Serroukh v Minister for Immigration
[2017] FCCA 3241
•21 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SERROUKH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3241 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from a decision of a Delegate of the Minister for Immigration because it was lodged outside the applicable 21 day period for doing so – the Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – Administrative Appeals Tribunal did not commit jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 338, 347, 375A, 494B, 494C, 494D |
| Cases cited: Calimoso v Minister for Immigration [2016] FCA 1335 |
| Applicant: | FATIMA SERROUKH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1542 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 December 2016 |
| Date of Last Submission: | 17 January 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| The Applicant appeared in person. |
Counsel for the Respondents: Ms A Wong
| Solicitors for the Respondents: | Mills Oakley Lawyers |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 20 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1542 of 2016
| FATIMA SERROUKH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of Morocco aged 40 years, having been born on 23 June 1977.
By Application filed in this Court on 20 June 2016 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 6 June 2016, that it had no jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 December 2015 refusing to grant to her a Partner (Migrant) (Class BC) (Subclass 100) visa (Partner visa) because it had been lodged with the Tribunal after the time prescribed under the Migration Act 1958 (Cth) (Act).
Background
On 9 June 2013 the Applicant applied from Cairo for a Partner (Provisional) (Class UF) (Subclass 309) visa (Subclass 309 visa) and the Partner visa on the grounds of her being in a spousal relationship with her husband who was an Australian citizen and the sponsor (the sponsor) of her Partner visa application. The Applicant made a combined application for these visas, which are usually assessed about two years apart. The Partner visa was a permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.
The Partner visa application was lodged by the Applicant’s appointed migration agent, Mr Ron Dick of Hallmark Immigration.
The Applicant was granted the Subclass 309 visa on 17 April 2014.
By a letter dated 17 September 2014 Mr Dick advised the Department of the Minister that the sponsor wished to withdraw his sponsorship of the Applicant’s Partner visa application and that Mr Dick was no longer the migration agent representing the Applicant or her authorised recipient of communications from the Department.
The Department took the view that Mr Dick was still legally the Applicant’s authorised recipient and responded by its letter of 24 September 2014 to the Applicant, via Mr Dick, inviting her to comment on the adverse information received by the Department, namely that the Applicant and the sponsor were no longer living together and the sponsor had withdrawn his sponsorship and this suggested that the spousal relationship had broken down.
By email of 13 October 2014 Mr Dick advised the Department that “in difficult circumstances” he had arranged for the Applicant to receive the Department’s letter dated 24 September 2014. The evidence establishes that this letter was received by the Applicant on or about 2 October 2014 through the agency of Kogarah Police Station where a Detective there had either sought or obtained some form of apprehended domestic violence order from Kogarah Local Court against the sponsor, presumably on behalf of the Applicant.
Then by email to the Department dated 29 October 2014 one Mr Kayhan Oncu (a solicitor and registered migration agent) forwarded an attached letter which advised that he had been instructed on behalf of the Applicant and appointed her migration agent. He advised relevantly as follows:
Dear Sir,
RE: Serroukh, Fatima D.O.B - 23/06/1977
We have been instructed to act for the above named client. Please find attached [Form] 956. Also ending appointment of the previous Migration Agent.
We have been advised and instructed to notify the Department by both applicant and sponsor that the relationship is genuine and continuing.
As in any normal marital relationship conflict is inevitable, the applicant admits to her irrational behaviour and now both applicant and sponsor have resolved their differences and reconciled.
These instructions were received by both sponsor and applicant. If you require any further supporting documents or additional information, please don’t hesitate as my clients are happy to comply.
The Form 956 forwarded to the Department by Mr Oncu and signed by the Applicant advised that he had been appointed the migration agent of the Applicant and her authorised recipient of communications and he gave his email address, to which he agreed that communications from the Department could be sent.
Then by email dated 30 October 2014 the Department asked Mr Oncu for the provision of a Statutory Declaration from each of the Applicant and her sponsor concerning the events of the breakdown of their relationship and how they had now reconciled.
On 5 February 2015 an officer of the Department spoke to Mr Oncu by telephone when Mr Oncu requested an extension of time of 7 days for provision of the Statutory Declarations, which extension was granted.
By email dated 11 February 2015 Mr Oncu forwarded to the Department Statutory Declarations declared on 10 February 2015 by the Applicant and the sponsor and confirmed that he had sent the originals to the Department by registered post.
