Lee v Minister for Immigration
[2016] FCCA 3119
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3119 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time application for filing of judicial review application – consideration of factors. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2) Migration Act 1958 (Cth) Part 5, ss.98, 360A, 362B, 379A, 379G, 474, 476, 477(1) and (2) Migration Regulations 1994 (Cth), reg.4.21, Sch.2, cll.570.232, 571.232, 572.225, 572.231, 573.231, 574.231, 573.231 |
| Cases cited: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 |
| Applicant: | DAEWON LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 150 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 April 2015 |
| Date of Last Submission: | 30 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
That the applicant’s application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) in which to file an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 150 OF 2014
| DAEWON LEE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks an extension of time (“Extension of Time Application”) under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file an application (“Proposed Judicial Review Application”) seeking review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision made on 3 December 2013 is at Court Book (“CB”) 97-101. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) on 28 February 2013 to refuse the applicant a Student (Temporary) (Class TU) visa (“Student Visa”).
Background to the Proposed Judicial Review Application
The background to the Proposed Judicial Review Application is as follows:
a)the applicant, born on 1 February 1985 in South Korea, lodged an application for the Student Visa on 23 January 2013: CB 1-7. The applicant's wife applied as a member of the applicant’s family unit: CB 2;
b)the application was lodged online and listed the person authorised to receive all written communication about the application on behalf of the applicant as “Amir Paul” with a contact email of “[email protected]” provided: CB 3;
c)the applicant answered “No” in response to the question “Did you receive assistance from any person in completing this form?”: CB 4;
d)on 28 February 2013 the Delegate refused the grant of the Student Visa on the basis that the applicant had not provided any evidence that he held valid overseas student health cover and as such the applicant did not meet the requirements of cl.572.225 of Sch.2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 20-30;
e)the applicant lodged an application for review to the Tribunal on 20 March 2013: CB 37-47. The application form appointed “Paul Amir” (“Mr Amir”) as the applicant's representative and authorised recipient and specified that he was a “close family friend”: CB 43. The form appears to have been signed by the applicant and his wife: CB 46;
f)on 2 May 2013 the Tribunal invited the applicant to provide information that he held overseas student health cover valid until 18 March 2014: CB 58-59;
g)on 6 June 2013 an extension of time of 30 to 60 days was requested “due to a medical situation of Mrs Leejung Kim which has traumatised her and Mr Daewon Lee”: CB 60-61;
h)on 10 July 2013 the applicant provided evidence of overseas student health cover: CB 66-68;
i)on 29 July 2013 the Tribunal requested the applicant provide evidence that both he and his wife held overseas student health cover valid until 18 March 2014, noting that the evidence previously provided was that only the applicant held health cover until the relevant date. The applicant was advised that he had until 21 August 2013 in which to provide the information or seek an extension of time and that if the Tribunal did not receive the information within the period allowed or as extended the Tribunal could make a decision on the application to it for review of the Delegate’s Decision without taking any further action to obtain the information, and that the applicant would lose any entitlement to a hearing: CB 69-71;
j)on 26 August 2013 Mr Amir contacted the Tribunal noting that due to the terminal illness of his mother he had been pre-occupied and that he had not seen the Tribunal’s updated request for information until 22 August 2013 and he requested an extension of time in which to provide the information to the Tribunal: CB 72-73;
k)on 25 September 2013 the Tribunal invited the applicant to comment on information that his enrolment (in a Certificate III course in Hospitality (Commercial Cookery)) had been cancelled. The Tribunal advised the applicant that the cancelation of his enrolment was relevant because as an applicant for the Student Visa he must be enrolled in or the subject of a current offer of enrolment in a course of study, and that the enrolment cancelation may be information relevant to the Tribunal Decision in that it might support a finding that the applicant was not enrolled in or the subject of a current offer of enrolment in any course of study, and the Tribunal sought comment from the applicant by 21 October 2013: CB 74-76;
l)on 17 October 2013 Mr Amir again contacted the Tribunal requesting an extension of time noting that “As you are aware in previous correspondence Mr Lee's wife Leejung has had a difficult pregnancy and in [it] now appears a premature delivery is imminent anytime in the next 7 days”: CB 77-78. The requested extension was refused: CB 79;
m)on 23 October 2013 the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the Delegate’s Decision: CB 85-87 (“Tribunal Hearing”). The Tribunal Hearing was scheduled to take place at 11.00am on 25 November 2013: CB 86;
n)at 5.25 pm on 25 November 2013 Mr Amir wrote to the Tribunal by email advising that:
My contact is regarding the hearing today at 11.00am and my mistake for not contacting you by 18th November regarding specific matters.
As previously advised Mrs Kim has had a very difficult pregnancy and she gave birth to the baby on 19 November at King Edward Memorial Hospital after considerable problems and being admitted some days prior to this.
There have been ongoing problems since the birth hence the inability to be able to attend the hearing scheduled for today 25 November.
I accept full responsibility for not advising the tribunal of this matter prior to the hearing and it is in [an] oversight that I now sincerely hope is not detrimental to the outcome of this genuine MRT file.
There are valid documents and genuine reasons to substantiate this MRT application and I hope the opportunity is given to be able to produce these and give evidence to the tribunal.
