clients of the firm, in particular as to the relationships of supervision between Mr Yat Tan, his fellow partners, and the firm’s employees. No subpoenas were taken out against the firm to discover documents relating to this, and no subpoenas to require the attendance of Mr Yat Tan were issued to explore the assertions in his letters. No reasons for the absence of such obvious investigations were shown in the evidence.
Further, considering all the evidence, I am not prepared to find that in fact Mr Yat Tan was in any way derelict in his responsibilities as a registered migration agent under the relevant provisions of the Migration Act, in particular s.280(1). I note that the Migration Act envisages that immigration assistance as defined in s.276 may be performed using the assistance of persons to do clerical work. In my opinion, normal principles of statutory interpretation would also allow immigration work to be performed by a migration agent with the assistance of professional colleagues in a solicitor’s firm, provided that an appropriate level of supervision and responsibility was actually assumed and undertaken by the person registered. Neither party referred me to any legal authorities on this question.
The skimpy evidence before me as to the internal management of migration matters within Tan & Tan, would not cause me to find that such supervision and responsibility was absent on the part of Mr Yat Tan in relation to the performance of the work for which Mr Jalagam engaged Tan & Tan. I would not infer this merely because Mr Jalagam does not appear to have had any personal contact with Mr Yat Tan, and because no piece of written correspondence prior to the decision of the delegate carried Mr Yat Tan’s personal signature. The fact that some correspondence was signed by, or in the name of, the firm’s managing or senior partner and not Mr Yat Tan himself would not necessarily suggest that he was not the actually responsible partner, since this might have been a matter of simple office procedure which is commonly found in some solicitor’s firms.
I turn now to address the three grounds from the further amended application which were relied upon by the solicitor for Mr Jalagam today, being Grounds 1, 4 and 5. He expressly disclaimed reliance upon Grounds 2, 3, 6, 7 and 8.
Ground 1 has the grounds:
The Tribunal made jurisdictional error in that it made a finding of existence of a jurisdictional fact without any evidence.
or
The Tribunal made jurisdictional error in that it misconstrued and misapplied s494D of the Migration Act leading to error of law and ultimately jurisdictional error.
In substance, this ground raises two issues of construction, as well as issues of fact which I have partly addressed above. The issues of construction concern the reference in s.494D to “gives the Minister written notice of the name and address of another person (the authorised recipient)” to do things including receiving documents on behalf of the visa applicant. In dispute, are whether such notice can be given in the manner in which the relevant sections of this particular electronic visa application were completed and conveyed, and whether the “giving” of a notice of an authorised recipient may be performed by a person who is not the visa applicant personally, but encompasses the giving of such a notice by an agent authorised to give that notice.
Section 494D provides:
(1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note:If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3)The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
The parties’ arguments concerning the present notification of Yat Tan as the authorised recipient, and the giving of the Tan & Tan email address as his address, need to be considered in the legislative context of the provisions of the Migration Act concerning the making of visa applications, and in particular visa applications of the relevant class in this case.
Section 45 of the Migration Act requires a non‑citizen “who wants a visa” to “apply for a visa of a particular class”. Section 46 sets out the requirements for a valid application for a visa, including that it “satisfies the criteria and requirements prescribed under this section”.
The Migration Act itself does not indicate any particular requirements or formalities in relation to the form of a valid application, thereby leaving it to the Regulations. Regulation 2.07 gives effect to detailed provisions in relation to the form of applications, which are set out in the parts of Sch.1 relevant to each particular class of visa, including that “an applicant must complete an approved form in accordance with any directions on it”.
The provisions of Sch.1 relevant to the present class of visa, are found in item 1128CA. This provides:
(3) Other:
…
(c) Application must be made:
(i) by posting the application (with the correct pre‑paid postage) to the post office box address specified in a Gazette Notice for this subparagraph; or
(ii) by having the application delivered by a courier service to the address specified in a Gazette Notice for this subparagraph; or
(iii) as an Internet application.
Note An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.
