Jaswal v Minister for Immigration

[2003] FMCA 441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JASWAL v MINISTER FOR IMMIGRATION [2003] FMCA 441

MIGRATION – Review of MRT decision – where applicant paid application fee by a personal cheque that was later dishonoured – whether the application was a valid application – whether such failure amounted to a breach of natural justice – whether the Tribunal failed to give him the opportunity of a further hearing – where the Tribunal in its reasons said it had asked a certain question when it had not – whether the Tribunal failed to consider relevant material – whether there was a denial of procedural fairness.

Migration Act 1958 (Cth) ss.46, 359

Minister for Immigration v Yusuf (2001) 206 CLR 323
W306/01A v Minister for Immigration [2002] FCA 969
Braganza v Minister for Immigration (2001) 109 FCR 364
Tin v Minister for Immigration [2000] FCA 1109
Nader v Minister for Immigration (2000) 101 FCR 352
Minister for Immigration; Ex parte ‘A’ [2002] 185 ALR 489

Applicant: JAGMOHAN SINGH JASWAL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 262 of 2003

Delivered on: 13 October 2003

Delivered at: Sydney

Hearing date: 30 September 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 262 of 2003

JAGMOHAN SINGH JASWAL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This case concerns an applicant who first entered Australia on a visitors visa on 20 April 1993 and who made a number of departures and returns until on 16 July 1996 he gained a subclass 413 Executive Visa. That visa expired on 16 July 1998. On 15 July 1998 the applicant completed Form 887 for the purposes for making an application for a General (Residence)(Class AS) Subclass 805 visa. This type of visa can only be applied for if an applicant is the holder of a substantive visa or he held a substantive visa which is not of a type described in subclass 805.211(2)(b)(i) and the application is made within 28 days of the last substantive visa expiring.

2. On 15 July 1998 the applicant was still the holder of a substantive visa and thus entitled to make an application for the subclass 805 visa. He attended upon the Department and filed his visa application together with a cheque. The cheque was drawn on the National Australia Bank at Blacktown and was dishonoured. The applicant claims that he became aware of the dishonour when on 5 August 1998 he received his bank statement for July. According to the Department’s records they only noted the dishonour on 21 August 1998. It is the applicant’s case that on 6 August 1998 he attended at the office of the Department of Immigration & Multicultural Affairs at The Rocks. He claims that he spoke to a person at the inquiries section and was referred to an officer sitting at booth 18. He claims to have told the officer what had occurred and tendered to the officer $1,600. He claims the officer told him there was $9 dishonour fee. He also claims that the officer told him that the Department was unable to process this tender because it could not provide a duplicate receipt. He claims the officer told him that the Department would contact him and he could then make the payment.

3. The applicant alleges that he did not hear from the Department. So on 10 September 1998 he forwarded to the Department a replacement bank cheque from the St George Bank in the sum of $1,574 being the original fee plus the $9 dishonour fee. He alleges that he forwarded that bank cheque together with a letter. The letter came from his migration agent and is found at [CB 83]. The cheque was received by the Department, as was the letter. However, it was not presented for payment or processed by the Department until on or about 30 March 1999 having been found in the Department on 18 March 1999.

4. In November 2000 a delegate of the Minister decided that the applicant was not entitled to subclass 805 visa because a valid application (being an application accompanied by the appropriate fee) had not been made within the required time. The decision of the delegate is found at [CB 48 – 51]. On 28 November 2000 the applicant applied to the MRT for review of the delegate’s decision.

5. There was considerable correspondence between the Tribunal and the applicant and his migration adviser. Put shortly this correspondence related in the main to allegations from the applicant that the dishonour of his cheque was caused by a fault on the part of his bankers. The applicant proffered certain evidence to support this contention and much of the correspondence goes to the increasingly urgent efforts by the Tribunal to make the applicant provide additional material that would prove his contentions. On 29 August 2002 there was a hearing before the Tribunal and thereafter further efforts were made by the Tribunal to obtain the necessary information from the applicant’s bank that would establish one way or another the truth of his submission that he was at all times in funds and that the bank should not have dishonoured his cheque. Eventually the applicant did give the Tribunal written authority to obtain information from the bank and that was done. On 17 December 2002 the Tribunal wrote a letter to the applicant [CB 113] asking him to comment on the following matter:

   “Dear Mr Jaswal,

   INVITATION TO COMMENT ON INFORMATION

   I am writing about you application to the Tribunal for review of a decision of a General (Residence)(Class AS) visa.

