MOUHAMMAD v Minister for Immigration

[2016] FCCA 2406

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOUHAMMAD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2406

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Temporary Business Entry (Class UC) visa – whether a s.477 application for an extension of time should be granted – whether the Tribunal was fraudulent in its decision – no arguable case identified for an extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B, 476, 477.

Migration Regulations 1994, Sch.2 cl.457.224, 457.231, Sch.4 cl.4020

Cases cited:

MZABP v The Minister for Immigration and Border Protection [2016] FCAFC 110

Wolfgang Seiler; Poh Choo Williams and Natalie Kim Seiler v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102

Applicant: AHMAD MOUHAMMAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1079 of 2016

Judgment of: Judge Street

Hearing date: 15 September 2016

Date of Last Submission: 15 September 2016

Delivered at: Sydney

Delivered on: 15 September 2016

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1079 of 2016

AHMAD MOUHAMMAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 18 March 2015 affirming a decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa. 

2. The applicant is a citizen of Lebanon who first came to Australia in October 2008 on a Class TU Student Subclass 572 visa granted on 29 September 2008, which expired on 15 March 2011. 

3. The applicant obtained a further Class TU Student Subclass 573visa on 25 May 2011 that expired on 15 March 2013.  The applicant obtained a Class TU Student Subclass 572  visa on 12 June 2013 which expired on 15 July 2014.  

4. On 24 August 2013 the applicant was sent an invitation to comment on suspected fraudulent information supplied with a valid application for a Temporary Work (Skilled) subclass 457 visa.  The letter identified that the applicant lodged an application for a UC 457 visa on 14 June 2013, which attached a certified original and translated marriage certificate dated 10 September 2012. The letter identified that the applicant had lodged a TU 572 visa on 5 March 2013, which was subsequently granted on 12 June 2013. That application had a box in relation to assistance with the form. The application purported to have been lodged by the applicant. In an answer to the question “Did you receive assistance from any person in completing this form?” the answer was given “No”. The applicant in declaration certified that the information provided on the form was correct.

5. On the face of the first page of the application, after details relating to the applicant’s passport, given name, sex and date of birth, there was a reference to “relationship status”. Beside that reference, the words “never married” were typed. The letter of notification referred to the e-lodgment of the visa application lodged on 7 March 2013 in which the applicant declared his relationship as “never married”.  Further, the letter identified that it appears that the applicant had provided false and misleading information in relation to his relationship to the department. 

6. The response sent by the migration agent on behalf of the applicant suggested that the non-declaration of his marital status was an inadvertent error because the applicant had decided that his wife was not to be included in the student application. The migration agent, asserted that the applicant did not deliberately act to mislead the department. 

7. The applicant completed a letter dated 13 September 2013 in which he sought to advance exculpatory explanations for the false statement, relevantly saying:-

   At the time of my marriage my visa was due to expire in a few months, and as such I did not seek to add my wife to my then current student visa, as I did not plan to remain in Australia in the long term. Also, when I later applied for the renewed student visa in March 2013, my wife was not included in the application, as at this time my further period of stay was only 12 months, and we did not consider that it appropriate that she uproot from Lebanon, leave her family and travel to Australia - which would be a foreign and strange country to her-for such a short period.

   However, in June this year, I was provided with an opportunity to utilise my trade skill, when I received an offer of employment from my then and current employer. The visa we intended to apply for- subclass 457 Visa - that would enable me to work full time for my employer was a four year visa. Therefore given that my circumstances, has changed and my proposed stay in Australia was significantly extended, we decided as a family to include my wife in the application. Hence on my subclass 457 application my marriage was declared and appropriate evidence (marriage certificate) was provided as part of the application.

   With regard to the specific claim that I have provided “suspected fraudulent information supplied with a valid application for a Temporary Work (Skilled subclass 457 visa, and that this information relates to;

   a. Signed 'Supplement of Student' form

   b. E-lodged student visa application form

   Both, of which comprised part of my currently held student visa application, I wish to confirm that these were genuine oversights and administrative errors, and never formed part of a clear intention to deceive or mislead the department.

