Nawaz v Minister for Immigration
[2013] FCCA 545
•25 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAWAZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 545 |
| Catchwords: MIGRATION – Migration Review Tribunal – whether the applicant impliedly withdrew the nomination of his authorised recipient – whether relief should be withheld for discretionary reasons. |
| Legislation: Migration Act 1958 ss.441G, 494D |
| Cases cited: MZYSU v Minister for Immigration and Citizenship(2012) 132 ALD 341; [2012] FCA 1073 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 215 ALR 162; (2005) 79 ALJR 1009; [2005] HCA 24 SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343 SZLWE v Minister for Immigration and Citizenship & Anor [2009] HCASL 215 |
| Applicant: | IMRAN SHAH NAWAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1087 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 7 February 2013, 2 April 2013 and 27 May 2013 |
| Date of last submission: | 27 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Counsel for the First Respondent: | B D Kaplan |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The decision of the Migration Review Tribunal handed down on
3 August 2012 be set aside.
The matter be remitted to the Migration Review Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1087 of 2012
| IMRAN SHAH NAWAZ |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal.
The applicant applied for a Skilled (Provisional) (Class VC) visa on 16 July 2008. A delegate of the Minister refused to grant the applicant the visa by a decision made on 27 May 2011.
The applicant applied to the Tribunal for review of the delegate’s decision on 12 August 2011. The Tribunal considered that it did not have jurisdiction to determine the application for review.
The Tribunal considered that the applicant had been validly notified of the delegate’s decision on 27 May 2011. The applicant had 21 days from the date of valid notification of the delegate’s decision to lodge his application for review by the Tribunal. If the applicant was validly notified of the delegate’s decision on 27 May 2011, he should have lodged his application with the Tribunal on 17 June 2011. He in fact lodged his application on 12 August 2011, so he was about two months late, if the Tribunal was correct in determining that the applicant was validly notified of the delegate’s decision on 27 May 2011.
The Tribunal has no power to extend the time for lodging applications for review.
The essential question in this case is whether the applicant was validly notified of the delegate’s decision on 27 May 2011. The answer to that question depends on whether the applicant had withdrawn a notice appointing a migration agent, Jie Zhan, as his authorised recipient.
Section 494D of the Migration Act 1958 provides as follows:
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 do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents 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.
(2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3)The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
(5)The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:
(a)the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b)the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c)the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
In SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343, Perram J considered s.441G of the Act, which is an analogue of s.494D. His Honour said at [26] to [28]:
26.It is apparent from sub-section (3) that an authority given to an authorised recipient may be varied or withdrawn at any time. The Act is silent on the question of how an authority may be withdrawn. The word "withdrawn" connotes a taking back or a retraction. That taking back or retraction need not be express. But if it is not express there needs to be conduct by an applicant from which it may be implied or inferred that the Tribunal has been informed that an authority is no longer extant.
27.On 6 December 2007, the Tribunal informed the Appellant during its hearing that Mr Eyeson-Annan had been suspended as a migration agent. Discussion then took place as to whether its decision would be sent to the Appellant and, if so, at what address. The Appellant indicated that he wished it to be sent to him. At the conclusion of the hearing the Tribunal member said:
So I suggest we’ll conclude the hearing now but after – immediately after the hearing you fill in that form with the help of the interpreter and the hearing officer and that will be the address we’ll be sending you the decision, okay and notifying you of the handing down of the decision. Okay.
28.Although the position is not as clear as might be hoped it is to be inferred from this episode that the Appellant communicated to the Tribunal that the consequence of Mr Eyeson-Annan’s suspension as his migration agent was that he wished to receive the decision himself. It may reasonably be inferred that the Tribunal was informed that Mr Eyeson-Annan’s authority was no longer extant. Accordingly, it should be concluded that his authority was withdrawn under s 441G(3).
The application in SZLWE was dismissed for other reasons. An application for special leave to appeal to the High Court against the decision in SZLWE was dismissed without criticism of the passages set out above: SZLWE v Minister for Immigration and Citizenship & Anor [2009] HCASL 215.
It is clear that an applicant can withdraw a notice appointing an authorised recipient by implication. It is not necessary for an applicant to expressly state, orally or in writing, that he is withdrawing the appointment of his authorised recipient. It is not necessary that the withdrawal be effected by the lodgement of a particular form approved by the Minister.
