Kaur v Minister for Immigration (No 2)

[2013] FMCA 37

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR (NO 2) [2013] FMCA 37

PRACTICE AND PROCEDURE – Extension of time – where applicant failed to pay prescribed fee for application before Migration Review Tribunal – where Tribunal found no jurisdiction – where applicant claimed failure to pay Tribunal fees due to third party fraud – where applicant not aware of Tribunal decision at time of decision – where applicant aware of court proceedings – whether applicant aware of 35 day time limit – whether adequate explanation for delay – where applicant aware that prescribed application fee was not paid – whether fraud of supposed agent fraud on the Tribunal – whether possible to claim fraud upon Tribunal prior to invocation of jurisdiction of Tribunal – whether reasonable prospects of success – whether to grant extension of time.

Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Migration Act 1958 (Cth), ss.417, 425, 477(2)

Kaur v Minister for Immigration & Anor [2012] FMCA 239
SZFDE v Minister for Immigration & Anor [2007] 232 CLR 189
Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103
Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1417
SZQVV v Minister for Immigration [2012] FCA 871
Briginshawv Brigingshaw (1938) 60 CLR 336

Applicant: JASPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2312 of 2011

Judgment of: Raphael FM

Hearing date: 14 November 2012

Date of Last Submission: 14 November 2012

Delivered at: Sydney

Delivered on: 1 February 2013

REPRESENTATION

Counsel for the Applicant: Mr M A Kumar

Solicitors for the Applicant: Harish Prasad & Associates

Counsel for the Respondents: Mr T Riley

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application to extend time pursuant to s.477(2) Migration Act 1958 dismissed.

2. Applicant to pay the First Respondent’s costs for the application in respect of which judgment was handed down on 28 March 2012 and in respect of the present application assessed in the sum of $13,482.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2312 of 2011

JASPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Ms Jaspreet Kaur applied to the Department of Immigration & Citizenship for a Partner (Residence) (Class BS) visa on 17 February 2005.  On 20 April 2011 a delegate of the Minister refused to grant the visa.  On 18 May 2011 Ms Kaur applied to the Migration Review Tribunal for review of the delegate’s decision.  The decision of the Tribunal is short and is set out here in full from paragraphs [5] to [19]:

   [5]The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision, unless it is a decision in relation to which the Minister has issued a conclusive certificate: s.348 of the Act. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Act us covered by s.338(2).

   [6]Section 247 sets out the requirements for an application for review. Section 347(1)(a) requires an application to be made in the approved form and s.347(1)(b) requires an application to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and start when the applicant is notified of the decision.

   [7]Section 347(1)(c) requires an application to be accompanied by the prescribed fee (if any). The prescribed application fee (where payable) is $1400: r.4.13(1) of the Regulations, and must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99.

   [8] However, r.4.13(4) provides that the Registrar, or a Deputy Registrar, or another officer of the Tribunal authorised by the Registrar, may determine that the fee on an application for review should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the applicant. Where the applicant has asked the Tribunal to waive the prescribed application fee pursuant to r.4.13(4), and has made that request within the prescribed period, the application for review is valid if the prescribed application fee is either waived or paid within a reasonable time after the fee waiver request has been refused: Braganza v MIMA (2001) 109 FCR 364. As a matter of policy, the Tribunal generally regards 14 days as a reasonable period but considers requests for additional time if the applicant does not consider 14 days to be reasonable in the particular circumstances.

   FINDINGS AND REASONS

   [9]The tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.336(2) and that the prescribed fee for this application is $1400.

   [10]The applicant asked the tribunal to waive the prescribed application fee on 18 May 2011, which was before the prescribed period expired.

   [11]On 31 May 2011 the tribunal contacted the applicant and requested further documentary evidence in support of her fee waiver application, to be provided by 8 June 2011.

   [12]On 10 June 2011 the tribunal received a submission in relation to the fee waiver application.

   [13]An authorised tribunal officer decided on 22 June 2011 to refuse the request for fee waiver because the officer was not satisfied, due to insufficient documentary evidence, that the payment of the fee would cause the applicant, or is likely to cause her, severe financial hardship. The tribunal wrote to the applicant on 22 June 2011 advising her of this decision and requesting that the prescribed application fee be paid within 14 days of receiving the Tribunal’s letter. As the letter was set by post, this made the last date for payment of the fee 15 July 2011. The applicant was informed that if the fee was not paid, the tribunal may decide that the review application was invalid.

   [14]On 14 July 2011 the tribunal received a further submission from the applicant in relation to her fee waiver application.

