M. Begum v MIMIA and Anor and R. Begum v MIMIA and Anor
[2006] FMCA 111
•18 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M. BEGUM v MIMIA & ANOR and R. BEGUM v MIMIA & ANOR | [2006] FMCA 111 |
| MIGRATION – Visa – class 457 (business (long stay)) visas – application for review of MRT decision – where applicants did not reply to letter from the Tribunal under s.359 of the Migration Act 1958 (Cth). PRACTICE & PROCEDURE – Application for order nisi – application should be for order absolute – not proper practice to make a person constituting a Tribunal a respondent in applications for prerogative relief. |
| Migration Act 1958 (Cth), ss.91X, 358, 359, 359A, 359C, 360, 425 Evidence Act 1995 (Cth), ss.59, 60, 62, 63 |
| Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 Applicant S61/2002 v Refugee Review Tribunal [2004] FCAFC 150 followed. Kioa v West (1985) 159 CLR 550 M1013/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 800 followed Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 followed. Minister for Immigration & Multicultural & Indigenous Affairs v Mohammed [2000] FCA 1275; 101 FCR 434 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1169 Tobasi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1050 VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804 W282 v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1788 |
| Applicant: | MEHTAB BEGUM TRADING AS MARHABBA INDIAN RESTAURANT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2280 of 2005 |
| Applicant: | ROSHANI SAINARA BEGUM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2270 OF 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 January 2006 |
| Date of Last Submission: | 18 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Silva |
| Counsel for the Respondent: | Mr Beech-Jones |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
SYG 2280 of 2005
That the name of the Applicant be amended to read “Mehtab Begum trading as Marhabba Indian Restaurant”.
That the name of the Second Respondent be amended to read “Migration Review Tribunal”.
That the Third Respondent be removed as a party to the proceedings.
That this application be heard together with the application of Roshaina Sainara Begum v Minister for Immigration & Multicultural & Indigenous Affairs and Migration Review Tribunal file no. SYG 2270 of 2005.
That the application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
SYG 2270 of 2005
That the name of the Applicant be amended to read “Roshaina Sainara Begum”.
That the name of the Second Respondent be amended to read “Migration Review Tribunal”.
That the Third Respondent be removed as a party to the proceeding.
That this application be heard together with the application of Mehtab Begum trading as Marhabba Indian Restaurant v Minister for Immigration & Multicultural & Indigenous Affairs and Migration Review Tribunal file no. SYG 2280 of 2005.
That the application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2280 of 2005
| MEHTAB BEGUM TRADING AS MARHABBA INDIAN RESTAURANT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
SYG 2270 of 2005
| ROSHANI SAINARA BEGUM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application originally for an order nisi relating to a decision by the Migration Review Tribunal to affirm a decision of a delegate of the Minister to refuse an application for approval as a standard business sponsor.
The parties have agreed that the application should more properly be an application for an order absolute. I have been referred to the decision of the Full Court of the Federal Court in Applicant S61/2002 v Refugee Review Tribunal [2004] FCAFC 150. I propose to follow that decision
The parties also agree that this application should be heard together with another application listed for hearing today, being an application by Roshani Sainara Begum for an order nisi, but again more properly an order absolute, relating to the decision of the Migration Review Tribunal to affirm the decision of a delegate of the Minister that the applicant and others are not entitled to the grant of Temporary Business Entry (class UC) visas, being proceedings under the file number SYG2270/2005.
The applicants originally applied to the High Court for an order nisi on 27th November 2003. The parties consented to an order remitting the proceedings to the Federal Court on 12th January 2004. On 5th August 2005 the Federal Court transferred both applications to the Federal Magistrates Court.
At some stage in the history of litigation the applicants, Mehtab Begum and Roshani Sainara Begum, came to be referred to under the pseudonyms Applicant S574/2003 and Applicant S575/2003 respectively. There is no need for this to happen as the applicants are not applying for a protection visa, and s. 91X of the Migration Act (1958) does not apply. I propose to order that the applicants be described by their correct names.
The applications name the Tribunal member and the principal member of the Migration Review Tribunal as parties to the proceedings.
As Crennan J pointed out in M1013/2003 v the Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 800 following Re Ruddock; Ex parte Reyes (2000) 177 ALR 484, it is not proper practice to make a person constituting a Tribunal the respondent in applications for prerogative relief.
I propose to proceed on the basis that the Tribunal is substituted as a party for the member named as second respondent, and that the third respondent be removed as a party.
