Kumar v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 53
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 53
File number(s): MLG 2007 of 2023 Judgment of: JUDGE FORBES Date of judgment: 28 January 2025 Catchwords: MIGRATION – application for judicial review of decisions of Administrative Appeals Tribunal – where delegate refused application for Employer Nomination Scheme visa – where Tribunal dismissed application for review due to non-attendance at hearing – where dismissal confirmed – whether visa application validly withdrawn prior to delegates decision – whether withdrawal lodged by applicants nominated recipient constituted valid withdrawal – construction of s 49 of the Migration Act considered - whether applicant gave authority for withdrawal – held withdrawal was effective – Tribunal lacked jurisdiction where visa application had been withdrawn Legislation: Migration Act 1958 (Cth) s 45; s 48A; 49; 195A; 280; 282; 351; 362B; 494D; 497
Migration Regulations 1994 (Cth) sch 4
Cases cited: Clauss v Pir [1988] Ch 267
Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 529
Mohammed v Minister for Immigration and Border Protection [2015] FCA 184
Nitin Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1054
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
SZSKX v Minister for Immigration & Anor [2014] FCCA 157
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 4 December 2024 Place: Melbourne Applicant: In person Counsel for the Respondent: Mr Hosking Solicitor for the Respondent: Sparke Helmore Lawyers
Table of Corrections 29 January 2020 Table of contents: Counsel for the Respondents (has changed from Solicitor for the Respondents: Mr Mangos; Sparke Helmore Lawyers to Counsel for the Respondents: Mr Hoskings) ORDERS
MLG 2007 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NITIN KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The decision of the Second Respondent (the Tribunal) made on 6 September 2023 be quashed.
2.The decision of the Tribunal made on 13 October 2023 be quashed.
3.The First Respondent pay the Applicant’s cost and disbursements of the proceeding limited to any filing fee and setting down fee paid by the Applicant to the Court, within 35 days of the Applicant providing proof of payment.
AND THE COURT DECLARES THAT:
4.The Applicant’s visa application made on 15 June 2021 was validly withdrawn on 15 December 2022 by the giving of written notice on his behalf to the Minister as required by s 49 of the Migration Act 1958 (Cth).
5.By reason of the withdrawal of the applicant’s visa application the application is taken to have been disposed of.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By an application dated 15 November 2023, the applicant seeks judicial review of two decisions of the Administrative Appeals Tribunal (the Tribunal) namely:
(a)a decision made by the Tribunal on 6 September 2023, by which the Tribunal dismissed the applicant’s application for review of a decision made by the Minister’s delegate dismissing the applicant’s application for an Employer Nomination Scheme (Subclass 186) visa (the dismissal decision). The Tribunal reached this decision due to the applicant’s failure to attend a scheduled hearing on 5 September 2023; and
(b)a subsequent decision made on 13 October 2023, by which the Tribunal confirmed its 6 September 2023 decision. The Tribunal reached this decision as the applicant did not apply to re-instate his application (the confirmation decision).
The applicant claims to have withdrawn his visa application on 15 December 2022, prior to the delegate’s decision to refuse it.
In his application for judicial review of the Tribunal’s decisions, the applicant alleged two grounds of judicial error. The first ground alleged a failure on the part of the Department to contact him in relation to a requirement that the withdrawal of visa form be personally signed by him. The second ground alleged that the Tribunal erred by not varying the delegate’s decision to dismiss the visa application and substituting it with a decision that the applicant’s visa application had been withdrawn.
The Minister applied for summary dismissal of the applicant’s judicial review application on the grounds that it lacked merit and had no reasonable prospect of success. The summary dismissal application was heard by Judicial Registrar Cummings.
On 17 December 2024, Judicial Registrar Cummings dismissed the Minister’s application[1]. While JR Cummings accepted that the applicant did not have reasonable prospects of successfully prosecuting the two grounds of review in his judicial review application, the Judicial Registrar identified an alternative issue which he considered should be resolved at trial. That issue concerned a jurisdictional fact, namely whether the applicant had or had not validly withdrawn his visa application on 15 December 2022, prior to the delegates decision.
[1] Nitin Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1054
The Registrar found that it was important for this issue to be determined because if the applicant had validly withdrawn his visa for the purposes of s 49 of the Migration Act 1958 (Cth) (the Migration Act), the Tribunal would have fallen into jurisdictional error by dismissing that application – the simple point being that the Tribunal cannot dismiss an application which is not validly before it.