   [15]A tribunal case note dated 4 August 2011 indicates that the review applicant had telephoned the tribunal over a two week period and stated that a friend would bring cash to the Tribunal to pay the application fee. Accordingly, an extension to pay the application fee was granted until 3 August 2011. As the application fee had not been paid by the due date, the tribunal attempted to contact the applicant on her mobile phone however was unsuccessful.

   [16]A case not dated 10 August 2011 indicates that when the applicant spoke with a tribunal officer on 4 August 2011. She claimed that the payment was posted on 3 August 2011. However, the tribunal did not receive any payment from the applicant.

   [17]The applicant did not the tribunal subsequently, and no payment has been received.

   [18]The tribunal finds that the applicant has been given a reasonable period to pay the prescribed application fee since being notified of the decision to refuse to waive it. The tribunal finds that the prescribed application fee has not been paid. As the prescribed application fee has not been paid, or waived under r.4.13(4), the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

   [19]The tribunal does not have jurisdiction in this matter.”

2. On 12 October 2011 Ms Kaur filed an application with this court seeking review of the Tribunal’s decision. She did not appear at the first return day on 17 November 2011. The matter was dismissed by this court. On 22 December 2011 she filed an application seeking to reinstate the proceedings pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001.  I heard that application on 6 March 2012 and delivered judgment Kaur v Minister for Immigration & Anor [2012] FMCA 239 on 28 March 2012. Ms Kaur claimed, inter alia, that she had been the victim of fraud by a person purporting to be a migration agent who had taken money from her for the filing fee with the Tribunal but not passed it on to the Tribunal. This agent had also provided the Tribunal with change of contact details for the applicant which were false in every particular and had impersonated the applicant in conversations with the Tribunal concerning the payment of the filing fee which was never paid. The applicant argued that this action by the agent constituted a fraud on the Tribunal of the type considered by the High Court in SZFDE v Minister for Immigration & Anor [2007] 232 CLR 189[1] and that the court should hold that the Tribunal’s decision concerning its lack of jurisdiction was made in error.  After a day of hearing, and not without expressing some serious concerns about the ability of Ms Kaur to convince me or another Federal Magistrate of the correctness of her legal position, I concluded that this was an appropriate case in which to exercise my discretion to set aside the orders previously made.  Although I noted that I had made credit findings in respect of Ms Kaur and anticipated an application that the matter be heard finally before a different Federal Magistrate no such application was made and so the matter proceeded to hearing on 14 November 2012.

   [1] “SZFDE”

3. The application itself had not been filed within thirty-five days of the date of the Tribunal’s decision and thus required an extension of time under s.477(2) of the Migration Act 1958 (Cth). The respondents resist the granting of the extension of time on the basis that the application is unmeritorious. The evidence is that the decision letter was sent to Ms Kaur at the address of the agent which was the subject of the change of contact details [CB 63] that had not been authorised by Ms Kaur and so she was unaware of the Tribunal decision. She agreed that she had signed the application to this court but said that she did not understand the difference between that and the Tribunal. I found in the first hearing that Ms Kaur was aware of the court proceedings but I made no findings as to whether she was or should have been aware of the thirty-five day time limit. I have come to the view, for reasons explained later in these reasons, that in all the circumstances of the case Ms Kaur was not entitled to abrogate responsibility in the matter to her agent and this has repercussions as to whether the matter falls within the SZFDE dicta or not.  But I have also accepted that she was unaware of the negotiations between the Tribunal and the agent that extended the time for payment of the fee from July to mid August and was not appraised of the decision so that it would have been difficult for her to calculate the thirty-five days for the filing of proceedings with the court.  To that extent I believe the delay has been adequately explained.  My decision as to whether to grant the extension of time therefore rests upon my views of the prospects of success in the proceedings.

4. At the hearing on 14 November Ms Kaur relied upon an affidavit sworn on 28 May 2012.  She repeats earlier evidence that she had met the agent “Rama” prior to her having any migration problems when she went to visit her cousin in Moree.  At that time Rama had introduced herself as a migration agent and lawyer.  After Ms Kaur’s visa application was rejected she spoke with her cousin who recommended that she asked Rama to help her.  She paid Rama $2,500.00 which she knew represented $1,400.00 filing fee with the Tribunal and $1,100.00 for Rama. The money was paid in cash by her cousin to Rama.  Ms Kaur admitted that she knew that Rama did not have an office and although both were Punjabi speakers she does not appear to have questioned her about her qualifications or her business.  Ms Kaur admits that she received a letter from the Tribunal dated 19 May 2011 [CB 39] which stated:

   “The Tribunal received your application for review in relation to a decision to refuse to grant a Partner (Residence) (Class BS) visa on 18 May 2011.

