Pioneer Glass Pty Ltd v Minister for Immigration
[2016] FCCA 1
•19 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIONEER GLASS PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision –sponsorship application – Tribunal finding that it lacked jurisdiction – whether the review applicant had made a valid review application, including payment of the filing fee considered. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.140E, 338, 339, 340, 347, 494, 494B, 494C, |
| Braganza v Minister for Immigration (2001) 109 FCR 364 Kirk v Minister for Immigration (1998) 87 FCR 99 Park & Anor v Minister for Immigration & Ors [2016] FCCA 4 Vumentala v Minister for Immigration [2004] FCA 744 |
| Applicant: | PIONEER GLASS PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2875 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 December 2015 |
| Date of Last Submission: | 28 January 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2016 |
REPRESENTATION
| Mr M Chidiac on behalf of the Applicant |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue removing the record of the decision of the former Migration Review Tribunal made on 15 September 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2875 of 2014
| PIONEER GLASS PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter and the matter of Park & Anor v Minister for Immigration & Anor[1]are inter-related and were heard concurrently with common representation. In this proceeding (Pioneer Glass) the applicant, Pioneer Glass, was refused a business sponsorship. In the second proceeding (Park), Mrs and Mr Park were refused business entry visas by the Minister’s delegate (Delegate) and the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) found that it did not have jurisdiction to review that decision. Likewise, in Pioneer Glass, the Tribunal found that it lacked jurisdiction to review the decision of the Delegate to refuse the sponsorship.
[1] [2016] FCCA 4
The following statement of background facts is otherwise derived from the submissions of the Minister.
Pioneer Glass applied for approval as a Standard Business Sponsor on 28 April 2014. On 27 June 2014, the Delegate, acting under s.140E of the Migration Act 1958 (Cth) (Migration Act), refused to grant the sponsorship approval on the basis that Pioneer Glass did not satisfy the training benchmark requirements in regulation 2.59(d) of the Migration Regulations 1994 (Cth) (Regulations) for approval as a sponsor[2]. The applicant was notified of the Delegate's decision by email dated 30 June 2014 to Pioneer Glass’ authorised recipient, Toufic Laba-Sarkis[3].
[2] Court Book (CB) 44-49
[3] CB 40
Pioneer Glass lodged an application for review to the Tribunal on 21 July 2014[4]. The review application form was completed to indicate that the prescribed fee would be paid by credit card. The signature of the cardholder, however, was missing from the form[5] and payment was not processed that day. The Tribunal concluded that the last day for lodgement of the review application was 21 July 2014 and because the prescribed fee was not “paid” within the prescribed period, the Tribunal did not have jurisdiction to review the Delegate's decision[6].
[4] CB 51
[5] CB 59
[6] CB 96-97
It is common ground that the judicial review application in Park depends entirely on the outcome of the Pioneer Glass proceeding.
The only issue in the present proceedings concerns the correctness of the Tribunal’s conclusion that it did not have jurisdiction to review the Delegate’s decision because the matter did not fall within s.338(2)(d) of the Migration Act. Section 338(2)(d) is in the following terms:
A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an “MRT-reviewable decision” if:
…
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The Tribunal found it did not have jurisdiction in the matter given that Mrs and Mr Park did not meet, relevantly, the requirements of s.338(2)(d)(i) or (ii) because (a) she was not sponsored; and (b) because the sponsor (Pioneer Glass) had not made a valid application to the Tribunal for review of a sponsorship decision which was pending.
Mrs and Mr Park made an application for review to the Tribunal on 7 August 2014, that is, after the purported application for review of the sponsorship decision that was made by Pioneer Glass. As noted above, if the Court concludes that the Tribunal did have jurisdiction to review the sponsorship decision, the applicants in the Park proceedings must be successful and the Tribunal’s decision in that case must be set aside.
Conversely, if the Court in this proceeding concludes that the Tribunal correctly found that it did not have jurisdiction, Mrs and Mr Park in the their case will be unsuccessful because the Tribunal’s conclusion about the absence of jurisdiction will have been correct.