For the reasons set out in this judgment, I have decided that the applicant has demonstrated jurisdictional error. I am satisfied that the visa application was withdrawn after written notice was given to the Minister by the applicant’s authorised recipient, Mr Bhandari. By reason of that notice and the operation of s 49 of the Migration Act, the visa application was disposed of and the Minister cannot be taken to have refused the grant of the visa. The jurisdiction of the Tribunal was not enlivened.
BACKGROUND
The applicant is a citizen of India. He is 34 years old and is qualified as a computer network and systems engineer.
On 15 June 2021, the applicant applied for a Subclass Employer Nomination Scheme (Subclass 186) visa (the visa). In his application form, the applicant provided his personal email address and listed Mr Abhinaya Bhandari as his authorised recipient. In doing so, Mr Bhandari was authorised to receive any written correspondence that would otherwise be sent to the applicant. The applicant also provided Mr Bhandari’s mail, email and mobile phone contact details.
On 16 June 2021, the applicant updated his visa application: he changed his personal email address and provided his date of birth. However, the applicant specified that all written correspondence from the Department was still to be sent to Mr Bhandari.
On 15 December 2022, Mr Bhandari sent a Form 1466 to the Department withdrawing the applicant’s visa application. The form also contained confirmation of the following statements:
(a)Mr Bhandari was applying to withdraw the applicant’s visa application on behalf of the applicant;
(b)Mr Bhandari had been given authority by the visa applicant to withdraw the applicant’s visa application; and
(c)Mr Bhandari was withdrawing the applicant’s visa as an “authorised exempt person”.
Mr Bhandari provided his address, email and mobile phone details under Question 6 of the Form “Details of authority withdrawing the visa application”[2]. Item 6 of the Form also contains a note directing the person completing this part of the form (i.e. “you”) to sign it at Question 9.
[2] Court Book (CB) 71
Question 9 of the Form contains a declaration that all information contained in the form is true and correct. It also contains an acknowledgment that after the visa application has been withdrawn, the application is taken to have been disposed of, and no further consideration will be given to it. The Form 1466 was signed by Mr Bhandari alone but not the applicant.
On 12 January 2023, the Department sent an email to Mr Bhandari, as well as to the applicant’s personal email address as provided on 16 June 2021. The email stated that the visa withdrawal was invalid as it was signed by the applicant’s authorised recipient and not by the applicant himself. The correspondence from the Department asserted, inter alia:
“We are however unable to action a request for withdrawal of this application as it has been signed by the authorised recipient. However they do not have authority to act on the client’s behalf.” (underlining added)
The Department requested the applicant to submit a new visa withdrawal application form and to personally sign it.
Neither the applicant, nor Mr Bhandari responded to the Department’s email and they did not make further contact with the Department. Subsequently, the Department proceeded to determine the applicant’s visa application.
On 1 February 2023, a delegate of the Minister (the delegate) refused the applicant’s visa application on the basis that the applicant did not meet the Public Interest Criterion 4020 outlined in schedule 4 of the Migration Regulations 1994 (Cth) (the Regulations). The refusal of the visa was addressed to the applicant but transmitted by email to his authorised recipient Mr Bhandari[3].
[3] CB 77
On 9 February 2023, the applicant applied to the Tribunal for review of the delegate’s decision.
On 18 August 2023, the Tribunal invited the applicant to attend a hearing on 5 September 2023 and informed the applicant that if he did not appear, his application could be dismissed. On 29 August and 4 September 2023 the Tribunal sent text messages to the applicant’s mobile to remind him of the forthcoming hearing[4].
[4] CB 116
On 4 September 2023, the applicant requested an adjournment of the hearing due to ill-health. In the absence of a medical certificate or other satisfactory evidence, the Tribunal decided to proceed with the hearing scheduled for 5 September 2023[5].
[5] CB 113
On 5 September 2023, the applicant did not appear. The following day, the Tribunal informed the applicant that it had dismissed the his application for review pursuant to s 362B(1A)(b) of the Migration Act by reason of his failure to appear before the Tribunal[6].
[6] CB 121
The Tribunal notified the applicant of his right to apply for a reinstatement of his application on or before 20 September 2023. The applicant took no further action. On 13 October 2023, the Tribunal confirmed its decision to dismiss the applicant’s application for review.