Can you please advise the process from here for this case
CB 93-94 (“25 November 2013 Email”); and
o)without appearing to acknowledge or respond to the 25 November 2013 Email the Tribunal notified Mr Amir of the Tribunal Decision by letter dated 6 December 2013.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out the history of the matter prior to the Tribunal Hearing: CB 98-99 at [4]-[13], noting specifically at CB 99 at [13] that an invitation had been sent to the applicant to appear before the Tribunal on 25 November 2013, and further noting that no response to the Tribunal Hearing invitation was received by the Tribunal: CB 99 at [14];
b)then went on to deal with what occurred on the day of the Tribunal Hearing, and gave reasons for not exercising its discretion to adjourn the Tribunal Hearing on 25 November 2013, as follows:
15. Neither the applicants nor their representative appeared before the Tribunal on the day and at the time and place at which they were scheduled to appear. After the close of the business day on 25 November 2013 the Tribunal received an email from the applicant’s representative regarding the hearing scheduled for earlier in the day. The representative advised that the second applicant had a difficult pregnancy giving birth to the baby on 19 November 2013 and due to ongoing problems since the birth there was no attendance at the Tribunal hearing. The representative indicated that it was due to his oversight that he had not advised the Tribunal of this prior to the hearing and that he hoped that it was not detrimental to the outcome of the matter. He indicated that there were valid documents and genuine reasons to substantiate the application and that he hoped there would be an opportunity to be able to produce these and give evidence to the Tribunal.
16. The Tribunal has considered whether to exercise its discretion to reschedule the hearing and it is not prepared to do so for the following reasons. The Tribunal has considered the request in the context of the history of the application for review which has been characterised by requests for extensions of time within which to respond to information on grounds that either related to the representative’s conduct of his migration practice (comprising oversights and preoccupations on his part) or the second applicant’s difficult pregnancy. The Tribunal considers that notwithstanding any difficult pregnancy and its sequelae the applicants have had ample opportunity to present evidence in support of their application for review. Against this background the Tribunal has formed the impression that the applicants are seeking to delay the progress of their application for review. In these circumstances the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
CB 99-100 at [15]-[16];
c)found it was not satisfied that the applicant was enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575 and accordingly, the applicant did not satisfy cll.570.232, 571.232, 572.231, 573.231, 574.231 or 573.231 of Sch.2 of the Migration Regulations: CB 100 at [18]-[21]; and
d)affirmed the Delegate’s Decision not to grant the applicant a Student Visa: CB 100-101 at [22]-[23].
Proceedings in this Court
The Proposed Judicial Review Application appears to have been signed by the applicant and listed the address for service in relation to the application as care of Multinational Global Group, and the email address of “[email protected]” was provided.
The Proposed Judicial Review Application was filed on 4 June 2014. In the Proposed Judicial Review Application the applicant sought “that the decision be reviewed and either another hearing with MRT is convened and or the MRT decision be quashed and my visa reinstated.”
In relation to the grounds of review the Proposed Judicial Review Application referred to the applicant’s affidavit in support (“Applicant’s June 2014 Affidavit”) which stated:
2. That the decision in the contents of the correspondence of Annexure A is unfair and unjust and in that it did not take into account the actual events and consequences and wrong information I was given.
3. That the decision in the contents of the correspondence of Annexure A is unfair and unjust by not granting me a hearing postponement and prejudiced my rights to a fair hearing with the Migration Review Tribunal.
4. That the decision in the contents of the correspondence of Annexure A is unfair and unjust and the Migration Review Tribunal proceeded with a decision in my absence and without me being allowed to present evidence of a valid application.
The above paragraphs will be considered as proposed grounds 1, 2 and 3 respectively.
Despite orders made on 9 July 2014 permitting the applicant to file and serve any amended Proposed Judicial Review Application giving complete particulars of each ground of review relied upon, as well as any further affidavit evidence by 27 August 2014, no further documents were filed until 14 January 2015 when the applicant filed an affidavit sworn 12 January 2015 (“Applicant’s January 2015 Affidavit”). The filing of the Applicant’s January 2015 Affidavit was preceded by the applicant filing a Notice of Address for Service on 13 January 2015, which indicated that he was now self-represented.
In the Applicant’s January 2015 Affidavit the applicant deposes:
a)to knowing that he had a visa which expired in January 2013 (which the Court observes is when he applied for the Student Visa): at [6];
b)to being introduced to a man who he found out to be Paul (Amir) Gregory Harrison (“Mr Harrison”) (who is seemingly the same person as Mr Amir), who told him that he was a migration agent and an expert in visa applications and that he could help the applicant acquire a permanent resident visa for the applicant and his wife: at [3] and [6]-[8], and that he first met Mr Harrison in or about November 2012 when his landlord introduced them: at [6];
c)to meeting with Mr Harrison in December 2012 and being advised that he could apply for an employer nomination scheme visa (“ENS Visa”) which did not require proof of English ability: at [9];
d)that he got a job as a factory hand at Mt Barker in January 2013, at which time he advised his supervisor in the company at Mt Barker that his working holiday visa expired on 26 January 2013, and that he should contact Mr Harrison for more detail about his visa status, following which his supervisor told him that he had spoken to Mr Harrison, and that his supervisor then said that he could continue to work at Mt Barker despite the expiry of his working holiday visa: at [11]-[12];
e)that on 23 January 2013 the applicant says that Mr Harrison:
i)explained to him that since the ENS Visa application could not be lodged prior to the expiry of the applicant’s working holiday visa, and that the applicant needed to apply for the Student Visa and hold the Student Visa until the ENS Visa application was validly lodged; and
