Mallik v Minister for Immigration
[2013] FCCA 1134
•22 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALLIK v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1134 |
| Catchwords: PRACTICE AND PROCEDURE – Whether Migration Review Tribunal had discharged duty. |
| Legislation: Migration Act 1958 (Cth), ss.368A(1), 379A(1) and (4), 379G Migration Regulations 1994 (Cth), reg.1.40A, Schedule 2, cls.570, 571, 572, 573, 574.231, 575, 576, 580 |
| Minister for Immigration & Citizenship v SZLIX & Anor (2008) 245 ALR 501; [2008] FCAFC 17 Minister for Immigration & Citizenship v SZQOY & Anor (2012) 206 FCR 25, [2012] FCAFC 131 Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 Semunigus v The Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35 SZQOY v Minister for Immigration & Citizenship & Anor (2012) 263 FLR 36; [2012] FMCA 289 SZQQC v Minister for Immigration & Citizenship & Anor (2012) 263 FLR 392; [2012] FMCA 410 |
| Bryan A Garner, A Dictionary of Modern Legal Usage (2nd Edn) (New York: Oxford University Press, 1995) M Woodley (Ed), Osborn’s Concise Law Dictionary (Tenth Edn) (London: Sweet & Maxwell, 2005) Style Manual for Authors, Editors and Printers (6th Edn) (Singapore: John Wiley & Sons Australia Ltd: 2005) |
| Applicant: | REZAON MALLIK |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 28 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 August 2013 |
| Date of Last Submission: | 19 August 2013 |
| Delivered at: | Perth |
| Delivered on: | 22 August 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Multicultural Affairs & Citizenship”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 28 of 2013
| REZAON MALLIK |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
By application filed on 21 February 2013, the applicant, Mr Rezaon Mallik,[1] seeks orders in the nature of certiorari and mandamus in relation to a decision of the second respondent, the Migration Review Tribunal[2] dated 18 January 2013,[3] in which the Tribunal affirmed a decision of a delegate[4] of the first respondent[5] not to grant Mr Mallik a student visa.
[1] “Mr Mallik”.
[2] “Tribunal”.
[3] Court Book (“CB”) 126 (“Tribunal Decision”).
[4] CB 53-58 (“Delegate’s Decision” and “Delegate” respectively).
[5] “Minister”.
In order to obtain a student visa it was necessary for Mr Mallik to demonstrate that, at the time of the Tribunal Decision, he was enrolled in, or had a current offer of enrolment in, a course of study that is a principal course specified under reg.1.40A of the Migration Regulations 1994 (Cth).[6]
[6] “Migration Regulations”, Schedule 2, cll.570.232, 571.232, 572.231, 573.231, 574.231, 575.231.
Ground of the Application
The grounds of the application are as follows:
1.The Second Respondent ignored relevant material, namely a Conditional Offer of Admission into a Master of Business Administration (International) course issued by Edith Cowan University to the Applicant on or about 4 January 2013, which the Applicant’s migration agent faxed to the Second Respondent on 22 January 2013, in a way that affected the Second Respondent’s exercise of power, in that the Second Respondent concluded that there was no evidence before it that the Applicant was currently enrolled in or the subject of a current offer of enrolment in any course of study.
2.The Applicant was denied procedural fairness, in that he sought to be heard regarding an offer of enrolment in a course of study that he had received from Edith Cowan University, and had credible material in support of that assertion, yet the Second Respondent did not have any, or any proper, regard to what the Applicant had, through his migration agent, sought to put before the Second Respondent on that critical issue.
Response
The Minister filed a Response on 8 March 2013 submitting that there was no jurisdictional error established in the Tribunal Decision.
Evidence
Formal background
The relevant formal background is as follows:
a)on 26 August 2009, Mr Mallik, a citizen of Bangladesh, applied for a student visa;[7]
[7] CB 1-17.
b)on 6 August 2010, the Delegate refused to grant Mr Mallik a student visa, finding that he did not meet the criteria for each of visa subclasses 570, 571, 572, 575, 576 and 580[8] as he was not enrolled in a principal course of study that pertained to any of those subclasses;[9]
[8] Migration Regulations, Schedule 2, cll.570, 571, 572, 575, 576, 580.