Application for judicial review
On 15 November 2023, the applicant applied for judicial review of the Tribunal’s decision. As previously discussed, the applicant sought to impugn the Tribunal’s decision on two grounds, both of which were dismissed the Registrar as having no prospect of success. However, the Registrar identified an alternative issue which he determined should be resolved at trial. This issue concerned whether the Tribunal’s decision was affected by jurisdictional error in circumstances where the applicant’s visa application may have been validly withdrawn by Mr Bhandari.
The Judicial Registrar correctly explained that the Tribunal’s jurisdiction to review the dismissal of a visa application can only be enlivened if a valid visa application exists.[7] In other words, if an applicant is found to have validly withdrawn their visa application before the delegate dismissed it, the Tribunal’s decision will be affected by jurisdictional error as it will have dismissed an application which had already been disposed of pursuant to s 49 of the Migration Act.
[7] Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 at [20]
In his summary dismissal judgment, JR Cummings confirmed Mr Bhandari’s role was that of an “authorised recipient” for the applicant and rejected that Mr Bhandari was an authorised exempt person. The Registrar noted that while an authorised recipient has the authority to receive documents on behalf of the applicant under s 494D(2) of the Migration Act, there is no legislative provision which expressly permits an authorised recipient to withdraw an applicant’s visa application.
On the available evidence, the Registrar remained uncertain as to whether the applicant had authorised Mr Bhandari to withdraw his visa application and whether Mr Bhandari was authorised to do so. Additionally, the Registrar took issue with the Minister’s explanation as to why Mr Bhandari lacked authority to withdraw the applicant’s visa application – as the Department had asserted in its letter of 12 January 2023. For these reasons, the Registrar directed these issues to be resolved at trial. [8]
[8] SZSKX v Minister for Immigration & Anor [2014] FCCA 157 at [6]
HEARING
The final hearing of the application for judicial review was held on 4 December 2024. The applicant was self-represented. The Minister was represented by Mr Hosking of Counsel.
The procedure for the hearing was carefully explained to the applicant, as was the jurisdictional question and the issues I had to determine. The applicant confirmed that he understood the procedure and had no questions to raise about it. The applicant also confirmed that he had been served the court book and the Minister’s outline of submissions.
I noted on 17 October 2024, Judicial Registrar Cummings had ordered the applicant to file and serve any amended application for judicial review, any written submissions and any further evidence on or before Wednesday 6 November 2024. The applicant did not file any formal evidence or affidavits prior the final hearing.
The Court explained the particular difficulties which arise from his failure to file affidavit evidence, namely that it leaves the Court in the position of not having before it any sworn material regarding the circumstances of the visa withdrawal. The absence of evidence could be fatal to his application. I explained to the applicant that for a Court to receive evidence, a party must file a sworn affidavit which sets out the evidence that party wants the Court to hear. I explained that the Court could not accept submissions from the bar table as a substitute for evidence[9].
[9] SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [39]
I informed the applicant that if he wanted to give evidence about the circumstances of the withdrawal and Mr Bhandari’s involvement in that process, I would afford him the opportunity to do so, subject to any objection which the Minister might raise. I suggested he could do one of two things. First, he could request an adjournment and seek time to prepare an affidavit. Alternatively, he could choose to take an oath and give sworn evidence from the witness box. The Minister accepted those two options provided that the applicant could give an adequate explanation for his failure to file an affidavit.
The applicant explained that he had failed to file an affidavit as he is a self-represented litigant and has limited knowledge of the law. He said he had been to multiple lawyers and they said they were not prepared to take the case or they were not happy with the case. The applicant said because he could not get representation, he thought he would attend the hearing and run his case himself.
I accepted that the applicant should be permitted to give evidence for the following reasons. First, procedural fairness demands that I do so. The applicant is self-represented and I accept that he has a limited understanding of the law or the difference between evidence and submissions. Secondly, I accept that the applicant has taken steps to obtain legal representation but has been unsuccessful. Thirdly, the central issue before the Court will be informed by evidence of the type the applicant can give. Fourthly, after the detailed judgment of JR Cummings, the Minister is plainly on notice of the issues to be determined and cannot be said to have been taken by surprise. Fifthly, given the applicant’s willingness to take the witness stand without an adjournment, there would be no delay to the proceedings. Finally, the Minister is represented by experienced counsel and accepted that he was in a position to cross-examine.