In the present case, the applicant claimed that he impliedly withdrew the nomination of his authorised recipient. He said that officers of the migration department told him not to contact his authorised recipient, because the agent was under investigation for fraud, and the applicant intimated his agreement to that course. The first respondent argued that the applicant did not impliedly withdraw his nomination of his authorised recipient.
Grounds of review
The first ground of review in the application filed on 30 August 2012 is:
The delegate in a decision dated 27 May 2011 did not properly notify me of the decision[.]
The second ground of review in the application filed on 30 August 2012 is essentially the same. It is (with the correction of some typographical errors):
The Tribunal in its decision to refuse my application for review failed to understand that I was not properly notified[.]
The original authorised recipient, Jie Zhan
In his visa application lodged on 16 July 2008, the applicant nominated a migration agent, Jie Zhan, as his contact for receiving communications from the Department. The applicant gave an email address for his agent, namely:
By email sent on 10 September 2010, the applicant’s migration agent notified the Department of a new email address, namely:
The delegate’s decision refusing the applicant’s visa application was sent to the agent’s new address on 27 May 2011. The delegate’s decision was also sent on the same day to the applicant at an address in Maribyrnong. It was not disputed that the applicant had never provided that address to the Department.
The new authorised recipient, Carina Ford
On 8 July 2011, the applicant lodged a form 956 with the Department by which he appointed a new agent, Carina Ford. By this time, the time limit for the applicant to lodge an application with the Tribunal had passed, if the notification to Jie Zhan on 27 May 2011 was valid.
Ms Ford, in an email sent with the form 956, asked that the applicant be renotified of the delegate’s decision. Ms Ford submitted that the notification sent to Jie Zhan on 27 May 2011 was not valid because:
a)the applicant had never provided the Maribyrnong address to the Department; and
b)Jie Zhan had ceased to be the applicant’s agent in 2008 when the applicant was advised by the Department in 2008 that:
i)it was investigating Jie Zhan; and
ii)the applicant should have no further contact with her.
The Department accepted Ms Ford’s submissions. An officer of the Department wrote to Ms Ford on 28 July 2011 enclosing another copy of the delegate’s decision of 27 May 2011 and saying that the applicant had 28 days from 28 July 2011 to lodge an application for review with the Tribunal.
The applicant’s application to the Tribunal was lodged within 28 days of 28 July 2011. In fact, it was lodged 15 days after 28 July 2011.
The Tribunal’s decision
The Tribunal considered that there was no evidence before it that the applicant had told the Department that he wished to end the appointment of Jie Zhan as his migration agent and point of contact with the Department. Consequently, the Tribunal considered that the appointment of Jie Zhan remained valid as at 27 May 2011, when the decision was sent to Jie Zhan, and therefore that notification was valid.
The Tribunal considered that the notification to Carina Ford on 28 July 2011 was ineffective, as the applicant had already been validly notified of the delegate’s decision on 27 May 2011.
Consequently, the Tribunal considered that the application to it was out of time and the Tribunal had no jurisdiction. The Tribunal apparently did not consider the effect of SZLWE.
The applicant’s evidence
The applicant said in an affidavit dated 21 February 2013 that:
a)he came to Australia on 14 April 2002 on a student visa;
b)he undertook various courses;
c)he obtained a security licence in 2002 so he could work part time in the security industry;
d)he has worked with one security company for about six years;
e)he completed a two year diploma in multimedia and graphic pre-press design in April 2008;
f)he then applied for a Temporary Visa subclass 485 (TR);
g)in early October 2008, two immigration officers interviewed the applicant at his home;
h)they asked him, among other things, about his work experience for his TR visa;
i)the applicant told the immigration officers that:
i)he would not lie;
ii)he would tell them everything;
iii)he had paid for his work experience letter;
iv)a friend had told him that a company by the name of Easy Migration could help him;
v)the friend said that Easy Migration charged $4,500 and would arrange work experience;
j)the immigration officers asked the applicant for a copy of his work experience letter;
k)he gave them the original;
l)the immigration officers asked if he would attend their office for a further interview to give evidence against an agent at Easy Migration who was providing fake work experience letters;
m)the immigration officers said that the applicant’s evidence would help to get the agent’s licence cancelled;
n)the applicant agreed;
o)he attended an interview later in October at the immigration office;
p)the interview was recorded;
q)the applicant told the immigration officers when, where and how Easy Migration arranged for his work experience letter, and how much he paid for it and how he paid for it;
r)the applicant asked the immigration officers what he should do;
s)one of the immigration officers advised him not to contact Easy Migration any more because they are under investigation and the Department was trying to cancel their licence;
t)the applicant asked the immigration officers how he would be able to find out what was happening about his application and the interview;
u)the immigration officer said that they would contact him in the future if they needed him to be a witness in court against Easy Migration;
v)the applicant returned to Pakistan a number of times for family reasons;
w)the applicant tried to contact the immigration officers in August 2009 but was told they were still investigating;
x)the applicant tried telephoning again later but was told that one of the immigration officers did not work there any more;
y)in July 2011, the applicant attempted to renew his security licence but was told that he no longer had work rights; and
z)the applicant then contacted the Department and was told that the delegate’s decision had been made on 27 May 2011 and he had one week to leave Australia.