Having dealt with those preliminary matters, the background to the two applications is that on 19th June 2002, the applicant, Roshani Begum, who is the visa applicant, applied for a class 457 Business (Long Stay) Visa. She included members of her family in the visa application.
She made this application on the basis that she would be employed as a cook with the Marhabba Indian Restaurant, which is a restaurant that is run by the applicant in the other proceedings, Mehtab Begum, trading as Marhabba Indian Restaurants.
Mehtab Begum lodged an application for approval as a standard business sponsor. On 10th October 2002, a delegate of the Minister refused the application for sponsorship, and on that same day the delegate refused the application for the visa on the basis that the visa applicant was not sponsored by an approved business sponsor and did not otherwise satisfy the criteria for the grant of the visa applied for.
The visa applicant and the sponsor applicant applied to the Migration Review Tribunal for review of those decisions. On 30th July 2003 the Migration Review Tribunal wrote to both applicants, under the provisions of s. 359 of the Migration Act.
The Tribunal asked the sponsor applicant to provide various documents in support of the application for sponsorship, including certain evidence that the business satisfied Migration regulations. No response was received.
The Migration Review Tribunal asked the visa applicant to comment upon certain information, including the consequences for her application if the employer's sponsorship nomination was refused.
No response was received to that application.
On 17th September 2003 the Migration Review Tribunal affirmed the delegate's decision to refuse the sponsorship application on the basis that the sponsor applicant did not satisfy Migration reg. 1.20C(2)(c) in that it did not satisfy the Tribunal that it would introduce or utilise or create either Australian technology or business skills, or otherwise have a satisfactory record of or demonstrated commitment towards training Australian citizens and Australian permanent residents.
On 30th September 2003 the Migration Review Tribunal published its reasons for affirming the delegate's decision to refuse the visa application. That application was refused because the applicant could not satisfy all the criteria in 457.223, in particular that the employer was not the subject of an approved sponsorship nomination.
The applicants then filed the applications in the High Court which eventually made their way to this Court. The applicants seek relief by way of prerogative writs, including prohibition and certiorari.
In support of the amended applications the applicants have provided an affidavit by the applicant, Roshani Sainara Begum. They have also provided a brief affidavit by the applicant, Mehtab Begum, referring to the relief sought and the grounds of the complaint.
The affidavit of Mehtab Begum is not able to take the proceedings much further as it is not in dispute that at all relevant times Mehtab Begum was out of Australia and was not apparently aware of the request for further information under s.359 of the Migration Act.
The affidavit of Roshani Sainara Begum, the visa applicant, sets out the circumstances as she knows them relating to the events of
August 2003 and thereafter when the Migration Review Tribunal forwarded the letters to the applicants under s.358 of the Act.
There was an objection from counsel for the respondent Minister to a part of that affidavit which related to paragraph 7 in that affidavit.
And in that part the deponent describes how she and others tried to contact the migration agent's office but were unsuccessful, and eventually they found out from some source why the migration agent was unavailable. And then she provides a paraphrase of, in indirect speech, of what she said the migration agent said to her and the reason why he said it. The objection to that was based on hearsay.
Mr Beech-Jones of counsel indicated that the objection would not be pressed if the evidence went, not to the truth of the facts asserted in the hearsay statement, but only to the fact that those words or words to that effect were made to the deponent of the affidavit. I indicated that I would admit the affidavit on that basis.
In the course of his submissions, Mr Silva, solicitor for the applicants, submitted that the Court should go further than that and accept that evidence at face value on the basis that it was first hand hearsay.
This was objected to by Mr Beech-Jones of counsel in that in his words and his submission, the applicant's solicitor was asking me to reverse my earlier ruling.
In my view, my earlier ruling is correct, and I propose to give my reasons for the basis upon which I have admitted the affidavit for that purpose. Section 59 of the Evidence Act (1995) of course sets out the hearsay rule and the exclusion of hearsay evidence. Subsequent sections deal with various exceptions to the hearsay rule. For instance, s. 60 of the Act provides that:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.
Dealing with first-hand hearsay, s.62(2) states that:
A person has personal knowledge of the asserted fact if his or her knowledge of the fact was or might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
There is an exception in s.63 in civil proceedings if the maker of the previous representation is not available to give evidence about an asserted fact.