   Please find enclosed a review application receipt.  Your application to have the review application fee waived is being considered and the Tribunal will contact you soon about this.”

5. There was attached to that letter at [CB 38] the review application receipt which indicates that no money was paid.  I found that in those circumstances Ms Kaur, at the very least, adopted the application by her agent to have the fee waived.  Ms Kaur provided the Tribunal with certain additional information about her finances, copies of which are found at [CB 42 – 48].  She admits that on one document [CB 43] the MRT case number 1104702 was written in her handwriting and she also admits that all the documents were faxed by her. What she says is she believed they were being faxed to Rama and not the Tribunal.  She claims she was unaware that a fax number commencing with the code 02 was a fax number in Sydney.  She told the court that Rama had said to her that “you must put the case number on it because I have lots of cases and so this is how I will know they are your papers” although the documents clearly belong to Ms Kaur on their face.

6. Ms Kaur also told the court that when she received the letter from the Tribunal relating to the fee waiver application she was somewhat confused and sought advice from her cousin’s brother in law who appears to have lived in Sydney.  This gentleman apparently read and understood English and he translated the letter for Ms Kaur.  He told her there was obviously an issue with the filing fee and that she should speak to Rama.  Ms Kaur had already paid the filing fee to Rama so it would have been no loss to her to order Rama to pay it immediately.  She did not do so.  She says that she spoke to Rama and Rama told her that it was all a mistake and not to worry.  Notwithstanding this, she consented to provide some detailed additional financial information, she says to Rama, but it would appear to have gone to the Tribunal.  In these circumstances I find it difficult to accept Ms Kaur’s claim that she was unaware that an application for fee waiver was being made.  I am also of the view that Ms Kaur knew that the documents were being sent to the Tribunal rather than to Rama and I do not accept her explanation as to why the MRT case number was written by her on at least one of the documents.

7. Ms Kaur accepts that she did receive the letter from the Tribunal telling her that the fee waiver application had failed and that she was obliged to pay the fee by 15 July 2011.  Again she took the letter to the cousin’s brother in law and again he told her that there were problems and that she should contact Rama.  The rather convoluted story of what occurred when Rama was contacted is not, to my mind, entirely credible.  Ms Kaur says that Rama told her that it was all a mistake and that this was not about the filing fee but a hearing fee of $6,000.00 and required some more money to be paid.  The evidence of more money being paid is allegedly found at [CB 46].  According to Ms Kaur this evidences money taken from her NAB visa account by Rama; but the date that the withdrawal occurred was 7 June 2011 and the letter from the Tribunal telling her that the fee had to be paid by 15 July 2011 was dated 22 June.  This causes me considerable concern as to the veracity of Ms Kaur’s evidence.  In my view when she got the letter from the Tribunal she knew that money had to be paid by a particular date and she also knew that the money had been paid by her to Rama.   There was no reason why she could not have told Rama to pay the money immediately to the Tribunal or why she should not tell the Tribunal that she had so ordered her agent and kept in touch with what was occurring so that she could be sure that the payment was made.  She did none of those things.  She tells the court that she accepted Rama’s assurance that it was all a mistake and that more money was needed for a setting down fee.  If that is indeed what occurred then, in my view, Ms Kaur acted irresponsibly and with almost wilful blindness to the true facts.  From this stage on, Ms Kaur can no longer hide behind the deprecations of her agent.  The story she tells of her conversation with Rama is so inconsistent with the letter from the Tribunal that no reasonable person would accept it without further investigation.

8. As noted above, the applicant relies on what fell from the High Court in SZFDE that a fraud on the Tribunal resulted from the acts of a third person who held himself out to be a migration agent. What allegedly occurred in the present case is similar, though not identical, to the fraudulent activity which lead to the High Court’s finding. In that case, after having been invited to attend a hearing before the Tribunal under s.425, the appellants were informed by the supposed agent that it would be best not to attend under the pretence that the Tribunal was not at that time finding in favour of review applicants. The appellants there were told that a different approach would be taken, and the agent sent a letter to the Minister directly calling upon the Minister’s powers under s.417 of the Act. The High Court described the factual scenario as follows:

   “Here, on the appellants' case, the decision not to appear, whilst consciously made, was the result of the fraudulent conduct of a third party, Mr Hussain, but neither the appellants nor the Tribunal appreciated the situation before the Tribunal made its decision.”

   And held per curiam that:

   “No doubt Mr Hussain [the supposed agent] was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.” [emphasis added]

1. In reaching this conclusion, the High Court referred positively to the two Federal Court cases of Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103[2] and Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387. In Wati, Lindgren J, in considering the phrase “was induced or affected by fraud” in the now repealed s.476(1)(f), found that a decision had to have been “actually induced or affected by fraud”.[3] (at 112). In Jama Lehane J considered the same section and reflected:

   “Lindgren J spoke, in Wati at 113, of “actual influence”: a paraphrase which indicates, correctly in my view, that the court must be satisfied that the fraud had a material effect in relation to the decision which the tribunal reached.”