The applicant gave oral evidence. He said that he accepted the accuracy of a transcript provided by the Minister of his interview with the officers of the Department. The transcript is exhibited to the affidavit of Rebecca Barker sworn on 1 May 2013.
The applicant said that he relied particularly on the following passages from the transcript (including their context):
Pages 11 to 12 (after the interviewers asked how much the applicant had paid his agent)
Facilitator 1: Yeah. Okay. That’s fine. All right. Well, we’ll get the rough amounts down now from what you can remember.
Interviewee: Well, I can go to see the lady. I will ask her. I’ll ask lady when was the first time.
Facilitator 1: I would kind of prefer you didn’t do that at this stage.
Interviewee: Well, she will have all the details. It’s not a problem. If I’m going to trouble with the lady then …
Facilitator 1: Yeah, I suppose, you know – look, I mean, you can do it. It’s your choice. But from our perspective we don’t really want her to know that we’re looking at her at the moment.
Interviewee: No. It’s not about that. I need total on my own behalf. I know how to deal.
Facilitator 1: Right. Okay.
Interviewee: She never called. She never told me anything, like, what was going on, like, what I have to do now or anything else. She never called back.
Facilitator 1: All right. So she’s happy to take your money but - - -
Interviewee: Yeah, that’s it.
Pages 28 to 29
Interviewee: And you will be like a month, two months, three months or maybe more?
Facilitator 1: Are you asking time in terms of a decision for your application?
Interviewee: Yes.
Facilitator 1: Yeah, I would imagine, maybe, well, you see, I’m not sure if it’s been allocated to a case officer yet.
Interviewee: I don’t think so.
Facilitator 1: They take a while.
Interviewee: Yeah, they do. It’s very busy.
Facilitator 1: Some of them you have wait, like, 12 months or something. If you ring that number that’s on the back of that card – and I really think that you should fill out that form 956 to get yourself authorised, or potentially go and see another - - -
Interviewee: No, I’ll go to Corinna Ford, she knows everything.
Facilitator 1: Yeah. Is she good, is she? Yeah. We’ve dealt with her in the past.
Interviewee: No. I don’t need – I don’t need a lawyer, I can end up doing everything by myself.
Facilitator 1: Yeah.
Interviewee: So, I’ve got a few things, you know.
Facilitator 1: So that’s your copy and we’ll keep this copy. Now, I mean, I would really appreciate if you can keep the content of this interview that we’ve had private. Just obviously if you want to pass my business card to your friends that have had dealings with this migration agent, that would be great. But it would be really great if you don’t tell the migration agent what we’re doing here because that would prejudice our investigation.
Interviewee: I won’t.
Facilitator 1: That would be greatly appreciated.
Interviewee: Yeah, I’ll find it some way. So if I can I’ll tell my friends so then I can go in there.
Facilitator 1: Yeah. Yeah, sure.
Interviewee: Everybody listen to me.
Facilitator 1: Yeah. Sure.
Interviewee: (indistinct)
Facilitator 1: Yeah. No, that’s fair enough. But, yeah, I mean, I think you should go and see the other migration agent and see if she can help you.
Interviewee: Yeah, I will.
