Lutchanah v Minister for Immigration

[2015] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUTCHANAH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 550

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application filed out of time – whether fraud on the Migration Review Tribunal – matters to be considered.

Legislation:

Migration Act 1958 (Cth), ss.5, 347; 474; 476(1); 476(2); 494A; 494B; 494C; 494D

Migration Regulations 1994, r.4.10(1)(d)
Federal Circuit Court Rules: r.11.01(1)

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86
Tay v Minister for Immigration & Citizenship (2010)  183 FCR 163
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Joshi v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64
SZQVV v Minister for Immigration & Citizenship [2012] FCA 1471
SZSXT v Minister for Immigration & Border Protection [2014] FCAFC 40
Minister for Immigration & Citizenship v SZLIX  (2008) 245 ALR 501
SZQVV v Minister for Immigration & Citizenship [2012] FCA 871
SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170

Applicant: ANSINI LUTCHANAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 202 of 2014

Judgment of: Judge Brown

Hearing date: 16 February 2015

Date of Last Submission: 16 February 2015

Delivered at: Adelaide

Delivered on: 26 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 6 June 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND AND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 202 of 2014

ANSINI LUTCHANAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, in these proceedings, is Ansini Lutchanah.  She is a citizen of Mauritius.  Between 2007 and 2011, she attended Curtain University, where she successfully completed a bachelor of commerce degree.  In 2012, she followed her undergraduate degree with a post-graduate diploma in business administration at Murdoch University.

2. In order to pursue her studies in Australia, the applicant was granted various student visas, pursuant to the provisions of the Migration Act (1958) (Cth) “the Act”.  These visas authorised Ms Lutchanah’s stay in this country.  With the completion of her studies, they have now lapsed.

3. In these circumstances, on 15 February 2013, the applicant applied to the Department of Immigration & Citizenship[1] “the Department” for a skilled-graduate (temporary) (class VC) subclass 485 visa “the visa” to enable her to remain in Australia. 

   [1]  as the Department of Immigration & Border Protection was then known.

4. The visa application was made electronically, with the apparent assistance of a migration agent, identified in the electronic form, as Lawrie Markham of EasyMigrate (sic) Consultancy Services “EasyMigrate”.[2]

   [2]  See casebook at page 4

5. The applicant’s position is that she has been badly let down either by Mr Markham or one or other of his colleagues at EasyMigrate.  The conduct of EasyMigrate has led to the failure of her visa application through no fault of her own.  She feels that she has been the victim of a grave injustice and seeks the assistance of the court to remedy it. 

6. The genesis of Ms Lutchanah’s grievance, so far as Mr Markham and EasyMigrate is concerned, lies in a section of the electronically completed visa application form, which is headed communicating with the migration agent.  The relevant section of the form reads as follows:

   “We can communicate about the application more quickly using email or fax.  Under Australian law, if the migration agent wants to receive electronic communications from the Department, we require their consent for you to enter an email address and/or fax number for your migration agent.”

   Under this statement, against the heading email address has been entered an address for Mr Markham at EasyMigrate. 

7. The bureaucratic mechanism, through which a visa applicant appoints a migration agent to act on his or her behalf, arises through what is designated as a Form 956.  The form requires declarations to be given by both the migration agent and the visa applicant concerned.  The agent is required to indicate the type of application in which the migration agent is giving assistance.

8. In this context, a person indicated as being Ansini Lutchanah has ostensibly appointed Lawrie Markham as her migration agent, to provide assistance in respect of a skilled graduate visa application.  Above a signature and the date of 15 February 2013 is a hand-ticked statement, which reads as follows:

   I declare that I have appointed the migration agent/exempt person named in Part A of this form to provide assistance with matters as indicated on this form.[3]

   [3]  See casebook at page 55

9. I have not specifically asked the applicant if she recognises the signature as her own.  However, in her written submissions, she asserts that Ms Lewis asked her to execute a blank Form 956.  As a consequence, it is my understanding that she does not assert the signature on the document in question is a forgery.  The form also designates Mr Cyrus Mistry as being another registered migration agent from your organisation, whom the Department may contact.

10. Accordingly, it seems axiomatic that the combination of the Form 956 and the statement on the visa application form are intended to provide a mechanism by which Departmental Officers are authorised to communicate electronically with the representatives of visa applicants without the necessity to communicate directly with the applicant concerned.

11. Being computer generated in nature, the actual visa form does not require a physical signature.  The form does however carry the warning that there are penalties for providing false information.  An applicant thereafter is required to attest that there are penalties for providing false information.  An applicant thereafter is required to attest Yes that he or she has read and understood the information supplied in the application.