The reference to an “Internet application” is explained in the definitions in reg.1.03 as:
Internet application means an application for a visa made using a form mentioned in paragraph 1.18 (2) (b) that is sent to Immigration by electronic transmission using a facility made available at an Internet site mentioned in subparagraph 1.18 (2) (b) (ii), in a way authorised by that facility.
Regulation 1.18(2)(b) provides:
(2)Each of the following is an approved form for use in making an application for a visa:
…
(b)a set of questions in an interactive computer program that is:
(i) approved by the Minister for use in making an application for the visa; and
(ii) made available at an Internet site operated under the authority of the Minister.
It is therefore clear, in my opinion, that the regulations prescribing the form of a valid visa application for the visa sought by Mr Jalagam, envisage a form of interactive internet application such as is in evidence before me. As I have found, this was completed by somebody unknown at Tan & Tan at the request of, and with the full authority of Mr Jalagam. As I have indicated, in its very terms the form included provision for a notification of a person appointed as authorised recipient, and this was completed so as to give notice of an appointment of Mr Yat Tan.
I can see no reason for construing s.494D as preventing the adoption by the Minister of a form of internet application which includes provision for a notification of the name of an authorised recipient in the same form. I reject the submission that s.494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. It may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, I can find nothing in the terms or objects of s.494D which confines the Minister as to the manner in which he is to be satisfied that notice of an authorised recipient has been duly given. Nor can I find in s.494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992), at pp 799‑800). Considerations of convenience all point towards the section being intended to allow this.
Mr Jalagam’s solicitor referred me to Le v Minister for Immigration and Citizenship (2007) 157 FCR 321, [2007] FCAFC 20, where the Full Court referred to s.494D:
24Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant.
25It may be that one of the objects of s 494D is to benefit applicants. The fact that, under s 494D(4), the Minister must give the Authorised Recipient notice of a communication with the applicant, suggests that some protection for an applicant is contemplated. However, it is clear enough that the primary object of s 494D is to eliminate uncertainty as to whether a document has been given to an applicant. So long as the Minister has given a document to an Authorised Recipient, by a method that the Minister considers appropriate, that applicant is taken to have been given the document. That consequence flows whether or not the document comes to the attention of the Authorised Recipient. A fortiori, the consequence flows whether or not the document ever comes to the notice of the applicant. That certainty is of considerable advantage to the Minister in the administration of the Act.
26Section 494D does not require that a document be given to the Authorised Recipient at the address contained in the written notice given by an applicant. So long as the document is given to the Authorised Recipient by a method that the Minister considers appropriate, the document is taken to have been given to the relevant applicant.
27There is no warrant in the language of s 494D for concluding that, simply because the Minister concludes that an Authorised Recipient is no longer at the address specified in an applicant’s notice under s 494D(1), s 494D ceases to operate. Section 494D is triggered by an applicant giving written notice of the name and address of another person. It operates until that notice is varied or withdrawn under s 494D(3), putting aside the possibility of a fictitious name and address or the death of the Authorised Recipient to the knowledge of the Minister. Those cases do not apply here and nothing said here should be taken as having any application in such a case. (emphasis in original)
However, I cannot find anything in these paragraphs to the contrary of the construction which I suggest above.
I am not persuaded that anything in the High Court’s decision of WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, [2004] HCA 50 requires me to construe s.494D as being confined in the manner of a notification as is submitted. That case concerned a different provision of the Migration Act, raising different considerations of legislative policy in relation to the giving of decisions by hand to persons in detention. Assuming that s.494D can be regarded as containing a “code” for the giving of communications to an authorised recipient, either alone or when read with the other provisions for the giving of notices under Pt.9 of the Migration Act, this characterisation does not, in my opinion, advance Mr Jalagam’s present arguments.
As I have found above, in the present case the evidence clearly points towards Mr Jalagam authorising his solicitors at Tan & Tan to complete the visa application form using the internet application, including its notification of an authorised recipient in the terms which were given to the Department.
I therefore am not persuaded by any of the arguments presented on behalf of Mr Jalagam under this ground. I am not persuaded that no authorisation of Mr Yat Tan was given to the Department for the purposes of s.494D with the original visa application, so as to have the consequence that the dispatch of the delegate’s decision to that person at the nominated email address was legally ineffective for the purposes of the time limit on appeals.