The applicant agreed in cross examination that the following passage from pages 16 to 17 of the transcript of the interview was accurate:
Facilitator 1: Okay. So you haven’t had any contact with Zaan after this date here. Okay. You haven’t spoken to her. Okay. We’re getting there.
Interviewee: What will I get now because of they not take it, when are they going to decide what’s going to happen to me?
Facilitator 1: It can take a while to be honest. We obviously have to finish making all of our enquiries and in terms of your visa application, as I said, I think you need to speak to your case officer about that. Now, that’s an issue because you’ve probably nominated Zaan to be your contact I presume because she’s your migration agent. So it’s up to you whether or not you want her to still represent you to the department. You may want to withdraw that permission giving her the right to access your details. How does he go about doing that is it just the web thing?
Facilitator 2: It’s a form.
Facilitator 1: That 956 form? No.
Facilitator 2: No, it could be the same one. I think it is that.
Facilitator 1: Yeah, it’s just the same form. That’s if you want to do that you can. You can withdraw her as your contact – yeah, as your contact, and you can just make yourself as the contact for all of your visa stuff. Authorised recipient, that’s it.
Facilitator 2: (indistinct – off microphone)
Facilitator 1: Do you need a separate form for withdrawal, or - - -
Facilitator 2: In with the appointments, yeah.
Facilitator 1: This is the one. Yeah. We’ll give you a form and you can actually fill this out and withdraw her – if you want to, but this is an option for you if you don’t want her to represent you anymore. It might be a good idea for you to do this. That way you can deal directly with your case officer and you can discuss things like whether or not they can grant you some time.
Interviewee: So do I have to go to Adelaide?
Facilitator 1: No.
Interviewee: Here?
Facilitator 1: You can - - -
Facilitator 2: You have to call the number.
Facilitator 1: Is her number on this form or is it the general number?
Facilitator 2: 1300 something. I can’t remember.
Facilitator 1: I’ve just printed that out.
Facilitator 2: Can I have a copy if it?
Facilitator 1: It’s at the printer. Donna went that way for it yesterday. We’ll write the number down and you can call it then.
The applicant was taken to lines 1 to 13 of page 21 of the transcript, which are as follows:
Facilitator 1: Okay. I think we’ve pretty much got everything. I’ll just double check. I’ll get you to – I’ll print it out and have a read. If you want to make any amendments just yell out, it’s not a problem. This is your statement so this is your story. It’s not my story. Okay. So if you’re not happy with anything you just tell me.
Interviewee: Okay. So what about this one?
Facilitator 2: Well, that’s – if you want to no longer have Kathleen Zaan as your agent, if you could fill this form out to end the appointment of your migration agent. Because currently, you know, she can ring up and talk about your application.
Interviewee: Okay.
Facilitator 2: If you don’t want her to, fill the form out. If you get a new agent, it’s the same form as well, you need to fill out.
Interviewee: Okay.
Interviewee: It’s your choice.
Having read that passage, the applicant agreed that, during the interview, he was given a form that enabled him to change his migration agent from Ms Zhan to someone else. He also agreed that he did not lodge such a form between October 2008 and 8 July 2011. The applicant also agreed that he had been encouraged by an interviewer to lodge a form 956 to nominate either another agent or himself to receive communications.
The applicant was questioned about the following passage from pages two to three of the statement attached to his affidavit sworn on
21 February 2013:
One of the investigation officers whose name i do not remember n advised me not to contact Easy Migration anymore, because they are under investigation and immigration is trying to cancelled their licence. I said how I will be able to find out what is happening about my application and about this interview. They said they will contact me if they need me in future to be a witness against Easy Migration in court.
The applicant conceded that he could not find any statements to that effect in the transcript of the interview. However, he maintained that the statements were made to him and they may have been made outside the interview room.
The Minister’s evidence
The Minister provided an affidavit sworn by Ms Barker exhibiting the transcript of the interview. Ms Mitchell, one of the interviewers, swore two affidavits and gave oral evidence for the Minister. She conceded in oral evidence that there may have been some conversation with the applicant after the transcript ended but she could not recall any of it. However, she did not think that, after the transcript ended, she or the other interviewer told the applicant not to contact Easy Migration any more.
The Minister also provided an affidavit sworn by Ms Ermert on
14 March 2013. It explained various procedural matters as follows:
5.Where the first person has withdrawn the authorised recipient’s appointment in writing, it is departmental policy that the written notice of withdrawal should be scanned and stored in the first person’s electronic client file, with the physical notice attached to the first person’s paper client file.