12. In written submissions prepared by Ms Lutchanah herself, under the heading Brief History of the Facts in My Case, the applicant has set out what she says was the extent of her involvement with Mr Markham.  She asserts that she conferred with him only once on 24 January 2013.[4]  Thereafter she dealt with another person at EasyMigrate, Ms Justene Lewis, who told her that Mr Markham was no longer with the firm and she was now handling his work.

    [4]  This is not entirely consistent with what she asserted in an email to the Department sent on 14 January 2014.  In this document she asserts she met Mr Markham twice.  See casebook at page 123.

13. It was to Ms Lewis that the applicant presented relevant documents concerning her application.  In this context, Ms Lutchanah asserts that she is personally unaware of the actual identity of the person, at EasyMigrate, who actually submitted her application to the Department. 

14. It is however her position that she had far more to do with Ms Lewis and had only a perfunctory involvement with Mr Markham.  It is Ms Lutchanah’s position that she was told by Ms Lewis that she would need to have a medical examination and would be told by the Department when this would occur.

15. The grant of the visa in question is subject to the satisfaction of a number of conditions.  In the main, these conditions relate to proficiency in English; suitability of skills; assessment of character; and suitable medical status. 

16. The applicant asserts that she provided Ms Lewis with her police clearance and the necessary fees for department processing of her visa application.  She also asserts that she paid EasyMigrates’ professional fees of $3,850.00 in February of 2013.

17. On 22 July 2013, a delegate of the Minister sent a letter to Ms Lutchanah requesting further information from her, including her medical status.  In this context, she was advised that the Department required her to undergo a health examination. 

18. In addition, she was advised which medical practitioners were authorised to examine her for the purposes of the Act, and the means by which she could arrange such an examination. 

19. The letter was sent electronically to the email address of Mr Markham.  The document identified the applicant; provided her date of birth; and indicated, presumably, for Mr Markham’s benefit, that he had been authorised to receive correspondence on behalf of Ms Lutchanah. 

20. It is the applicant’s position that she was not advised of this correspondence.  As a result, she did not make the necessary arrangements to attend upon an authorised medical practitioner for the required medical examination. 

21. It is her case that she had previously attended all medical examinations required of her, in respect of her earlier student visas and had no rational reason to delay or avoid an appropriate medical examination, as she would wish to advance rather than retard her skilled visa application. 

22. I accept that this is demonstrably true, given that she had provided all other documents required to advance her visa application, including evidence of proficiency in English and a skills assessment in her nominated occupation of accountancy.

23. On 26 August 2013, a delegate of the Minister refused to grant Ms Lutchanah the relevant visa.  The reason provided, by the Delegate, for the refusal of the visa, was that the applicant had not satisfied a public interest criterion requiring visa applicants to establish that they are free from tuberculosis or other conditions, which might represent a threat to public health in Australia.  Satisfaction of this condition would have been provided by a satisfactory medical examination on Ms Lutchanah’s part. 

24. Again, the relevant decision record was forwarded to the applicant, via an email sent to Mr Markham at EasyMigrate.  With the relevant decision, the applicant was advised of her rights to seek a review of the decision in the Migration Review Tribunal “MRT”.  She was further advised that such an application for review must be given to the MRT within 21 calendar days after you are taken to have received this letter.[5]

    [5]  See casebook at page 68

25. The letter in question also indicated that the original of the letter, including all attachments, had been sent to Mr Markham at the business address of EasyMigrate in Perth. 

26. It is the applicant’s position that, as with the request to undertake a medical examination, she did not receive the notice of decision and the related advice regarding her appeal rights.  From her perspective, the only logical explanation regarding why she was not advised of this correspondence is that someone at EasyMigrate failed in their professional obligations towards her. 

27. It is Ms Lutchanah’s position that she only learnt that she did not have a valid visa, when she telephoned the Department on 26 September 2013 to advise them of a change of address.  On 2 October 2013, she wrote an email to the relevant visa officer, at the Department:

    “My above mentioned visa was refused on 26/8/2013 but my nominated migration agent didn’t inform me about that.  I have contacted DIAC many times to change my contact details but was not received any information about the refusal of my 485 visa application.  But when I contact DIAC on 26/09/13 I came to know about my 485 refusal.  I even don’t know about the reasons for the refusal as my agent stopped working with Easy Migrate from the last six months.”[6]

    [6]  See casebook at page 101

28. On 2 October 2013, the applicant executed a further form 956 in which she ended the appointment of Mr Markham as her migration agent.  On the same day, she consented to the Department contacting her at her own personal email address.

29. On 3 October 2013, Ms Lutchanah received a letter, via email, from Cyrus Mistry, who describes himself as a principal migration consultant at EasyMigrate.  Mr Mistry advised that Mr Markham no-longer worked at EasyMigrate. 