ii)sent a lodgement receipt dated 23 January 2013 which appears to be for the Student Visa: at [13] and annexure B (which is a copy of a receipt for an initial student visa lodgement);
f)that on 27 January 2013 Mr Harrison gave him a document purporting to be an ENS Visa application: at [14] and annexure C;
g)that on 25 March 2013 Mr Harrison showed the applicant and his wife an employment contract with Cendana Megamas Pty Ltd (ACN 143 762 494) (“Cendana Megamas”) and explained that the applicant would have to start working as a cook soon, and as a consequence must give notice of termination to his then employer, Grannd Pty Ltd: at [15];
h)thereafter, the applicant from time to time asked Mr Harrison about his job as a cook but Mr Harrison kept advising him to simply wait until the business of Cendana Megamas got better: at [15]-[16];
i)that on 15 May 2014 the applicant met with an officer of the Department of Immigration & Border Protection (“Department”) who informed him that his visa (presumably his working holiday visa) had expired and that no application for permanent residency had been lodged: at [17];
j)that on 19 May 2014 the applicant sought legal advice from a firm of lawyers: at [18] (no indication is given as to whether any advice was given at this time, as opposed to later: see [m] below);
k)that on 11 July 2014 the applicant met Mr Harrison at Royal Perth Hospital and inquired as to what was happening with his visa application, and Mr Harrison advised that he could apply for a regional sponsored migration scheme visa (“RSMS Visa”), telling the applicant that the ENS Visa and RSMS Visa were the same visa;
l)that given his English ability was limited and he did not have any knowledge about migration law and procedure he trusted Mr Harrison to sign all the papers he required him to sign without understanding the contents of the papers and paid him the sum of $19,421 on various occasions in relation to his visa applications: at [10], [19] and [20] and annexure A (the Court notes that the invoices are from “Migrant Employment Services” who purport to have an ABN and an Employment Agents Licence, but in respect of whom there is no evidence of a relevant individual being a registered migration agent);
m)that in September 2014 he was advised by his lawyers that their view was that he must have been defrauded by Mr Harrison, and that the applications Mr Harrison purported to have made were not true, and that his present visa was a bridging visa E which did not allow him to work in Australia: at [21];
n)that he engaged his lawyers to take legal proceedings against Mr Harrison and obtained a default judgment: at [22] and annexure D. (It is not apparent from annexure D, which is simply a general order in the civil jurisdiction of the Magistrates Court of Western Australia, what the precise nature of the action against Mr Harrison was before the Magistrate’s Court of Western Australia);
o)that he met with an officer of the Department on three occasions, and in July 2014 the officer “told me that this proceeding is pending: at [23];
p)that he has no knowledge of these proceedings and the review before the Tribunal, and does not know who commenced these proceedings and who applied for review of the Tribunal Decision: at [24]; and
q)that he had “spent enormous money and time to date” on the ENS Visa application, which he says Mr Harrison had “purported to have filed” but that he “realised that … [Mr Harrison] had applied for” and that he had been “refused … a student visa”: at [25].
After a directions hearing before a Registrar of the Court on 15 April 2015 the applicant filed, as ordered, an Amended Proposed Judicial Review Application (“Amended Proposed Judicial Review Application”) on 16 April 2015.
As part of the Amended Proposed Judicial Review Application the applicant added a further ground to the Extension of Time Application, in the following terms:
That I was totally misrepresented and given totally incorrect advise by a migration agent in respect to my right to lodge these documents and in so doing my legal rights have been prejudiced.
In relation to the amended grounds of review the applicant referred to the Applicant’s June 2014 Affidavit, and in the Amended Proposed Judicial Review Application further stated:
24. Although I was aware that Paul was making a visa application for my permanent residency, I could not help listening to him because I have no knowledge of this proceedings and the MRT review. He paid for my MRT by his credit card and sent me the receipt by email. I did not know exactly about this proceedings and when I asked him about it, he told me it was progressing satisfactorily.
25. I spent enormous money and time to date for the ENS visa application which Paul purported to have filed but as time went by I began to doubt and missed my wife and a son, so with the help of a lawyer he checked the proceedings and realized that the visa Paul had applied for and DIEP refused was a student visa, and then I got to know about the reason for this refusal. But I could not have my lawyer defend my case anymore as it cost me a lot of money.
The above two paragraphs will be considered as proposed grounds 4 and 5.
The Minister’s position has not altered since the filing of the Response on 18 June 2014. The Response provided that:
a)the Court has no jurisdiction to review the Tribunal Decision as it was not filed within 35 days of the date of the Tribunal Decision: Migration Act, s.477(1);
b)the applicant has not provided an affidavit explaining the delay or why the extension should be granted: Federal Circuit Court Rules (Cth) (“FCC Rules”), r.44.05(2)(c);
c)the Proposed Judicial Review Application invites merits review which is no part of the function of the Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ; and
d)no jurisdictional error in the Tribunal Decision is established by the grounds in the Proposed Judicial Review Application.
Consideration – extension of time application
Legislative provisions – pre-requisite requirements
The Proposed Judicial Review Application, filed on 4 June 2014, which is the subject of the Extension of Time Application, was lodged outside of the time period of 35 days set by s.477(1) of the Migration Act. The Tribunal Decision was made on 3 December 2013. In order for the application to have been lodged within 35 days it was required to be filed by 7 January 2014. The Judicial Review Application was therefore lodged 148 days outside the time period set by s.477(1) of the Migration Act. Accordingly, the Judicial Review Application is incompetent by virtue of s.477(1) of the Migration Act, unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act. There is no discretion under s.477(1) of the Migration Act to extend the 35 day time limit provided for therein: SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [39] per Nicholls FM. The relevant discretion arises under s.477(2) of the Migration Act.