[9] CB 53.
c)the Delegate also found that Mr Mallik did not meet the requirements for a subclass 573 visa as he did not meet the financial capacity requirements;[10]
[10] CB 58; Migration Regulations, Schedule 2, cl.573.
d)on 24 August 2010, Mr Mallik applied to the Tribunal for review of the Delegate’s Decision;[11]
[11] CB 59-68.
e)on 9 October 2012, the Tribunal invited Mr Mallik to appear before the Tribunal on 31 October 2012;[12]
[12] CB 87.
f)in the invitation letter, the Tribunal also indicated to Mr Mallik that, in order to obtain the visa he sought, he was required to provide evidence that he:
i)satisfied the financial capacity requirements; and
ii)was enrolled in a registered course of study;[13]
g)Mr Mallik appeared before the Tribunal on 31 October 2012, represented by his migration agent, and was given until 14 December 2012 to provide further documents concerning his enrolment;[14]
h)the Tribunal hearing was adjourned again on 10 December 2012 so as to afford Mr Mallik a further opportunity to provide additional information by 15 January 2013;[15]
i)on 18 January 2013, a Tribunal officer telephoned Mr Mallik’s migration agent and informed him that unless further evidence was received by 5.00pm “Eastern Standard Time” that day, the Tribunal would finalise the matter;[16]
j)on 18 January 2013, the Tribunal Decision affirmed the Delegate’s Decision on the basis that it was not satisfied that Mr Mallik (who had not provided any evidence directed to the issue) was enrolled in, or was the subject of a current offer of enrolment in, a course of study for the various subclasses of student visas;[17]
k)the Tribunal Decision was dated by a Tribunal officer “For [the] District Registrar” on 22 January 2013;[18]
l)the Tribunal Decision was sent to Mr Mallik’s migration agent (who was Mr Mallik’s authorised recipient under s.379G of the Migration Act)[19] by registered post under cover of a letter dated 22 January 2013, which was posted at 4.01pm Australian Eastern Daylight Saving Time[20] that day;[21]
m)at about 7.25pm AEDST on 22 January 2013, the Tribunal received a facsimile from Mr Mallik’s migration agent enclosing a Conditional Offer of Admission dated 4 January 2013 made to Mr Mallik by Edith Cowan University[22] for a Master of Business Administration (international) degree;[23] and
n)on 24 January 2013, the Tribunal wrote to Mr Mallik’s migration agent informing him that the Tribunal had no power to take any further action on the review as it was “functus officio and had no power to take any further action on the review”.[24]
[13] CB 88.
[14] CB 98.
[15] CB 129 at para.16.
[16] CB 123.
[17] CB 129 at para.17.
[18] CB 130. This relates to the provision of s.379A(4) of the Migration Act 1958 (Cth) (“Migration Act”) for a document to be dated by, amongst others, an “officer of the Tribunal”.
[19] CB 93.
[20] “AEDST”.
[21] CB 135.
[22] “ECU”.
[23] CB 132-133 (“Conditional Offer of Admission”).
[24] CB 136. The Latin phrase “functus officio” means “[h]aving discharged his duty”: see M Woodley (Ed), Osborn’s Concise Law Dictionary (Tenth Edn) (London: Sweet & Maxwell, 2005), p.189. Albeit that the phrase “functus officio” is well-known in legal and quasi-legal circles, it might be more helpful to all concerned, but especially applicants, if the Tribunal’s letter writers were to write in plain English. As the American legal writer Bryan A Garner observes “[t]his term [functus officio] serves the purpose of conciseness but not of lucidity”: Bryan A Garner, A Dictionary of Modern Legal Usage (2nd Edn) (New York: Oxford University Press, 1995) p.377. Indeed, the Commonwealth’s own Style Manual in dealing with effective communication and plain English sets as a guideline, that writers “[u]se familiar, everyday words that readers will understand”: Style Manual for Authors, Editors and Printers (6th Edn) (Singapore: John Wiley & Sons Australia Ltd: 2005). The use of “functus officio” does not, in these circumstances, meet that guideline.