30. Mr Mistry further indicated that no emails had been received from the Department, at Mr Markham’s email address, regarding her.  He advised her to contact the Department urgently and advise its relevant officers that she was now acting on her own behalf.[7]

    [7]  See casebook at page 103

31. Mr Mistry’s advice, regarding the non-receipt of departmental emails, does not sit comfortably with records held by the Department regarding the sending of electronic correspondence, concerning Ms Lutchanah, to Mr Markham’s email address.  The Department has kept records of sent items which indicate that such electronic correspondence was sent.[8]  I will return to this issue in due course.

    [8]  See casebook at page 110

32. On 16 October 2013, Ms Lutchanah applied to the MRT for a review of the Delegate’s decision not to grant her the visa in question.  On 3 December 2013, a representative of the MRT invited the applicant to comment on the fact that her application for review was ostensibly out of time as it was not made within twenty one days from the day on which you are taken to have been notified of the primary decision.

33. The Tribunal Officer concerned indicated to the applicant that the primary decision had been emailed to her authorised recipient – by necessary implication, Mr Markham – on 26 August 2013.  Accordingly, to be in time, the application for review had to have been filed no later than 16 September 2013.[9]

    [9]  See casebook at page 117

34. The applicant provided a detailed submission, regarding her involvement with EasyMigrate, on 14 January 2014.  In her submission, the applicant submitted that she had had only a brief involvement with Mr Markham, who had handled only her initial inquiry.  However, from the applicant’s perspective, from the end of February2014 and the granting of her bridging visa, she believed all was in order with her application.

35. At the end of June 2014, Ms Lutchanah wished to travel to Mauritius.  In these circumstances, she asserts that she contacted EasyMigrate to ascertain what, if anything, needed to be done vis-à-vis the Department regarding her travel out of Australia and the implications, if any, for her immigration status.  It is her position that she was given to understand, by Mr Mistry, that her application was being processed accordingly and she was free to travel overseas.

36. Ms Lutchanah has indicated that she was outside of Australia between 10 July and 25 August 2013.  It was her intention to change her address on her return to this country as she had been given an offer of work in New South Wales.  Accordingly, she telephoned the Department to advise it of this change in her affairs. 

37. It was at this stage that the applicant asserts that she was first informed that there were problems with her visa application.  Thereafter, she complains about being given the run around by various representatives of EasyMigrate.

38. The MRT dealt with the applicant’s application for review on 16 May 2014.  The Tribunal concluded that it did not have jurisdiction to hear the application as it had been lodged out of time.  The MRT determined as follows:

    “Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 and application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 August 2013 which was dispatched by email.

    Following an invitation by the Tribunal, the applicant has made submissions regarding the late lodgement of her review application. She submits that due to the problems with her agent she had no knowledge that a decision had been made until she had called the Department.

    The Department’s file indicates that her agent had been duly appointed, that email communication was authorised and at no stage prior to the decision being made was the agent’s authorisation withdrawn.  Further documents on the file, and further investigations by the Tribunal, demonstrate that the delegate’s decision was successfully sent by email to the applicant’s authorised agent.

    The Tribunal is therefore satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

    The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 26 August 2013.  Therefore the prescribed period within which the review application could be made ended on 16 September 2013.  As the application for review was not received by the Tribunal until 17 October 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.”[10]

    [10]  See casebook at page 146

The current application

1. The applicant has commenced the current round of proceedings as a consequence of this decision.  She lodged her application on 6 June 2014.  She seeks an order that the decision made by the MRT on 19 May 2014 be quashed.  She has prepared her own application, which discloses one ground as follows:

   “I wish to submit my application to review in court my case as it was dismissed by MRT because the application was submitted after the prescribed time limit.  However the major facts were not considered that my agent then was in Perth and all the information from immigration department was supposed to be received by him but he failed to inform.  I was not even aware that the decision had been taken for my case.  I came to know about it when I called Department to update my address with them but to my utmost shock I was told that my visa had already been refused long ago and the information was sent to my agent.  I tried to call my agent several times but in vain.  I have attached some photos of the phone calls I made to the agent the copy of email where the agent was denying receiving an email from immigration stating my visa status.  IN absence of information about the decision, I was not able to lodge MRT in time.  Therefore, I request the minister to consider my case for justice.”[11]

   [11]  See application filed 6 June 2014

2. More recently again, on 4 February 2015, the applicant has filed an application in a case, in which she seeks to add Mr Mistry as a further respondent to the application.  As far as I know, this application has not been formally served on Mr Mistry and he did not appear at the hearing of the application, which was listed for 16 February 2015. 