It must be recalled that, as it was put to me by the legal advisors for the parties, that these proceedings are not interlocutory proceedings. Whilst they were originally framed as applications for orders nisi, they are in fact, and we have proceeded on the basis, that they are applications for orders absolute. The leeway otherwise given in interlocutory proceedings to hearsay evidence where the maker of the assertion or the source of the hearsay is made known, does not apply in a final hearing.
To my mind, the exception in s.63 of the Evidence Act does not apply. True it is that the maker of the original assertion, a migration agent, Kevin Glynn, was not in Court and has not given affidavit evidence about what he said; he is certainly not available for cross-examination.
There is no issue about the fact that Mr Glynn is no longer in practice as a migration agent. There is no issue that he ceased to be registered as a migration agent on 22nd January 2005. He has not made himself available as a witness in these proceedings and there is no affidavit from him. There is no evidence to show that he is deceased or incapacitated through illness or injury and unable to give evidence.
In my view, applying the sections of the Evidence Act to which I have referred, it is therefore appropriate for me to accept paragraph 7 of the deponent's affidavit as evidence that she was informed by someone that Mr Glynn had been hospitalised and that she was told by him words to the effect of, he had been terribly sick and that his office had been burgled. The deponent goes on to say that he, meaning Mr Glynn:
Explained to me because of these two problems he forgot to ask for extension of time from the Department.
Those statements are evidence to my mind that Mr Glynn made those assertions to the applicant, Roshani Begum. They are not evidence of the assertions contained that (1) Mr Glynn had been terribly sick, or (2) that his office had been the subject of a burglary, or (3) that for those reasons or any other reason, that Mr Glynn had forgotten to ask the Department of Immigration & Multicultural & Indigenous Affairs for an extension of time. They are only evidence of the fact that that is what he said to that applicant.
Having ruled on that, in my view the affidavit evidence shows, and on the basis of my earlier ruling, the applicant was not required for
cross-examination, that the applicant acknowledges that she received a letter from the Migration Review Tribunal which was the letter under the provisions of s.359 of the Act.
She deposes that as soon as it was received she contacted the migration agent, Mr Glynn, who was to her knowledge the migration agent both for herself and for the other applicant, the sponsor applicant. She told Mr Glynn that the other applicant, the sponsor, was overseas and asked him how they could reply to the Tribunal. And she said that he said, "Don't worry, I will contact the Tribunal and ask for more time, and once Mehtab", meaning the other applicant, "is back, we could provide the documents required for both the sponsor and yourself".
And she deposes that he further said:
I don't think that it will be a problem getting an extension of time, if there is any problem with the extension I'll be in touch with you.
The deponent goes on to say that almost around the day that the other applicant came back from overseas, they received a copy of the decision from the Tribunal, saying that the application was rejected because they did not provide the documents they had been asked for. The applicant, Roshani Begum, said, "I was under the impression
Mr Glynn has obtained an extension of time as he'd said if there was any problem he would contact me".
It was then that they tried to contact Mr Glynn's office, initially unsuccessfully, to find out that he had been hospitalised. And then later he made the assertions to Ms Begum that he had been terribly sick, that his office had been the subject of a burglary, and he had forgotten to ask for an extension of time, and that he had also made the representation to her that he would write to the Minister explaining the situation so that the Minister would consider the matter favourably. Obviously that did not happen either.
What did happen unfortunately to both applicants is that the Tribunal, having requested information under s.359 of the Act, and not having received that information, exercised its power under s.359C. Sub-s.1 says:
If a person (a) is invited under s. 359 to give additional information, and (b) does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain additional information.
Sub-s.2 refers to a request for additional information under s.359A, and says that:
If the applicant (a) is invited under s.359A) to comment on information, and (b) does not give the comments before the time for giving them has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
It appears to me that s.359 applies in the case of the sponsor applicant, and s.359A inter alia applies in respect of the visa applicant.
The solicitor for the applicants submits, quite properly, that in each case there is only a single ground of review. That is that the Tribunal made a jurisdictional error as it did not give an opportunity for the applicant to attend a hearing to present the applicant's case. It is conceded that it is said to be a breach of s.360 of the Migration Act, which is in identical terms to s.425 of the Migration Act, although that latter section applies to the Refugee Review Tribunal.
Section 360(1) requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. However,
sub-s.2 says that:
Sub-s.1 does not apply if (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.
That certainly did not apply in this case.
Or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
And that certainly did not happen in this case.
Or (c) relevantly, sub-s.359(c)(1) or (2) applies to the applicant.