   The Migration Act 1958 (Cth) (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period.

   Section 359A of the Act states that the Tribunal must explain, and invite comment on, ‘particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that in under review’.

   You are invited to comment, in writing, on the following information:

   ·    National Australia Bank records disclose the cheque number 00056 drawn on your cheque account was made out to cash and presented on 20 July 1998, for an amount of $1,500.00

   This information is relevant to the review because you advised the Tribunal that this cheque was for an amount of $30.00 (and not $1,500) and that a bank error resulted in the cheque that you paid to the Department for a visa application being dishonoured. You further advised the Tribunal that this bank error caused a delay in your application for a visa, which in turn resulted in the Department’s delegate refusing such application.

   The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.

   Your written comments should be provided within 28 calender days of the date of notification of this invitation. As this letter has been sent by facsimile, you will be considered to have been notified of this invitation on the date of this letter. The effect of thus is that you have a total of 28 days from the date of this letter to respond.

   If you are unable to provide comments within the period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

   If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour it will then provide you with an opportunity to appear before the Tribunal.

   If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition you will not be entitled to appear before the Tribunal…”

6. The letter was responded to by a fax from the applicant’s migration agent which acknowledged the now incontrovertible evidence that the applicant’s previous contentions concerning the cheque were incorrect. On page 2 of the submission found between [CB 118 – 122] the agent says:

   “We are now providing fresh submission which may replace the previous one provided to MRT on 28/05/02. The relevant facts in this, based on the evidence before the Migration Review Tribunal, are now as follows…

   1)…

   6)     On 5 August 1998 Mr [Applicant] received the bank statement for July 1998.

   7)     On 6 August 1998 Mr [Applicant] attended the office of the Department of Immigration & Multicultural Affairs (“the Department”) at The Rocks. Mr [Applicant]’s statutory declaration dated 24 May 2002 sets out what occurred at the office. Among other matters Mr [Applicant] “gave Aus$1,600 to the DIMA Officer at counter no 18”. However the money was returned. Instead, the officer explained that the Department would send him a letter requesting that he pay the visa application charge by bank cheque. Although not contained in Mr [Applicant]’s statutory declaration, his instructions to this office are that he tendered $1,600 in cash.

   8)     On 9 September 1998, Mr [Applicant] having not received the letter referred to in the above paragraph posted a bank cheque to the Department in the sum of $1,574 (comprising $1,565 for the balance of the visa application charge and $9 for a dishonoured cheque fee). This cheque was received by the Department.”

7. On 5 February 2003 the Tribunal published its decision in the matter without asking the applicant to attend a further hearing. The decision was to affirm the original decision of the delegate.

8. The decision of the Tribunal [CB 129-138] deals in some detail with the original claim that the applicant’s bank had made an error by dishonouring the original cheque. I think the applicant concedes that the decision is a successful refutation of these submissions based upon evidence which the Tribunal was required to obtain for itself. At [CB 137] the Tribunal says:

   “The Tribunal finds that the course of conduct of the visa applicant after tendering of the cheque 00056 to the Department was not consistent with his account of the events that followed the dishonour of the cheque. The failure of the visa applicant to undertake the most rudimentary remedial measures to protect his financial interests is considered by the Tribunal to be a clear indication that such action was not taken as the facts were not as claimed by the visa applicant.

   The Tribunal finds that the visa applicant’s conduct since the hearing has been less than honest and uncooperative with the Tribunal in an attempt to delay the finalisation of the proceedings.”

9. The Tribunal also dealt with the allegation that the applicant attended at the DIMA office at The Rocks and tendered $1,600. At [CB 136] the Tribunal says:

   “The Tribunal has asked for objective evidence that the visa applicant was in possession of funds to the extent of $1,600 at the time he claims that he went to the Department on 6 August 1998 but that evidence has not been forthcoming…The Tribunal finds that there is no objective evidence before it to support the claim of the visa applicant that he attempted to pay the Department at any date prior to the date he presented the cheque from St George Bank or that he was ever in possession of sufficient funds to do so as he claimed.”