3. The first and second respondent, to the application, are respectively the Minister for Immigration & Border Protection and the Migration Review Tribunal.  The MRT has not taken part in these proceedings, other than filing a submitting appearance, save as to costs. 

4. It is the position of the Minister that the application should be dismissed as the application for review does not establish any jurisdictional error in the decision of the MRT made on 19 May 2014. 

The legal principles applicable

1. These proceedings are for a judicial review of the decision of the MRT made on 19 May 2014.  The court has no specific jurisdiction, conferred upon it, in respect of the conduct of migration agents generally or any specific authority to discipline or sanction them in respect of any species of professional misconduct potentially committed by them. 

2. Part 3 of the Act deal with migration agents and their provision of immigration assistance to various categories of visa applicants.  Division 6 of Part 3 creates a body known as the Migration Agents Registration Authority, which is the regulatory body for migration agents.  It is this body which is authorised to investigate complaints about migration agents and to take disciplinary action against them or make referrals to appropriate prosecuting authorities or other professional associations.

1. As such, notwithstanding any sympathy I may feel for Ms Lutchanah personally, I am satisfied that I have no authority to join Mr Mistry as a party to these proceedings.  His participation is not necessary to determine whether or not there has been a failure of the jurisdiction conferred upon the MRT pursuant to the relevant provisions of the Act.[12]

   [12]  See Federal Circuit Court Rules at rule 11.01(1)

2. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

3. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

4. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

5. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

6. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[13] 

   [13]  See Migration Act at section 5

7. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

8. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

9. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[14]

   [14]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

10. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[15]

    [15]  See Craig v South Australia (1995) 184 CLR 163

The deeming provisions

1. The relevant jurisdiction, conferred upon the MRT, to review ministerial decisions arises under Part 5 of the Migration Act and the various divisions, which it contains.  Division 2 creates various decisions, which are characterised as being reviewable by the MRT.  Division 3 provides the mechanics for how decisions, which are classified as reviewable, are to be conducted. 

2. The decision in question is an MRT-reviewable decision. Section 347 provides a number of pre-conditions, which must be satisfied in respect of any application for review. These include the form to be utilised; the payment of any prescribed fee; and germane in the present case, that the relevant application has been made within the period prescribed by the applicable legislation.

3. Regulation 4.10(1)(d) of the Migration Regulations (1994) provides as follows:

   “(1)   For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:

   …

   (d)     if the MRT‑reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.”

4. The application of these provisions provided the basis for the MRT’s decision that it did not have jurisdiction in the case, as the application for review had not been made within 21 days after the applicant had been notified of it.  The factual basis on which this decision was made turns on when the decision was emailed to the applicant’s nominated representative. 

5. The MRT made its own enquiries as to when the decision of the Delegate had been emailed.  Pursuant to section 359 of the Act, the Tribunal is entitled to seek information that it considers relevant to its review functions.  It may seek information from the Secretary of the Department.  In this context, The Tribunal sought the following information on 27 November 2013:

   “The Tribunal requires confirmation of the email transmission to the applicant’s then representative of the Department’s decision of 26 August 2013 to refuse the subclass 485 visa.” [16]

   [16]  See casebook at 106

6. The Department duly responded on the same day, forwarding what is known as a screen shot from the Enterprise Correspondence Service portal.  This indicated that the decision in question had been emailed to the electronic address nominated at 12.49 hours on 26 August 2013.  There was no record of transmission failure.[17]  The statement of decision indicates that the MRT considered this evidence and accepted it.

   [17]  See casebook at 107 -109

7. The significance of this finding depends on other provisions of the Act, which provide mechanisms by which it is deemed a document has been provided to any applicant concerned and which in turn form the basis of the time limits created by section 347.

8. In particular, section 494B of the Act provides an inclusive list of methods by which the Minister is to give a document to a person.  In particular, section 494B(5) authorises the Minister to transmit any relevant document by email or other electronic means to the email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents. 

9. In this case, it is clear that the MRT found that the Minister’s delegate had provided Ms Lutchanah with its decision by means of the email address ostensibly provided by her, with her original application, which was Mr Markham’s email address at EasyMigrate. 

10. This finding of fact, in turn, engaged the deeming provisions contained in section 494C(5), which reads as follows:

    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

11. In my view, regardless of what sympathy this court feels for the predicament in which Ms Lutchanah finds herself and no matter what criticisms may be levelled at Mr Markham and those charged with his professional oversight, the finding that the document in question had been conveyed electronically to the address nominated by the applicant was one which was clearly open to the MRT on the facts available to it. 