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [10] per Judge Lucev (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
Rule 44.05(2) if the FCC Rules provides as follows:
An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
The Applicant’s January 2015 Affidavit arguably provides some explanation for the delay, in that it was not until 15 May 2014 that the applicant was informed by an officer of the Department that his visa (presumably a reference to his working holiday visa) had expired and that no application for permanent residency was lodged, and it was not until that time that the applicant was fully aware of his current visa status. The applicant does not however seek to explain the delay in filing the Proposed Judicial Review Application because, on his case, he was unaware that it had been filed.
In relation to it being in the interests of the administration of justice for the Court to grant an extension of time, the applicant’s two affidavits do appear to raise fraud as an issue for consideration by the Court. It is sufficient for the Applicant’s June 2014 and January 2015 Affidavits to raise fraud as an explanation, the strength of the explanation being a matter for the Court to consider in relation to the factors for consideration in extending time: see [19(b)] below.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act in this Court are well-established, and are derived from the factors identified in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 adapted to fit the particular requirements of s.477(2) of the Migration Act. Those factors include the following factors (which are not exhaustive):
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)whether the merits of the Proposed Judicial Review Application are arguable, or have reasonable prospects of success; and
g)any overriding general exercise of the Court’s discretion.
The above factors have been frequently applied by this Court: see, for example, SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Delay – extent and reasons
The law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought in this Court under the Migration Act, must have regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, in all but “very exceptional cases”, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
As Marks at [16] per McHugh J observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated.
A further observation may be made: in Marks consideration was being given to the application of rules of court, whereas in s.477(1) of the Migration Act it is the Parliament which has specifically legislated the relevant time limit, representing therefore the judgment of Parliament as to how the welfare of society is best to be served: Brisbane South Regional Health Authority CLR at 553 per McHugh J. This must be afforded proper and due regard, for as much as rules of court must be obeyed: Marks at [16] per McHugh J, the rationale for obeying legislation enacted by Parliament representing the people as a whole must carry even more weight.
The Court must not only look at the explanation for the delay, but also at the extent of the delay: SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14] per Scarlett FM. The extent of the delay must be balanced against the reason for the delay: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29] per Lucev FM (“WZANW”).
It is generally recognised that the longer the delay the more persuasive an explanation needs to be in order to justify an extension of time: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”); WZASQ at [15] per Judge Lucev. As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
The extent of the delay is very significant, 148 days being more than four times the prescribed limitation period.
The applicant’s evidence, on which he was not cross-examined or sought to be cross-examined, exhibits a distinction between these Court proceedings and the proceedings before the Tribunal in the mind of the applicant: Applicant’s January 2015 Affidavit at [23]-[24].
The Amended Proposed Judicial Review Application however is less clear referring at proposed ground 4 to the fact that the applicant “did not know exactly about this proceedings and when I asked … [Mr Harrison] about it, he told me it was progressing satisfactorily”. That follows a reiteration of what is in the Applicant’s January 2015 Affidavit that he had “no knowledge of this proceedings and the MRT review”: see proposed ground 4. Proposed ground 5 suggests that it was not until after he had sought assistance from a lawyer in May 2014 that the applicant “got to know about the reason for this refusal [of the Student Visa]”: see proposed ground 5. That would be consistent with the applicant having sought legal advice on 19 May 2014 from lawyers and then filing the Proposed Judicial Review Application on 4 June 2014, save for the fact that the unchallenged evidence before the Court in the Applicant’s January 2015 Affidavit is that he did not know about this proceeding until July 2014 when told by the officer from the Department. Coming to know of this Proposed Judicial Review Application in July 2014 would also be more consistent with his meeting Mr Harrison and discussing the ongoing conduct of his RSMS and ENS Visas on 11 July 2014, and making enquiries of Mr Harrison as to “what was going on with my visa application”: Applicant’s January 2015 Affidavit at [19].
Ultimately, whether or not the applicant knew of the time limitation period, or indeed of the making of the Proposed Judicial Review Application, is not particularly material when regard is had to the extent of the delay. The extent of the delay is such that there must be clear and cogent reasons for it, and in this case there are not clear and cogent reasons. In any event, the extent of the delay is such that, absent a most compelling arguable case on the merits, the extent of the delay alone, being 148 days or more than four times the relevant time limitation, is sufficient to defeat the Extension of Time Application.
Prejudice to the Minister and impact upon the applicant
There must be some prejudice to the Minister arising in this case from the fact that the Minister might rightfully have thought that the applicant’s right to review the Tribunal Decision was at an end by reason of the limitation period having expired. In conventional parlance, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his.
The impact on the applicant of a failure to extend time for making the application is negligible because he never intended to actually be a student undertaking study and therefore the refusal of the Student Visa is neither here nor there. In any event, in this case, for reasons set out below, there is not an arguable, or sufficiently arguable, case of jurisdictional error in the Tribunal Decision, and therefore there is no prejudice to the applicant from a failure to extend time.
It follows that to the extent that there is prejudice to the Minister, and no prejudice to the applicant, this factor does not weigh in favour of an extension of time in which to file the Proposed Judicial Review Application.
Public interest and discretion otherwise
The alleged fraud by a person purporting to be a migration agent (which is discussed further below in relation to proposed grounds 4 and 5) is a not uncommon feature of Australia’s migration regime, and the circumstances of this case relating as they do to a single individual applying for the Student Visa, raise no matters of public interest or importance, or matters liable to excite the interests of the public at large, or which might otherwise warrant the exceptional exercise of the Court’s discretion to extend time for the making of the Proposed Judicial Review Application.