6.Where the first person has withdrawn the authorised recipient’s appointment orally, it is departmental policy that the oral withdrawal be documented by DIAC and confirmed by the client where possible (for example, signed by the first person if they are physically in the presence of the departmental officer who received the oral withdrawal).
7.The first person may also impliedly withdraw an authorised recipient by giving DIAC written notice of the appointment of a new authorised recipient. If this occurs, it is departmental policy that the written notice appointing a new authorised recipient be attached to the first person’s paper file with a scanned copy stored in the first person’s electronic file. (emphasis added)
8.Irrespective of how DIAC is informed of the withdrawal of the authorised recipient, under policy and as a matter of procedure, the departmental officer who received the notice of withdrawal must record the withdrawal in the Integrated Client Services Environment (ICSE) database (or the Immigration Records Information System (IRIS) if the departmental officer is working at an overseas post), in addition to taking the steps described above in paragraphs 5 to 7 (as appropriate). This ensures the change in the appointment of the authorised recipient is accessible by all departmental officers.
9.These procedures for recording changes in the appointment of authorised recipients are reflected in DIAC’S Procedure Advice Manuals. The relevant extract of the Procedure Advice Manual is annexed hereto and marked “A”. These requirements are also reinforced during internal training to departmental staff.
The extracts from the Procedure Advice Manual attached to Ms Emert’s affidavit included the following:
32.6 Withdrawal of notification of authorised recipient
An applicant/client may withdraw a notification of an authorised recipient at any time. The withdrawal does not need to be in writing, although it is policy that officers request clients to confirm oral withdrawal of the appointment of an authorised recipient in writing.
The withdrawal may be express or implied/inferred through the conduct of an applicant/client. For example, if the applicant/client nominates a new authorised recipient for the same application, an officer should infer that the appointment of the previous authorised recipient has been withdrawn. (emphasis added)
If an applicant/client withdraws the notification of an authorised recipient orally, a record of the withdrawal must, as a matter of procedure, be prepared and signed by the applicant/client (if possible). A record must also be made in the relevant departmental system (for example, ICSE/IRIS).
If an applicant/client has withdrawn the notification of an authorised recipient, officers should, under policy, confirm the applicant’s/client’s address for service.
Ms Ermert was not cross examined.
In her first affidavit sworn on 18 March 2013, before the transcript of the interview became available, Ms Mitchell said:
6.I have been shown a copy of the affidavit sworn/affirmed by Mr Nawaz on 21 February 2013 in connection with these proceedings. Mr Nawaz alleges in that affidavit that he was told by DIAC investigators to cease all contact with Ms Zhan because she was under investigation. I do not recall saying this to Mr Nawaz.
7.If I did say words to this effect to Mr Nawaz, it was standard practice to provide witnesses with information on how to change their authorised recipient contact details with DIAC, including the need to lodge a new 956 form “Advice by a migration agent/exempt person of providing immigration assistance.” This form includes a section on appointing a new migration agent and changing contact details. It was also standard practice to inform witnesses that they could telephone DIAC or attend at a DIAC Client Services counter in person. To the best [of] my memory I did not provide Mr Nawaz with a copy of this form.
8.It has always been my understanding that it is a visa applicant’s responsibility to advise DIAC of a change of address or contact details, including those of the applicant’s authorised recipient.
9.To the best of my recollection, I did not advise Mr Nawaz that I would alter his contact details in DIAC systems after the interview conducted on 14 October 2008 and I have never undertaken to do this in the course of my role as an Investigator. Nor do I recall Mr Nawaz informing me that he no longer wished for Ms Zhan to receive documents from DIAC in relation to his visa application on his behalf.
That affidavit does not reveal an understanding that an applicant may impliedly withdraw a nomination of an authorised recipient, as discussed in paragraph 32.6 of the Procedure Advice Manual. Ms Mitchell was plainly mistaken in her first affidavit about the provision of the 956 form.
Consideration
The applicant submitted that these circumstances verified that he had impliedly withdrawn the nomination of Ms Zhan. The Minister submitted that these circumstances did not substantiate an implied withdrawal of Ms Zhan’s nomination.
