Nguyen v Minister for Immigration and ANOR and Le v Minister for Immigration and ANOR
[2017] FCCA 2680
•9 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR and LE v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2680 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347 and 338(2) Acts Interpretation Act 1901 (Cth), ss.25C, 15AA |
| Applicant: | THI HUYNH NHU NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 24 of 2017 |
| Applicant: | THI XUAN NGA LE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 27 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 9 October 2017 |
| Date of Last Submission: | 9 October 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 9 October 2017 |
REPRESENTATION
| Counsel for the Applicant in BRG24/2017: | Mr Boccabella |
| Solicitors for the Applicant in BRG24/2017: | H & N LAWYERS |
| Counsel for the Applicant in BRG27/2017: | Mr Boccabella |
| Solicitors for the Applicant in BRG27/2017: | H & N LAWYERS |
| Counsel for the First Respondent in proceedings BRG24/2017 and BRG27/2017: | Mr Byrnes |
| Solicitors for the First Respondent in in proceedings BRG24/2017 and BRG27/2017 | MINTER ELLISON |
ORDERS
IN PROCEEDINGS BRG24 of 2017
That the Application filed 10 January 2017 be dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to this proceeding, fixed in the sum of $7,328.00 (inclusive of GST).
IN PROCEEDINGS BRG27 of 2017
That the Application filed 9 January 2017 be dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to this proceeding, fixed in the sum of $7,328.00 (inclusive of GST).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 24 of 2017
| THI HUYNH NHU NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
BRG 27 of 2017
| THI XUAN NGA LE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
These two matters of Le v the Minister for Immigration and Border Protection & Another, and Nguyen v the Minister for Immigration and Border Protection & Another, respectively BRG 27 of 2017 and BRG 24 of 2017, have been heard together simply because the factual matrix that underpins the applications is extremely similar, if not exactly the same.
In Ms Le’s case, what had occurred is that the Administrative Appeals Tribunal (“the AAT”) had ruled that they had no jurisdiction to hear a review in that matter, and in the Nguyen case, a differently constituted AAT also found that they did not have the jurisdiction to hear the matter.
Both matters involve applications for spousal visas. They were subclass 820 visa applications. In both instances, the delegate of the Minister had decided that the requirements for the visa had not been met by the Applicants and refused the visa grant.
Section 347 of the Migration Act 1958 (Cth) (“the Act”) is headed Application for Review of Part 5 – Reviewable Decisions. Subsection 2 of that section relevantly says this:
“An application for review may only be made by: (a) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - the non-citizen who is the subject of that decision; or (b) if the Part 5-reviewable decision is covered by subsection 338(5) or (8) – the sponsor or nominator referred to in the subsection concerned – “
These applications were covered by s.338(2). That meant that the application for review may only be made by the non-citizen who is the subject of that decision.
In the Le case, what can be seen, by looking at the court book, is that the application, at page 162 of the court book, has certain words at the top of the form. Firstly, that this was an online application which said this at the box at the top:
“Information. This confirms the details lodged by you online in regards to your application for a review with the Administrative Appeals Tribunal, Migration and Refugee Division. Please review the information provided and, if you have any questions or corrections, please advise the AAT quoting the confirmation reference number for your application.”
The online lodgement reference number and date were filled out. The Decision to be Reviewed has these matters filled out:
“Decision for Review: a visa refusal. Date of decision: 11.10.2016.”
The department file number is the matter of the visa applicant, Ms Le, and the department client ID is the number of Ms Le.
The next box:
“Is the person in immigration detention?”
is marked “No”.
“The type of review application”
Answer is marked as “Person”.
Then the details of the person applying for review are:
Mr
“family name”
Tran,
“given name”
The Thai,
“Australian citizen or permanent residence?”
Answered “Yes”.
“Date of birth:”
22 January 1963.
Gender:
Male.
Nationality:
Australia.
Passport number:
B6091712.
Those details have been conceded are the details of Mr Le. He has also given an address and a mobile phone number.
The Capacity to Apply for Review has been filled out as “sponsor or nominator”. And then the primary visa applicant has been given title of Ms, (family name) Le, (given name) T-h-i- x-u-a-n- n-g-a and:
“Date of Birth: 16 January 1961. Gender: Female. Country of birth: Vietnam. Nationality: Vietnam. Passport number: B2155656 –”
and the address, etcetera. All has been conceded that those details were the details of the visa Applicant. The form is then filled out for the Representative Details and that has been filled out by the representative and it seems, in effect, signed electronically.