It follows from the above that neither the public interest nor broader discretionary factors favour the grant of an extension of time in which to file the Proposed Judicial Review Application.
Whether merits of Amended Proposed Judicial Review Application arguable
In determining whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. In an extension of time context, an assessment of the merit of the case is broad. Such an assessment involves a consideration of the outline of the case in relation to which the applicant for an extension bears the burden of persuasion: WZANW at [37] per Lucev FM.
The Tribunal Decision would only be reviewable by this Court if it was affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1 - failure to take into account the actual events and consequences and wrong information given to applicant
Although the applicant has not sought to particularise the specific “actual events” or “wrong information” given to him that the Tribunal failed to take into account, it is tolerably clear that what is being referred to are the issues of alleged reliance on, and misrepresentation by, Mr Harrison. These matters are considered below in relation to grounds 4 and 5.
Ground 2 and 3 - failing to take further action to allow the applicant to appear before it and failing to grant an adjournment
Grounds 2 and 3 can be dealt with together.
On 23 October 2013 the Tribunal invited the applicant to appear before it. The invitation complied with the statutory requirements as it:
i)provided notice of the specified day, time and place of the hearing pursuant to s.360A(l) of the Migration Act;
ii)provided a period of notice to the applicant that exceeded the prescribed period of 14 days after the notice was received pursuant to reg.4.21 of the Migration Regulations;
iii)was sent by one of the means in s.379A of the Migration Act; and
iv)contained a statement about the effect of s.362B of the Migration Act;
b)section 379G of the Migration Act required that, as the applicant had given the Tribunal written notice of an authorised recipient, the Tribunal was required to give to the authorised recipient, instead of the applicant, any document that it would have otherwise given to the applicant, and s.379G(2) of the Migration Act further provides that if a document is given to an authorised recipient, it is taken to have been given to the applicant. Accordingly, the applicant is taken to have received the Tribunal hearing invitation;
c)as no error is revealed in the Tribunal's approach to its obligations under Part 5 of the Migration Act, s.362B of the Migration Act provided the Tribunal with the power to make a decision on the review without taking any further action to allow or enable the applicant to appear before it;
d)in exercising this power the Tribunal considered the applicant's adjournment request;
e)the Tribunal outlined the history of the proceedings in the Tribunal Decision: CB 98-99 at [5]-[15], then considered whether to exercise its discretion to reschedule the Tribunal hearing: CB 100 at [16]-[17];
f)the Tribunal considered the applicant's adjournment request, and decided not to adjourn the review. The Tribunal set out the relevant facts at CB 99 at [15] in relation to the applicant’s request for an adjournment, and in particular that the applicant’s migration agent having overlooked advising the Tribunal of difficulties arising from the pregnancy of the applicant’s wife, and the birth of the applicant’s child six days before the Tribunal hearing, and went on to consider at CB 100 at [16] the request to adjourn the Tribunal hearing, having regard to the history of the application, which the Tribunal observed had “been characterised by requests for extension of time”, and in relation to which the Tribunal “formed the impression that the applicants are seeking to delay the progress of their application for review”: CB 100 at [16], previous applications for adjournments having been made on the basis of the migration agent’s conduct and the applicant’s wife’s difficult pregnancy. The Tribunal having considered those matters decided to make the Tribunal Decision without taking any further action to enable the applicant to appear before it: CB 100 at [16]. In the circumstances, the Tribunal’s reasons for not adjourning the review were not unreasonable as the decision was not “arbitrary, capricious, without common sense or ‘plainly unjust’”: Minister for Immigration & Border Protection v Pandey [2014] FCA 640 at [41] per Wigney J (“Pandey”); Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [28] per French CJ and [110] per Gageler J (“Li”); Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [44] per Allsop CJ, Robertson and Mortimer JJ;
g)it has been accepted that the Tribunal is not under an obligation to afford an applicant with 'every opportunity' to present their case and improve upon their evidence: Li at [82] per Gageler J. In this matter, the Delegate’s Decision directly referred to the fact that the applicant had not provided evidence of his overseas student health cover, the Tribunal then made two requests for that specific information: CB 59 and 70. In relation to the applicant's student enrolment the Tribunal invited the applicant to comment or respond to information that his enrolment had been cancelled: CB 75, and, through the invitation to the Tribunal hearing, requested any additional documents be provided by 18 November 2013: CB 86. Accordingly, the applicant was provided with a number of opportunities to present the required evidence and his allegation that he was not “allowed” to present his evidence cannot be made out;
h)the reasons given by the Tribunal show there was an “evident, transparent and intelligible justification within the decision making process”: Pandey at [41] per Wigney J. In reaching its decision the Tribunal took into account the history of the proceedings including a number of requests for extensions of time. The Tribunal considered the information in relation to the applicant's wife's difficult pregnancy, but formed the opinion that the applicant had had ample opportunity to present his evidence, and that the applicant was seeking to delay the progress of his application for review; and
i)it was plainly open for the Tribunal to conclude that the applicant had been given ample opportunity to produce the required evidence and whilst reasonable minds may differ in relation to the correct and preferable decision the decision to refuse the adjournment request “did not fall outside the range of possible, acceptable outcomes which are defensible in respect of fact and law”: Pandey at [52] per Wigney J.
