Jaswal v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 787
•21 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Jaswal v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 787
MIGRATION – visitor’s visa about to expire – application made within time for different visa – applicant’s cheque tendered in payment of application fees not honoured – payment of fees not made until after expiration of previous visa – claim of tender in cash in the meantime dismissed as not credible – payment of fees ultimately made by bank cheque out of time – application refused and accepted – whether denial of natural justice and jurisdictional errors – whether decision to refuse visa otherwise invalid – whether Minister’s decision vitiated by estoppel or waived
Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323
Tin v Minister for Immigration [2000] FCA 1109
Nadar v Minister for Immigration (2000) 101 FCR 352
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98JAGMOHAN SINGH JASWAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1716 OF 2003
CONTI J
21 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1716 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JAGMOHAN SINGH JASWAL
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
21 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1716 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JAGMOHAN SINGH JASWAL
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
21 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The circumstances and events recorded by the Federal Magistrate as having occurred prior to the hearing before his Honour
The appellant has appealed from the whole of the orders of Federal Magistrate Raphael made on 13 October 2003, whereby his Honour dismissed the appellant’s application for review of the decision of the Migration Review Tribunal (‘MRT’), made on 5 February 2003, to affirm an absence of entitlement of the appellant to a General (Residence) (Class AS) visa. The background facts to the controversial circumstances giving rise to the appeal, as found by Raphael FM, are largely repeated below from his Honour’s reasons for judgment.
The appellant first entered Australia on 20 April 1993 pursuant to the authority of a visitor’s visa. He made a number of departures from and returns to Australia until 16 July 1996, when he obtained a Subclass 413 Executive Visa. That visa expired on 16 July 1998. On 15 July 1998, the appellant completed a Form 887 for the purpose of making application to the Minister for a General (Residence) (Class AS) Subclass 805 visa (‘805 visa’). That type of visa may only be applied for if an applicant is the holder of a substantive visa, or if an applicant is the holder of 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 expiration of the last substantive visa. The appellant apparently fulfilled those specific requirements.
On 15 July 1998, the appellant attended in person at the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) and filed the application for that 805 visa, and tendered payment by cheque drawn on his account with the National Australia Bank for the sum of $1,565, which was subsequently dishonoured by the Bank. He claimed that he only became aware of the fact of the dishonour when he received his bank statement for that month of July. It is difficult to comprehend any justification for that claim as to unawareness, given the content of the appellant’s bank statement in evidence concerning the funds therein recorded. According to the Department’s records, the dishonour was not noted until 21 August 1998, for what that might matter in the light of the intervening events described below.
The appellant testified that he attended at the Department’s office on 6 August 1998 and spoke to a person at the inquiries section, and was thereupon referred to an officer sitting at booth 18. He claimed to have told that officer what had previously occurred in relation to his application, and to have attempted to tender to that officer the sum of $1,600.00 in cash. He further testified that the officer told him that there was a cheque dishonour fee of $9.00 payable, and further that the Department was unable to process the tender of cash, because the Department could not provide a duplicate receipt, but that the Department would contact him and then he would be able to effect the payment. That was to my mind a somewhat incredulous explanation for a Departmental officer to have allegedly made to the appellant, since in the light of the tender of cash then supposedly proffered, a bank cheque could have been readily procured by the appellant virtually forthwith, and the same thereupon tendered to the Department. Moreover any such alleged Departmental practice was not mentioned in the Department’s standard form of notification of dishonour of application fees. I would interpolate to further observe that there was no evidence to the effect that the appellant made any contemporaneous record of that alleged event, and more importantly, that he wrote any letter of confirmation to the Department concerning the same.
Not having allegedly heard further from the Department, the appellant further testified that he provided to the Department on 10 September 1998 a replacement bank cheque, issued by St George Bank Ltd, for an amount of $1,574.00 inclusive of a cheque dishonour fee of $9.00. That took place therefore five weeks after his attendance at the Department on 6 August 1998, and nearly eight weeks after his lodgement at the Department of his visa application on 15 July 1998. That bank cheque was forwarded under cover of a letter bearing date 9 September 1998 from his migration agent Global Australian Immigration & Education Services Pty Ltd addressed to the Department, for the attention of the ‘Finance Officer’, reading (literally) as follows:
Mr Jaswal Jagmohan Singh has advised me that the cheque issued against receipt No. E83690800278019 for application for General Residence dated 15/07/98 has been returned unpaid.