Mr Mallik’s affidavit
On 21 February 2013 Mr Mallik filed an affidavit[25] in support of his application. Mr Mallik’s Affidavit relevantly deposed as follows:
[25] “Mr Mallik’s Affidavit”.
a)on or about 4 January 2013 ECU issued the Conditional Offer of Admission to Mr Mallik;[26]
[26] Mr Mallik’s Affidavit, para.15 and annexure RM-4.
b)some time in the week commencing 7 January 2013 Mr Mallik called his migration agent on his mobile number, which was not answering. Over the next two to three days Mr Mallik tried to speak to his migration agent but there was still no answer. Later that week Mr Mallik called the migration agent’s office and was told that the migration agent was on leave and would be back after 14 January 2013;[27]
[27] Mr Mallik’s Affidavit, para.16.
c)on 22 January 2013 Mr Mallik sent a text message to his migration agent as follows:
Can I come to you with the proof this afternoon please.
to which the migration agent responded that Mr Mallik needed to send the proof of enrolment to the Tribunal. Mr Mallik texted the migration agent indicating that he did not know who to fax at the Tribunal, and requested the migration agent’s help. The migration agent replied that if Mr Mallik wanted help he needed to settle his account. Mr Mallik further replied asking whether he could come and settle his account;[28]
[28] Mr Mallik’s Affidavit, para.17.
d)Mr Mallik went to his migration agent’s office and provided a copy of the Conditional Offer of Admission to the migration agent. Mr Mallik says that at no stage did the migration agent inform him about the date by which further information was required to be submitted to the Tribunal;[29]
[29] Mr Mallik’s Affidavit, para.18.
e)the Conditional Offer of Admission was faxed to the Tribunal later that day, 22 January 2013;[30]
[30] Mr Mallik’s Affidavit, para.19 and annexure RM-5.
f)on 22 January 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Mallik a student visa;[31]
[31] Mr Mallik’s Affidavit, para.20.
g)Mr Mallik was “shocked” by the Tribunal Decision, which he received on or about 24 January 2013 from his migration agent, because it had appeared to him that the Conditional Offer of Admission had been ignored;[32]
[32] Mr Mallik’s Affidavit, para.21.
h)on 25 January 2013 Mr Mallik spoke to a Tribunal officer, Ms Mihajlovic, and explained what had occurred (broadly in the terms set out immediately above) and that although he had been told that an extension of time in which to provide information to the Tribunal had been obtained in December 2012, he had never received any written confirmation regarding the date by which the further information was required to be submitted;[33] and
i)Ms Mihajlovic told Mr Mallik to write a letter stating the reasons for re-opening his case, and Mr Mallik did so in a letter dated 28 January 2013,[34] the relevant terms of which are as follows:
1.The offer of admission, the relevant information, I was required to provide to the tribunal was submitted through my migration agent on or about 22 January 2013.
2.As I also explained to you the reason for the delay in providing the offer of Admission from Edith Cowan University was because I could not contact my migration agent who was away and he was not answering his mobile. I also contacted his office number and I was told he was on leave. Furthermore, my agent had earlier informed me over the phone that he had obtained an extension of time by one month however he did not specify the exact date on which I had to provide the information to the Tribunal. The only information he gave me was to contact him by phone as soon as I have received an Offer of Admission from the University.
3.As is evident from the date of my Offer of Admission dated 4 January 2013, there has been no reason for me to delay the information to be provided to the Tribunal however this was a situation which was beyond my control since my agent was not available.
In the circumstances and in the interest of justice I pray to the Honourable Tribunal that it may please consider re-opening my case for further consideration.[35]
[33] Mr Mallik’s Affidavit, para.22.
[34] Mr Mallik’s Affidavit, para.23 and annexure RM-6.
[35] Mr Mallik’s Affidavit, annexure RM-6.