   With regard to the student visa application form (e-lodged) my wife was never to be included in the application, and therefore I declared never married. This was not a decision to obtain any form of advantage and it was only a genuine mistake.

8. Prior to the determination by the delegate of the application, the applicant lodged a notice of change of address identifying his current address 26 CyclamenAvenue at Altona North, Victoria.  That form was completed and signed by the applicant on 19 September 2013.

The Delegate’s Decision

1. On 25 November 2013, the delegate decided that the applicant did not satisfy cl457.224 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and that the applicant had not met the requirements of the Public Interest Criterion 4020 (“PIC 4020”). The delegate found that, as the applicant did not meet the requirements of cl. 457.224 of the Regulations, as the delegate was not satisfied the applicant met the prescribed criteria for the grant of a Temporary Business Entry (Class UC) visa, Subclass 457 - Temporary Work (Skilled) visa. The delegate refused the applicant’s application for the grant of a temporary business class entry class UC visa subclass 457 temporary work (skilled) visa.

2. The family member in the family unit was also found not to have met cl.457.231 of the Regulations and the application for the member of the family unit for a temporary business class entry class US visa was refused. That decision, although identifying the applicant’s earlier address was sent by email to the applicant’s migration representative.

The Tribunal’s Decision

1. Following delivery of that decision, the applicant completed and lodged an application for review on 10 December 2013.  In the application for review, the applicant identified that he did not want to appoint a representative to act on his behalf and ticked the box “No”.  The applicant identified where correspondence was to be sent and identified his postal address at a relevant street in Altona North, Victoria. 

2. At the same time as lodging the application, the applicant also lodged an authority on behalf of his spouse, signed 5 December 2013, that identified that the applicant’s wife was living with the applicant at that particular address in Altona North, Victoria. 

3. On 13 February 2015, the Tribunal sent an invitation to the applicant to appear before the Tribunal on 18 March 2015 to give evidence and present arguments. That letter was sent to the address identified in the application for review. The Tribunal received no response to the invitation to appear andon 18 March 2015, the Tribunal decided pursuant to s.362B of the Act to make a decision on the application for review.

4. The Tribunal identified the history of writing to the applicant on 13 February 2015 inviting the applicant to appear and that the Tribunal had checked that the invitation was sent to the correct address which the applicant had identified on the application for review.

5. The Tribunal agreed with the delegate that it was not open to accept the applicant’s assertion that the provision of incorrect information concerning his marital status was merely the product of a genuine oversight or administrative error. The Tribunal agreed with the delegate that the responses provided by the applicant were inherently self-contradictory and undermine the claim that the correct information was provided as the result of an innocent mistake.

6. The Tribunal found the applicant’s false statement that he was never married in his student visa application when he was in fact married was false information in a material particular in relation to the student visa granted to the applicant on 12 June 2013 and held by the applicant in the period of 12 months before the current application.

7. TheTribunal found that the applicant did not meet the requirements of cl.4020(1) of Schedule 4 to the Regulations. The Tribunal considered whether the requirements of cl.4020(1) or (2) of the Regulations should be waived. The Tribunal found that there was no material warranting the exercise of the waiver power and determined that the requirements of cl.4020(1) of the Regulations should not be waived and affirmed the decision not to grant the applicant’s Temporary Business Entry (Class UC) visa.

Proceedings Before this Court

1. The application for relief before this Court was filed on 3 May 2016, some 320 days late in respect of the 35 day period required under s. 477(1) of the Act. Section 477 of the Act provides as follows:-

   Time limits on applications to the Federal Circuit Court

   (1)  An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   “date of the migration decision” means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b)  in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

   (c)  in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

   (ca)  in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or

   (d)  in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

2. In considering whether there should be an extension of time the Court must determine whether it is satisfied that it is necessary in the interests of the administration of justice to make an order extending time. This requires the Court to take into account the explanation for the delay, whether there has been any prejudice to the respondent and the merits of the application. 