In order to rectify the matter Mr Singh attended the Rocks office and he was advised that we couldn’t issue a receipt however letter will advise you on receipt of which you can make the payments
Up todate Mr Singh has not received any correspondence.
In order to rectify the problem enclosed herewith is a bank cheque for the Sum of $1565 plus Sum of $9 being bank charges, a total of One Thousand Five Hundred & Seventy Four.
For your convenience a Copy of the receipt is enclosed herewith.’
The letter was signed ‘J.M. Singh’. No specific mention was made of any tender of cash having been previously made on 6 August 1998, and at about what time of the day, nor was any officer in the Department identified therein by name, or by booth number.
The letter of the migration agent and the bank cheque for $1,574 were undoubtedly received by the Department, but the bank cheque was not presented for payment or processed by the Department until on or about 30 March 1999, the same having been located within the records of the Department on 18 March 1999. Precisely when the letter was received was not apparently noted in the Department’s records. To add to the apparent confusion, though immaterially to the critical events which I have already recorded, the Department wrote on 22 February 1999 to the appellant, at what appears to have by then become in the interim period of time the former residential address at Unit 3 No 57 Harris Street Harris Park, and gave apparently belated formal notice of dishonour, and requested payment of $1,565 plus $9.00 dishonour fee within 14 days, in order that ‘… processing of your application… continue’. That letter appears to have been the Department’s standard form of notification of dishonour of a cheque in payment of visa application fees. The late notification might partly be explained by the circumstance that the Department’s banking arrangements were conducted in Canberra.
On 17 November 2000, a delegate of the Minister determined that the appellant was ‘unable to meet the prescribed criteria for the grant of a visa in the General (Residence) (Class AS), and this application is therefore refused’.
That refusal of the visa was recorded in a document headed ‘Application to remain Permanently in Australia’ and ‘Decision Record’, the document bearing date 17 November 2000 and being signed by a delegate of the Minster. I shall provide below an extract from that important document.
‘On 15 July 1998 an application was made for a Subclass 805 visa, and the visa application charge was paid by a combination of cheque and cash. On 21 August 1998 the cheque was dishonoured. On 10 September 1998 a new cheque was forwarded to the Department for the outstanding amount. This amount was not receipted until 30 March 1999 as the cheque was misplaced by this Department. However, as the nominator claimed to have sent the cheque on 10 September 1998 and as the cheque is dated that day, I accept that the application fee was paid in full as at 10 September 1998.
Paragraph 46(1)(ba) of the Act states that in order to make a valid application, any visa charge that the regulations require to be paid at the time when the visa application is made, has been paid. An application is only valid if the charge payable at the time of application has been paid. Payment by cheque is effective payment of a visa on the date the cheque is given and accepted, provided that cheque is subsequently honoured.
It follows that in this case, a valid application for a Subclass 805 visa was not made until the second cheque (which was honoured) was provided to the Department. The date on which a valid application was made is therefore 10 September 1998.’
The letter was ambiguously framed by its use of the expression ‘by a combination of cheque and cash’, but the evidence otherwise tendered to the MRT indicates that the expression ‘combination’ was not in fact meant to import any notion of contemporaneity.
The Decision Record thereafter noted, under the heading ‘Validity of Application’, that the appellant had applied ‘for a visa class’ on ‘the prescribed form’, and that the correct fee had been paid. It answered in the negative the questions ‘Is the application barred by s 48 of the Migration Act?’ and ‘Is there any bar on the application?’. The Decision Record next stated under the heading ‘Legislative Framework’ that ‘Applicants for a class of visa must satisfy the requirements pertaining to that class as set out in the Migration Act and Regulations before a visa can be issued’, and further that ‘When an application fails to meet [any] of the provisions specified, the visa cannot be granted’.