The Minister argued that, as departmental procedures required an implied withdrawal to be documented, and as there was no documented withdrawal, there could not have been an implied withdrawal. That is obviously a fallacious argument. It does not take account of the fact that a departmental officer might learn of an implied withdrawal but not document it.
SZLWE established that the nomination of an authorised recipient can be impliedly withdrawn, whether or not the applicant confirms the withdrawal in writing. In SZWLE, the applicant told the Tribunal that he wanted the Tribunal’s decision to be sent to him, rather than to his authorised recipient, who had been suspended as a migration agent. The Tribunal told the applicant to complete a form after the hearing. However, the applicant did not complete the form.
In these circumstances, Perram J found that the applicant had impliedly withdrawn the nomination of his authorised recipient. The absence of a form was irrelevant.
I proceed on the basis that the transcript of the interview is accurate and records the entire communication between the applicant and the interviewers in October 2008.
In the present case, the interviewers said a number of times that it was the applicant’s choice whether he remained with his existing agent. However, the interviewer also made it plain that she did not want the applicant to communicate with the agent, because it might prejudice the investigation into her conduct.
For example, at pages 11 to 12 of the transcript, when the interviewer was asking how much the applicant had paid Ms Zhan, the applicant said that he would see “the lady” and ask her. That was a reference to Ms Zhan. The interviewer then said:
I would kind of prefer you didn’t do that at this stage.
When the applicant said it would be no trouble, the interviewer persisted, saying:
It’s your choice. But from our perspective we don’t really want her to know that we’re looking at her at the moment.
At pages 28 to 29 of the transcript, the interviewer said:
I would really appreciate if you can keep the content of this interview that we’ve had private. … it would be really great if you don’t tell the migration agent what we’re doing here because that would prejudice our investigation.
The interview was a conversation with a person whose first language is not English. It was not a series of typed and carefully worded statements. The interview occurred in the context of the applicant fulsomely assisting the authorities with their enquiries. In these circumstances, and having observed the applicant giving evidence, it is clear that he understood that the interviewer was urging him not to contact his agent, and he reached that understanding reasonably.
It is also clear that the interviewers encouraged the applicant to withdraw the nomination of his agent as his authorised recipient. For example, at pages 28 to 29 of the transcript, the interviewer said:
I really think that you should fill out that form 956 to get yourself authorised, or potentially go and see another - - -
…
I think you should go and see the other migration agent and see if she can help you.
Similarly, at pages 16 to 17 of the transcript, the interviewer said:
So it’s up to you whether or not you want her to still represent you to the department. You may want to withdraw that permission giving her the right to access your details.
…
That’s if you want to do that you can. You can withdraw her as your contact – yeah, as your contact, and you can just make yourself as the contact for all of your visa stuff. Authorised recipient, that’s it.
…
We’ll give you a form and you can actually fill this out and withdraw her – if you want to, but this is an option for you if you don’t want her to represent you anymore. It might be a good idea for you to do this. That way you can deal directly with your case officer and you can discuss things like whether or not they can grant you some time.
Similarly, at page 21 of the transcript, the interviewer said:
… if you want to no longer have Kathleen Zaan as your agent, if you could fill this form out to end the appointment of your migration agent. Because currently, you know, she can ring up and talk about your application.
The applicant’s response to these suggestions, at pages 28 to 29, was, variously, that he would go to see Carina Ford, that he did not need a lawyer and would do everything himself and that he would go and see the other migration agent.
It is true that the applicant did not expressly appoint Carina Ford as his agent until 17 July 2011. However, that does not mean that he did not impliedly withdraw the nomination of Jie Zhan during the interview in October 2008. The applicant, in the interim, could have had no authorised recipient at all.
The Policy Advice Manual indicates that a person may impliedly withdraw the nomination of one authorised recipient by lodging a form appointing another. However, that is a very restrictive example of an implied withdrawal. In SZLWE, the applicant did not withdraw his nomination of his authorised recipient by appointing another one. The applicant in SZLWE withdrew the nomination of his authorised recipient by saying he wanted the Tribunal’s decision sent directly to him.
In the present case, I consider that the overall effect of the interview was that the applicant impliedly withdrew his nomination of Ms Zhan as his authorised recipient. The discussion of this topic during the interview was not entirely clear. However, it was sufficiently clear that the applicant, with the encouragement of the interviewers, conveyed to them that he no longer wanted Ms Zhan to be his authorised recipient. That constitutes a withdrawal of the nomination.