12. Thereafter, in my view, the MRT was obliged to apply the provisions of section 494C(5) and had no discretion to do otherwise.  The MRT was obliged to deem it to be the case that Ms Lutchanah had received the decision of the Minister’s Delegate at the end of the day of 26 August 2013 and that the prescribed time for lodging any application for review ran from this time.

13. Jacobson J considered the application of analogous deeming provisions, created by regulations made under the Act, in Sainju v Minister for Immigration & Citizenship.[18]  He said as follows:

    What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.

    The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.

    Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does.  Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person.  So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.

    The same assumption is made in the deeming provision which deals with electronic communications.  Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.

    It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled.  The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace.  Perhaps the document will never find its way to the addressee.

    But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact.  They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved (citations removed)

    The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8).  There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view.  That is to say “by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent.

    The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred.  It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.[19]

    [18]  Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86

    [19] Ibid at 93 - 94

14. Accordingly, I am satisfied that it was not an integer of the MRT’s jurisdictional function that it was required to consider whether Ms Lutchanah had actually personally received the decision in question, after it had been transmitted and so had been afforded an opportunity to consider it and thereafter respond to it, as she considered appropriate.  As Jacobson J held, the focus of section 494C is on the actions of the Minister in conveying a decision not on the designated recipient of the decision in question.

15. The aim of such deeming provisions is on the provision of administrative certainty.  The Minister, as a consequence of section 494A, is entitled to convey a document by the method which the Minister considers appropriate. 

16. Section 494C is part of a statutory scheme to provide a regime for the clear determination of when the receipt of specified documents relating to migration decisions occurs.  This aim is reflected in the relevant Explanatory Memorandum, to which Jacobson J referred in Sainju.[20]

    [20] Ibid at 95

17. The Full Court of the Federal Court took a similar view in Tay v Minister for Immigration & Citizenship.[21]  This case was concerned, as is this one, with section 494C(5), the deeming provision applicable to the dispatch of documents by electronic means.  In Tay the Full Court was expressly called upon to consider the validity of an earlier decision Xie v Minister for Immigration & Multicultural & Indigenous Affairs,[22] which dealt with section 494C(4). 

    [21]  Tay v Minister for Immigration & Citizenship (2010)  183 FCR  163

    [22]  Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

18. This is the section which deals with the provision of documents by prepaid post and when such documents are deemed to have been received.  In Xie Spender J indicated that there was nothing in section 494C(4) to indicate that its operation was subject by any implied condition in terms of until the contrary is proved.

19. In Tay, the Full Court said as follows:

    …we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences.  The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received.  In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.

20. I consider that I am bound by the decision in Tay, the effect of which is to hold that section 494C(5) does not create a rebuttable presumption of fact.  Rather the section makes very detailed provision for determining when a document is taken to have been received, by its designated recipient, from the Minister. 

21. Accordingly, neither the MRT nor the Delegate of the Minister was obliged to consider whether Ms Lutchanah had actually received the documents in question.  Therefore, in my view, it does not constitute an error that the MRT did not engage in any form of inquiry arising from the applicant’s detailed submission that she had been badly let down by EasyMigrate and its various staff members.

22. Included in the regime for determination of when a document is taken to have been served is a process through which the Minister is obliged to give necessary documents, relating to any migration decision, to the person authorised by the visa applicant to receive such documents.  The relevant provision is section 494D(1) of the Act, which reads as follows:

    “494D  Authorised recipient

    (1)     If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

    Note:     If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.”

23. Pursuant to sub-section (3), a visa applicant may vary or withdraw an authorised recipient notice.  There was no evidence, before the Tribunal, to indicate that Ms Lutchanah had withdrawn the authorisation provided by her to Mr Markham on 15 February 2013.  As such, the Minister’s Delegate was obliged to provide the relevant decision to Mr Markham, as Ms Lutchanah’s authorised recipient.

24. This follows from the use of the word must in section 494D(1) in reference to the person to whom the Minister is obliged to despatch relevant documents.  The Minister is not provided with a discretion to provide such documents to the actual visa applicant in lieu of the authorised person.

Considerations relevant to the denial to the applicant of an opportunity to present her case arising from the conduct of the agent

1. That is not an end to the matter.  The applicant’s case is an inchoate plea for fairness, given the fact that the persons she trusted with her application and to whom she provided a not inconsiderable fee have completely failed her. 

2. Mr Tredrea, counsel for the Minister very fairly concedes that Ms Lutchanah was deprived of the opportunity both to appear before the MRT and present arguments to it, through no fault of her own.  Clearly this is most unfair to her.