After then referring to ‘regulatory criteria relevant to this assessment’, comprising Visa Subclass 805 – Skilled, and in particular Regulation 805.211 and ‘Schedule 3 Criteria 3001’, the following appeared in the remainder of the Decision Record:
‘8. Assessment
Subclause 805.211(2)
As the applicant was not the holder of a substantive visa at time of application, he must satisfy the requirements of this subclause. This subclause states that the applicant must satisfy, among other things, Schedule 3 criteria 3001.
To satisfy Schedule 3 criteria 3001, the application must have been validly made within 28 days after the “relevant day”. The “relevant day” is defined in subclause (2) of this criteria. In this instance, the “relevant day” is the last day when the applicant held a substantive visa. The applicant’s last substantive visa (Subclass 413) was valid until 16 July 1998. This means that in order for the applicant to satisfy criteria 3001, his application must have been validly made within 28 days of 16 July 1998. It has been established that the application was not validly made until 10 September 1998. The application was not made within 28 days of the “relevant day”, and the applicant does not satisfy Schedule 3 criteria 3001.
As the applicant does not satisfy Schedule 3 criteria 3001, he cannot satisfy the requirements of this subclause.
As the applicant is unable to meet the requirements of Subclause 805.211(2), he is unable to meet the Criteria to be satisfied at time of application. As the applicant is unable to meet one of the mandatory criteria for the grant of a subclass 805 visa, I have not assessed the applicant against any further criteria in this subclass.
9. Other Visa Subclasses within the Visa Class Applied For
The applicant has made an application under the General (Residence) (Class AS). Also included in this Class are the subclasses:
801 (Spouse),
804 (Aged parent),
806 (Family),
814 (Interdependency), and
832 (Close ties).I am therefore required to assess the applicant against the requirements of each of these subclasses.
Subclasses 801, 804, 806 and 814 require the applicant to have been nominated by an Australia citizen or resident who is a relative, or is in a personal relationship with the applicant. The applicant has not been nominated by such a person, these subclasses are not applicable, and the applicant does not meet the requirements for any of these subclasses of visas.
Subclass 832 requires that the applicant have (sic) become unlawful in Australia before the age of eighteen years. This subclass in [sic] not applicable to the applicant, and he does not meet the requirements of this subclass of visa.
10.Decision
The applicant is unable to meet the prescribed criteria for the grant of a visa in the General (Residence) (Class AS), and this application is therefore refused.’
On 28 November 2000, the appellant applied to the Migration Review Tribunal (‘MRT’) for review of the delegate’s decision. Raphael FM recorded that there was considerable correspondence between the MRT and the applicant or his migration adviser relating mainly to the allegation of the appellant that the dishonour of his cheque in favour of the Department was caused by some fault on the part of his bank. I observe that no such allegation was made in the appellant’s letter to the Department extracted in [5] above. Precisely what was that alleged ‘fault’ does not appear. There was no evidence of any prior overdraft arrangement, nor was any evidence tendered by the appellant from his Bank. A hearing took place before the MRT on 29 August 2002, and thereafter further efforts were made by the MRT to obtain information from the appellant’s bank that would establish, one way or another, the truth of his claim that he was at all material times in funds, such that his Bank should not have dishonoured his cheque made in favour of the Department. Eventually, so his Honour recorded, the appellant did give the MRT written authority to obtain information from the appellant’s bank, and in the result, the MRT wrote to the appellant on 17 December 2002 as follows:
‘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 (sic) 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 this 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.
…’
Thereafter Raphael FM recorded the faxed acknowledgment of the appellant’s migration agent of what his Honour described as ‘the now incontrovertible evidence that the appellant’s previous contentions concerning the controversial cheque were incorrect’. That agent had submitted in writing to the MRT (inter alia) as follows (the bracketed words were inserted by his Honour):
‘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.’
The abovementioned earlier submission provided to the MRT on 28 May 2002 was not reproduced in his Honour’s reasons for judgment below. Nothing of significance appears to have turned on that absence of reproduction.