The original Statutory Declarations were sent by Mr Oncu under cover of his letter dated 11 February 2015.
Mr Oncu witnessed the making of the Statutory Declarations of each of the Applicant and the sponsor and signed the jurat to each as such.
Then by his email to the Department dated 1 June 2015 Mr Dick resurfaced by forwarding a Statutory Declaration of the sponsor withdrawing from the sponsorship of the Applicant and attaching a Form 956 appointing Mr Dick as the migration agent of the sponsor.
On 11 September 2015 the Applicant rang and spoke to an officer of the Department requesting information about how to apply for her “permanent visa”. She gave the Department authorisation to speak with a friend of hers and an email was sent by the Department to that friend’s email address with information on how to apply for the “permanent visa”.
By email dated 5 November 2015 the Department sent an email to Mr Oncu, copied to the Applicant’s friend’s email address, which invited the Applicant to comment on the relationship breakdown between the Applicant and her sponsor. There was no response to that email from either Mr Oncu or the Applicant and the Delegate then proceeded to hand down her Decision Record dated 23 December 2015.
Decision of Delegate
In her Decision Record the Delegate accepted that the Applicant was no longer the spouse of her sponsor as defined by s.5F of the Act. She accepted that the Applicant’s relationship with her sponsor had ceased again after a reconciliation. Accordingly, the Applicant could not satisfy cl.100.221(2)(b) which required that the Applicant be the spouse of the sponsor at the time of decision. The Delegate also considered that there was no evidence that the Applicant satisfied cl.100.221(2A),(3),(4) or (4A).
Accordingly, in the result the Delegate found that the Applicant did not satisfy cl.100.221(1) and she refused the Applicant’s application for a Partner visa.
Sending of Decision Record of the Delegate to the Applicant
The evidence establishes that the Decision Record of the Tribunal dated 23 December 2015 was sent on that same date to the email address given and authorized by Mr Oncu: see [9] – [10] above. That evidence comprises:
a)the email itself of 23 December 2015 attaching the Decision Record; and
b)the affidavit of David Clifford Aitchison affirmed 23 September 2016 which proves that the email attaching the Decision Record was successfully transmitted on 23 December 2015 to the email address given and authorized by Mr Oncu.
Application for Merits Review of Delegate’s Decision and Decision of Tribunal
The Applicant lodged her application for merits review of the Delegate’s decision to the Tribunal and appointed a Mr. Sarkis as her authorized recipient for correspondence on 1 April 2016.
By letter dated 13 April 2016 the Tribunal invited the Applicant to comment on the validity of her application for review. The Tribunal stated in that letter that the Decision Record of the Delegate had been emailed to her authorized recipient on 23 December 2015 and that as the time limit for lodging an application was 21 days from that date the last date for her to lodge her application for merits review with the Tribunal had been 13 January 2016.
The Applicant responded to the Tribunal’s invitation to comment by her letter of 26 April 2016 which stated in part:
I admit that my authorised recipient received the letter of 23 December 2015 but this letter was sent to him and he informed me about it immediately after he received it. In other words, the letter, Notification of refusal of application for a partner visa, was never received by me and I was not aware of such refusal even though it says that it was originally emailed to [email protected]. I have never received that letter and, as a matter of fact, I have no knowledge of who Kayan Oncu is as I never dealt with him……….Kayan Oncu, is not my lawyer and I never met him…
However, in her affidavit of 15 September 2016 read in this proceeding the Applicant asserted that she had not become aware of the decision of the Delegate until 22 March 2016 when Mr. Sarkis first informed her of the Delegate’s adverse decision.
I would have had great difficulty in accepting that the Applicant had “never dealt with” Mr. Oncu or that he was “not my lawyer and I never met him”, having regard to the contemporaneous documentary evidence recorded at [9] – [15] above that Mr. Oncu was indeed acting on her behalf.
However, it is unnecessary for me to make any finding in this regard because the Minister is content to rely only on the relevant statutory provisions referred to below, rather than requesting the Court to place any weight or reliance on any explicit or implicit admission which might be thought to be contained in the Applicant’s letter of 26 April 2016.