Proposed grounds 4 and 5 - reliance on Mr Harrison
In relation to these grounds:
a)although not raised with any particularity the applicant contends that he relied upon Mr Harrison and thought that he had lodged an ENS Visa application: Amended Proposed Judicial Review Application;
b)the Applicant's January 2015 Affidavit claims that:
i)the applicant engaged Mr Harrison to act for him in 2012 and that the applicant believed that Mr Harrison was a migration agent: Applicant’s January 2015 Affidavit at [6]-[8]; and
ii)Mr Harrison advised the applicant that he was eligible for the ENS Visa category but that he needed to apply for and hold a Student Visa until the ENS Visa was validly lodged: Applicant’s January 2015 Affidavit at [9] and [13];
c)on or about 25 March 2013 Mr Harrison advised that the applicant did not have to attend college as the ENS Visa application had been validly lodged: Applicant’s January 2015 Affidavit at [15];
d)the applicant annexed invoices to his affidavit to support the contention that he had paid Mr Harrison for his services: Applicant’s January 2015 Affidavit at [10] and Annexure A; and
e)Mr Harrison, upon whom the applicant says he relied, appears not to be a migration agent, and had not filed an ENS Visa application but a Student Visa application which was not granted: Applicant’s January 2015 Affidavit at [10], [21] and [24] and Annexure A.
The Court observes that:
a)the issue is whether the Tribunal Decision in relation to the Student Visa application may arguably be affected by jurisdictional error, and, and if, as the applicant alleges, Mr Harrison advised him that he had applied for an ENS Visa on his behalf that does not necessarily assist in establishing jurisdictional error;
b)jurisdictional error is not automatically established in the event that Mr Harrison was not a migration agent: Zhang v Minister for Immigration & Anor [2014] FCCA 2752 at [38] per Judge Lucev (“Zhang”);
c)to the extent that error is alleged by reason of the applicant being given bad or negligent advice by Mr Harrison, this also does not necessarily give rise to jurisdictional error. In Minister for Immigration & Citizenship v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365; (2006) 236 ALR 42; (2006) 92 ALD 1 at [169] per French J stated that:
There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made.
The above passage was cited with approval on appeal by the High Court in SZFDE v Minister for Immigration & Citizenship[2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64; (2007) 81 ALJR 1401; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (“SZFDE”);
d)the applicant admits that he knew that a Student Visa application had been lodged: Applicant’s Affidavit at [13]. He further submitted evidence to show that he paid for it to be prepared: Applicant’s January 2015 Affidavit at Annexure A.
e)the applicant allegedly applied for the Student Visa on the basis of information he was given that he needed to hold such Student Visa until the ENS Visa application had been lodged: Applicant’s January 2015 Affidavit at Annexure A. There is no evidence to suggest that the applicant either attended to, or intended to complete, the course in which he was said to be enrolled or that he applied for the Student Visa so that he could actually undertake studies. As such it appears that the Student Visa application was lodged for the sole purpose of allowing the applicant to remain in Australia for a longer period of time, and that the applicant participated in that process for that purpose; and
f)the applicant claimed that he had no knowledge of “this proceedings” and further did not know who commenced this proceedings: Applicant’s January 2015 Affidavit at [24], and yet he stated that he met with Mr Harrison in July 2014 (after seeking legal advice): Applicant’s January 2015Affidavit at [18] and [19], and further stated that whilst “I did not know exactly about this proceedings” he asked Mr Harrison about it: Applicant’s January 2015 Affidavit at [24].
In SZSXT v Minister for Immigration & Border Protection & Anor [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437 the Federal Court summarised the principles with respect to cases involving a third party’s fraud before the Tribunal at [51] per Perram, Robertson and Griffiths JJ, as follows:
51. SZFDE establishes the following principles (omitting case references):
(a) in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” (at [8]);
(b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution (at [11]);
(c) “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” (at [17]);
(d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud (at [20]);
(e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” (at [22]);
(f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative (at [25]-[27]); and
(g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time (at [28]). But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised (at [51]-[52]).
It is necessary for an applicant who alleges fraud to demonstrate that the fraud of the third party concerned has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. The Full Court of the Federal Court has observed that the alleged fraud “must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant”: Minister for Immigration & Citizenshipv SZLIX & Anor [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [33] per Tamberlin, Finn and Dowsett JJ (“SZLIX”), citing SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In SZLHP v Minister for Immigration & Citizenship & Anor [2008] FCAFC 152; (2008) 172 FCR 170 (“SZLHP”) the Full Court of the Federal Court was dealing with an appellant, a citizen of China, who had arrived in Australia on a false Indonesian passport and applied for a protection visa with the assistance of a migration agent. The migration agent told the appellant to advance false claims, which the appellant did, misrepresenting his identity, citizenship and personal history. The protection visa application was refused, and the false claims were repeated in an application made by the migration agent to the Tribunal. Further, the agent advised the appellant not to attend the Tribunal hearing lest his inability to speak Indonesian reveal that he was not a citizen of Indonesia (which he had claimed to be). The appellant cooperated with the migration agent by obtaining a medical certificate in an endeavour to explain his failure to appear. The Tribunal affirmed the decision under review.
Separate judgments were delivered by each of the members of the Full Court of the Federal Court in SZLHP. Justice Branson, having observed that there was a “long established principle that courts do not allow a person to maintain an advantage obtained by the person’s own fraud”: SZLHP at [12] per Branson J, found that the appellant had knowingly signed an application for a protection visa made in a false name and which falsely asserted that the appellant was an Indonesian citizen: SZLHP at [14] per Branson J. At [15] per Branson J it was said that:
It may be accepted that the appellant, who had recently arrived in Australia and spoke no English, did not know how to apply for a protection visa. However, nothing in the evidence provides any basis for an inference that the appellant was not aware that his conduct rendered him complicit in an attempt to deceive whatever Australian authority was responsible for dealing with applications for protection visas. Indeed, it is clear that he was well aware that he was applying for a protection visa in a false name and on a false basis.