Raphael FM recorded that the MRT thereafter published its decision without asking the appellant to attend any further hearing, being a decision to affirm the original decision of the delegate which dealt in some detail with the original claim that the appellant’s bank had erroneously dishonoured the appellant’s original cheque. His Honour observed that ‘I think the applicant concedes that the decision [of the Tribunal] is a successful refutation of these submissions based upon evidence which the MRT was required to obtain for itself’, and thereafter set out the following finding, adversely to the appellant’s reliability and credibility, and conduct otherwise, in relation to his review application made to the MRT:
‘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.’
Specifically as to the allegation that the appellant had subsequently attended the Department’s offices in Sydney on 6 August 1998, and there tendered the sum of $1,600 in cash, Raphael FM set out the following further finding of the MRT:
‘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.’
The evidence adduced in the Federal Magistrates Court as recorded in his Honour’s reasons for judgment.
Raphael FM recorded in his reasons for judgment below that he was provided by the appellant with the following material:
(i) the transcript of the hearing before the MRT;
(ii) an affidavit of the appellant; and
(iii) an affidavit of the appellant’s migration agent Mr Garg.
Mr Garg was vigorously cross-examined by counsel for the Minister, in the course of the hearing below, his evidence in chief taking the form mainly of an affidavit. The appellant was not however cross-examined below, his evidence in chief being entirely viva voce, involving however a number of controversial questions from his counsel to which objection was successfully taken by counsel for the Minister. Mr Garg sought to explain to Raphael FM why he did not give evidence in person to the MRT, asserting thereby that his written statement of 17 December 2002 tendered to the MRT evinced an implicit assumption on his part that he would be given the opportunity of further explanation orally to the MRT. His affidavit evidence tendered to the MRT included the following, which was set out also in his Honour’s reasons below:
‘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…
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.’
What that so-called ‘objective evidence’ could or would have been was not indicated by Mr Garg. Whatever it might conceivably have been, the same was not asserted to comprise monetary funds of a relevant minimum realisable level capable of demonstration by the production for instance of bank or other authentic records additional to those referred to in these reasons. Moreover no income tax returns of the appellant were tendered to the MRT in order to demonstrate viable sources of income, including any investment income.
For reasons unnecessary to record, Raphael FM permitted the appellant to re-open his case. His Honour summarised the appellant’s consequential evidence to the Court below as follows:
(i)the appellant was in receipt of regular payments from a company called RSL.Com Australia by way of commissions on sales; his Honour observed that the National Australia Bank’s statements relating to the appellant’s bank account established as much; and
(ii)the sum of $1,600 was held by the appellant in cash at his home.
Those limited documented details were not of the dimension postulated or hypothesised generally by Mr Garg’s affidavit evidence. His Honour observed, in my opinion rightly, that the appellant’s evidence ‘did not extend to indicating that if he had the opportunity he could have obtained objective proof that he held $1,600’, or was to the effect that the appellant, ‘[f]or example… might have been able to say that he obtained the $1,600 in cash [by] cashing a cheque for that amount on or around a particular day and would be able to produce a bank statement to establish this’, or that he ‘… might have said that a friend gave the money to him and that he could produce evidence from the friend’.
The findings of the Federal Magistrates Court
Having set out in some detail the submissions of counsel for the appellant, who also represented the appellant on the present appeal, Raphael FM proceeded immediately to his reasons for rejecting the appellant’s application for review of the MRT decision.
His Honour summarised the submissions advanced to him on behalf of the appellant to the effect, first, that ‘the Tribunal did not have regard to the letter of 9 September [1998] and that if it had done so it would have found in that letter the objective evidence that [the appellant] attended at The Rocks [ie the Department’s offices] on 6 August’, and secondly, that ‘there was a real failure to provide [the appellant] with procedural fairness in not arranging for a further hearing at which these matters could be discussed’. His Honour accepted that the said letter of 9 September 1998 (which I have extracted in [5] above), in the light of the date when the same was written, ‘… could corroborate the applicant’s statement that he went to the DIMA office’, but implicitly nothing more of relevance to the resolution of the issues arising. His Honour’s reasons continued, in relation to that letter, as follows:
‘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.’