10. When the matter came before me for hearing the applicant was represented. I received into evidence a copy of the transcript of the hearing of 29 August 2002 before the Tribunal, an affidavit of the applicant and an affidavit of Arun Garg the applicant’s migration agent. The applicant was not required for cross-examination but Mr Garg was. Mr Garg’s evidence was that on behalf of the applicant he relied on the statement contained in the letter of 17 December 2002 that he would have an opportunity to appear before the Tribunal. He stated that if the applicant had been given a further opportunity to appear before the Tribunal he would have taken steps to persuade the Tribunal that the applicant attended The Rocks office of the Department on 6 August 1998. He stated that he realised that this matter was important and that is why he submitted to the Tribunal a statutory declaration from the applicant dated 24 May 2002 addressing the matter. He also stated that he would have taken the following specific steps:

    “9. If the Tribunal had given the applicant a further opportunity to appear before it and had indicated that it was likely to find against the applicant in relation to the cheque dishonoured by his bank, I would have taken the following specific steps:

    a)I was aware of the importance of the $9 dishonour fee which the applicant added to a cheque sent to the Department on or about 10 September 1998, and the relevance of this fee in establishing that the applicant attended the Department on 6 August 1998 as he claimed. This is why, in the applicant’s statutory declaration dated 24 May 2002, I ensured this point was covered. If the Tribunal had given the applicant a further opportunity to appear before it, I would have explained this matter to the Tribunal.

    b)If I had become aware that the Tribunal did not have before it a copy of the applicant’s letter to the Department dated 9 September 1998, I would have given a copy of the letter to the Tribunal.

    c)In my view, the applicant’s explanation of what the officer of the Department told him on 6 August 1998 in relation to the problem of issuing two receipts against one visa (see applicant’s statutory declaration dated 24 May 2002) is consistent or corroborates with a file note of the Department dated 22 February 1999 (which refers to the same point and which I obtained under s.362A of the Migration Act). I would have explained this point to the Tribunal. Annexed and marked with the letter “D”.

    11. The Tribunal found that between July 1998 and September 1998 the applicant “was [never] in possession of sufficient funds” to pay the Department (see paragraph 62 of the Tribunal’s decision). If the Tribunal had raised this matter with the applicant and asked him to provide evidence that he was in possession of sufficient funds, I would have told the applicant about the relevance of this matter and encouraged him to obtain objective evidence.”

11. Mr Garg was cross-examined on his affidavit. In particular he was referred to the transcript of proceedings which he attended.

12. The applicant was not called for cross-examination because his affidavit dealt only with what he had told another migration agent. During the course of the hearing before me the importance of the paragraph previously cited from the Tribunal’s decision to the effect that the Tribunal had asked for objective evidence that the visa applicant was in possession of the $1,600 he claimed to have tendered to the Department became clear. Mr Beech-Jones on behalf of the respondent conceded that there was no evidence from the transcript or otherwise that the Tribunal had asked that question and therefore the comment that the evidence was not forthcoming, which in all probability influenced the Tribunal to come to the conclusion that the applicant made no attempt to pay the Department at any date prior to the date he presented the cheque from the St George bank, was based upon an erroneous assumption.

13. I permitted the applicant to re-open his case so that he could deal with this matter. The applicant gave further evidence that he was in receipt of regular payments from a company called RSL.Com Australia being commissions on sales. The National Bank statements found at [CB 108-109] in any event established this. The applicant stated that the $1,600 was held by him in cash and was money that he had in cash at his home. His evidence did not extend to indicating that if he had the opportunity he could have obtained objective proof that he held the $1,600. For example he might have been able to say that he obtained the $1,600 in cash my cashing a cheque for that amount on or around a particular day and would be able to produce a bank statement to establish this. He might have said that a friend gave the money to him and that he could produce evidence from the friend.

14. In his helpful written submissions Mr Zipser stated that there were three issues which arose in considering the applicant’s case. He calls these the further hearing issue, the Department attendance issue and the validity issue. On to these issues must be grafted the action of the Tribunal in proceeding on the basis that it had asked a question, and received no answer, which it had not asked.