Evidence of Mr Hough
The Minister has filed and served an affidavit of John Hough[36] affirmed on 16 May 2013.[37] Mr Hough is a Tribunal officer who works in the Melbourne registry of the Tribunal. Mr Hough deposes to the procedures relating to the sending of outgoing mail items from the Tribunal’s Melbourne registry on a daily basis. Mr Hough’s evidence is, in essence, that the postal item containing the Tribunal Decision was dispatched at 4.01pm AEDST on 22 January 2013, that is, just over three hours before the Tribunal received Mr Mallik’s Conditional Offer of Admission.
[36] “Mr Hough”.
[37] “Mr Hough’s Affidavit”.
There is no dispute that the Tribunal Decision was dispatched at the time and on the date that Mr Hough says it was dispatched, namely, 4.01pm AEDST on 22 January 2013. In the circumstances, it is unnecessary to deal further with the detail of Mr Hough’s evidence.
Submissions
Mr Mallik’s submissions
Mr Mallik did not file written submissions 14 days before hearing as required by the Court’s orders of 6 March 2013.
At the hearing Mr Mallik handed up submissions.[38] Mr Mallik’s Submissions did not dispute that:
a)the Tribunal Decision was dispatched to his migration agent at 4.01pm AEDST on 22 January 2013;
b)the Tribunal made the Tribunal Decision on 18 January 2013; and
c)a Tribunal Officer made a case note on 23 January 2013 at 1.46pm indicating that the Conditional Offer of Admission was received by facsimile at the Tribunal at 7.25pm AEDST on 22 January 2013, and that notification of the Tribunal Decision was posted to Mr Mallik’s migration agent at 4.01pm AEDST on 22 January 2013, and that that officer had spoken to the Tribunal Member who advised that a letter should be sent to Mr Mallik indicating that the Tribunal had discharged its duty.[39]
[38] “Mr Mallik’s Submissions”.
[39] CB 135.
Mr Mallik’s Submissions also submit that:
a)the Conditional Offer of Admission was sent at about 4.25pm Western Standard Time[40] and was therefore sent during business hours and before 5.00pm WST;
b)the Tribunal never told Mr Mallik or his migration agent to submit the Conditional Offer of Admission at times calculated in accordance with AEDST;
c)the Tribunal should have recognised that the Conditional Offer of Admission was sent on the same day that the Tribunal issued the Tribunal Decision, and was sent within business hours under WST; and
d)by ignoring the fact that it received the Conditional Offer of Admission submitted by Mr Mallik’s migration agent on 22 January 2013, being the same date as the Tribunal Decision was sent, and by ignoring that it was sent within business hours under WST, the Tribunal made a mistake and also an error of law, thereby denying Mr Mallik justice and fairness.
[40] “WST”.
Minister’s submissions
The Minister submits that:
a)the only issue in the proceedings is the correctness of the Tribunal’s conclusion that it had discharged its duty when Mr Mallik sent to the Tribunal a document confirming that he was enrolled in a course of study. The Minister submits that the Tribunal’s conclusion that it had no power to consider the document given that the Tribunal Decision had already been sent to Mr Mallik was correct. The application should therefore be dismissed;
b)the issue of when the Tribunal or the Refugee Review Tribunal[41] has discharged its duty was considered comparatively recently by the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZQOY & Anor.[42] In SZQOY v Minister for Immigration & Citizenship & Anor[43] the Federal Magistrates Court had found that the RRT had not discharged its duty in circumstances where the RRT’s decision had been electronically sent to the RRT registry to be sent out, but had not been externally dispatched to the review applicant. In SZQOY - Appeal the Full Court of the Federal Court unanimously dismissed the Minister’s appeal, holding that the RRT did not discharge its duty upon the communication of its reasons to the RRT registry;[44]
c)in SZQOY - Appeal in dismissing the appeal, the Full Court of the Federal Court, relying on Semunigus v The Minister for Immigration & Multicultural Affairs[45] and Semunigus v Minister for Immigration & Multicultural Affairs,[46] stated that:
i)… A decision maker must be precluded from revisiting the decision at his or her option before it is to be regarded as final in the relevant sense. In the present case there was, in my view, no support in the evidence or in any of the statutory provisions relied upon by the appellant to suggest that it was beyond the power of the member of the RRT to recall the decision which had been sent to the Registry through the RRT’s electronic case management system.[47]
ii)[n]othing done within the RRT’s office can amount to more than steps which will form part of the review of the decision if, but only if, they lead to and are followed by the oral pronouncing or other notification of the decision of the particular member constituting the RRT for the purpose of that review.[48]
iii)… there is no compelling reason in public policy why the RRT should not be able to recall the reasons recording a decision arising from the review process under the [Migration] Act before it has been communicated to a party. While finality is important in any decision making process, there is a much greater public policy to be served if, despite having written up the reasons for a decision and instructed they be despatched to the affected party and the Secretary, the RRT has the flexibility to correct any error made so as to avoid legal error or to take steps to avoid any possible injustice.[49]
d)for the above reasons, and contrary to what Mr Mallik contends, the Tribunal did not err in failing to have regard to the Conditional Offer of Admission. The two grounds of review that challenge the correctness of the Tribunal’s findings in this regard must fail; and
e)Mr Mallik has not established that the Tribunal Decision was affected by jurisdictional error, and accordingly, the application should be dismissed.
