Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 281
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281
File number: SYG 1533 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 21 April 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeal Tribunal – where the application for review by the Tribunal was filed outside of the requisite time period – whether the Tribunal erred in determining that it lacked jurisdiction – whether the applicant was validly “notified” of the delegate’s decision – whether the Tribunal erred in not having regard to the applicant’s personal circumstances – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 347, 338, 476, 494B, 494C, 494D
Migration Regulations 1994 (Cth), regs 2.16 and 4.10; cl 500.312 in Schedule 2
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration and Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Ismail v Minister for Immigration and Multicultural Affairs [1988] FCA 1654
Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1710
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 12 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms J Strugnell Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 1533 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIBOR SANDOR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Hungary (Court Book (“CB”) 29). He arrived in Australia in October 2005 as the holder of a tourist visa (CB 72). He left Australia in late October 2005 and returned in July 2006 as the dependent holder of an ELICOS Sector (Subclass 570) visa. The applicant subsequently held several student visas before being granted a Temporary Work (Skilled) visa on 2 July 2012. That visa ceased on 17 December 2017 (CB 72).
On 12 December 2017, the applicant applied for a Student (Temporary) (Class TU) (Subsequent Entrant) (Subclass 500) visa (the “visa”) (CB 1-13). In his application for that visa, the applicant appointed a registered migration agent as his “authorised recipient” in relation to correspondence sent from the Department to the applicant (CB 5).
On 13 February 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met cl 500.312 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant intended “genuinely to stay temporarily in Australia” as required under the Regulations (CB 69-73).
The applicant was notified of the delegate’s decision (through his authorised representative) on 13 February 2018 (the “notification letter”) (CB 65-68). That notification letter was sent via email (Affidavit of Jennifer Louise Strugnell filed on 13 March 2019 (the “Strugnell Affidavit”), pp 4-5).
On 20 March 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 74-75).
On 10 April 2018, the Tribunal invited the applicant to comment on the following information (CB 77):
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed on 13 February 2018 and, on the basis that 13 February 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 6 March 2018. As the application was not received until 20 March 2018, it appears to be out of time.
However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 24 April 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 22 April 2018, the applicant responded to the Tribunal’s invitation to comment via email (CB 78). In a written statement attached to that email, the applicant stated (CB 79):
I submit a request to you to exercise your favourable judgement and to accept my application as a valid application. Furthermore I request the Member to consider my case as compassionate and compelling. I would further appeal for the Member’s discretion and give cause as to why my application is valid for review with the Administrative Appeals Tribunal.
The primary decision was emailed on 13 February 2018 to my Migration Agent. After that the email was forward to me on 14 February 2018 by my Agent, but I was not able to have access to my emails for weeks due to no internet access (emails/documents can be provided from TPG). When I could check my emails I have not had opportunity to discuss it with my Migration Agent, who represented me in this case, because she was overseas at that time and returned only middle of March, so I could not ask for her advice.
Please send me a copy of the file, so I can check it to make sure that decision was sent ot the right address. Could I have an extension of time to reply because I have genuine relationship with Andrea Portisch, who is genuine student visa holder.
On 3 May 2018, the Tribunal determined that it did not have jurisdiction in relation to the matter as the application for review had been filed outside of the requisite 21 day time period (pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (the “Act”) and reg 4.10 of the Regulations) (CB 86-87).
On 31 May 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is two pages long and spans eight paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 13 February 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 20 March 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 February 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 10 April 2018 the applicant was invited to comment that the application was not a valid application as it was not lodged within the relevant time limit. On 23 April 2018 the applicant responded explaining that he had problems with his internet access and his advisor was overseas so that he could not ask her for advice. He requested that the Tribunal consider his application as compassionate and compelling an exercise its discretion.
5.The Tribunal has considered the applicant’s submission but the Tribunal does not have discretion to waive the statutory requirements.
6.The Tribunal finds that the applicant is taken to have been notified of the decision on 13 February 2018. Therefore the prescribed period to apply for review ended on 6 March 2018.