Raphael FM then observed that the two most important pieces of corroborative evidence put forward on behalf of the appellant to the MRT were the knowledge of the appellant of the $9.00 dishonour fee, and the alleged remark of the person behind the counter that a duplicate receipt could not be issued, and his Honour cited in that regard the following evidence of Mr Garg (recorded therein as ‘Agent’), and of the appellant (recorded therein as ‘Mr J’), the questioner referred to as ‘TM’ being the MRT Member (the evidence is literally reproduced, without correction of typographical errors):
‘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 6th 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 6th 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.’
All that was insufficient, in his Honour’s view, to take the appellant’s case the distance necessary for review of the MRT decision, the MRT not having believed that conversational material, uncorroborated as it was by any objective evidence. His Honour further concluded that ‘the applicant could not rightly argue that the MRT failed to consider the 9 September letter and thus made a Yusef error in failing to consider relevant material’, referring thereby of course to the subsequent letter of 9 September 1998 extracted in [5] above, and to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323.
Having disposed of what appears to have been evidentiary functions of the principal case presented on the application for review, Raphael FM addressed the appellant’s remaining three submissions made on that application, as recorded at the culmination of his Honour’s reasons for judgment, as follows:
(i)there was no scope for the appellant’s reliance upon s 359 of the Act, for the reason that ‘[i]t is not necessary for the MRT to bring its thought processes to the attention of the applicant in relation to material submitted by or as part of the applicants’ case’, his Honour citing in that regard Tin v Minister for Immigration [2000] FCA 1109 at [54];
(ii)as to the so-called ‘validity issue’, it was 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 in fact paid, and that the MRT found that no payment of the fee on 9 September 1998 could have operated retroactively to validate the otherwise invalid application earlier lodged on 15 July 1998; rather, so his Honour further found, that payment operated merely to complete the inchoate application and produce, for the first time, a valid application, in effect in the nature of a fresh application (his Honour citing in that regard Nadar v Minister for Immigration (2000) 101 FCR 352 at [56]); Raphael FM thus concluded that the appellant’s purported application of 15 July 1998 was by 9 September 1998 already out of time, and the delegate and the MRT were entitled to decline to give the applicant the visa he had thus requested; and
(iii)as to what his Honour referred to as the issue that remained outstanding, namely whether the MRT had erred ‘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’, his Honour held that ‘… this is a wrong finding of fact that was not material to the decision’; since ‘[g]iven that evidence must be a material fact to show that there has been a denial of procedural fairness : Minister for Immigration ex part “A” [2002] 101 FCR 352 at [56]’, …it is not an error which I am able to review’; his Honour added that ‘[e]ven so, the applicant gave oral evidence which was directed to what objective evidence he might have provided to prove he tendered the $1,600’, being evidence that was in his Honour’s view unsatisfactory; that was because such evidence was (in effect merely) to the effect that ‘the $1,600 had been held by the applicant in cash at home’; that evidence in his Honour’s view did ‘not advance the situation any further than that which obtained when the matter was before the Tribunal’, his Honour citing that the applicant had merely said: ‘I had the cash in my hand.’
The issues specifically raised by the appellant on the appeal
The appellant formulated the following four issues or matters of controversy for consideration on the appeal from the decision of Raphael FM to this Court:
(i)in a letter dated 17 December 2002, the MRT stated that it would provide the appellant with a further opportunity to appear before it; the MRT did not however provide the appellant with such an opportunity; in the circumstances of the case, this constituted a denial of natural justice and jurisdictional error; consequently the Federal Magistrates Court erred in finding that there was no denial of procedural fairness (‘the Further hearing issue’);
(ii)the Tribunal erred in finding there was no objective evidence before it to support the claim of the appellant that he attempted to pay the Department at any date prior to the date he presented the cheque from St George Bank; that error constituted jurisdictional error, and the Federal Magistrates Court erred in finding that the MRT did not fall into jurisdictional error in relation to that matter (‘the Department attendance issue’);
(iii)the Tribunal stated that it had asked for objective evidence that the appellant was in possession of funds to the extent of $1,600 at the time when he claimed that he went to the Department on 6 August 1998, but that such evidence had not been forthcoming; the MRT never asked the applicant that question, and again that error constituted jurisdictional error, and the Federal Magistrates Court erred in finding that the MRT did not fall into jurisdictional error in relation to that matter (‘the Evidence query issue’); and
(iv)at the time of the decision of the Minister’s delegate in November 2000, the application originally made on 15 July 1998 was valid within the meaning of s 46(1) of the Act; the Tribunal’s refusal to grant the visa on the basis that the application was invalid constituted jurisdictional error, and the Federal Magistrates Court erred in rejecting this submission (‘the Validity issue”).