I therefore agree with the Tribunal’s conclusion that there was an expiry of the time limit on an appeal to the Tribunal, which commenced from the date when Mr Yat Tan received the delegate’s decision.
Ground 4 of the further amended application makes a similar argument, but by reference to events subsequent to the lodging of the visa application and appointment of Mr Yat Tan as authorised recipient. It is contended:
The Tribunal made jurisdictional error in that it should have held that the notification of the decision was defective as it was not sent to the correct authorised recipient. DIAC was on constructive notice that Mr. Yat Tan was not the migration agent or the authorised recipient acting for the applicant.
In oral submissions, it was argued that the communications between various persons at Tan & Tan, other than Mr Yat Tan, and the Department of Immigration subsequent to the lodging of the visa application, amounted to an “abandonment” by the authorised recipient of that role. However, no particular communication was identified which in its terms expressly or implicitly purported to do this, nor was I referred to anything which in my opinion could have amounted to a withdrawal by Mr Jalagam himself of the notification of the authorised recipient given with the visa application (see s.494D(3)).
In their terms, all of the communications which are listed under this ground in the particulars and submissions made to the Court, were sent by partners and employees of a legal firm, Tan & Tan, acting in those capacities. As I have indicated, this is the business name of the firm with which Mr Jalagam contracted for the performance of immigration and legal services, and in relation to which Mr Yat Tan is registered as a migration agent. As I have explained above, I would not draw from any of the correspondence the inferences which I am invited to draw in support of this ground.
I do not accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate’s decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt the currency of the appointment of the notified authorised recipient. I cannot find anything in the correspondence which, as a matter of law, deprived that appointment of its effect for the purposes of s.494D.
I, therefore, do not accept this ground, nor its arguments, as a basis for finding that the Tribunal had jurisdiction in the matter.
Ground 5 contends:
The Tribunal’s decision was affected by fraud on the Tribunal, on DIAC and the applicant because Yat Tan was not the migration agent acting for the client and as such in reality was not the authorised recipient but Tat & Tan and Yat Tan still gave the deceptive and fraudulent impression to DIAC that he was the migration agent for the applicant. In fact the work was carried out by other people under his name for benefit of Tan & Tan. A non‑migration agent was not supposed to represent the applicant with the DIAC.
The fraudulent conduct which is alleged is described in paragraph 38 of the applicant’s written submissions:
(38)The applicant was misled as to who his migration agent was. The correspondence from Tan & Tan was carried out by people other than Yat Tan who should have acted for the applicant. Communication to the applicant was also carried out by people other than Yat Tan. There appears to be fraudulent effort by staff at Tan & Tan to give the impression that Yat Tan was to be and indeed was the migration agent. Though the applicant believed that he was represented by a licensed and qualified migration agent that was not the case in reality.
Authorities subsequent to SZFDE have emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures (see Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17, SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152, and SZHVM v Minister for Immigration & Citizenship [2008] FCA 600).
In my opinion, the suggested fraudulent activities or statements by any partner or employee of Tan & Tan were not identified with sufficient precision in Mr Jalagam’s evidence and submissions. I understood the broad contention to be that there were knowingly false communications by unspecified partners or employees to the applicant and/or the Department of Immigration, which incorrectly suggested that his visa application was being presented and pursued by a person at Tan & Tan who was a registered migration agent, when in fact that was not the case.
However, this contention fails at several points. Essentially, it fails upon my findings of fact above, in which I am not satisfied that Mr Yat Tan was not the partner at Tan & Tan who undertook all the responsibilities, for the purposes of the Migration Act, for the immigration assistance given to Mr Jalagam by the partners and employees of that firm.
Mr Jalagam does not himself identify any particular express communication which was false in the manner described, whether knowingly or unknowingly. Nor would I find any implication of such a misrepresentation, in the evidence of the communications between Mr Jalagam or the Department of Immigration and the partners and employees of Tan & Tan. Rather, the documentation from Tan & Tan which is in evidence suggests to me that it was a firm which was more probably performing its obligations under the contract with Mr Jalagam and the Migration Act, both as a firm of legal practitioners and in the performance of migration work on behalf of its clients.