And at [17] per Branson J that:
The inference is irresistible that the appellant was aware that his conduct rendered him complicit in an attempt to deceive the Tribunal.
SZFDE was distinguished because Justice Branson held that the appellants in SZFDE were not complicit in any attempt to deceive the Tribunal, whereas by contrast, the appellant in SZHLP had “knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history.”: SZLHP at [18] per Branson J.
In SZLHP at [20] per Branson J there were findings that:
a)the appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal, namely that the falsity of the grounds would be made plain, and in that sense there was no relevant fraud “on” the Tribunal in the sense discussed in SZFDE; and
b)there was also no error of principle in the finding in the Federal Magistrates Court that it would be appropriate to refuse discretionary relief to the appellant on the ground of “his own deceptive conduct”: SZLHP at [21] per Branson J.
In SZLHP at [34] per Lindgren J it was observed that:
The Federal Magistrate’s findings, properly understood, were to the effect that the appellant was a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal. On this basis, his Honour correctly distinguished SZFDE 232 CLR 189 (at [99]).
In SZLHP at [91] per Graham J it was observed that, unlike SZFDE, “this was not case where a representation had been made to the appellant that was plainly false”, and at [92]-[94] per Graham J it was further observed as follows:
Viewing the matter as summarised above and bearing in mind, firstly, that the Minister’s delegate was not led into error, secondly, on the appellant’s own case, the Tribunal did not have a valid application for review before it, thirdly, the appellant did not want to go to a Tribunal hearing to tell the truth and fourthly, any wish that the appellant may have had to attend a Tribunal hearing was not frustrated by the provision and acceptance of advice which the migration agent did not genuinely and honestly believe to be sound when she gave it, I cannot see how it could be said that there was any fraud “on” the Minister or “on” the Tribunal so as to give rise to any jurisdictional error.
Even if there was such “fraud”, the appellant’s complicity in it would deny him the right to complain about it.
Finally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56]-[57]).
This is not, however, a case in which the applicant was unaware that the Student Visa application had been made on his behalf. The applicant had been aware since January 2013 that the Student Visa application had been made and does not appear to have taken any additional steps to properly ascertain his visa status until 15 May 2014 when he went to the Department, and then subsequently on 19 May 2014 to see private lawyers. The applicant was obviously complicit in the Student Visa application to the extent that it was made with his knowledge, and made in circumstances where he was led to believe that it was a step which would allow him to prolong his stay in Australia and apply for the ENS Visa, but that it did not require him to study or attend college.
Section 98 of the Migration Act provides as follows:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
In circumstances where the applicant was aware of, and permitted Mr Harrison to fill out, the Student Visa application on the applicant’s behalf, s.98 of the Migration Act on its face provides that the applicant is taken to have filled in the Student Visa application form.
In Singh v Minister for Immigration & Anor [2015] FCCA 2776 (“Singh”) this Court had a matter before it in which the factual circumstances were described at [48] per Judge Whelan as follows:
48. It is not disputed that, at the time of the making of the application, the Applicant was not aware that the agent had provided false and misleading information to the Minister or an officer. The Tribunal, on the basis of the material before it, was satisfied that the agent had made the application on the Applicant’s behalf and in doing so acted within his authority. The Applicant had engaged the agent to make the application on his behalf and had paid him to do so. In his evidence to the Court, the Applicant admitted that he:
·Was aware that the visa being applied for on his behalf was a ‘work’ visa which he later referred to as “the skilled or something”;
·Did not complete the application;
·Provided no documents to the agent;
·Did not review the application before it was lodged;
·Did not know what information would be needed to complete the application; and
·Expected the agent to take care of the application including completing it.
In Singh the Court found an agency agreement between the applicant and the agent “for the agent to seek a visa for the Applicant that would enable him to work in Australia” and went on to observe that a principal (in this case the applicant) can be liable for the actions of an agent “even if the agent’s act is unlawful or amounts to fraud” under the general laws of agency: Singh at [49] per Judge Whelan.
In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 (“NAWZ”) the Full Court of the Federal Court was dealing with a regulation requiring that an approved form be completed by an applicant, but in that case the form had not been completed or signed by the applicant but had been completed and lodged by his agent. In NAWZ at [16] per Finn, Mansfield and Stone JJ the Full Court of the Federal Court concluded that:
16. The appellant is fixed with responsibility for the actual content of the false application filled in on his behalf: see Migration Act 1958 (Cth), s 98. The application filed on his behalf was his application albeit it lacked what in the circumstances would have been two false declarations signed by him, though they were signed on his behalf by his confederate.
In SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 the Federal Court concluded at [16] per Bennett J as follows:
16 The appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies. Section 98 does not require a covert purpose to mislead. The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid.
The applicant knew that a Student Visa was being applied for. The applicant concurred in the making of that application, and apart from at the most general level, made no enquiries and took no steps to follow up on the progress of the Student Visa application. Even as late as July 2014 when the applicant met with Mr Harrison, by which time he had met with an officer of the Department on at least one occasion, and had sought legal advice and seen lawyers on his own behalf, there was no challenge to Mr Harrison’s conduct, but rather mere enquiries as to “what was going on with my visa application”: Applicant’s January 2015 Affidavit at [19].