3. On this basis, it would appear to be the position that Ms Lutchanah wishes the court to investigate the conduct of EasyMigrate, in some way, because, by implication, its conduct and the conduct of its various employees have deprived her of procedural fairness and, as a consequence, subverted the processes of the MRT itself.

4. It seems irrefutable that, if Ms Lutchanah had known sooner of both the requirement for her to undergo a medical examination and of the decision of the Minister’s Delegate the course of the proceedings would have taken a radically different course.  It is the applicant’s position that she has been most grievously misled by EasyMigrate.

5. In Joshi v Minister for Immigration & Multicultural Affairs[23] in what was a different jurisdictional context, Emmett J considered that there was, from time to time, a level of tension between the desirability of there being a scheme which provided certainty  in the manner and time of giving notice of decisions in visa decisions, particularly so far as when the time for review of such decisions expired with the clear intent of the legislature that non-citizens should have an effective right of review by an administrative body.

   [23]  Joshi v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87 at 95-6

6. In the current case, Ms Lutchanah patently has not been provided with such an effective right of review.  In practical terms, she has had no right of review at all.  At this stage of proceedings, the Minister does not challenge her contention that this state of affairs is attributable, in large part, to the actions of her purported advisers rather than her own conduct.

7. It is the applicant’s case that she was either misled or tricked in some way, by EasyMigrate, and neither understood fully the visa application form nor was aware of its contents, when it was despatched to the Department, particularly in terms of Mr Markham’s email address being the principal means of communicating with her.  In this context, she claims that she signed a blank Advice by migration agent [Form 596], at the instigation of Ms Lewis. [24]

   [24]  See Applicant’s written submissions at page 1

8. Against this background, the applicant has prepared an impassioned written submission to the court, in which she calls for Mr Mistry to be found guilty of misdeeds and to be restrained from being able to practice as a migration agent. 

9. By necessary implication, Ms Lutchanah calls into question the integrity of the review process which should have been available to her, but for what she would categorise as the misdeeds and miscommunication of those at EasyMigrate, whom she had retained to assist her.

10. Although Ms Lutchanah does not specifically label the actions of those at EasyMigrate as being fraudulent, she is clearly highly critical of their conduct and believes that they have acted in a highly inappropriate fashion, which has been both prejudicial to her and has the potential to bring the system of review of visa decisions into disrepute.

11. As a consequence of the High Court’s decision in SZFDE v Minister for Immigration & Citizenship [25] courts such as this, conducting a process of judicial review, are duty bound to take allegations of fraudulent behaviour, arising from proceedings before tribunals, such as the MRT, seriously. 

    [25]  SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64

12. This is because allegations of fraud, in the field of public law, if left unchecked, may have the effect of calling into question the propriety of the decision making process itself, which would not be in the public interest.

1. The difficulty arising, in this particular case, is that the proceedings themselves are not an inquiry into the actions of the various migration agents concerned, none of whom has been examined or put on notice in respect of the allegations made regarding their conduct.  Rather the proceedings before me are concerned with the jurisdictional integrity of the decision reached by the MRT.

2. In SZFDE a family had applied for a protection visa, with the assistance of a migration agent. The agent advised the family not to attend a hearing before the tribunal concerned as he (the agent) claimed that the Tribunal was not currently accepting any visa applications and would therefore dismiss their applications.

3. At the relevant time the migration agent in question had had his registration as a migration agent cancelled and his practising certificate as a lawyer suspended.  At first instance, it was accepted that he had acted fraudulently, extracting money from the family under false pretences and falsely inducing them not to attend before the Tribunal to give evidence as to their circumstances.

4. In the High Court it was found that the fraud of the migration agent had had the effect of subverting the invitation [required to be proffered pursuant to section 425], which had been extended by the Tribunal, to the relevant individuals concerned to give evidence, with the consequence that the Tribunal had not been able discharge its obligation to accord procedural fairness to them. 

5. This failure was held to be a matter of the highest magnitude as it had stultified the Tribunal’s legislatively mandated requirement to accord natural justice to the applicants concerned.  It was characterised as being in the nature of a fraud on the Tribunal itself and to have rendered its subsequent decision no decision at all.

6. However, the High Court placed a significant gloss on this principle.  It said as follows:

   “…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.”[26]

   [26] Ibid at 77 [53] approving French J (as he then was) in the proceedings before the Full Court of the Federal Court.

7. The High Court emphasised the narrow grounds of its decision in SZFDE.  It was characterised as turning on the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of ss 425 and 426A.”

8. In the current case, the Tribunal was required to consider whether it had jurisdiction to entertain the applicant’s application for review, in the context of deeming provisions relating to receipt of a decision of the Minister’s Delegate by the applicant. 