One, having a look at that form, would be in very little doubt that the person who is making the application is Mr Le and not Ms Le. That is made out simply by two aspects:
a)That it is Mr Le’s detail in the section that reads Details of Person Applying for Review; and also,
b)That in the box that asks for Capacity to Apply for Review, as sponsor or nominator.
As I had just foreshadowed when looking at s.347(2)(a) of the Act the application can only be made by the visa applicant. The AAT wrote to the migration agent and pointed out that there was a problem because it was an application not made by the visa Applicant themselves. That letter was sent on 11 November 2016 and is found at page 171 of the court book.
The reply, at page 173 of the court book, read this, from the migration agent:
“We refer to your letter dated 11 November 2016. It is noted that your letter stated that Mr Tran, being the sponsor, is not entitled to lodge this application to the AAT. We had informed Mr Tran of the situation. However, in accordance to the eligibility provided by the AAT (attached) the sponsor is also entitled to lodge such application. Can you please urgently confirm your position so we can get out client’s instructions. We look forward to receiving your timely response.”
And what was attached to the letter was a screenshot from the website which says this – this is the departmental website:
“Depending on the decision under review the person applying for review must be the visa applicant, the former visa holder, the sponsor or a close relative.”
As my recitation of s.347(2) shows, yes, there are plenty of persons who can apply review but, depending on the decision under review, those persons are limited. This decision, because it was covered by s.338(2), was one where the only person who could apply for the review would be the visa Applicant themselves. There was no attempt to change this by the visa Applicant because it would seem as well that, if the visa applicant had tried to change, then they would have been out of time in any event.
The reasoning then of the AAT on 6 December was that they did not have the jurisdiction to hear the matter because there was no valid application lodged pursuant to s.347(2)(a) before it, and it declined to hear the matter because it did not have jurisdiction.
The application was filed in this Court on 17 January 2017. It gave nine very broad grounds of the application asking for a review.
a)The Tribunal failed to properly apply and/or interpret part 5, Review of Part 5 – Reviewable Decisions of the Migration Act 1958.
b)The Tribunal failed to properly apply and/or interpret section 25C and/or section 15AA of the Acts Interpretation Act 1901.
c)The Tribunal’s decision was an improper exercise of power.
d)The Tribunal failed to take relative considerations into account.
e)The Tribunal took irrelevant considerations into account.
f)The Second Respondent’s decision was unreasonable.
g)The Second Respondent failed to properly conduct a review for the purpose of implementing sections 348 and 349 of the Migration Act.
h)The Tribunal made an error of law.
i)The decision was otherwise unlawful.
Those general grounds give very little idea as to what the review was about.
When Mr Boccabella filed his submissions, the argument took on a different light. There was no longer any reliance upon the sponsor being able to review the application. Instead, it was argued that the proper interpretation of the application that was before the AAT should have been interpreted to read as though it were an application by the visa Applicant herself. This was argued by Mr Boccabella as being a logical explanation because the visa Applicant’s details were on the form, she was easily identifiable, and it was electronically signed by the migration agent who was representing her.
The problem with that last submission is that the Migration agent was also representing the sponsor, and the migration agent’s letters that followed up made it quite clear that the application was an application that was made by the sponsor.
Nevertheless, in quite comprehensive submissions, Mr Boccabella has put to the Court the proposition that, if the Court were to insist that this solely be read as an application by the sponsor and not by the visa Applicant themselves, then the Court would be allowing form to triumph over substance and be bringing the administration of justice in this country and the Court system upon which it depends into disrepute.
Mr Boccabella has urged this Court to find that there was a legal mistake made by the agent when the agent filled out the form and then lodged it, that legal mistake being that, instead of putting down the visa Applicant’s details, the agent put down the sponsor’s details.
At paragraph 12 and 13 of his submissions Mr Boccabella says this;
“12. At CB163, the form asked for the details of the ‘Primary visa applicant’ the details of the visa applicant Thi Huynh Nhu NGUYEN are correctly inserted. The legal representative of the visa applicant Thi Huynh Nhu NGUYEN both at the visa decision stage and at the review application stage, was the same ie Mr Huynh (see CB151 and 163,164). Mr Huynh made the application for review as a representative of the visa applicant Thi Huynh Nhu NGUYEN. Hence the review application was made by ‘the non-citizen who was the subject of that [visa refusal] decision’. CB 162-164 and the documents attached to that application would leave no doubt that what was being sought was a review of the decision to refuse Thi Huynh Nhu NGUYEN a partner visa.