   To my mind these extracts illustrate the distinct nature of the present case. Unlike the appellants in SZFDE, I am of the view that Ms Kaur did appreciate the situation, even if the Tribunal did not. Whilst she may have been forgiven for not taking action when first alerted to Rama’s failure to pay the Tribunal’s fees, her inaction upon second notification is inexcusable. It disavowed Rama’s alleged fraud of its material effect upon the Tribunal.

   [2] ‘Wati’.

   [3] Wati at 112.

2. It was argued, in the alternative, that SZFDE should not apply in the present case because any fraud upon the Tribunal occurred prior to the jurisdiction of the Tribunal having been engaged. In argument I was informed of the then forthcoming decision of the Federal Court in SZQVV v Minister for Immigration and Citizenship [2012] FCA 1417[4] and agreed to wait until that decision was handed down before coming to any conclusion on that point. On 21 December 2012, Flick J delivered judgment, and although his Honour’s decision did not rely on the point he strongly inferred that SZFDE would apply to fraud practiced prior to the invocation of the Tribunal’s jurisdiction. His Honour opined at [18-19]:

   “The decision in SZFDE, it was nevertheless contended on behalf of the Minister, is distinguishable. There, the fraudulent conduct arose after the jurisdiction of the Tribunal had been invoked; in the present case, it was correctly submitted that any conduct that could potentially be characterised as fraud arose before the jurisdiction of the Tribunal had been invoked.

   But the conduct of a third party can unquestionably stultify any attempt by a claimant to even invoke the Tribunal’s jurisdiction. Had it been necessary to resolve the Minister’s submission, it would most probably have been concluded that the principles set forth in SZFDE are not to be confined to fraudulent circumstances which arise only after the jurisdiction of the Tribunal has been properly invoked. Indeed, to so conclude would be to run the risk of potentially encouraging even more reprehensible conduct on the part of third parties by frustrating an individual’s ability to even lodge a claim with the Tribunal. Such cannot be the necessary limitations upon the principles set forth in SZFDE.”

   See also: SZQVV v Minister for Immigration [2012] FCA 871 per Greenwood J at [58].

   [4] ‘SZQVV’.

1. However, as in SZQVV, the present case does not turn on this point. What is the fraud allegedly perpetrated upon Ms Kaur which it is claimed had the effect of constituting a fraud on the Tribunal by preventing Ms Kaur from engaging the review processes of the Tribunal at all?  The fraud was said to be not paying the money given to Rama by Ms Kaur to the Tribunal.  But Ms Kaur knew that this had not been done.  There is no suggestion from Ms Kaur that Rama ever said to her that she would be paying the money over to the Tribunal and then failed to do so.  That would certainly amount to a fraud.  The findings which I have made on the evidence are that the secondary story set out at [7] of these reasons lacks sufficient credibility.  To my mind such a story must meet the Briginshawv Brigingshaw (1938) 60 CLR 336[5] standard of satisfaction which requires it to be commensurate with the seriousness of the charge made.  The charge made by Ms Kaur against Rama is of a criminal offence and, whilst I am not suggesting that the standard is the criminal one by any means, the lack of satisfaction that I have indicated in [7] to my mind rules out a finding of Briginshaw satisfaction. 

   [5] ‘Briginshaw’

2. It follows that I cannot be satisfied that Ms Kaur has any reasonable prospects of success in the proceeding presently before me being a proceeding to set aside the decision of the Tribunal on the grounds that it was infected by fraud. On that basis I cannot see that there is any purpose in allowing the extension of time for commencing proceedings in this court as required by s.477(2). That application is dismissed. In Kaur v Minister for Immigration & Anor [2012] FMCA 239 I said in relation to costs:

   “[43]”The parties have not addressed me on costs. As it is unlikely, having made findings upon the applicant’s credit, she will wish me to hear the substantive action, I believe I should make an order. I will give the parties 7 days to make submissions whilst indicating that my current thinking, based upon Ms Kaur’s deliberate non-attendance at the directions hearing, is that the costs should be the Respondent’s costs in the cause.

3. I do not appear to have received any such submissions and as Ms Kaur has been unsuccessful I would grant the respondent costs in relation to the application in respect of which judgment was delivered on 28 March 2012 assessed in the sum of $6,741.00 and costs in relation to the application now determined assessed in the sum of $6,741.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  1 February 2013