9. Accordingly, counsel for the Minister, Mr Tredrea submits that Ms Lutchanah’s complaints of misconduct against EasyMigrate are irrelevant to any question of jurisdictional error on two bases.

10. Firstly, any fraudulent conduct occurred before the Tribunal’s jurisdiction had been invoked.  Therefore there can be no fraud on the Tribunal itself.  Secondly, the conduct complained is not, in any event, fraudulent being in the nature of negligence or some species of administrative mishap rather than fraud.  As a consequence, he submits that the integrity of the jurisdictional processes of the MRT have not been impugned in any way.

11. There is limited authority in respect of the first issue.  In SZQVV v Minister for Immigration & Citizenship[27] Flick J did not have to definitively resolve the issue, as he concluded that the conduct complained of, in the case before him, did not constitute fraud.  However, he said as follows:

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

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

    [27]  SZQVV v Minister for Immigration & Citizenship [2012] FCA 1471

12. Accordingly, I do not think I am in a position to accept Mr Tredrea’s first submission that SZFDE has no application to the circumstances of this case because the conduct complained of, on the part of staff members at EasyMigrate occurred prior to the invocation of the jurisdiction of the MRT.

13. Rather it will be necessary for me to examine the conduct complained of by Ms Lutchanah and determine whether it amounts to fraud so that the subsequent decision of the MRT is rendered void, as being no decision at all.   

14. In conducting this examination, I must bear in mind that the applicant is unrepresented and has had no apparent legal assistance.  In addition, I have received no evidence at all from any person related to EasyMigrate.

15. In SZSXT v Minister for Immigration & Border Protection[28] the Full Court of the Federal Court (Perram, Robertson and Griffiths JJ) summarised the applicable principles, arising from the High Court’s decision in SZFDE, in the following manner:

    (a)     in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” [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 [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” [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 [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” [22];

    (f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative [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 [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 [51]-[52].

    [28]  SZSXT v Minister for Immigration & Border Protection [2014] FCAFC 40 at [51]

Has the applicant established fraud

1. I appreciate that fraud or bad faith is not capable of definitive definition.  Whether it exists must depend on the circumstances surrounding it.  In general terms, it encompasses dishonesty, malevolence, spite or some form of improper motivation for taking a particular action.

2. Allegations of fraud are not to be made lightly.  Such allegations must be proved rather than implied.  Context is also important.  It is in the public interest that the system of independent review of administrative decisions, pertaining to migration visa applications, retains its integrity and not be called into question as a consequence of the behaviour of the unprincipled.

3. In addition, very often the persons who are entitled to rights of review, under the Act, are disadvantaged by such things as language difficulties and a lack of familiarity with the legal system of Australia.  As such they are liable to fall prey easily to the actions of the unscrupulous.  The essence of the court’s power to issue constitutional writs is to ensure that the decisions of administrative tribunals, tainted by jurisdictional error, including by fraud, are not allowed to stand.[29]

   [29]  See Craig v South Australia (supra) at 175-176

4. In Minister for Immigration & Citizenship v SZLIX, the Full Court of the Federal Court (Tamberlin, Finn & Dowsett JJ) considered a claim made by an applicant for a protection visa that the decision making processes of the Refugee Review Tribunal considering his application had been vitiated by a fraud constituted by the failure of his agent not to advise him to attend an adjourned hearing date.  The court said as follows:

   “… an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions.  SZFDE is testament to this.  But SZFDE requires that the agent in question is fraudulent in a way that effects (sic) the Tribunal’s Pt 7 decision-making process.  An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence.  But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant:  SZFDE.  The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (citation omitted) in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”[30]

   [30]  Minister for Immigration & Citizenship v SZLIX  (2008) 245 ALR 501 at 509 [33]

5. In SZQVV v Minister for Immigration & Citizenship[31] Greenwood J was called upon to consider an application for extension of time to appeal in a case where allegations of fraud were made against by a protection visa claimant, who asserted that a person assisting him with his claim had falsely stated that his application for review had been lodged with the RRT, when this was not true.

   [31]  SZQVV v Minister for Immigration & Citizenship [2012] FCA 871 at [46]

6. Given the nature of the application before him Greenwood J did not have to determine the issue of whether the conduct was or was not fraudulent.  He did however say as follows:

   “The combination of conduct on the part of the person assisting which arguably contravenes [applicable] provisions of the Migration Act coupled with misrepresentations arguably dishonestly made as to the lodging of the review application elevates the matter, accepting the applicant’s version of the facts for present purposes, beyond mere promises or bad or negligent advice or simply some other class of unfortunate mishap.”

7. In this case, it is apparent that EasyMigrate did lodge the visa application on Ms Lutchanah’s part, as directed to do so by her.  The particulars contained in the application were correct and no deception was contained in them.