The further hearing issue

1. Mr Zipser starts his submissions in relation to this issue with the statement by the Tribunal that it found no objective evidence before it to support the claim by the visa applicant that he attempted to pay the Department at any date prior to the date he presented the cheque to the St George Bank or that he was ever in possession of sufficient funds to do so as he claimed. Mr Zipser argues that statement “there was no objective evidence” is wrong and states that objective evidence can be found by the action of the applicant sending to the Department a bank cheque in the sum of $1,574 on or about 9 September, which included $9 for a cheque dishonour fee. Mr Zipser says that the applicant could not have known about the dishonour fee unless he had contacted the Department prior to 9 September 1998 and that the evidence is therefore consistent with his statutory declaration that he was told about this by the officer at The Rocks in August 1998. Mr Zipser refers to the letter sent to the Department and says that this provides objective evidence that the applicant attended The Rocks office of the Department prior to 9 September 1998. Finally Mr Zipser says that the evidence which the applicant gave in his statutory declaration about his conversation with the officer at the Department concerning the two receipts is corroborated by the minute of the Department dated

   
   

   5 February 1999 found at [CB 38]. He points out that the statutory declaration was prepared before the applicant’s migration agent obtained a copy of the documents on the Tribunal’s files including the minute referred to.

2. Mr Zipser argues that having established that there was objective evidence, the applicant was disadvantaged by not being given an opportunity in a hearing to explain that he was in possession of sufficient funds. He then points to the affidavit of the migration agent as to what he would have done if an opportunity to be heard on the matter had been given. He argues that on the basis of these matters the Tribunal denied the applicant procedural fairness by failing to give him the opportunity of a further hearing. He says that if there had been a further hearing the applicant may have persuaded the Tribunal that he attended The Rocks on 6 August 1998 and tendered the amount of $1,600.

The Department attendance issue

1. Mr Zipser’s Department attendance issue depends very much on the same factual matrix as his further hearing issue. He argues that there was objective evidence of the attendance upon the Department and that it would appear that the Tribunal ignored the letter of 9 September 1998 and thus fell into jurisdictional error of failing to have regard to a relevant consideration (Minister for Immigration v Yusuf (2001) 206 CLR 323). As an alternative he suggests that the Tribunal misunderstood the evidence which was given to it and that gave rise to a jurisdictional error (W306/01A v Minister for Immigration [2002] FCA 969).

The validity issue

1. Mr Zipser’s validity issue is that in any event the application was a valid application because by the time it came to be considered by the delegate the fee had been paid. He relies on a reading of s.46(1)(ba) of the Act and Braganza v Minister for Immigration (2001) 109 FCR 364.

2. In regard to the Tribunal’s error in referring to a request which it did not make he states that this was a jurisdictional error in the Yusuf sense and that the Tribunal had regard to irrelevant material. Finally he argues that the failure to have regard to the letter of 9 September as providing evidence of the attendance at The Rocks and the tender of $1,600 was a breach of s.359(1) and another Yusuf failure.

Findings

1. What I think Mr Zipser’s arguments boil down to is that the Tribunal did not have regard to the letter of 9 September and that if it had done so it would have found in that letter the objective evidence that the applicant attended at The Rocks on 6 August. He would argue that there was a real failure to provide the applicant with procedural fairness in not arranging for a further hearing at which these matters could be discussed. The respondent argues that the letter of 9 September could never be considered to be objective evidence. He states that it is a document written by the applicant. He states that the Tribunal was obviously looking for something completely independent. Such evidence might be the type of evidence relating to the money which I have previously discussed. I would not go as far as that. I think that a contemporaneous letter, which the letter of 9 September is, could corroborate the applicant’s statement that he went to the DIMA office. What I do not accept is that the Tribunal ignored the letter, or more particularly the Tribunal ignored what was contained in the letter. It is quite clear from the transcript that the attendance at The Rocks office on 6 August was discussed between the Tribunal, the agent and the applicant. The two most important pieces of corroborative evidence are the knowledge of the applicant of the $9 dishonour fee and the alleged remark of the person behind the counter that a duplicate receipt could not be issued. On page 8 of the transcript the following exchange takes place:

   “Agent: In the sec, third last paragraph, “Then when you client makes a payment for the dishonoured, ah, the fee (or face??) is to the receipted by the CPM. Not on CSS or CSM or ICSE.” Which is the current system which is being operated by…because that created duplicated receipt. So, he was advised correctly on 6^th August that he should wait for the letter to pay the money. That’s what I was.

   Mr J: And, one thing more, you know. He said to put nine dollars on top of that because of, you know.

   TM: Yes, absolutely.