3. The Court has also taken into account what was said by French J as he then was in Wolfgang Seiler; Poh Choo Williams and Natalie Kim Seiler v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83, relevantly as follows:-

   The exercise of the discretion to extend time, for which s.11(1)(c) provides, must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration. If the relevant decision-maker or others act upon a decision after the prescribed period expires then the objective of efficient administration may be comprised if the decision can be challenged and set aside after that expiry. Time and resources may have been expended to no effect. Where it is clear that an applicant for review of an administrative decision has, at all times, pursued the reversal of that decision administratively then the statutory purpose is less likely to be jeopardised by a liberal approach to the grant of an extension of time.

   Some principles to guide the exercise of the discretion to extend time were enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v. Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349. In summary they are as follows:

1. Section 11 does not place any onus of proof upon an 
applicant for extension and special circumstances need 
not be shown, but the Court will not grant an extension 
unless positively satisfied that it is proper to do so. 
It is the prima facie rule that proceedings commenced 
outside the period will not be entertained. The 
applicant must show an acceptable explanation of the 
delay and that it is fair and equitable in the 
circumstances to extend time. 

2. Action taken by the applicant other than by making an 
application for review under the Act is relevant to the
consideration of the question whether an acceptable 
explanation for delay has been furnished.

3. Prejudice to the respondent, including prejudice in 
defending the proceedings occasioned by the delay, is a 
material factor militating against the grant of an 
extension. 

4. The mere absence of prejudice is not enough to justify 
the grant of an extension. In this context public 
considerations intrude. A delay which may result if the 
application is successful in the unsettling of other 
people or of established practices is likely to prove 
fatal to the application. 

5. The merits of the substantive application are properly to 
be taken into account in considering whether an extension 
of time should be granted. Considerations of fairness as 
between the applicants and other persons in a like 
position are relevant to the manner of exercise of the 
Court's discretion. 

His Honour did not purport to set out an exhaustive list of the criteria to be considered in an application for an extension of time. Nor should the propositions contained in the judgment be elevated into rules of law fettering the discretion. They identify factors relevant to the exercise of the power and approaches to their consideration. In each case the discretion must be exercised with regard to all the circumstances. As Lockhart J said in Hickey v. Australian Telecommunications Commission [1984] FCA 176; (1983) 47 ALR 517 at 523:

“…the court should not surround the exercise of its 
discretion with unnecessary constraints such as a 
requirement that there be special circumstances or 
considerations of that kind. The statute does not 
require them. Nor should the courts. It is best left 
to the good sense of the judge hearing each case to 
determine whether, on the evidence before him, the 
court's discretion should be exercised in favour of 
granting an enlargement of time to bring an 
application for an order of review."”

These and other authorities were discussed by Burchett J in Pozniak v. Minister for Health (unrep. Fed. Ct. 14/3/86 Burchett J). His Honour said at pp 7 and 8 of the judgment:

“The authorities necessarily deal with an endless 
variety of situations. As a consequence, they show a 
constant change of emphasis on particular features. 
The cases set up signposts to guide the court's 
discretion, but they do not erect fences to limit the 
breadth of the field within which the legislature has 
chosen to confer discretion upon the Court." 

I respectfully agree with that observation. 

In the present case, the history of events after service of the deportation order explain much of the delay in relation to that decision. Concurrently with the service of the order, Seiler made application for permanent residence status under concessions for persons illegally in Australia after 18 December 1989.

1. The Court also takes into account what was said by Collier J in AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102 as to whether there was insufficient prospects of success.

2. The applicant has filed an affidavit purporting to explain part of the delay by reference to the conduct of the applicant’s alleged migration agent. The applicant’s explanation in relation to the conduct of the migration agent is unsatisfactory.

3. The applicant alleges that the applicant’s migration agent was supposed to lodge a notice of acting in relation to the application for review, and alleges that the applicant did not receive notification of the decision of the Tribunal made on 19 March 2015 “as it was sent to my previous address”:

4. No evidence was given as to when the applicant changed address, or the circumstances in which that occurred, or steps taken by the applicant to ensure that he continued to receive correspondence sent to his correct address.

5. Materially, in the present case, there is no suggestion in the applicant’s affidavit that he did not receive the letter of invitation to appear at the hearing sent on 13 February 2015 to the applicant’s address as identified on the application for review. The explanation for the substantial delay by the applicant is not satisfactory. However, the more material consideration are the merits of the matter. I accept that there is no relevant prejudice to the respondents to be weighed in the present case.