[41] “RRT”.
[42] (2012) 206 FCR 25, [2012] FCAFC 131 (“SZQOY - Appeal”).
[43] (2012) 263 FLR 36; [2012] FMCA 289 (“SZQOY”).
[44] SZQOY - Appeal FCR at 31 per Buchanan J; at 32, 33-34 and 34-35 per Logan J; at 35 and 36 per Barker J; FCAFC at para.29 per Buchanan; at paras.34, 42 and 48-49 per Logan J; at paras.52 and 58 per Barker J.
[45] [1999] FCA 422 (“Semunigus”).
[46] (2000) 96 FCR 533; [2000] FCA 240 (“Semunigus – Appeal”).
[47] SZQOY – Appeal FCR at 31 per Buchanan J; FCAFC at para.29 per Buchanan J.
[48] SZQOY – Appeal FCR at 33 per Logan J; FCAFC at para.41 per Logan J.
[49] SZQOY – Appeal FCR at 36 per Barker J; FCAFC at para.58 per Barker J.
Legislation
Section 368A(1) of the Migration Act 1958 (Cth)[50] provides when and how a decision is to be communicated to an applicant, and is as follows:
[50] “Migration Act”.
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
Section 379A(1) and (4) of the Migration Act are relevantly as follows:
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
There is no issue in this case that the means of dispatch of the notification of the Tribunal Decision was as prescribed by ss.368A(1) and 379A(1) and (4) of the Migration Act.
Consideration
The Court finds the relevant facts to be as follows:
a)the Tribunal hearing was adjourned twice to facilitate the filing of additional material by Mr Mallik, but by 15 January 2013 no further material had been filed by Mr Mallik, or indeed at the date of the Tribunal Decision (being 18 January 2013);[51]
b)Mr Mallik’s migration agent was subsequently made aware by a Tribunal Officer that unless new evidence was provided by 5.00pm AEDST on 18 January 2013 then the matter would be finalised;[52]
c)having received no further submissions on behalf of Mr Mallik by 5.00pm AEDST on 18 January 2013 the Tribunal Decision was made that day, 18 January 2013;
d)the Tribunal Decision was dated 22 January 2013 by an officer “For [the] District Registrar”;
e)the Tribunal sent Mr Mallik the Tribunal Decision by registered post on 22 January 2013, to the Australian address of his migration agent;[53]
f)the Tribunal Decision was dispatched by the Tribunal at 4.01pm AEDST on 22 January 2013; and
g)at 7:25pm AEDST on 22 January 2013 the Tribunal received a copy of the Conditional Offer of Admission by facsimile from Mr Mallik’s migration agent.[54]
[51] CB 129 at para.16.
[52] CB 123.
[53] CB 124.
[54] CB 135.