The conclusions of the Court
It is first convenient to summarise in chronological sequence the following documentary evidence placed before the Court:
(i) on 15 July 1998, an application was lodged at the Department for a Subclass 805 visa;
(i) the appellant’s Subclass 413 executive visa expired on 16 July 1998;
(iii)on 21 August 1998, the Department noted in its records that a cheque in payment of the visa application fee had been dishonoured; that cheque had been made out for payment in cash in the sum of $1,565;
(iv)on 10 September 1998, the appellant’s migration agent Mr Garg, under cover of a letter dated 9 September 1998, forwarded to the Department a bank cheque for $1,574 in purported payment of a Subclass 805 visa fee of $1,565, plus $9.00 bank fees in the relation to the earlier dishonoured cheque;
(v)on 30 March 1999, that bank cheque totalling $1,574 was presented by the Department for payment; and
(vi)on 17 November 2000, the appellant was notified by Departmental letter, first, of acceptance of payment of the application fee ‘in full’, though only however ‘as at 10 September 1998’ (by which latter time of course the applicant’s Subclass 413 visa had expired).
It was upon that prima facie chronological footing that the Department’s letter of 17 November 2000 indicated, at least implicitly, that no valid application for a Subclass 805 visa had been made.
It was open to the MRT to reach the conclusion of fact that the appellant’s evidence as to his subsequent attendance at the Department’s offices on 6 August 1998, and as to his tender on that occasion of $1,600 in cash, uncorroborated as it was by any documentary material, was not creditable. As Raphael FM rightly pointed out, no objective evidence was placed before the MRT as to any actual tender of cash on that controversial occasion; for instance, no documentary evidence as to the availability from the appellant’s resources of that amount of money as at 6 August 1998 was provided to the Department, and moreover, no explicit reference was made in his migration agent’s letter of 10 September 1998 to the fact of that tender of cash having been earlier made, nor was any contemporaneous record made by the appellant, or confirmatory letter sent, concerning the events of that occasion, whether contemporaneous or otherwise. On the contrary, the migration agent’s letter reproduced in [5] above made no mention of that allegedly critical circumstance. The appellant’s claim as to becoming aware of the fact of dishonour of his cheque only upon receipt of his bank statement for the month of July 1998, was an unacceptable explanation to the MRT, and understandably so, once regard is paid to the content of that bank statement. To those observations may be added what I have otherwise mentioned in [4]-[5] above.
Addressing specifically the so-called ‘Further hearing issue’ and the ‘Department attendance issue’ together, which is the appropriate course because of the connection of one to the other, the Minister’s response was first that ‘[c]learly, the MRT thought that the appellant had lied to it and rejected his evidence accordingly’. That finding was open to the MRT to be reached.
The appellant’s case to the effect that objective evidence was placed before the MRT, contrary to the MRT’s finding, that the appellant had tendered to the Department in cash the sum of $1,600 on 6 August 1998, said to constitute objective evidence by virtue of the addition of the dishonour fee (albeit that such fee amounted only to $9.00), has no substance. The reasonable inference open to be drawn, in the context of those particular circumstances, was conversely to the effect that the appellant did not have at his disposal the funds required for an effective application for a Subclass 805 visa until about the time of the later tender of that St George bank cheque.