The judicial review application
Pioneer Glass relies upon its judicial review application filed on 16 October 2014. The application was supported by a short affidavit, which I received. I also received the court book filed on 14 November 2014. I also received, subject to relevance, the Tribunal’s National Registry Procedure document in relation to finances[7]. Pioneer Glass and the Minister both made written and oral submissions.
[7] Exhibit R1
Consideration
The Minister contends that the Tribunal was correct in both matters to find that it lacked jurisdiction. In Park, the Tribunal found that it lacked jurisdiction because, at the time they sought review by the Tribunal, the applicants did not have an approved sponsor. In Pioneer Glass, the Tribunal found that it did not have jurisdiction because a valid review application was not made within the required time period. The circumstances are set out in the Tribunal’s decision at [3]-[7][8]:
Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 21 July 2014. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
In the review application lodged on 21 July 2014, the applicant indicated that it intended to pay the prescribed fee by credit card. However, the signature of the fee payment cardholder was missing and the payment could not be processed on that day. On 22 July 2014, a Tribunal officer attempted to call the cardholder, Mrs Jocelyne Chidiac, but the call was not answered. A Tribunal officer then called the applicant’s authorised recipient, Mr Toufic Laba Sakis, and advised him that signature was missing. On 23 July 2014 the Tribunal received a fax with a signature on page 9, question 26 of the form, but the credit card details had not been completed on the page containing the signature. The fee was not processed as the time frame in which to lodge a valid application for review had expired.
On 14 August 2014 the Tribunal wrote to the applicant inviting comments on the issue of jurisdiction. The Tribunal received a response from Mrs Jocelyne Chidiac on 5 September 2014. Mrs Chidiac advised that she had to travel to Lebanon on 2 July to visit her sick mother and she did not return until 7 August 2014. The authorised recipient tried to get in touch with her but she was in a remote area and was out of telephone and email contact. She admits that when the application was lodged on 21 July 2014, the signature was missing. When she sent the second fax with the signature, the card details had faded but they related to the same credit card details that had been provided earlier.
The Tribunal finds that the prescribed fee was not paid within the prescribed period which ended on 21 July 2014. While a review application form was lodged on that date, and an attempt was made to pay the prescribed fee by credit card, the review application form contained insufficient details to process the payment by credit card. The review application form did not contain the cardholder’s signature. The review applicant attempted to re-send part of the review application with the cardholder’s signature, but this did not contain sufficient information to lodge process the credit payment as the credit card details were missing. In any case, this information was provided after the prescribed period had already ended. The Tribunal has considered the review applicant’s submissions that the relevant representative of the review applicant company was overseas and in a remote location, but the Tribunal has no discretion to take these factors into account in determining whether the prescribed fee has been paid within time.
The Tribunal finds that the prescribed fee has not been paid within the prescribed period and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
[8] CB 96-97
The Minister contends that the Tribunal was correct in that finding.
Regulation 4.02(4) of the Regulations prescribed the Delegate’s sponsorship decision as a reviewable decision for the purposes of s.338(9) of the Migration Act. Given that that the Delegate’s decision was covered by s.338(9), the combined effect of s.347(1)(b)(iii) and regulation 4.10(1)(d) is that the prescribed period in which Pioneer Glass was required to lodge its review application with the Tribunal started when it received notice of the decision and ended at the end of 21 days after the day on which the notice is received.
Pioneer Glass’ authorised recipient was notified by email of the Delegate’s decision on 30 June 2014[9]. The email, however, was not sent to the last email address (being [email protected]) that was provided by the authorised recipient[10]. The reason this is so is because on 27 June 2014 there was an unsuccessful attempt to notify Pioneer Glass’ authorised recipient at the email address that was provided[11]. The email sent to Pioneer Glass’ authorised recipient of 30 June 2014 was sent to the email address [email protected] (which seems to have been obtained from Departmental records in an unrelated case) and was received by Pioneer Glass’ authorised recipient that day, which is acknowledged by Pioneer Glass[12].