Applicant’s evidence
The applicant contends that he authorised Mr Bhandari to withdraw his visa application. In support of that contention the applicant gave viva voce evidence (with some guidance from the Court as to the matters he should address) and was cross-examined.
The applicant gave evidence that he had very little knowledge of the migration system and said that he relied on Mr Bhandari to guide him from the outset. The applicant said that he listened to Mr Bhandari’s advice and instructions. The applicant said that he shared a trusting relationship with Mr Bhandari and assumed, due to his knowledge and experience as a migration consultant, that Mr Bhandari would act in his best interests. When Mr Bhandari suggested to the applicant that he should withdraw his visa application in order to look for another sponsor, the applicant stated that he agreed to this course of action and authorised Mr Bhandari to act accordingly.
Moreover, the applicant acknowledged that he received a letter from the Department informing him that his visa withdrawal application was invalid and that personal approval from the applicant was required to effectuate the withdrawal. He said he understood the Department wanted him to acknowledge the withdrawal.
The applicant stated that after reading this letter, he contacted Mr Bhandari, who assured the applicant that he was not obliged to respond to it. The applicant said that he was told by Mr Bhandari that the Department should not have written directly to him because Mr Bhandari was the authorised person to act on his behalf. He accepted Mr Bhandari’s assurance that all that needed to be done had been done and that he did not have to worry about the Department’s letter. According to the applicant, Mr Bhandari said:
“Because I am the authorised person, if I made a request for withdrawal, they have to withdraw it.”
The applicant said that as he had given Mr Bhandari authority to act on his behalf, he believed Mr Bhandari would manage the situation.
When cross-examined, the applicant accepted that he received the Department’s letter and agreed it would only have taken him 10 seconds to sign the form. But he reiterated that he called Mr Bhandari about the letter and that he had been told that the Department had no option but to act on the withdrawal request because Mr Bhandari was authorised.
Counsel for the Minister put to the applicant that he did not sign the form because he did not agree to the application being withdrawn. The applicant emphatically disagreed. He said he did authorise the withdrawal request but he did not act on the Department’s letter because he was told he didn’t have to.
The applicant accepted that he subsequently learned that his visa application had been refused. He agreed that he did not call the Department to protest the decision. The applicant gave evidence that his first response was to contact Mr Bhandari because Mr Bhandari was handling things on his behalf. The applicant said that when he asked what was going on, he was told by Mr Bhandari:
“They shouldn’t be doing this. Maybe they – I don’t know what’s going on because they actually have to accept the withdrawal…With this withdrawal, that should actually have happened, which didn’t happen in your case.”
When pressed about why he did not go to the Department, the applicant said that he was working through a consultant, he didn’t know how the process worked and that he was following Mr Bhandari’s guidance. He rejected the suggestion that he had not actually agreed for the visa application to be withdrawn.
The applicant stated that Mr Bhandari assured the applicant he would file a claim with the Administrative Appeals Tribunal to resolve this issue. He said that Mr Bhandari did this because he was “the knowledgeable person”. The applicant said that he did not attend the Tribunal because he was sick and that when he learned that the application for review had been dismissed, Mr Bhandari said “we will file in the federal”. Subsequently, their relationship soured, Mr Bhandari disappeared and “he left me in the middle of nowhere”.
Notwithstanding, in support of his argument that Mr Bhandari was authorised to withdraw his visa application, the applicant stated that if he had not authorised Mr Bhandari to do so, he would have made a complaint against him or gone to the police.
Applicant’s submissions
The applicant’s case is that the visa application was withdrawn by Mr Bhandari who was properly authorised to request the withdrawal on his behalf. He relies on his evidence.
Minister’s submissions
The Minister submitted that the Tribunal’s dismissal decision and its confirmation decision are both “migration decisions” within the meaning of the Act. The question for the Court therefore is whether those decisions are affected by jurisdictional error. The Minister accepts those decisions will be affected by jurisdictional error if the applicant’s visa application was in fact withdrawn on 15 December 2022.
The Minister submitted that the Tribunal’s decision was not affected by jurisdictional error because the applicant’s visa application was not validly withdrawn. As a consequence, the delegate's refusal of the visa was within power as was the Tribunal’s dismissal of the application for review.
The Minister submitted that the question of whether a person has authority to withdraw a visa application must be determined by reference to s 49 of the Migration Act which relevantly states:
Withdrawal of visa application
(1)An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2) An application that is withdrawn is taken to have been disposed of.