   Mr J: And, I said, “I will”.

   Agent: And, that’s why probably on 6^th of August the officer at the counter 18 didn’t accept the fees.

   TM: Yes.

   MR J: She said, “We can’t”. She actually took a lot of time, and she went inside, you know, and she then came up with, ah, this thing. She returned my money and she said, ah, well

   TM: Well that, regrettably they did not make note of your attendance on that day.

   Mr J: “Duplicate receipt, you know. We can’t issue duplicate receipt for one visa.”

   TM: Alright.”

2. It seems to me to be perfectly clear from this that the Tribunal was apprised of the contents of the letter of 9 September and the allegedly important corroboration. The Tribunal did not appear to accept this evidence as such corroboration. It has to be remembered that what the Tribunal was charged with doing was working out whether or not the $1,600 had been tendered on 6 August. Proving that the applicant had attended at The Rocks on that day, proving that the applicant was told about a $9 dishonour fee and proving that the Department would be reluctant to issue a second receipt does not prove that $1,600 was tendered. This information may well have been obtained on inquiry without the tender. But it is not for the court to speculate on these matters. It is the Tribunal’s job to decide on these matters and it came to the conclusion that the money was not tendered. I am satisfied that it did so in the knowledge of all the matters about which the applicant claims it did not have knowledge. I am also satisfied that anything that the agent said in his affidavit that he might have told the Tribunal if the Tribunal had granted the applicant an opportunity to attend again before it had been discussed and that therefore the provision of a further hearing would not have had any utility. Thus the applicant was not denied procedural fairness. See NAAC v Minister for Immigration [2003] FCAFC 135 at [52] where the court says:

   “…It is clear that the failure of an administrative decision maker to adhere to a statement of intention as to the procedure to be followed may result in unfairness and will justify judicial intervention to quash the decision in some, but not in all circumstances (per Gleeson CJ at [25] and per McHugh and Gummow JJ at [103]-[106] in Re Minister for Immigration; Ex parte Lam [2003] HCA 6).”

3. This is such a case where I do not believe that any judicial intervention is appropriate.

4. It follows from my findings above that the applicant cannot argue that the Tribunal failed to consider the 9 September letter and thus made a Yusuf style error in failing to consider relevant material.

5. I would also find that Mr Zipser’s reference to s.359 in respect of this document is misconceived. The document that Mr Zipser refers to is a document provided by the applicant himself and s.359 appears to me to deal with evidence which the Tribunal obtains independently of the applicant. It is not necessary for the Tribunal to bring its thought processes to the attention of the applicant in relation to material submitted by or as part of the applicant's case: see Tin v Minister for Immigration [2000] FCA 1109 at [54].

6. I am also unable to accept Mr Zipser’s argument relating to the validity issue. It seems to me that s.46 is clear that an application for a visa is valid if, and only if, any visa application fee that the regulations require to be paid at the time that the application has been made, has been paid. The Tribunal found that no payment was made in respect of this application until September. The payment of the fee in September could not operate retrospectively to validate the invalid application. It operated to complete the inchoate application and produce then, for the first time, a valid application (see Nader v Minister for Immigration (2000) 101 FCR 352 at [56]). In September the valid application was already out of time and the delegate and the Tribunal were entitled to decline to give the applicant the visa he requested on those grounds.

7. There remains outstanding the issue of the Tribunal’s error in stating that it had asked for objective evidence that the visa applicant was in possession of funds to the extent of $1,600 at the time he claims to have gone to the Department on 6 August 1998. I am of the view that this is a wrong finding of fact that was not material to the decision. Given that evidence must be a material fact to show that there has been a denial of procedural fairness: Minister for Immigration; Ex parte ‘A’ [2002] 185 ALR 489 at [54] it is not an error which I am able to review. Even so, the applicant gave oral evidence which was directed to what objective evidence he might have provided to prove he tendered the $1,600. That evidence was unsatisfactory. It was that the $1,600 had been held by the applicant in cash at home. It does not advance the situation any further than that which obtained when the matter was before the Tribunal. In the transcript the applicant at page 8 says:

   “I had the cash in my hand.”

8. In the end I have come to the view that this is not a case in which the court should exercise its powers under s.39B of the Judiciary Act 1903 (Cth) to grant review of the decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent’s costs which because of the complexity of this case I assess in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 October 2003