The applicant asserts a lack of skill in the English language, and a putting of faith in Mr Harrison, as justification for his alleged lack of understanding as to what occurred during what he thought was the ENS Visa application process. It is nevertheless the case that he “knew” (because he was told by Mr Harrison) that he was applying for a Student Visa that he did not want, and would not get, because it would be overtaken by the ENS Visa application, and that because of this there was no need to attend college, or study, or enrol in any course. The applicant then proceeded to pay, he says, Mr Harrison for his services (although it would appear that payment was made to Migrant Employment Services).
Having regard to the facts, the Court is of the view that the applicant was complicit in applying for the Student Visa, in circumstances where he knew that he did not want the Student Visa, would not get it, and that it was an application which was never going to be successful, and in respect of which he would never have to actually take part in any course of study. Never enrolling or taking part in any course of study is the antithesis of the purpose of making a Student Visa application, and notwithstanding the applicant’s asserted lack of skill in the English language, ought to have, as a matter of common sense, put the applicant on notice, or caused him to make enquiry, as to the validity or propriety of the course proposed by Mr Harrison. That the applicant did not do so means, in the Court’s view, that the applicant was therefore indifferent to the outcome of the Student Visa application, his focus being upon obtaining work rights or permanent residency in Australia. The applicant, by his conduct, countenanced Mr Harrison to undertake any necessary steps for the applicant to obtain the ENS Visa, including the making of the Student Visa application.
On 20 March 2013 the applicant made an application to the Tribunal for review of the Delegate’s Decision. There is no explanation in the Applicant’s June 2014 or January 2015 Affidavits as to the circumstances in which he came to sign the application for review by the Tribunal of the Delegate’s Decision. It is open for the Court to infer, given the factual matrix otherwise outlined above, that the applicant did so in furtherance of the arrangements that he had made with Mr Harrison to obtain an ENS Visa.
In this case, from his discussions with Mr Harrison, the applicant knew the course that Mr Harrison proposed in applying for the Student Visa which would be unsuccessful, but was part of a plan to obtain an ENS Visa to prolong the applicant’s stay in Australia, which was his intention. The applicant knew from the outset that his Student Visa Application was futile.
The applicant’s stated reliance on the advice of Mr Harrison merely reinforces this fact. It does not matter that he assumed that Mr Harrison was a migration agent, because even if he was not, the applicant’s assertion that he only intended to ever act lawfully stands in contra-distinction to his actual actions which evince an intention, even if not to act unlawfully, to manipulate the processes under the Migration Act. There was no evidence of manipulation of the applicant by Mr Harrison in this case, but rather an exercise of the application and review process of which the applicant was aware and in which he was complicit. The applicant’s own evidence reveals his complicity in the course of conduct adopted by Mr Harrison, the sole purpose of which was to prolong the applicant’s stay in Australia in circumstances where the applicant did not have any valid basis for the grant of his Student Visa Application.
As in SZLHP at [15] per Branson J, it may be accepted that the applicant, recently arrived in Australia and speaking little or no English, did not know how to apply for a visa. Nothing in the evidence, however, provides any basis for an inference that the applicant was not aware that his conduct rendered him complicit in an attempt to obtain the Student Visa which he knew he could not obtain, and then applying for a merits review of the Delegate’s Decision not to grant him the Student Visa.
In all of the above circumstances the Court is of the view that there was no fraud on the Tribunal by way of a fraudulent omission vis-à-vis the applicant because the applicant was complicit in the alleged fraud. It follows to the extent that proposed grounds 4 and 5 rely upon an allegation of fraud upon the Tribunal, those grounds do not make out an arguable, or sufficiently arguable, case of jurisdictional error in the Tribunal Decision, and therefore do not weigh in favour of the Extension of Time Application.
Finally, the Court notes that there is no evidence to demonstrate that at the time of the Tribunal Decision, the applicant was capable of fulfilling the relevant criteria under the Migration Regulations for the Student Visa which required the applicant to be enrolled in, or the subject of, a current offer of enrolment, in a course of study. The Applicant’s June 2014 and January 2015 Affidavits do not address the criteria in this regard. In the circumstances, there is no, or no sufficient, evidence to demonstrate that there would be, even if the matter were to be remitted to the Tribunal in the event that jurisdictional error was found, an arguable case that the applicant was able to meet the relevant criteria for the Student Visa. In those circumstances, the grant of prerogative relief would be entirely futile, and it would not be appropriate to grant prerogative relief in any event: X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; (2002) FCAFC 3; (2002) 116 FCR 319; (2002) 67 ALD 355 at [45] per O’Loughlin J; Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J; Zhang at [48] per Judge Lucev. That is a further reason not to grant the Extension of Time Application.
Conclusions and orders
The length of the delay (148 days) in making the application, and the failure to satisfactorily explain that delay, is such in this case that the delay alone is a sufficient basis for dismissal of the Extension of Time Application. It follows that there should be an order that the applicant’s application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
Even if the length of, and failure to explain, the delay were alone not enough to warrant the dismissal of the Extension of Time Application, the effect of a consideration of the other factors leads to the same result, because:
a)there is prejudice to the Minister;
b)there is no public interest in the matter; and
c)the failure of the applicant to make out any proposed ground of review which has arguable (or sufficiently arguable) merit effectively means that such an application would have no prospect of success, and the Court should not therefore extend time.
The fact that there is no evidence that the applicant fulfilled the criteria for the grant of the Student Visa, and it would not be appropriate to grant prerogative relief in any event, is a further reason warranting the dismissal of the Extension of Time Application.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Amended Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 9 December 2016
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