(3)For the purposes of section 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4)Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
Accordingly, the relevant question before the Court is whether on the proper construction of s 49 of the Act and on the evidence before the Court, the sending of the Form 1466 by Mr Bhandari was sufficient to withdraw the applicant’s visa application.
The Minister accepts as uncontroversial the fact that the visa withdrawal Form 1466 constituted “written notice” for the purposes of s 49(1), and that it was “given to the Minister” for the purposes of that provision. What remains at issue is whether, on the proper construction of s 49:
(a)the words “[a]n applicant for a visa” mean only the visa applicant personally, or whether a visa application can be validly withdrawn where the written notice is given by a person other than the visa applicant; and
(b)if another person can give the written notice, in what circumstances can the written notice be given by such other person.
Surprisingly these issues have not been the subject of previous judicial consideration.
The Minister concedes that the words “an applicant for a visa” in s 49(1) of the Act should not be read to exclude the possibility of the written notice being given by a person acting as an agent for a visa applicant. At [40] of their written outline of submissions[10], the Minister pointed to a number of contextual matters which support that construction of the provision:
“First, the Act expressly contemplates that there will be circumstances in which a person may take steps on behalf of a visa applicant. For example, s 48A(1) refers to a person “hav[ing] a further application for a protection visa made on his or her behalf” and s 282(4) refers to a person making representations to, or otherwise communicating with, the Department on behalf of a visa applicant.
Second, where the Act requires a person to do something personally, it says so expressly. For example, various powers under the Act may only be exercised by the Minister personally, and s 494D(3) expressly provides that an authorised recipient may not vary or withdraw the notice appointing that person as an authorised recipient.
Third, there is nothing in the nature of the act required by s 49(1) — namely, the giving of a written notice — which indicates the act must be done by the visa applicant personally. It is not an act that requires any particular knowledge on the part of the visa applicant (such as swearing an affidavit). To the contrary, it is an act of a kind that is frequently done by one person (for example, a legal representative) on behalf of another.
Fourth, it has long been accepted that s 45(1) of the Act, which deals with making a visa application, does not require the visa application to be made by the visa applicant personally. It would be inconsistent with that construction of s 45(1) to construe s 49(1) as requiring that a visa application must be withdrawn by the visa applicant personally.
Fifth, although a key purpose of s 49 is to provide greater certainty in dealing with visa applications (by giving visa applicants an express right to withdraw a visa application, which right had not been express before what is now s 49 was inserted in the Act), it is not necessarily productive of uncertainty to accept that there are circumstances where the written notice required by s 49(1) may be given by another person on behalf of the visa applicant.”
[citations omitted]
[10] Minister’s Written Outline of Submissions filed 22 November 2024
Taking into account these contextual considerations, and the common law as it pertains to agency and authority, the Minister accepts that s 49 cannot be read as requiring that written notice of withdrawal be given by the visa applicant personally. The written notice required by s 49(1) may be given by another person acting on behalf of the visa applicant, so long as the relevant person has the authority of the visa applicant to give that written notice.
For the purposes of the current proceeding the inquiry which follows is whether the applicant authorised Mr Bhandari to withdraw the visa application on his behalf. The Minister accepts that if that question is answered in the affirmative, the necessary consequence is that the Tribunal’s dismissal decision of 6 September 2023 and its confirmation decision of 13 October 2023 will have been affected by jurisdictional error.
The Minister’s written Outline of Submissions contemplated that there would be no evidence to inform this inquiry. However, given the applicant’s oral testimony that is no longer the case.
In relation to the evidence the Minister makes the following points. First, the applicant bears the onus of proof in establishing the jurisdictional fact which he asserts – a proposition I do not take to be controversial.
Secondly, the Court should not infer that the applicant authorised Mr Bhandari to withdraw the visa application on his behalf merely from the fact that the applicant appointed Mr Bhandari as his “authorised recipient”. The Minister submits that appointment as an authorised recipient does not have the effect of authorising that person to act generally on the visa applicant’s behalf. An appointment as an authorised recipient is for a limited and specific purpose and has a limited and specific effect under the Act. Where a person is appointed as an authorised recipient under s 494D(1) of the Act in connection with specified matters, s 494D(1) provides only that the Minister must give the authorised recipient any documents in connection with those matters that the Minister would otherwise have given to the first person — unless the circumstances in s 494D(5) apply. Further, an authorised recipient who is not a registered migration agent or an exempt person of a kind identified in s 280 is prohibited from providing immigration advice. Further, a registered recipient may not vary or withdraw their appointment.