I am, therefore, not satisfied as to any of the factual foundations for the present allegations. I am certainly not so satisfied by evidence supporting the allegations which is more than “inexact proofs, indefinite testimony, or indirect inferences” (cf. Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). The onus of proof of these serious allegations made by Mr Jalagam against persons who are not parties to the proceeding has not been discharged (as to their status, see SZMBL v Minister for Immigration & Anor [2008] FMCA 1162).
There are other difficulties facing this ground also.
First, it seems difficult to translate the principle applied in SZFDE by the High Court to a subversion of the fair hearing procedures of a Tribunal in a matter coming within its jurisdiction, into a principle which overcomes a mandatory statutory time limit conditioning that jurisdiction. It would be necessary to find in the Migration Act an implication that the mandatory time limit, and the deemed receipt provisions to which it attaches, are subject to an implied qualification in relation to fraud affecting the lodgement of an application for review. There is no authority suggesting this, and a wealth of authority, albeit preceding SZFDE, that these provisions take effect even where a visa applicant himself is unaware of the giving of the delegate’s decision or other notification, and even where there is fault in communicating it by an agent employed by the visa applicant (e.g. see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184, Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 566, SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485, VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15]). However, this issue was not fully explored in submissions before me, and I do not need to decide that legal question.
A second additional difficulty facing this ground is a factual issue as to the causative effects of any fraudulent conduct by a person at Tan & Tan as alleged. On the evidence before me, there is a substantial dispute between the applicant and Tan & Tan whether, in fact, the applicant actually received from them the delegate’s decision on the day it was delivered, and well within the time for appealing which was clearly stated in the delegate’s notification. If he was sent it as claimed by Tan & Tan, then any preceding fraudulent conduct in relation to the registration under the Migration Act of any person or persons at Tan & Tan was immaterial to the applicant losing his right of appeal.
Both legal representatives invited me not to make a finding as to whether the applicant actually did receive the delegate’s decision from Tan & Tan on 17 January 2008. The Minister’s counsel made this submission on the basis that I could decide the case on an assumption that the applicant did not receive it within time, and on an assumption that this was the result of a failure by the migration agent. The solicitor for Mr Jalagam made that submission on the mistaken, in my opinion, basis that this was a factual issue for the Tribunal and not the Court to decide.
In the circumstances of these two positions, which had the consequence that the relevant evidence was little explored, I am reluctant to embark on a factual determination as to the reasons for Mr Jalagam’s delay in lodging his application to the Tribunal. My short opinion, is that I am not satisfied on the evidence before me that Tan & Tan did fail to communicate the delegate’s decision speedily, and in the manner that they claim in their correspondence with Mr Jalagam. I make this finding in a context where the applicant has not, as I have indicated, presented evidence which might appear to be available to settle the matter from documents in the possession of Tan & Tan, or from witnesses who could have been produced to the Court from that firm under subpoena. As with the allegation of fraud, I would also take into account the seriousness of the implication of professional negligence by a non‑party, which underlies Mr Jalagam’s allegations about this matter.
The third additional difficulty facing my acceptance of this ground is that I accept the submission of the Minister’s counsel, that if I accepted all the evidence led by Mr Jalagam, it would support, at most, a conclusion only that there was a failure by Tan & Tan speedily to convey the delegate’s decision to the applicant. I have above explained why I would not conclude that there was any conduct by someone at Tan & Tan of the sort that could be classified as dishonest or fraudulent. At most, in my opinion, Mr Jalagam’s evidence might support a finding of negligence in communicating with a client of the firm on a significant matter. However, on the above authorities this is not enough (see, in particular SZFDE at [53]).
For all the above reasons, I am not persuaded by the submissions made in support of Ground 5, to find that the Tribunal had jurisdiction to entertain the review application made to it by the applicant on 15 February 2008.
Since I have rejected all the grounds which were argued before me, I must dismiss the application.
It is agreed that costs should follow the event in the scale amount of $5000.
I certify that the preceding sixty‑seven (67) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 October 2008
7
17
0