And of course, those two subsections are the ones to which I have previously referred, where the applicants had been invited to give additional information or had been invited to comment and the comments were not given before the time for giving the comments or the information had passed. What sub-s.3 provides is that if any of the paragraphs in sub-s.2 of this section apply; the applicant is not entitled to appear before the Tribunal.
Now, for the applicants Mr Silva relies on the decision of the Full Court of the Federal Court in the Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126, and also referred me to the decision of the Minister for Immigration & Multicultural Affairs v Mohammed, [2000] FCA 1275; 101 FCR 434. He points out of course, as I earlier said, that ss.425 and 360 are equivalent sections.
The applicants of course also referred to that oft-quoted passage by Mason J in Kioa v West (1985) 159 CLR 550 at 585, relating to procedural fairness, which more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstance of the particular case. The statutory power must be exercised fairly, that is in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual, and the interests and purposes, whether public or private, which the statute ceased to advance or protect, or permits the taking into account of legitimate considerations.
The decision of Minister for Immigration & Multicultural Affairs v Mohammed (supra) is a decision to which Mr Silva has referred, but points out quite properly that it is not a uniform approach to this particular question given by their Honours, with the greatest of respect. Branson and Burchett JJ have expressed differing views, whilst Marshall J did not venture to comment either way.
In my view, the decisions that are relevant and binding are the Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (supra), to which I have previously referred, and a more recent decision of NALQ v the Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1169. That decision does not appear to have been reported, but the media-neutral citation is [2004] FCAFC 121, which is a Full Court decision on an appeal from a decision of the Federal Magistrates Court.
After some consideration I have decided, with respect, that the decisions of SCAR and NALQ can stand together, that whilst some concern was expressed during argument about the decision in SCAR, I do not see that it is at variance with NALQ, and in my view they are both decisions of the Full Court of the Federal Court on appeal from this Court, and they are both therefore binding.
The applicants rely on the decision in SCAR where the applicants say that their Honours held that it is a breach of s.425 if the oral hearing before the Refugee Review Tribunal is unfair. They submit that the hearing was unfair because the applicant was traumatised and on medication after learning of his father's death. This was established to the satisfaction of the primary judge by various pieces of evidence, none of which was before the Tribunal. It was irrelevant that the applicant's problems were not raised before or during the Tribunal hearing, and irrelevant that the Tribunal member conducting the hearing was unaware of any problem.
The circumstances in which the hearing was conducted did not involve giving the applicant the meaningful invitation he was entitled to under s.425, which was a jurisdictional error, albeit it would appear an unwitting one.
The applicant drew my attention to paragraph 37 of the Act where their Honours said, inter alia:
It is also clear that s. 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a real and meaningful invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s.425 of the Act have been breached include circumstances where an invitation was given, but the applicant was unable to attend because of ill health, see Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal ( see VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804). They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate ( see Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050, W282 v Minister for Immigration & Multicultural Affairs [2000] FCA 1788.
The applicants say that the conduct of the review was unfair to them because they were unable to provide the information within the time required because of supervening circumstances. Those circumstances were, first that the applicant Mehtab Begum was out of the country for all relevant times and was effectively unaware of the requirement.
The visa applicant, Roshani Begum was present in Australia and quite properly had contacted the migration agent, Kevin Glynn, to make clear to him that this information needed to be provided and needed to be provided by a specified time. She was aware of the obligation and took reasonable steps to deal with it.
What then happened, there is no issue that this happened, was that the agent said to her that he would obtain the necessary extension of time so that the material could be provided and that he would in fact handle that and there would be no need for the applicant to be concerned further.
Unfortunately, as is quite clear, the agent did not comply with that obligation. He did not do what he said he was going to do and he did not do what he represented to applicant Roshani Begum that he was going to do. She was entitled in my view to rely on his representation to her, and it was not until she received a copy of the decision that she realised that he had not done what he said he would do.
What Mr Silva for both applicants puts is that all of the authorities, or almost all of the authorities, particularly single judge authorities, refer to circumstances where something has happened without fault on the part of the applicant. He concedes that in the decision in NALQ there appears to be a degree of fault on the findings of the Federal Magistrate that heard the primary case, on the part of both the applicant and the applicant's agent. In that case the Full Court declined to go behind the Federal Magistrate’s decision.