Thirdly, counsel for the Minister submitted that there were various aspects of the evidence which should cause the Court to doubt the truthfulness of the applicant’s claim that he authorised Mr Bhandari to withdraw the visa application on his behalf. Matters which weigh against the applicant’s evidence include:
(a)the applicant’s concession that he had received the letter from the Department requesting his personal signature to affect the withdrawal of his visa application. The Minister submitted that if the applicant had authorised Mr Bhandari to withdraw his visa application and if the applicant truly wanted his visa to be withdrawn, he would have taken the 10 seconds to sign the withdrawal application in accordance with the Department’s instructions;
(b)the applicant did not call or write to the Department following the dismissal of his visa application or question why the delegate had made a decision. Counsel submitted that the fact the applicant did not take these steps is consistent with the proposition that he had not actually authorised his agent to withdraw it;
(c)the applicant sought review of the delegate’s decision by making an application to the Tribunal. This conduct, it is submitted, points to the fact that the applicant likely didn’t believe his visa application had been withdrawn because he knew Mr Bhandari had not been authorised to do so; and
(d)the applicant’s evidence to the Court was given in circumstances where he now knows the importance of the fact in issue and the consequences of a finding against him. Counsel for the Minister submitted that the truthfulness of the applicant must be assessed in that light.
In an exchange with the Minister’s counsel, I inquired whether the applicant’s authorisation had to be express or whether it was sufficient for it to be implied, for example from the applicant’s engagement of Mr Bhandari to act on his behalf and guide him through the migration process. Counsel reiterated that the mere appointment of another person as an authorised recipient is not enough to give rise to an inference of authority, other than to receive documentation on behalf of the applicant. However, Counsel accepted that an inference might be drawn from Mr Bhandari’s suggestion or recommendation that the visa application be withdrawn and evidence of the applicant’s agreement to the course. Counsel for the Minister said that if I accepted that account of events, the Minister would have to accept that the authorisation was express.
CONSIDERATION
After the Judicial Registrar’s judgment in the strike out application, the applicant did not file an amended application.
In the proceeding before me the applicant did not address the two grounds of review which JR Cummings found had no prospect of success and I take the applicant to have abandoned them. Insofar as it is necessary for me to do so, I find that the two grounds in his original application for judicial review should be dismissed for the reasons given in Nitin Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1054.
The outstanding question in this proceeding is the issue identified by JR Cummings, namely whether the Tribunal was seized of jurisdiction to hear an application to review the delegate’s decision to reject the applicant’s visa application. The Minister does not oppose that ground being determined notwithstanding the absence of an amended application.
The Minister concedes that the answer to the jurisdictional question is binary. Either the Court accepts that the applicant authorised Mr Bhandari to send the withdrawal of the visa form or he did not. If the Court finds that he gave authority, it must follow that the visa was validly withdrawn and the applicant is entitled to the relief he seeks. On the other hand, if the Court does not accept the applicant’s evidence, it must follow that the application for judicial review should be dismissed.
I accept the Minister’s submissions regarding the proper construction of s 49 of the Act. It is not necessary for me to repeat those again here. I agree that the words “an applicant for a visa” in s 49(1) of the Act should not be read to exclude the possibility of the written notice being given by a person acting as agent for a visa applicant. If the position were otherwise, the legislation would have expressly stated otherwise. Furthermore, Form 1664, which is the form of notice to the Minister required by s 49, plainly contemplates that it might be filled out and submitted by someone other than the visa applicant.
I accept the applicant’s evidence that he did authorise Mr Bhandari to withdraw the visa application on his behalf. The following matters inform my conclusion.
First, I found him to be a credible witness. He showed no hesitation when faced with the prospect of giving viva voce evidence and being subjected to cross examination. He struck me as a witness who was content to give his version of the facts, to the best of his recollection, without particular regard to the consequences. His evidence was plausible, coherent and believable. The applicant was consistent in response to questions asked by the Minister’s Counsel.
Secondly, I accept the applicant’s description and practical effect of his relationship with Mr Bhandari. He engaged Mr Bhandari to help him navigate the migration system and to provide advice and assistance. The applicant said, and I accept, that he regarded Mr Bhandari as trustworthy and knowledgeable and that he looked to him for guidance. It is not immaterial that Mr Bhandari made the visa application on the applicant’s behalf and that he was appointed by the applicant as his authorised recipient.