Particularly in the light of those compelling circumstances, there was no obligation in my opinion imposed on the MRT to have put to the appellant the proposition, in the course of the MRT hearing, that he was at no material time ‘in possession of sufficient funds to do so as he claimed’. Nor is there substance in the appellant’s submission that ‘[a]ccordingly, he (ie the appellant) never had an opportunity to provide evidence that he did have the funds’. Moreover it may be additionally observed the very circumstance that the appellant’s cheque provided to the Department on 15 July 1998 was dishonoured on presentation tended to impute an evidentiary onus to the appellant to establish the existence of funds otherwise available to the appellant to have satisfied the presentation of the original cheque in the first place, or at least to have forthwith made good the dishonoured cheque, being an onus which the MRT inferentially considered not to have been discharged by the appellant. Moreover the matters which the migration agent Mr Gang ex hypothosi said that he would have explained and emphasised to the appellant constituted material which would have been appreciated by the appellant from the very outset as necessary to have been presented to MRT.
I would therefore reject the submissions of the appellant that the MRT denied the appellant procedural fairness by failing to give the appellant the opportunity of a further hearing, or otherwise, and moreover that there existed evidence before the Tribunal to the effect that any such opportunity would have produced a converse result.
I would further reject the related submission of the appellant that he was denied procedural fairness ‘by deciding the issue concerning his attendance at the Rocks office of the Department adversely to him without giving him an opportunity to address the matter’. Essentially for the reasons that I have already formulated, the MRT extended to the appellant whatever opportunity, to which the appellant was reasonably entitled, to present his case. In the light of the evidence already placed before the Tribunal, and of the opportunity implicitly afforded to the applicant by the Tribunal to put forward any material or relevant evidence, the provision of any further hearing was rightly open to the Tribunal to characterise as lacking ‘any utility’. The appellant’s submission, in particular in the context of the so-called ‘Department attendance issue’, purported to afford a significance to the letter of 9 September 1998 of the appellant’s migration agent that it did not ever import or carry, such as to attract the operation of the Yusef principle, or otherwise.
I would now address the so-called ‘Evidence query issue’, which was based upon par 26 of the decision of the Federal Magistrate reading as follows:
‘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 (his Honour thereby citing Minister for Immigration and Multicultural Affairs; Ex parte ‘A’ (2002) 185 ALR 489 at [54] per Kirby J sitting as a single justice) it is not an error which I am able to review.’
The Minister correctly submitted that the erroneous finding of the MRT that it had sought such objective evidence (see again [14] above) was not material to the decision of Federal Magistrate Raphael, as is apparent from his Honour’s reasons in particular as set out in [21(iii)] above. If that ‘unsatisfactory’ evidence of the appellant, to adopt his Honour’s description, had been genuine, why was not the cash produced or a bank draft tendered to the Department at least by 6 August 1998, instead of a bank draft not being tendered to the Department on 9 September 1998, it is appropriate to observe. It was plainly unsatisfactory, as his Honour proceeded to implicitly point out, for the appellant merely to have asserted ‘I had the cash in my hand’, without more.
Finally as to the ‘Validity issue’, the appellant referred to the circumstance that at the time of consideration of the viability of the appellant’s application lodged on 15 July 1998 for the subject Subclass 805 visa application, s 46(1)(ba) of the Act stipulated that ‘any visa application charge that the Migration Regulations required to be paid at the time when the application [was] made [had] been paid’. It was contended by the appellant that ‘at the time of the decision of the [Minister’s] delegate’s decision, the application made on 15 July 1998 was valid within s 46(1)’ of the Act, and reference was made to Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 for authority to the effect that the words ‘shall be accompanied by’, in a legislative setting, may be satisfied if the requisite matter is provided prior to the processing of the application. Upon that footing, the appellant submitted that payment for the Subclass 805 visa was not necessarily required to be made at the time of making application therefor. This submission must be rejected. As the Minister rightly contended, the finding of the MRT was not that the application was invalidly conceived in substance, but rather that it was not made until 10 September 1998, when the replacement bank cheque was provided to the department, and thus payment for an application of that specification effectively made.
Moreover as to the so-called ‘Validity issue’, the Minster pointed out that the Braganza decision turned relevantly on the basis that the appellant there involved had applied for a waiver of the fee (see the passage at 375). Here of course no application for a fee waiver had been made, and as above indicated, the fee was not paid by the appellant until 10 September 1998. To adopt the contention of the Minister, ‘[t]he usual meaning of the clear words of the section do not in this case give rise to any absurd result which requires an alternative construction’.