By its Decision Record dated 6 June 2016 the Tribunal found as follows:
a)the Applicant’s application to the Tribunal for review of the decision of the Delegate was lodged with the Tribunal on 1 April 2016;
b)pursuant to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (the Regulations) the application for review of the Delegate’s decision had to be lodged within 21 days after the Applicant had been notified of the decision of the Delegate in accordance with the statutory requirements of the Act and the Regulations;
c)the Applicant had been notified of the decision of the Delegate by email on 23 December 2015;
d)in accordance with s.494C of the Act the Applicant was taken to have been notified of the decision of the Delegate on 23 December 2015 and the 21 day prescribed period ended on 13 January 2016; and
e)as the application for review was not received by the Tribunal until 1 April 2016, it was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.
Grounds of Attack on Tribunal Decision
The Grounds relied on in the Application are as follows:
1. The Tribunal failed to take into account my submission of 26 April 2016.
2. I have not received or been notified of the decision made by the Department of Immigration on 23 December 2015.
3. I believe that the application made to the Tribunal is a valid application contrary to the Tribunal's decision that the Tribunal does not have jurisdiction in this matter.
Consideration
Ground 1
This Ground plainly cannot succeed in establishing jurisdictional error. At [5] – [7] of its Decision Record the Tribunal stated as follows:
[5]The applicant was sent an Invitation to Comment on Validity of Application on 13 April 2016.
[6]The applicant responded to the Invitation on 26 April 2016 confirming that her authorized recipient informed her of the Subclass 100 refusal decision by the Department of 23 December 2015. She then failed to make application for review to the AAT on time (13 January 2016).
[7]She has claimed in her response to the Invitation that she never knew or heard of the migration agent, Kayhan Oncu, (who was her authorised representative at the time) nor did she personally receive the Department's letter of 23 December 2015. This claim must be juxtaposed with the Department's decision record (on the Tribunal file) which indicates that she had contact with her migration agent and the Department during 2015 concerning her Subclass 100 application.
The Tribunal did take into account and consider the Applicant’s letter of 26 April 2016 and this Ground fails to establish jurisdictional error.
Ground 2
This Ground also must necessarily fail. The Tribunal was correct to find that under s.494C(5) of the Act, since the Decision Record of the Delegate had been transmitted by email (as permitted by s.494B(5)(b)), the Applicant was to be taken to have received it on that date on which it was sent, being 23 December 2015. This meant that her application for merits review had to be lodged with the Tribunal by 13 January 2016 but it had not been received by the Tribunal until 1 April 2016.
I note in this respect that under s.494D of the Act the Minister is taken to have given a document to a person if that person has given written notice of the name and address of an authorized recipient to the Minister and the document has been given to that authorized recipient, as I have found was the case here: see [9] – [10] and [21] above.
The decision of the Delegate was a Part 5 reviewable decision as a result of the combined effect of s.338(2)(a) and s.338(9) of the Act. This meant that by the combined effect of s.347(1)(b) and reg.4.10(1) of the Regulations, the period which the Applicant had to lodge her application to the Tribunal ended 21 days after the day on which she received the Delegate’s decision, namely in this case on 13 January 2016.
I note that the statutory regime applicable in this case was considered and explained by Charlesworth J in Calimoso v Minister for Immigration [2016] FCA 1335 where at [29] she said as follows:
[29]The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be brought…
In SZJQC v Minister for Immigration [2008] HCASL 66 Kirby and Heydon JJ in the High Court likewise had said:
[3]There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default.
Accordingly, the Applicant is taken to have received the Decision Record of the Delegate on 23 December 2015 and this Ground fails to establish jurisdictional error.
Ground 3
This Ground speaks of the belief of the Applicant. Unfortunately for the Applicant her belief that her application for merits review to the Tribunal was valid is irrelevant and contrary to the statutory effect of the provisions considered above and this Ground fails to establish jurisdictional error.
Final Matter
I noticed that at Court Book 255 there appeared a s.375A Certificate. I raised with Ms Wong, who appeared for the Minister as a model litigant, whether that Certificate had any relevance to this proceeding.
I record that I accept the Minister’s response that the s.375A Certificate cannot on behalf of the Applicant establish procedural unfairness such that jurisdictional error is established. In this case the Tribunal correctly found at the threshold that it lacked jurisdiction. Accordingly there was never any hearing or determination on the merits to which the s.375A Certificate or any of the documents covered by it could be relevant or which could lead to procedural unfairness resulting in practical injustice.
Conclusion
The Applicant has failed to establish jurisdictional error and her Application filed in this Court on 20 June 2016 is to be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 December 2017
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