Whether or not the Tribunal had discharged its duty is a matter of fact.[55] The Migration Act can guide the Court but does not prescribe the point at which the Tribunal has discharged its duty: that question is answered by recourse to the common law.[56] The Tribunal will have discharged its duty if the Tribunal Decision can be said to be beyond recall, and the Tribunal Decision is pushed beyond recall by some overt act.[57] Such an act must give finality to the Tribunal’s conclusion and preclude the Tribunal’s conclusion from being revisited at the option of the decision-maker. Acts giving finality might include:
a)a written note of a conclusion on a departmental file; or
b)publication or communication to another;[58] or
c)the usual practice of dispatching a decision.[59]
[55] SZQQC v Minister for Immigration & Citizenship & Anor (2012) 263 FLR 392 at 403 per Cameron FM; [2012] FMCA 410 at para.47 per Cameron FM (“SZQQC”).
[56] SZQQC FLR at 402 per Cameron FM; FMCA at para.44 per Cameron FM.
[57] SZQOY – Appeal FCR at 31 per Buchanan J; 32 per Logan J; 36 per Barker J; FCAFC at para.29 per Buchanan J; para.34 per Logan J; para.57 per Barker J; Semunigus – Appeal FCR at 547 per Madgwick J; FCA at para.103 per Madgwick J; Semunigus at para.19 per Finn J; SZQQC FLR at 404 per Cameron FM; FMCA at para.50 per Cameron FM.
[58] Semunigus at para.20 per Finn J.
[59] Semunigus – Appeal FCR at 547 per Madgwick J; FCA at para.104 per Madgwick J.
Semunigus – Appeal provides that communication of a Tribunal decision to another can constitute an overt act that puts that Tribunal decision beyond recall. Section 379A(4) of the Migration Act provides that a decision is communicated to an applicant if it is dispatched by prepaid post within three days of the dating of a decision by a Tribunal officer. On this basis, the Tribunal Decision was not communicated to Mr Mallik until the letter was dispatched at 4.01pm AEDST on 22 January 2013. It is at that point at which:
a)the Tribunal Decision is final and beyond recall; and
b)the Tribunal has discharged its duty.[60]
[60] See SZQOY – Appeal, Semunigus – Appeal and Semunigus cited above.
Once the postal item containing the Tribunal Decision was dispatched at 4.01pm AEDST on 22 January 2013, it was no longer in the power of the Tribunal to recall the Tribunal Decision. It was at this point in time that the Tribunal discharged its duty. Hence, the Tribunal had no power or duty to consider the Conditional Offer of Admission that was sent to, and received by, it three hour later.
The Court explored with Counsel for the Minister at hearing whether the dispatch of the Tribunal Decision at 4.01pm AEDST on 22 January 2013 precluded it being recalled on 23 January 2013, particularly given that by that time it would not have been received by Mr Mallik. Counsel for the Minister properly conceded that it might be technically possible to do so. Counsel for the Minister however, indicated that this was not a case where it was proper to recall having regard to the fact of the dispatch of the Tribunal Decision in circumstances where there had been two prior adjournments, an oral notification of a further deadline, and a further four days had elapsed between the finalisation of the Tribunal Decision and its eventual dating and dispatch, which was only then followed, more than three hours after its dispatch, by the facsimile receipt of the Conditional Offer of Admission.
The Court agrees that in the circumstances of this case the overt act which put the Tribunal Decision beyond recall was the dispatch of the Tribunal Decision at 4.01pm AEDST on 22 January 2013. In any event, the Court does not, upon reflection, consider, other than in exceptional circumstances which do not arise here, that a decision of a Tribunal might be recalled once it has been dispatched by the means contemplated in s.379A(4) of the Migration Act. Not only would it lead to significant uncertainty as to when the Tribunal had discharged its duty, insofar as it would require some other point beyond the overt act of dispatch of a decision of the Tribunal to be selected as the point of discharge, but it would also have the undesirable consequence of encouraging applicants to avoid receipt of notification of a decision of the Tribunal in the hope that further late material might be provided to the Tribunal to further support an applicant’s arguments. As a matter of public policy that is an undesirable outcome. In any event, in this case, for reasons set out above, the Tribunal did discharge its duty when it dispatched the Tribunal Decision in accordance with its usual practice, and in accordance with s.379A(4) of the Migration Act.