[9] CB 40
[10] CB 2
[11] CB 38-39
[12] CB 83
Pursuant to s.494B(5)(b) and (d) of the Migration Act, the Minister may give a document to a person by transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents. A person is taken to have received an email at the end of the day on which it is transmitted[13].
[13] Section 494C(5)
Section 494B must be read subject to s.494C(7), which is in the following terms:
Document not given effectively
If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
Section 494C(7) was introduced by the Migration Amendment (Notification Review) Act2008 (Cth). The explanatory memorandum that accompanied the introduction of the amending statute noted that both the Migration Act and the Regulations:
contain numerous provisions dealing with the requirements for notification in specific circumstances. These cover who must be notified, the content of the notice and procedures for the method used for the deemed time of notification provisions to apply. As these provisions are highly prescriptive, they create fertile ground for the courts to find defects in notification. Technical errors can also be relied upon by those clients seeking to delay resolution of their cases despite no apparent prejudice as a result of the defect.
In relation to s.494C(7), it was said that:
New subsection 494C(7) relates to the deemed receipt of a document that contains a minor or insignificant error. It provides that a person is taken to have received a document at the times mentioned in section 494C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her..
In the present case, the Delegate’s decision was sent to the email address [email protected], which had the effect of notifying Pioneer Glass of the Delegate’s decision. That was in fact the correct email address for Mr Laba-Sarkis, though not the address he had specified for email correspondence. Pioneer Glass (through its director, Ms Chidiac) accepts that “the application for Pioneer Glass Pty Ltd was refused on 30 June 2014 and was sent by email to our authorised recipient at 3.37pm”[14] (referring to the email at CB 62). Given the acknowledgment that it was not received at a later point in time, the Delegate’s decision is taken to have been received at the end of the day on 30 June 2014[15].
[14] CB 83
[15] Sections 494C(5),(7)
As Pioneer Glass was notified of the Delegate’s decision on 30 June 2014, it was required to file any review application no later than “at the end of 21 days after the day on which the notice is received”. Pioneer Glass was therefore required to make an application to the Tribunal by the end of the day on 21 July 2014. The Tribunal was correct to identify 21 July 2014 as the relevant date in this regard.
Pioneer Glass commenced proceedings in this Court on 16 October 2014. In its application Pioneer Glass asserts that the Tribunal’s decision was unreasonable as the review application was lodged within time and that the Tribunal “misinterpreted the letter of 4 September 2014”.
The 4 September 2014 letter was in response to a letter that was sent by the Tribunal on 14 August 2014, in which Pioneer Glass was invited to comment on the validity of the review application[16]. In that letter, the Tribunal officer referred to the fact that the review application dated 21 July 2014 did not contain a signature for the credit card holder. In the 4 September 2014 letter, Pioneer Glass (by its director) gave an explanation as to why the review application did not contain the relevant signature (due to the absence of the card holder overseas). The letter was referred to and was given consideration by the Tribunal.
[16] CB 81
Section 338(1)(b) provides that an application for review must be accompanied by the prescribed fee, which is required to be paid within the period within which an application to the Tribunal could be made[17]. Where, as here, credit card details were provided but a signature was not, the question becomes whether the applicant’s representative had placed the Tribunal in a position from which payment of the charge could be required by it, through its banker, from Ms Chidiac’s (a director of the applicant) credit card[18].
[17] In Kirk v Minister for Immigration (1998) 87 FCR 99 it was held that the former s.339 of the Migration Act, which was in relevantly the same terms as s.347(1) of the Migration Act, imposed mandatory requirements that had to be met to invoke the jurisdiction conferred by the former s.340 of the Migration Act in respect of the internal review of certain decisions. One of the requirements was that the application had to be accompanied by the prescribed fee. The application for review in Kirk had been accompanied by a cheque that was subsequently dishonoured. The applicant delivered another cheque after the expiry of the time period in which the application was required to be made. The Minister advised the applicant that a review was no longer possible. Lehane J dismissed an application challenging the Minister’s decision to the effect that the jurisdiction under s.340 had not been invoked because the prescribed fee was not paid within the prescribed period.
