POP v Minister for Immigration

[2019] FCCA 2868

FEDERAL CIRCUIT COURT OF AUSTRALIA

POP v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2868

Catchwords:
MIGRATION – Application for Aged Parent visa – order for inclusion of financial documentation in supplementary court book – matter adjourned.

Legislation:

Migration Regulations 1994 (Cth), cl.804.224

Applicant: GAVRIL POP

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 260 of 2019

Judgment of: Judge Egan

Hearing date: 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Brisbane

Delivered on: 19 September 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Ms E. Tattersall of Sparke Helmore

ORDERS

1. The First Respondent’s name be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The further hearing of this matter be adjourned to a date to be fixed.

3. The First Respondent is to recover and cause to be included in a supplementary court book all documents in the Second Respondent’s power, possession or control as relate to the Applicant’s proposed assurer’s financial capacity, where such documents are relevant to compliance by the Applicant with his AOS requirements.

4. The Applicant and the First Respondent have leave to file and serve any consolidated submissions and any supplementary court book on or before 21 days before the final hearing date.

5. Each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

6. Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 260 of 2019

GAVRIL POP

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 14 March 2019, the applicant filed an application for review of a decision of the Administrative Appeals Tribunal handed down on 13 February 2019.  That decision of the Tribunal affirmed a decision of a delegate to the Minister to refuse to grant to the applicant an Aged Parent (Residence) (Class BP) visa.  That application for a visa was made on 30 May 2007.

2. The applicant is a 63 year old person of Romanian birth.  At this hearing the applicant was assisted by an interpreter fluent in the Romanian and English languages.  He was also assisted at the bar table by his daughter, an Australian citizen who has lived here for 26 years.

3. The applicant has lived in Australia for at least 12 years.

4. Notwithstanding that the applicant has resided in Australia since at least as early as the commencement of 2007, it was a requirement for the processing of his aged parent visa application that he produce what is referred to as an "assurance of support" - the acronym for which is AoS.  Such requirement is the mandatory requirement of the visa application process in respect of which the applicant was a part.  Clause 804.224 of the Migration Regulations 1994 (Cth) (the Regulations) provides as follows:

   804.224

   The Minister is satisfied that an assurance of support in relation to the applicant has been accepted by the Secretary of Social Services.

5. On 26 August 2016, a letter was sent to the applicant by the Department of Immigration and Border Protection whereby it was strongly recommended that the applicant find a potential assurer, and that such person be referred to the website of the Department of Human Services (namely Centrelink) as soon as possible.  It was said, in such letter:

   Any delays in commencing the AoS assessment with the Department of Human Services (Centrelink) will result in delays in processing the visa application.

6. It is unclear what steps the applicant or the department relevantly took consequent upon the sending of that letter. In any event, a further letter was sent to the applicant on 15 October 2018 by the Administrative Appeals Tribunal dated 15 October 2018. That letter was sent after the delegate had refused to grant to the applicant the visa on 12 July 2017. The basis on which the delegate had refused to grant the visa was the applicant's non-compliance with clause 804.224 - namely the appropriate provision of an AoS.

7. The significance of the letter from the Administrative Appeals Tribunal dated 15 October 2018 was that the Tribunal gave to the applicant a further two weeks – namely, until 29 October 2018 – within which the applicant was invited to provide confirmation in writing that an AoS had been accepted by Centrelink.  Such letter did not make reference to any AoS having been assessed by the secretary as being compliant.  Rather, it merely referred to whether an AoS “has been accepted by Centrelink” (court book 143).

8. On 25 October 2018, the Administrative Appeals Tribunal received a letter from the applicant, or at least a letter sent on behalf of the applicant, whereby it was indicated to the Tribunal that no confirmation of receipt for the assurance of support application lodged with Centrelink had been received.  In those circumstances, an extension of three/four months was sought by the applicant.

9. In response to that request for an extension by the applicant, on 26 October 2018, the Tribunal wrote to the applicant acknowledging the applicant’s request for an extension of time.  It was then decided to set the matter down for hearing on 16 January 2019 for review of the delegate’s decision.  It was said in such letter:

   This will give you around 11 weeks to gather and submit the information requested by the Tribunal and any further documentation you wish to submit.

1. It would appear that, at a time prior to the 16 January 2019 hearing date, the applicant engaged the services of one Dimitri Bourne, who was a solicitor at Bourne Solicitors of Bundall on the Gold Coast.  By a letter dated 13 January 2019 sent by email to the migration and refugee division of the Administrative Appeals Tribunal (the Tribunal), Mr Bourne indicated that he had been engaged to act on behalf of the applicant in relation to his obtaining an assurance of support.  Mr Bourne considered that that would be a relatively simple matter and that the application for review to the Tribunal could be heard on the papers once the assurance of support had been approved.  It was noted that the applicant at the time was on a bridging visa and had been on a bridging visa for over 10 years.  It was also said that the applicant and his assurer had applied for a new assurance of support since the appeal had been lodged:

   ...but have not received a response.  Once we have received a response on the assurance, we will provide this to your office.  We believe that you will be able to hear this matter on the papers.

2. Mr Bourne then asked for a postponement of the hearing date.

3. Mr Bourne had earlier, by an emailed letter dated 11 January 2019, advised the Tribunal that he had been engaged to act in the matter and that his firm was then awaiting a response on the AoS from Centrelink “which has been lodged” (court book page 153-155).  The relevant MR5 appointment of representative form was lodged with the Tribunal indicating that Mr Bourne represented the applicant (court book page 156).