The arguments put forward by Mr Mallik do not assist his case. The fact that the Conditional Offer of Admission was sent during business hours according to WST is immaterial. The relevant question is whether or not the Conditional Offer of Admission was sent before the Tribunal had discharged its duty by dispatching the Tribunal Decision, and as explained above, the Conditional Offer of Admission was received after the Tribunal had so discharged its duty. Nor does it assist Mr Mallik to submit that neither he nor his migration agent were told to submit further information in accordance with AEDST. Extensions were granted, initially to 14 December 2012, and then to 15 January 2013, and neither Mr Mallik nor his migration agent forwarded further information within those timeframes. Then, on 18 January 2013 a Tribunal officer made contact with the migration agent extending the time to close of business at “5.00pm Eastern Standard Time” on that day, 18 January 2013. Assuming that that ought be a reference to AEDST, it matters not, for that deadline also passed without the receipt of further information from Mr Mallik or his migration agent. It is also relevant to observe that on Mr Mallik’s own evidence he exhibited no great sense of urgency in dealing with the matter. The evidence indicates that he was aware that his migration agent was to return from leave on 14 January 2013, but there is no evidence of any contact between Mr Mallik and the migration agent until Mr Mallik contacts the migration agent eight days later on 22 January 2013. By that time, the final oral deadline of 18 January 2013 had passed by four days. Mr Mallik protests that he was not made aware by his migration agent of the extensions of time and adjournments granted by the Tribunal. This does not assist Mr Mallik because the Tribunal is not obliged to advise him directly, and, in the absence of fraud, the Tribunal’s communication with Mr Mallik’s migration agent’s acts are taken to be communication with Mr Mallik.[61]
[61] Migration Act, s.379G.
Fraudulent conduct by a third person may result in a jurisdiction of the Tribunal being “constructively unexercised”.[62] It must be shown that the migration agent acted fraudulently, that is, acted dishonestly, stultifying the proceedings before the Tribunal and disabling the Tribunal from discharging its statutory functions in relation to the review.[63] Fraudulent conduct can be determined by inference from evidence but it must be the most probable inference from the facts as determined: suspicion is not enough.[64] Mere negligence or incompetence or a simple failure to inform is insufficient to support jurisdictional error.[65]
[62] SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at para.32 per Besanko J (“SZFNX”), summarising the effect of the judgment of the High Court of Australia in SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE”).
[63] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX & Anor (2008) 245 ALR 501 at 509 per Tamberlin, Finn and Dowsett JJ; [2008] FCAFC 17 at para.33 per Tamberlin, Finn and Dowsett JJ (“SZLIX”).
[64] SZLIX ALR at 507 per Tamberlin, Finn and Dowsett JJ; FCAFC at para.23 per Tamberlin, Finn and Dowsett JJ.
[65] SZFDE CLR at 207 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.53 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX ALR at 509-510 per Tamberlin, Finn and Dowsett JJ; FCAFC at paras.30 and 33 per Tamberlin, Finn and Dowsett JJ.
In this case there is nothing to indicate fraudulent conduct on the part of the migration agent, and a simple failure to inform is, as set out above, insufficient to support jurisdictional error, as is mere negligence or incompetence. Even if the migration agent’s conduct in this case rises above a simple failure to inform to the level of mere negligence or incompetence no jurisdictional error is thereby established.
In all of the circumstances of this case, and for the reasons already expressed, the Tribunal discharged its duty when it dispatched the Tribunal Decision at 4.01pm AEDST on 22 January 2013. In the circumstances, no jurisdictional error has been established by Mr Mallik, and in particular:
a)ground 1 has not been made out because the Tribunal did not ignore relevant material, as it had discharged its duty at the time the Conditional Offer of Admission was received, and the Tribunal cannot ignore that of which it was not aware prior to discharging its duty; and
b)ground 2 has not been made out as there was no denial of procedural fairness because by the time the Conditional Offer of Admission was received by the Tribunal its duty had already been discharged.
Conclusions and order
The Court has concluded that the Tribunal had discharged its duty by the time the Conditional Offer of Admission was received from Mr Mallik’s migration agent, and that neither of the grounds of review have been made out. It follows that the application must be dismissed. The Court will order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 22 August 2013
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