[18] Vumentala v Minister for Immigration [2004] FCA 744 at [19]
The Minister submits that the Court should find that, as at 21 July 2014, Mr Laba-Sarkis had not placed the Tribunal in a position from which payment of the charge could be required by it, through its banker, from Ms Chidiac’s credit card. There are two reasons why this is said to be so. First, a “critical piece” of information, namely a signature, was missing. The Minister submits that the inference to be drawn from the Tribunal’s approach was that, in the absence of a signature (which may be important if any issues surrounding authority to make payment later arose) the Tribunal did not consider itself to be in a position whereby it was required to process payment. Secondly, and more importantly, in the Minister’s submission, Ms Chidiac’s credit card details were provided by a third person (i.e. the authorised recipient) and in circumstances where the evidence is that he was not able to contact Ms Chidiac to obtain authorisation.
The Minister submits that, as the Tribunal was not, as at 21 July 2014, placed in a position whereby it was required to process payment, the Tribunal was correct to conclude that the prescribed fee was not paid within the prescribed period of time. The Tribunal would therefore be correct to have concluded that it did not have jurisdiction.
In the course of oral argument, it occurred to me that there was a question of substance whether a signature on a paper based credit card payment authorisation was necessary in order to claim payment pursuant to the authority. Exhibit R1 establishes that the Tribunal’s policy is to require a signature but that is a different thing from any requirement of the financial institution (or the law) regulating such payments. I gave the parties the opportunity to file and serve additional evidence and submissions on the question of whether the information provided to the Tribunal on 21 July 2014 was sufficient for the Tribunal to process payment on Ms Chidiac’s credit card, the details of which had been provided in writing to the Tribunal.
Pursuant to that leave, Pioneer Glass provided an affidavit by Mr Marcel Chidiac made on 20 January 2016, to which he annexes documents relating to credit card payments through his bank. Pioneer Glass contends that Ms Chidiac had provided sufficient details of her credit card to permit the Tribunal to process payment on it within the time limited for the filing of the review application.
The Minister relies upon an affidavit by Zherish Opperman, made on 22 January 2016. Mr Opperman is employed in the finance section of the Administrative Appeals Tribunal. His evidence first relates to the processing of credit card payments in the Administrative Appeals Tribunal. Mr Opperman also deposes as to the rules for EFTPOS transactions applied in the Tribunal prior to 1 July 2015. At [16] he states, in relation to credit card payments via EFTPOS that a Visa card (as used by Ms Chidiac) was acceptable and that payments could be accepted over the counter, over the phone or through the mail. The rules required the provision of either a PIN or a security code for telephone payments. Mr Opperman goes on to provide evidence of a “payment test scenario” carried out by him on 6 January 2016 using the Administrative Appeals Tribunal’s EFTPOS machine. Using a credit card he entered the 16 digit credit card number and pressed “OK”. He then entered the expiry date for the card and pressed “OK” again. He was then prompted to check the amount of the transaction, which he did and pressed “OK” a further time. The machine then indicated that it was processing the payment and a printed receipt was produced. The receipt carried the words “SIGNATURE REQUIRED” and the machine displayed the words “SIGNATURE VALID?” The machine called for the answer “YES” or “NO”.
Mr Opperman deposes, from his experience, that the question directs the person processing payment to indicate whether the payment is authorised by signature. He answered the question “NO” and the machine then indicated that the payment had been “DECLINED” and “SIGNATURE ERROR”.
The Minister has provided further submissions filed on 28 January 2016, drawing upon the evidence of Mr Opperman. The Minister contends that the evidence of Mr Opperman establishes, first, that where a credit card payment is being processed, the payment will not be processed unless the operator of the payment system indicates that he or she has sighted a credit card signature. Secondly, in the event that a credit card payment is processed where a signature has not been sighted, and where such transaction has been found to be fraudulent, the Tribunal would have to bear the cost of such fraudulent activity.