It appears that the interviewers did not appreciate that the applicant could withdraw his nomination of Ms Zhan without filling in a form and without appointing another authorised recipient. For that reason, perhaps, they did not make their own documentary record that the applicant had impliedly withdrawn the nomination of Ms Zhan and they did not place such a record on the Minister’s file in relation to the applicant.
I appreciate that implied withdrawals of nominations of authorised recipients create administrative difficulties. However, the law as stated in SZLWE permits them. The Policy Advice Manual ought to be amended to better reflect SZLWE.
It is immaterial that Ms Zhan sent the Department notice of a change of address in 2010. Whether she thought that she was still the applicant’s authorised recipient is not to the point. The issue is whether the applicant, in his dealings with the Department, impliedly withdrew his nomination of Ms Zhan. As discussed above, in my view, he did.
Consequently, as at 27 May 2011, the applicant did not have an authorised recipient. The delegate’s decision should have been sent on that date to the applicant directly. It was not. Instead, it was sent to an address in Maribyrnong that the applicant had never given to the Department as his address.
The delegate’s decision was not validly sent to the applicant until it was sent to Carina Ford, as the applicant’s then authorised recipient, on 28 July 2011. The applicant lodged his application to the Tribunal within 21 days of that date. Accordingly, the application to the Tribunal was lodged within time. The Tribunal made a jurisdictional error in concluding that it did not have jurisdiction in the matter.
The Minister submitted that, if the court found jurisdictional error in this case, the court should withhold relief on discretionary grounds. The Minister expressly disavowed a futility argument.[1] However, the Minister submitted that relief should be withheld because the applicant had engaged in bad faith consisting of buying a fraudulent work experience letter that was integral to his visa application.
[1] Transcript 7 February 2013 page 24 line 42
In SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 215 ALR 162; (2005) 79 ALJR 1009; [2005] HCA 24, McHugh J said at [80]:
The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (citations omitted)
In MZYSU v Minister for Immigration and Citizenship (2012) 132 ALD 341; [2012] FCA 1073, Dodds-Streeton J said at [111]:
In my opinion, the authorities contemplate that the exercise of discretion to refuse relief for jurisdictional error due, inter alia, to bad faith or unclean hands is properly the exception, not the rule. The discretion, by its very nature, is not to be exercised routinely in every case involving conduct which could be characterised as bad faith or unclean hands. The decided cases indicate that bad faith justifying the exercise of the discretion is characteristically constituted by significant dishonesty on which an applicant relies to subvert the proper processes of, and secure an advantageous outcome in, the relevant transaction or court proceeding. No authority was cited in which relief was withheld solely due to dishonesty which the claimant voluntarily renounced before it could play any role in achieving an illegitimate purpose. To refuse relief in such circumstances would travel beyond the facts of the decided cases and would seem to penalise, rather than encourage, the abandonment, of a deceitful course of conduct.
In MZYSU, the applicant had given a false statement in his entry interview. Very shortly afterwards, he approached the authorities voluntarily, retracted the false statement and made another statement.
The Minister submitted that the present case was very different because in this case the applicant did not approach the authorities and voluntarily admit to providing a fraudulent work experience letter. Rather, they approached him.
It is true that the applicant in the present case did not approach the authorities and voluntarily disclose his fraud. However, as soon as the authorities approached him, he made full admissions. Moreover, he agreed to and did participate in a further interview with the authorities to assist them in their investigation of the migration agent who was behind the fraud. The applicant also indicated a willingness to give evidence against the agent in court. However, it seems that he was not required to do so.
The applicant’s dishonesty in the present case was renounced, similarly to the case of MZYSU:
before it could play any role in achieving an illegitimate purpose.
That is, the applicant admitted that his work experience letter was fraudulent before the delegate made his decision. Moreover, the applicant gave substantial assistance to the authorities in their investigation of a more significant culprit and, if required, would have assisted further.
In these circumstances, and in accordance with MZYSU, I do not consider that it would be an appropriate exercise of the discretion to withhold relief. Consequently, the Tribunal’s decision will be set aside. I will hear the parties on the question of costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Date: 25 June 2013
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