8. The action, which has led to the current unfortunate situation, so far as the applicant is concerned, is the lack of clarity as to which particular person at EasyMigrate was assisting Ms Lutchanah and, as such, with whom and by what means was the Department to communicate with her via that person.

9. The applicant did meet with Mr Markham, albeit on her case briefly.  Mr Markham did not directly trick or deceive Ms Lutchanah about what he was going to do on her behalf.  Her application for a visa was lodged, by EasyMigrate, with the appropriate supporting documentation.

10. Similarly, on the evidence available, it does not seem to me that Ms Lewis misled the applicant in any direct way.  She did not do anything dishonest.  The only area in which it can be said that there was not strict probity, on the part of staff at EasyMigrate, concerns the allegation made by Ms Lutchanah that Ms Lewis got her to execute a blank form 956.

11. What occurred to this blank form is difficult to ascertain.  The form on which the Department relied is dated 15 February 2013, when the applicant asserts she first met Ms Lewis.  Neither Ms Lewis nor Mr Markham appears to have any sinister motivation for either supplying an incorrect email address or getting Ms Lutchanah to complete a misleading form 956.

12. Although it is irregular and poor practice to obtain a person’s signature on a blank migration appointment form, it does not appear to me to fraudulent per se, as it would achieve no ostensible advantage for either Mr Markham or Ms Lewis.  If it was done and I have not heard any evidence from either person concerned, it was done for reasons of expediency rather than deceit.

13. In any event, Ms Lutchanah was integral to the execution of the blank document.  She was not deceived into signing the form in question.  Indeed she acknowledges that she signed a blank one after being told that the necessary details would be filled in latter.  It seems unusual that Ms Lewis would insert Mr Markham’s email address into such a document, if he had left EasyMigrate by then, as the applicant asserts.

14. In my view, it is impossible to conclude that EasyMigrate provided the Department with Mr Markham’s email address for any nefarious purpose.  If Mr Markham had continued to be Ms Lutchanah’s migration agent, his electronic address would have provided an appropriate mechanism for the Department to liaise with the applicant.  As such, it cannot be said, in my view, that there was any deception wrought on the Department itself.

15. Similarly, there appears no deceit was inflicted upon Ms Lutchanah or the Department when her file was transferred from Mr Markham to Ms Lewis.  Mr Markham had left EasyMigrate and the transfer was an administrative matter.  It seems self-apparent that EasyMigrate should have had in place better mechanisms to ensure that the Department was aware of which particular agent, at EasyMigrate, was handling which particular matter so that communications did not go astray.

16. Similarly, it seems axiomatic that EasyMigrate did not have in place proper systems to ensure that emails addressed to Mr Markham were attended to by other staff members at the firm once he had left its employ.  The failure to implement such a system appears to me to be a matter of incompetence rather than fraud.

17. In any event, even if I am wrong in concluding that the execution of the blank form 956 was not fraudulent, Ms Lutchanah was complicit in any deception it created on the part of the Department.  Long established principle maintains that a person should not be permitted to derive an advantage from that person’s own fraud.[32]

    [32]  See SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 at [12] per Branson J

18. Mr Mistry was noted on the form 956 as another person, at EasyMigrate, with whom the Department could confer in the event Mr Markham was unavailable.  The evidence indicates that Mr Mistry was involved with the firm.  He assisted the applicant when she wished to leave Australia in mid-2013.  It does not seem to me that he misled the applicant about the progress of her visa application at this stage.

19. I acknowledge that Ms Lutchanah was met with obfuscation and evasion, at EasyMigrate, when it became apparent that her visa application had ruinously miscarried.  The firm seems to have dropped her like a hot potato.  Mr Mistry’s email to her of 3 October 2013 appears to be disingenuous but cannot be said to represent a fraud on the Tribunal or the Department, which had already concluded its function.

20. All in all, the conduct of EasyMigrate, through its various agents involved with Ms Lutchanah smacks of incompetence and negligence rather than fraud.  The firm seems to have lacked proper systems to oversee the work of its agents, particularly when an agent left its employ.

21. Allegations of fraud are not lightly to be sustained or inferred.  In my view, any finding of fact open to me regarding the alleged failings of EasyMigrate could rise no higher than a finding of negligence, which would not be sufficient to justify setting aside the decision of the Tribunal.

22. It is impossible not to feel sympathetic to Ms Lutchanah.  Through no fault of her own her application for a visa has been stultified and she most certainly has not got a fair go.  However, for the reasons set out above, I do not consider that the applicable authorities authorise me to set aside the relevant decision of the MRT.

23. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  26 March 2015