The Minister invites the Court to find that the Tribunal had not been placed in a position from which payment of the charge could be required by it through its banker from Ms Chidiac’s credit card[19].
[19] see Vumentala v Minister for Immigration [2004] FCA 74 at [19]
I have a number of difficulties with the evidence of Mr Opperman and the submissions of the Minister in reliance upon it. In particular, in my opinion, the evidence and submissions establish no more than that the Tribunal was unwilling to accept the risk of fraud in the absence of Ms Chidiac’s authorisation by signature of the use of her credit card, not that the payment could not be processed on that card.
Mr Opperman deposes that prior to 1 July 2015 the Tribunal accepted payments by telephone, a process by which it would be practically impossible to provide a signature for the purposes of the transaction. Mr Opperman’s evidence does not provide a direct answer to the question of how telephone payments were processed without a signature. It is reasonable to suppose, however, that in the case of a telephone payment, if the same EFTPOS machine was used as deposed to by Mr Opperman, the person processing the payment would either avoid the issue of a signature altogether by entering the relevant PIN or security code, or if prompted regarding a signature, answer “YES” to the question of whether there was a valid signature, otherwise payment could not be processed. In such cases, the Tribunal would be accepting some risk of fraud but that would be limited where the Tribunal has the security code number for the credit card or the PIN (although I note that financial institutions strongly advise card holders not to reveal their PIN to anyone).
In the present case, Mr Laba-Sarkis had provided the credit card number, and the expiration date but not the security code number which would have permitted processing of the payment if it had been a telephone payment. It was not a telephone payment (the credit card details were provided by facsimile) and without a PIN or security code it was probably not open to the Tribunal to process the payment in the same way as a telephone payment. If the Tribunal had processed the payment, it would have accepted the risk of fraud by proceeding as if a signature had been provided, when it had not. I understand the Tribunal’s policy was to require signatures on paper based credit card transactions in order to minimise the risk of fraud, but that was simply a policy to protect the Tribunal; it was not something which was essential for the purpose of processing a payment. If, hypothetically, a Tribunal officer had answered “YES” to the signature question rather than “NO” the payment would have been processed.
The process deposed to by Mr Opperman requires a Tribunal officer to verify, in effect, that he or she is satisfied that the card holder has authorised the payment. Unless the card holder is personally present, and the officer sees the card holder sign the receipt produced by the EFTPOS machine, the officer has no way of verifying that and the receipt is left unsigned. With the exception of over the counter payments by the card holder (in which case a PIN would probably be used instead of a signature) there is no possible way to obtain the card holder’s signature at the time of processing the payment, as envisaged by the EFTPOS processing system. The presence or absence of a purported signature by someone on a form completed before payment is processed is of little moment, therefore, in my opinion. A signature on a form may give the Tribunal some cause to believe that the credit card payment is authorised, but if the EFTPOS receipt is left unsigned and the transaction is later disputed I doubt that the Tribunal’s position would be secure.
I conclude that Pioneer Glass had, within the time limited for the filing of a review application, done sufficient for the Tribunal to process payment for the application and that the application should therefore have been accepted as valid, consistently with the principle established in Vumentala. To the extent that the Tribunal’s policy or rules presented an obstacle to the processing of payment, it was a matter for the Tribunal to determine whether it would accept the risk of fraud. If the payment was processed but subsequently contested, then on the authority of Kirk the review application would not have been valid. To that extent the Tribunal was protected. If the payment was not processed but Pioneer Glass was called upon to attend to provide a signature in accordance with the Tribunal’s policy or rules within a reasonable time (noting Ms Chidiac’s absence overseas) then the matter would have been ultimately regularised in accordance with the Tribunal’s policy. The review application was valid at the time it was made and the Tribunal was wrong to conclude that it was not valid. The Tribunal thus fell into jurisdictional error and Pioneer Glass should receive the relief it seeks.
It follows that in the related matter of Park, the relief sought should also be granted.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 February 2016
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