4. On 14 January 2019, the Tribunal wrote to the applicant advising the applicant that the member had considered the request carefully for a postponement of the hearing but had decided not to postpone the hearing (court book page 159).

5. The hearing proceeded on 16 January 2019.  A “MRD hearing record” document recorded that the hearing commenced at 11.44 am and concluded at 12.05 pm.  The hearing therefore took 21 minutes in total (court book page 161-163).

6. What transpired at the 16 January 2018 hearing, however, was that the applicant was allowed a further two weeks to obtain his AoS documentation.  Though represented by Mr Bourne at the Tribunal hearing, it is apparent that, despite the involvement of Mr Bourne and his firm in terms of legal representation on behalf of the applicant, the relevant AoS was not able to be obtained by the date of the adjourned hearing.

7. A further two‑week extension was sought by Mr Bourne by email letter sent to the Tribunal on 30 January 2019.  It was apparent that by that date, though within the extra two weeks period of time granted by the Tribunal at the hearing on 16 January 2019, Mr Bourne was indicating that the AoS had still not been obtained from CentreLink.  He nevertheless set out in such letter that there was a reference number for the lodgement in respect of the AoS application, and there was a client reference number (CRN) in respect of the name of the assurer who was to be the subject of the AoS.  The letter, relevantly, was as follows:[1]

   [1]        CB page 165.

   From: Dimitri Bourne

   Sent: Wed, 30 Jan 2019 04:46:37 +0000

   To: National Registry Mailbox

   Cc: [email protected]

   Subject: CN: 1716293 Gavril POP

   Attachments: Cornelius Documents.pdf

   Dear Member,

   Thank you for your adjournment on 16 January 2019. I confirm that our client is still waiting on a response from Centrelink. They have been in contact regularly but receive blanket responses. The reference number for the lodgement is 971418. The assurers CRN is 402864195T.

   We humbly ask for the further two week extension that was alluded to in the hearing on 16 January 2019. We understand that this matter has been ongoing and we look forward to having it finalised on the papers before 13 February 2019.

   Regards

   Dimitri Bourne

8. On 31 January 2019, the Tribunal wrote to Mr Bourne concerning his request for a further extension of time to provide documents in respect of the AoS requirement.  The letter, in part, said as follows:[2]

   The enclosed documents are given to you as the authorised recipient of the applicant.  As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.

   [2]        CB page 167.

9. Ms Tattersall, a solicitor who today appears on behalf of the respondent, indicated that the documents referred to in that letter of 31 January 2019 included documents produced by the applicant’s nephew – he  being the nominated assurer – whereby such documents confirm that the nephew had the financial capacity required for AoS purposes.  Such documents had earlier been forwarded to the Tribunal under cover of the email letter sent by Mr Bourne to the Tribunal on 30 January 2019. (It was pointed out by Ms Tattersall that she conceded that the nephew’s documents were sent to the Tribunal but not necessarily returned to Mr Bourne.)

10. In response to the request for a further extension of time made by Mr Bourne on 30 January 2019, the Tribunal sent a letter to Mr Bourne indicating that the applicant was to provide to the Tribunal by close of business on 31 January 2019 – the same day – evidence of where the application for the AoS was within the Centrelink organisation.  The Tribunal pointed out to the applicant in such letter that one is capable of tracking one’s application and sending information relating to that tracking to the Tribunal.

11. Mr Bourne replied to that correspondence by an email letter dated 31 January 2019.  That letter relevantly indicated that, pursuant to the request, the applicant and his assurer had attended Centrelink that day and received a receipt and file note correspondence from Centrelink which had then been provided to the Tribunal at its Brisbane reception that day.  It was said that originals of such documentation had been handed to the Tribunal.

12. At [12] of its reasons, the Tribunal recorded that it had put to the parties that there was no evidence that the copies of the forms they had provided to the Tribunal had, in fact, been lodged with Centrelink.  The Tribunal noted, for example, that the form had not been stamped to indicate that it had been lodged, nor did the parties provide a receipt or letter from Centrelink by way of acknowledgement.  That finding is contrary to what was suggested in Mr Bourne’s email of 31 January 2019 to the effect that a receipt and a file note relating to the AoS application had been handed to the Tribunal that day, on 31 January 2019.

13. Ms Tattersall, when asked, was unable to provide any reason as to why financial documents of the nephew said to be supportive of the proposition that he had the financial capacity to be the applicant’s assurer were not included in the court book.  One would have thought that documents required for a consideration of whether that part of the application process – or that part of the approval process - would have been so included as a relevant set of documents able to be considered by this court.  That has not happened.

14. In circumstances where the court considers it important that it has an opportunity to examine the content of such financial documents and view them in the context of what would appear to be serious attempts made to obtain an AoS at a time when the applicant was legally represented (note the provision of a lodgement number and a CRN number in respect of the AoS approval process), the court considers it important that such documents be obtained and included in a supplementary court book for filing prior to the further hearing of this matter.

15. It is to be noted that the applicant is not legally represented before the court today.  That is a matter of regret, and, in the circumstances, he is encouraged most strongly to obtain legal representation before the next hearing.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  9 October 2019