7.As the application for review was not received by the Tribunal until 20 March 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
8. The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
In his application for judicial review filed in this Court on 31 May 2018, the applicant outlines four “grounds of review” as follows (without alteration):
1.Due to our relatively poor English knowledge we missed the 21 days deadline to appeal. We were wrongly in the belief that we had 35 days to lodge an appeal.
2.It was quiet unfortunate we could not have adequate internet access. TPG mistake (reported).
3.We did not have enough money to pay another solicitor to give us advice while our agent was absent to overseas till middle of March.
4.We believe that we have provided sufficient proof to Immigration and AAT that our relationship is real, strong and lasting one. The authorities have questioned the sheer validity of our relationship whereas they should rather consider here the common future lives of two individuals. We have submitted all relevant and and requested documents. Our aim is to plan our [text cut off page] while helping each other. It is quiet a threat to know that authorities could separate us. Hereby I ask court respectfully reconsider our case and give our relationship a chance.
A supporting affidavit sworn by the applicant on 29 May 2018 (and filed in this Court on 31 May 2018) contains two paragraphs that, relevantly, provide “appeal made in time” and “discommunication [sic] with agent”.
On 11 September 2018, the applicant filed (what the Court interprets to be) an outline of written submissions. Relevantly, those submissions explain why the applicant filed his Tribunal application outside of the relevant statutory period (highlighting various computer difficulties and highlighting concerns that the applicant has with the conduct of his migration agent).
On 12 September 2018, the applicant filed an affidavit sworn by Andrea Portisch (the applicant’s partner) in which Ms Portisch details the nature of her relationship with the applicant and provides a copy of her own student visa.
On 11 March 2022, the applicant filed an affidavit deposed by him on 10 March 2022. That affidavit attached copies of a marriage certificate, a relationship certificate, an undated letter from the Director of the Eastern Suburbs Hospital and an undated statement from the applicant. That written statement appears, relevantly, to request an adjournment of the Court hearing scheduled to take place on 12 April 2022 (on compassionate grounds) and seems to suggest that the applicant filed his application at the Tribunal late because the applicant thought he had 35 days within which to do so – not 21 days.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 31 May 2018, a Court Book numbering 87 pages (marked as Exhibit 1), written submissions filed by the applicant on 11 September 2018, the affidavit of Andrea Portisch filed on 12 September 2018, the Strugnell Affidavit filed on 13 March 2019, the applicant’s affidavit filed on 11 March 2022 and written submissions filed by the Minister on 5 April 2022.
As noted above, the written statement attached to the applicant’s affidavit filed in this Court on 11 March 2022 seems to contain a request that the final hearing be adjourned. At the hearing of this matter (on 12 April 2022), the Court queried whether the applicant was prepared to proceed with hearing. The applicant explained that he was nervous but that he would continue if his partner (Ms Portisch) could sit with him and assist him as needed. The Minister agreed to this course of action, as did the Court, and the matter proceeded to final hearing. An interpreter in the Hungarian language was made available at the applicant’s request and was relied upon when needed. The applicant spoke to the Court in the English language (as did Ms Portisch) with limited assistance from the interpreter when requested. No issues arose in this regard. The applicant spoke with confidence and was able to communicate his concerns to the Court effectively and clearly.
Noting that the applicant was unrepresented, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294 at [207]- [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Court then gave the applicant an opportunity to elaborate on, and further particularise, his grounds of review and to also advise the Court if there was anything else that he thought the Tribunal “did wrong”. This is now standard procedure in this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 (“Bala”) at [7].
Relevantly, the applicant explained that his agent did not properly advise him that he needed to file his application within 21 days from the date upon which he was notified of the delegate’s decision.
This issue is addressed below.
CONSIDERATION
Grounds of review
For ease of reference, the applicant’s four grounds of review provide:
1.Due to our relatively poor English knowledge we missed the 21 days deadline to appeal. We were wrongly in the belief that we had 35 days to lodge an appeal.
2.It was quite unfortunate we could not have adequate internet access. TPG mistake (reported).
3.We did not have enough money to pay another solicitor to give us advice while our agent was absent or overseas till middle of March.