Thirdly, and relatedly, the applicant’s conduct seems to me to be consistent with him having given Mr Bhandari a wide arc of authority to take steps in his best interests. The evidence does not speak to Mr Bhandari doing things without the applicant’s knowledge or behind his back. Rather, the applicant treated Mr Bhandari as his representative and was happy to give consent to his recommendations. For example, the suggestion from Mr Bhandari that the applicant withdraw his visa application came hot on the heels of enquiries being made by the Department about the status of the applicant’s intended sponsor. I infer that Mr Bhandari’s suggestion to withdraw was made because Mr Bhandari thought it would be in the applicant’s best interests to abandon the visa application and search for another sponsor. When the applicant responded “okay”, the applicant gave Mr Bhandari the clear legal authority to proceed on that course.
Furthermore, the applicant’s conduct in not contacting the department when his visa application was refused, was entirely consistent with him treating Mr Bhandari as his representative. The applicant did not sit idly by and do nothing. He contacted the person he believed knew best about the situation and trusted his advice that the Department was in error in not processing the withdrawal.
I also place weight on the applicant’s response to a question during cross-examination where it was suggested that Mr Bhandari had acted without his authority. The applicant responded angrily to that suggestion and said that if Mr Bhandari had done such a thing, he would have made a complaint against him or gone to the police.
Fourthly, while I accept that the applicant did not appoint Mr Bhandari as his “authorised representative” for the purposes of his migration application, I doubt very much whether the applicant was aware of or concerned about the practical differences between an authorised representative and an authorised recipient. While the Minister is quite correct to point out the substantive differences in the scheme of the Act and to highlight the more limited role of an authorised recipient, for present purposes the distinction matters little. The only question is whether the person who gave notice to the Minister of the withdrawal of the visa application had authority to do so. I am satisfied that the applicant did give that authority to Mr Bhandari.
There was no evidence from Mr Bhandari. The Minister did not make a Jones v Dunkel submission or urge me to draw any adverse inferences from the failure of the applicant to call him. If the Minister had done so, I note the applicant’s evidence that he and Mr Bhandari are no longer in contact, that the applicant made numerous attempts over a long period of time to contact him without success and that Mr Bhandari had effectively gone missing.
There might also be questions to be asked about whether Mr Bhandari contravened Part 3 of the Migration Act by giving immigration assistance of a type that can only be provided by registered migration agents. Assisting someone to prepare a visa application, lodging it on their behalf and providing advice and recommendations regarding the migration pathway (including withdrawal of an application) invite such questions. However, as counsel for the Minister properly conceded, these questions need not be explored in the current proceedings and cannot affect the Court’s determination of whether the applicant did or did not authorise Mr Bhandari to send the withdrawal form on his behalf.
I am satisfied on the whole of the evidence that the applicant did authorise Mr Bhandari to give written notice to the Minister to withdraw the visa application. In the particular circumstances of this case, the lodging of the Form 1466 by Mr Bhandari on 15 December 2022 had the effect of causing the application to be withdrawn and for the application to be taken to have been disposed of.
The consequence of my findings is that the visa application had been withdrawn prior to its consideration by the delegate. It must follow that the delegate’s consideration of the withdrawn application was of no legal effect and that the subsequent decisions of the Tribunal were affected by jurisdictional error.
The applicant is entitled to the relief he seeks.
DISPOSITION
For the reasons set out above, I have found that the decisions of the Administrative Appeals Tribunal were affected by jurisdictional error.
In my view the appropriate relief should be in the form of orders that:
(a)the decision of the Tribunal made on 6 September 2023 be quashed;
(b)the decision of the Tribunal made on 13 October 2023 be quashed;
and declarations that:
(a)the applicant’s visa application made on 15 June 2021 was validly withdrawn on 15 December 2022 by the giving of written notice on his behalf to the Minister as required by s 49 of the Migration Act;
(b)by reason of the withdrawal of the applicant’s visa application the application is taken to have been disposed of.
I will hear the parties on the question of costs. In relation to costs, I note that the applicant has been self-represented throughout and that he ultimately succeeded on a ground which was not advanced in his application. The applicant was in fact wholly unsuccessful on the original application.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 28 January 2025
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