6. In relation to the merits, the ground of the application is as follows:-

   Ground 1: Jurisdictional Error- third Party Fraud

   1. The Second Respondent fell into jurisdictional error because, whilst it had made its decision blamelessness, it had acted pursuant to a process compromised by “Fraud on the decision maker” or “third party Fraud” rely on the authority in SZFDE v Minister for immigration and citizenship  (2007) HCA 35.

   Particulars

   1. The appointed migration agent failed to notify the Applicant of the date of the AAT hearing and as a consequence the second respondent made an adverse decision on the papers before the Tribunal.

   2. The appointed migration agent failed to notify the Second Respondent that she was the appointed recipient.

   3. The Applicant was notified of the AAT hearing date and as a consequence had lost his opportunity to an oral hearing.

   4. The fraud of the appointment migration agent had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the Applicant.

1. Mr Jones, Counsel on behalf of the applicant, tendered a decision of the Migration Agent’s Registration Authority, dated 22 April 2016, which cancelled the registration of Shannon Lee Wood as a registered migration agent. The applicant gave evidence that Ms Wood was involved in his application the subject of the cancellation and review before the Tribunal.

2. There is an email dated 14 October 2013 that supports Ms Wood playing some role in relation to the application the subject of these proceedings.  The applicant’s evidence does not however, satisfactorily explain what that role was, nor is it by any means clear that the purported appointment of representative allegedly completed on 4 December 2013 was the subject of any fraudulent conduct, relevantly, by Ms Wood.  There is certainly no evidence to support an arguable case of fraud on the Tribunal in relation to that appointment.

3. Mr Jones sought to argue that the invoices attached to the applicant’s affidavit identified that Ms Wood had purportedly charged for services in circumstances whereon the material before the Court, it was not apparent that any work had been done in the terms of putting forward submissions relating to the application subject of these proceedings.  Whether or not work was done by Ms Wood in that regard does not give rise to any sufficiently arguable case of fraud, let alone fraud on the Tribunal.

4. The kernel of the ground in the application turned on the assumption that notification of the hearing date had not been received by the applicant. There is no evidence to support that. At the hearing, Mr Jones sought an adjournment for the purpose of trying to remedy the evidentiary deficiency by the applicant. That adjournment was opposed by the respondent.  The Court declined to grant an adjournment.

5. In the circumstances of the present case, given the substantial period of time that has already elapsed, and the obvious significance to the applicant of what correspondence he had or had not received, and the bare and unsatisfactory explanation advanced, in paragraphs 22 and 23 of the affidavit, including the inconsistent with matters with the applicant’s explanation for the incorrect information as to his marital status, the Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

6. In the affidavit, the applicant sought to advance that it was his agent, Mr Hawli, that failed to disclose his marital status. Given what the applicant had earlier told the Tribunal, there are a number of problems with that proposition It is apparent from the affidavit that the applicant appreciated the importance of where he resided and the change of address at the time of preparing his affidavit.

7. This is not a case where the Court is persuaded that there would be any utility in granting an adjournment in relation to the glaring deficiencies in respect of the applicant’s explanation concerning the failure to receive communications from the Tribunal. For these reasons the Court is not persuaded that the interests of the administration of justice warrant an adjournment in the present case. Further, the Court is satisfied that an adjournment would be of no utility given the insufficient prospects of success in respect of the substantive application.

8. Ground 1 of the application alleges a fraud on the Tribunal. On the evidence before the Court the circumstances relating to the applicant’s failure to appear before the Tribunal do not support the characterisation of any arguable fraud upon the Tribunal. Nor, does the appointment of the migration agent, in the circumstances of the present case, support any arguable case of fraud upon the Tribunal. Ground 1 in the application does not disclose a sufficiently arguable case to warrant, on the merits, an extension of time. 

9. The Court is not satisfied that it is necessary in the interests of the administration of justice to order an extension of time under s.477 of the Migration Act 1958 (Cth).

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 November 2016