4.We believe that we have provided sufficient proof to Immigration and AAT that our relationship is real, strong and lasting one. The authorities have questioned the sheer validity of our relationship whereas they should rather consider here the common future lives of two individuals. We have submitted all relevant and and requested documents. Our aim is to plan our [text cut of page] while helping each other. It is quite a threat to know that authorities could separate us. Hereby I ask court respectfully to reconsider our case and give our relationship a chance.
To some extent, the applicant's grounds of review lack particulars and, as such, are not entirely clear (in so far as they seek to identify jurisdictional error). While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court's preferred approach (noting the reasoning in Bala) is to again note that the applicant is unrepresented, read the applicant’s grounds of review as broadly as possible and consider for itself whether any arguable case of jurisdictional error arises on the materials before it: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Having assessed the grounds of review as articulated, the various affidavits provided by the applicant and his written submissions, the Court interprets the applicant’s core concerns as suggesting that the Tribunal erred in finding that it lacked jurisdiction in circumstances where the applicant was confused and/or poorly represented by his migration agent and where the applicant had experienced computer and internet difficulties which made it hard for him to comply with the relevant 21 day filing period. The applicant also seems to suggest that he should have been given more time (and the Tribunal should have used its discretion to give him more time) given his difficult personal circumstances.
The Court will address these issues in turn.
In relation to whether the Tribunal erred in determining that it lacked jurisdiction, the Court agrees with the Minister (as contended in written submissions filed in this Court on 5 April 2022 at [14]), that a finding of no jurisdiction is a matter of jurisdictional fact. As such, this Court will need to be satisfied, on review, that the applicant was correctly notified of the delegate's decision and that the Tribunal was correct to find that it did not have jurisdiction.
In Abbas v Minister for Home Affairs [2020] FCCA 1051 at [33], this Court provided framework for assessing whether, in circumstances where an application is lodged late, the Tribunal was correct in determining that it lacked jurisdiction. Relevantly, in cases such as this, the Court will assess:
(a)whether (and how) the applicant was notified of the delegate’s decision;
(b)the content and clarity of the notification letter; and
(c)whether the application for review was, in fact, late.
Was the applicant notified?
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”. The prescribed period is found in reg 4.10(1)(a) of the Regulations, which provides (emphasis added):
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a)if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;
For that 21 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act.
If the notification letter does not meet these requirements, then there has been no “notification” of the decision and the time period within which a valid application for review can be made does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
A copy of the notification letter relevant to this matter is provided at CB 65-68. The Court has reviewed the contents of that letter and notes as follows.
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision using one of the methods specified in s 494B of the Act.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant via email. Here, the Department sent the notification letter by email to the applicant’s authorised representative (CB 64; Strugnell Affidavit, pp 4-5). The applicant consented to the Department sending all correspondence to his authorised recipient when he applied for the visa (CB 5). In accordance with s 494D of the Act, the Department was required to give the authorised recipient (i.e., the migration agent) all documents: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181. There was no obligation or requirement to provide the notification letter to the applicant personally.
In his written submissions filed with this Court on 11 September 2018 (under the heading “Spam”), the applicant concedes the notification letter was received by the authorised recipient.
A screenshot from the Department’s “Enterprise Correspondence” database demonstrates that the notification letter was sent to the authorised recipient’s email address on 13 February 2018 (Strugnell Affidavit, pp 4-5).
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the authorised recipient – that is, at the end of the day on 13 February 2018.
The notification letter was validly sent to the applicant and received by him.
Was the notification letter “clear”?
Section 66(2) of the Act provides that a notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa, specify that provision; and
(c)unless subsection (3) applies to the application, give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500, state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
Here, the notification letter and the delegate’s decision clearly identified that the visa was refused because the applicant did not satisfy cl 500.312 in Schedule 2 of the Regulations (CB 65-73). The delegate provided written reasons why the criteria in cl 500.312 in Schedule 2 of the Regulations were not satisfied and the visa was refused.
Hence, the requirements set out in ss 66(2)(a)-(c) of the Act were satisfied here.