13. No one in their right mind would interpret that the effect of CB 162-164 (along with the two documents attached) is, as anything other than an application for a review by Thi Huynh Nhu NGUYEN. One simply regards the inclusion of the husband in the form as superfluous and that the visa applicant is the review applicant under section 338 and then 347, 338(2) and 347(2) and
14. To do otherwise prefers form over substance.”
I am not convinced that that is so. This is a matter where it was quite obvious that it was the sponsor who was making the application. To accede to what is being submitted would, in my view, mean that s.347(2)(a) is meaningless because it would really mean that it doesn’t matter who makes the application, the Tribunal ought interpret the application as being made by the visa Applicant themselves. That is not how one can or should interpret s.347(2)(a).
Mr Boccabella referred to s.25C and s.15AA of the Acts Interpretation Act 1901 (Cth):, s.25C saying:
“2C Compliance with Forms.
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.”
In this case there has not been substantial compliance with the form in any way, shape or form if one is to interpret that form as being submitted by the visa Applicant and not by the sponsor. In my view, s.25C has no real application.
Section 15AA:
“Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
That is a very good general application but, when one has a look at s.347(2) and then notes all of the other sub-subsections from (a), (b) and onwards, there is a very distinct way in which the Act talks about who may apply. The statutory interpretation maxim of expressio unius est exclusio alterius would inevitably lead to one looking at s.347(2) as a whole and one could only come to the interpretation that the only person who can make an application for a review of a decision covered by s.338(2) is the visa applicant themselves.
This application is not an application of the visa Applicant itself, notwithstanding that it identifies the visa Applicant properly and is signed by an agent for the visa Applicant. It is clearly an application made by the sponsor, therefore it is not a valid application. Therefore, I am of the view that there has been no jurisdictional error made by the Tribunal and I would dismiss the Le application.
In the Nguyen application, the application had a very similar factual background, that is, that again Mr Nguyen was the person who was the sponsor and the wife was the partner. The decision made by the Minister was one pursuant to s.338(2) which meant that s.347(2)(a) applied.
The application in the Nguyen case was a handwritten application. It is a different application to the one in the Le case and therefore it is far more stark.
Section 1: Applicant Individual, was filled out Mr, (family name) Nguyen, (given names) Hung Dinh, H-u-n-g D-i-n-h. Date of birth: 07.05.1974. An address was given, a mobile phone number was given and email address. And then the representative’s name and address, etcetera, was filled into the box for Representative.
Section 2: The Decision. The date she received the decision, which was 26.09.2016. The Brief Description of the Decision box is left blank, and the Reasons for the Application is simply:
I think the decision is wrong and a different decision should be made.”
And the form was then signed, not by the visa Applicant but by the sponsor who was Hung Dinh Nguyen and not Thi Huyen Nu Nguyen, the visa Applicant themselves.
Again, once this application was lodged, the AAT sent a letter to the migration agent explaining that there was a problem and asked for submissions as to how it was that the sponsor had any standing to bring about this review.
The letter sent back by the lawyers was in exactly the same terms as the Le matter, this one reading, at page 188 of the court book:
“We refer to your letter dated 7 November 2016. It is noted that your letter stated that Mr Nguyen, being the sponsor, is not entitled to lodge this application to AAT. We had informed Mr Nguyen of the situation. However, in accordance to the eligibility provided by the AAT (attached) the sponsor is also entitled to lodge such application. Can you please urgently confirm your position so we can get our client’s instructions. We look forward to receiving your timely response so we can advise our clients accordingly.”
And attached was that same screenshot from the website of the department that had this sentence:
“Depending on the decision under review the person applying for a review must be the visa applicant, the former visa holder, the sponsor or a close relative.”
That being all that was given to the AAT, on 5 December 2016 a differently constituted AAT found that there was no valid application before them because the visa applicant had not made an application. It was made by the sponsor, therefore they had no jurisdiction to hear the matter.
These matters have been heard together because of the factual similarity. However, in the Nguyen matter the application was lodged out of time and, whilst there has been no application for an extension of time, it has been that the matter proceeded as if there were such an application.
What was explained by Mr Nguyen, the solicitor, is that Mr Boccabella was briefed in the Le matter and, because of the factual similarity to the Nguyen matter, he simply used Mr Boccabella’s grounds for the application in the Nguyen case and also put in Mr Boccabella’s submissions in the Le case into the Nguyen matter, which were exactly the same as the Le case. However, Mr Boccabella was not technically briefed in the matter, nor representing Ms Nguyen.
For the same reasons that I have already spoken about there is no jurisdictional error in the conclusion of the Administrative Appeals Tribunal in finding that they had no jurisdiction to hear the matter, therefore it is a matter where I would not grant the leave to lodge the application out of time. I therefore refuse that application for leave that is in effect made orally, and dismiss the application as a whole.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 22 November 2017
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