Estoppel or waiver
In the course of the addresses of Counsel, I raised for consideration the possibility that the Minister’s retention of the whole of the sum of $1,574, belatedly tendered by the appellant on 10 September 1998 to the Department by bank cheque, and the ultimate banking of that bank cheque by the Minister, may conceivably constitute an estoppel or waiver on the part of the Minister. I refer to the purported reliance of the Minister ultimately by way of decision based upon the absence of payment not having been effectively made at the time of lodgement of the visa application on 15 July 1998. Submissions in writing were subsequently provided after the hearing of the appeal by counsel for the Minister on the matters of estoppel and waiver.
The Department’s standard form of communication relating to dishonoured cheques for application fees, sent to the appellant at the address 3/57 Harris Street Harris Park on 22 February 1999, included the following:
‘I refer to your application for a permanent visa in the General Residence Class which was lodged at this office on 15 July 1998.
Payment of $1,565 was made on that day by cheque No 55 drawn in the name of Jaswal, Jagmohan Singh.
We have been informed by the Revenue Management branch in Canberra that this cheque has been dishonoured.
A PAYMENT OF $1,565 PLUS $9.00 (DISHONOURED CHEQUE FEE) MUST BE MADE WITHIN FOURTEEN (14) DAYS OF THE DATE ON THIS LETTER FOR PROCESSING OF YOUR APPLICATION TO CONTINUE. ALL PAYMENTS MUST BE ACCOMPANIES BY A COPY OF THIS LETTER.
Payment may be made through the post… Payment through the post must be by BANK CHEQUE OR MONEY ORDER…’
As I have already indicated, payment of $1,574 had been earlier made by the appellant’s migration agent by means of a St George Bank cheque (see [5] above). I agree with the Minister’s submission that no issue of estoppel duly arose, there being for instance no reliance operating to the appellant’s detriment. I observe moreover that it was emphasised by a Full Court (Davies, Whitlam and Branson JJ) in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 that the Court cannot make an order so as to contradict the provisions of a statute by way of relieving against non-compliance with a requirement which the statute intends shall be satisfied. The question as to possible waiver requires perhaps closer consideration. The decision of the delegate made in November 2000, as recorded by Raphael FM, was to the effect the appellant was not entitled to a Subclass 805 Visa because a valid application, being an application accompanied by the appropriate fee, had not been made.
The position adopted by the Minister in summary was to the effect that the visa application was in fact considered by the Minister, and that ‘[a]ccordingly, the applicant got what he paid for : a consideration of the application’. The basis for rejection of the application, as extracted from the ‘Decision Record’ in [10] above, was that the application had not been validly made within 28 days of 16 July 1998, because payment of the applicable fees was not effectively made until 10 September 1998, and thus not within 28 days of the ‘relevant day’ in satisfaction of Schedule 3 criteria 3001. Upon that footing the Minister pointed out that the appellant had not satisfied the requirements of Subclause 805.211(2) of the Migration Regulations.
It was somewhat enigmatic for the Delegate to have apparently adopted the stance that the Minister could not consider the appellant’s visa application in the absence of payment of the requisite fee, and yet subsequent to such payment being tendered and accepted albeit belatedly, to have thereafter decided that the application should be rejected on the ground of non-payment of that fee in the first place. However I observe that the Delegate also concluded that none of the requirements of the General (Residence) (Class AS) relating to subclasses 801, 804, 814 and 832 were in any event satisfied by the appellant. Precisely what was entailed within the scope of the Minister’s submission that the Minister ‘did in fact consider the application’ is nor entirely clear. Be that as it may, I am unable to conclude that there was any waiver on the part of the Minister which operated adversely the Minister’s decision to reject the appellant’s visa application.
The appeal should therefore be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 21 June 2004
Counsel for the Applicant: BM Zipser Counsel for the Respondent: JD Smith Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 6 February 2004 and 2 March 2004 Date of Judgment: 21 June 2004
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