Section 66(2)(d) of the Act requires the notification contain specific information about an applicant’s right of review. The Court is satisfied that:
(a)having stated expressly that “[t]he decision can be reviewed” and having advised the applicant that he was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 66 and 67);
(b)having indicated that, if he sought a review, the applicant must be “physically present in Australia” (as required by s 347(3) of the Act), the notification satisfied s 66(2)(d)(iii) of the Act (CB 65-66); and
(c)in providing a table indicating the address for each of the Tribunal’s registries, the national email and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 67).
The important issue here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
In this regard, the Court must consider the content and structure of the notification letter as a whole in determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”). Further, whether a notification letter is “clear” will turn on the language and terms in which the notification letter is expressed when read as a whole by a person exercising a reasonable level of care: Singh; Ali v Minister for Home Affairs [2019] FCA 1102.
Having now reviewed the notification letter in this matter (CB 65-68), the following is evident:
(a)under the heading “Review Rights” it is stated that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 65); and
(b)under the heading “Receiving this Letter” it is stated that “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” (CB 67). The heading directly encompasses the language of the statement referring to the time limit. A person reading the letter “as a whole”, as explained by the Full Court in Singh, would be sufficiently alert to this and would be able to identify and determine the relevant information.
On the basis of the above, the Court concludes that notification letter dated 13 February 2018 was clear. Its layout was not confusing. Clear headings were used that provided effective “signposts” for the applicant to identify the information he needed in order to lodge a valid application for review and the language (or the terms) used in the notification letter are unambiguous.
Was the application for review, in fact, late?
In the affidavit filed by the applicant on 31 May 2018, he appears to dispute that his application to the Tribunal was lodged late. In paragraph one, the applicant states “Appeal made in time”.
The Tribunal correctly observed, in its decision and reasons (at [2]), that the time in which the applicant had to lodge an application for review of the delegate’s decision was 21 days from the date on which he was notified: as per s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations.
The applicant was validly notified of the delegate’s decision on 13 February 2018.
The 21 day time period commenced once the notification was taken to have been received (i.e. on 13 February 2018) and thus ended on 6 March 2018.
The applicant did not lodge his application for review at the Tribunal until 20 March 2018. The application was, therefore, 14 days out of time.
The Tribunal was correct to find that the application was filed late and that, as such, it did not have jurisdiction. The applicant was validly notified of the delegate’s decision and correctly informed of his right of review. However, he was unable to lodge his application in time due to circumstances beyond the control of the Tribunal. In these circumstances, the Tribunal had no alternative but to determine as it did.
Should the Tribunal have given the applicant more time within which to file his application?
The applicant seems to suggest that the Tribunal should have given him “more time” within which to file his application. Relevantly, the applicant claims that he was confused about the 21 day requirement, he was not properly advised by his migration agent and he had computer difficulties.
Where an applicant lodges an application outside of the prescribed time limit, the Tribunal has no discretion to extend time: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228. This is the case regardless of the applicant’s personal circumstances. That includes difficulties related to faulty technology: Ismail v Minister for Immigration and Multicultural Affairs [1988] FCA 1654 and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1710.
Further, in so far as the applicant has concerns about the conduct of his migration agent, while sympathetic to all unrepresented applicants who express concerns about what they perceive to be poor advice on the part of their migration agent, there is no evidence before this Court that that leads the Court to conclude that the agent’s conduct amounts to a fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35. At its highest, what is alleged to have occurred might amount to negligence or, perhaps, incompetence: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. Although the Court makes no determination about the agent’s conduct, if the applicant does have any concerns in this regard, the Court refers him to the services offered by the Office of the Migration Agent Registration Authority – an agency that is better placed to deal with the issues that the applicant raises here.
As compelling as the applicant’s personal circumstances may have been, the Tribunal simply had no power to do anything other than find that it could not review the delegate’s decision.
CONCLUSION
The application for judicial review filed by the applicant on 31 May 2018 fails to identify any jurisdictional error. Nor has the Court identified any error in the decision as a whole.
The application is, accordingly, dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 April 2022
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