Mr Beech-Jones for the respondent submits that the question of fault is irrelevant and that the circumstances in this case can be distinguished from the circumstances in SCAR. In SCAR the applicant was under a disadvantage unknown to the Tribunal, physical reasons that affected him, the trauma that he had suffered, the medication that he was on, even though the Tribunal was not aware of it. Similarly in cases where a person suffers an illness so that they are incapable of attending a hearing, or if capable of attending the hearing are incapable of giving evidence and making the appropriate submissions. Here, it was a case of complying with an obligation which if not complied with disentitled the parties to attend a hearing under s.360 of the Act.
Mr Beech-Jones for the respondent Minister in referring to the decision says at paragraph 10:
The factual foundation for this submission is that according to the visa applicant, her migration agent did not comply with her instructions to respond to the letter sent to her in relation to her visa application.
He further submits that there is no basis for suggesting that the visa applicant had any authority to provide instructions to the agent to respond on behalf of the sponsor applicant. The sponsor applicant's failure to respond was a consequence of her being overseas. An opportunity was afforded in accordance with s. 359, it was not taken up because of the sponsor applicant's own conduct, see paragraph 11.
In respect of the sponsor applicant's case, counsel for the respondent refers to the decision in NALQ v the Minister where the change to the legislation was held to indicate an intention by the legislation that it should not be within the Migration Review Tribunal's obligations to inquire into the reasons behind which an applicant fails to attend a hearing, beyond ensuring that the invitation was properly sent to an authorised person. Section 359C, he submits, specifically grants the MRT a discretion to proceed without a hearing once it has complied with the s.359 invitation requirements, without an obligation on the MRT to conduct its own investigation of the applicant's non appearance.
In respect of the visa applicant's case, he submits at paragraph 15 that:
The application to review the visa application failed because the sponsor applicant failed on its application for review of the decision to refuse the sponsorship application. There is nothing the visa applicant could do to reverse that situation.
In the decision in NALQ, paragraph 33, their Honours referred to the decision in NAHF, to which I have previously referred. In that case one of the applicants was unable to attend the relevant hearing as she had suffered a miscarriage, and ultimately after communications and postponement the hearing went on without her. Their Honours said that:
It is sufficient to note that although Hely J found that there is a denial of natural justice, he also found there had been no contravention of s. 425. The refusal to adjourn the hearing did not lead to the conclusion that the RRT failed to invite the applicants to appear before the RRT.
In paragraph 35, their Honours said:
In the present case, the learned Federal Magistrate found as a fact that the Tribunal had informed the appellant's representative, Mr Haque, that a medical certificate would be required if the request for an adjournment was to be granted. No medical certificate was forthcoming. That finding of fact was not controverted on appeal. The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s. 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant. It also had regard to the fact that the appellant had known of the date of the proposed surgery at the time that he had accepted the invitation to attend the hearing. Nothing in the Tribunal's approach reflected the failure to provide a real opportunity for the appellant to be heard.
There is nothing in its approach to this matter therefore that was in breach of s.425, however construed. Nor was there any procedural unfairness on the part of the Tribunal.
It appears to me that the decision in NALQ makes it clear that what the Court must consider is whether there is procedural fairness or unfairness on the part of the Tribunal in dealing with the matters under ss.359, 359A, 359C and 360. In this case, the Tribunal had sought information from and comments from the applicants under ss.359 and 359C. Because there had been a failure, as set out in s.359C, the Tribunal would not have an obligation under s.360 to invite the applicants to appear. Under sub-s.(3) the applicants were not entitled to appear because sub-s.359C(1) and (2) applied. There is no obligation on the Tribunal to inquire why the applicants did not reply or provide the information in time.
The applicants have clearly been badly let down by what they say are the actions or the inactions of their former migration agent, who no longer practises as an agent. It was put to me that it was not feasible for the applicants to commence proceedings against the agent for recovery of any damages or for other relief. It may be that the former agent as a defendant is a “man of straw”. Nevertheless, under the general law of agency the agent, however imperfectly, was acting for the applicants as their agent in the proceedings.
Why an agent being aware of the obligations imposed under ss.359 and 359A, and being aware of the serious effect of ss.359C and 360, would not make some effort to inform the delegate is not a matter that has been explained, other than to lead to the inference that the agent has seriously failed in his duties to his principles.
But to my mind, the agent's failure is not the failure of the Tribunal.
In my view, I must following the decision in NALQ, and in my view, as there has been no breach of s.360, the applications must be dismissed.
I make the following orders in respect of applicant Mehtab Begum.
I make similar orders, mutatis mutandis, in respect of the application of Roshani Sainara Begum.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 27 January 2006
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