Singh v Minister for Immigration
[2018] FCCA 1081
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1081 |
| Catchwords: MIGRATION – Out of time Application – no explanation – migration agent also solicitor attended hearing before Tribunal where it recorded the agent as being required to file the requisite “notification form” which he failed to do – the Application in fact sought impermissible merits review of the Tribunal’s decision but required an extension of time as a preliminary Application – no relevant grounds established to warrant an extension of time – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.312A, 312B, 379A(5)(d), 379G(1) - (3), 477(2) Migration Regulations 1994 (Cth), reg.801.221(1) |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; (2013) 137 ALD 466 Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 |
| Applicant: | AMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 19 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 1 September 2017 |
| Date of Last Submission: | 1 September 2017 |
| Delivered at: | Canberra |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Hugh Ford & Associates |
| Solicitors for the Respondents: | Clayton Utz (Canberra) |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Application filed on 28th March 2017 by the Applicant be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
The Registrar of this Court is directed to provide a copy of the Court’s written reasons in relation to this matter to the President of the ACT Bar Association and the President of the Law Society of the ACT.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 19 of 2017
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
There is a not insignificant procedural history to this matter that comes before the Court primarily to seek an extension of time for the hearing of an Application in relation to a challenge to a decision of the Administrative Appeals Tribunal (“the Tribunal”) that was made on 23rd September 2015.[1] The current Application is out of time by approximately 18 months (517 days, to be precise). As noted below, there was/is even some doubt about whether there relevantly was a valid Application to seek an extension of time.
[1] The very brief “statement of decision and reasons” of the Tribunal is found at Court Book (“CB”) pp.382 – 383.
The decision by the Tribunal affirmed the decision of the Delegate, made on 16th September 2013, not to grant the Applicant a Partner (Residence) (Class BS) visa.
For the reasons that follow, the Application for an extension of time must be refused with costs in accordance with the Schedule to this Court’s Rules.
Procedural History
Although it is set out in detail in the First Respondent’s submissions, it is as well to set out here a brief overview of the unusual chronology of procedural matters that have attended this Application. Regrettably, there must also brief comment on the unusual grounds and circumstances raised by the Applicant’s lawyer(s).
On 10th August 2010, the Applicant made a combined Application for a subclass 820 visa (Partner (Temporary) (Class UK) (subclass 820) visa), and a subclass 801 visa.[2]
[2] See amended CB at 1 – 53.
On 16th September 2013, the Delegate refused to grant the Applicant a subclass 820 visa because, the Delegate held, that the Applicant did not meet the criteria prescribed in 820.21 and 820.22 of the Migration Regulations (1994).[3] The Delegate further held that because the Applicant had not been granted a subclass 820 visa he was not eligible to meet the criteria prescribed for a subclass 801 visa. Accordingly, the Delegate refused his Application for the grant of a subclass 801 visa.
[3] See CB 189 - 215.
On 10th October 2013 the Applicant sought to review the decision of the Migration Review Tribunal (“MRT”). In response to the question on his Application form “what decision do you want reviewed?” the Applicant confirmed that it was the decision to refuse a visa, being visa class “BS” and subclass “801”.[4] By letter to the Applicant, dated 11th October 2013, the MRT acknowledged [incorrectly] that the Applicant made an Application for review of the Delegate’s decision to refuse to grant him a subclass 820 visa. The MRT made no reference to the Applicant having made an Application for review in relation to the subclass 801 visa.
[4] CB 219.
On 23rd December 2014 the MRT affirmed the Delegate’s decision to refuse the Applicant’s subclass 820 visa; however the Tribunal did not actually determine the Applicant’s Application for review of the Delegate’s decision to refuse him a subclass 801 visa.
On 19th January 2015 the Applicant sought review of the MRT’s decision in this Court. On 11th May 2015 this Court made Orders by consent quashing the MRT’s decision and remitting it to the MRT, differently constituted for [re]determination according to law. [5]
[5] CB 328 – 329.
On 27th May 2015 the differently constituted MRT wrote to the Applicant’s authorised representative, Mr J Hourigan, to notify him (among other things) that the Court had remitted the Applicant’s Application for review to the MRT for reconsideration.
On 16th June 2015 the MRT again wrote to Mr Hourigan and invited the Applicant to appear before it again on 15th September 2015.[6] A further Hearing invitation was sent on 11th September 2015, and Mr Hourigan provided a response later that day.[7] On 14th September 2015 Mr Hourigan e-mailed the Tribunal to confirm that he would not be appearing on behalf of the Applicant at the hearing the following day.[8] On 15th September the Applicant, together with solicitor Mr Hugh Ford, attended the hearing.
[6] CB 345 – 351.
[7] CB 353 – 368.
[8] CB 369.
I note here that the “Hearing record” records the attendance of not only the Applicant and his partner but also Mr Ford, and that next to Mr Ford’s name is the following notation: “to complete appointment form.”[9]
[9] CB 370.
On 23rd September 2015 the MRT again affirmed the Delegate’s decision to refuse to grant the Applicant a subclass 801 visa because, it held, the Applicant was not a holder of subclass 820 visa. Accordingly, the Applicant did not satisfy clause 801.221(1) of the Migration Regulations.[10]
[10] CB 375 – 387.
Among other things the MRT discussed with the Applicant that, pursuant to clause 801.221(1) of the Regulations, it was a specific requirement for the grant of a subclass 801 visa that “the Applicant is the holder of a subclass 820 visa”.[11]
[11] See CB 382; Decision Record at pars. 8 and 9.
The Applicant’s representative (Mr Ford) submitted to the Tribunal that it should be inferred from the Consent Orders filed with the Court on 11th May 2015 that the Tribunal was required to review both aspects of the Applicant’s Application, namely, the refusal of the subclass 801 visa, and the refusal of the subclass 820 visa. The Tribunal did not accept this submission. In doing so, the Tribunal noted that the Consent Orders of 11th May 2015 state specifically that the Application for Review lodged on 10th October 2013 was an Application seeking review of the Delegate’s decision to refuse a subclass 801 visa. The Tribunal also noted that the Consent Order was signed by the Applicant’s solicitor, Mr Ford.
The Tribunal went on to state that it considered itself bound by the agreed statement of error set out in the notation to the Court’s Orders which meant that the Applicant was bound by the only matter that was available to be reviewed was the decision to refuse the subclass 801 visa. The converse followed: because of the Consent Minute accepted by the Court in May 2015 it was not possible for there to be a review of any separate decision regarding the refusal of a subclass 820 visa.[12]
[12] See CB 383; Decision Record at par. 10.
It followed from the above that because the Applicant was not the holder of a subclass 820 visa the Tribunal was unable to be satisfied that he met the criteria prescribed by subclause 801.221(1) of the Regulations. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the subclass 801 visa Application.
On 28th March 2017, the Applicant filed an Application in this Court seeking a review of the decision by the Tribunal. The Application also sought an extension of time for the making of an Application pursuant to s.477 of the Migration Act 1958 (“the Act”). In passing, I note that in the Final Orders sought in this Application, various writs are sought, not in relation to the AAT but rather surprisingly in relation to the “Immigration Assessment Authority or Minister”. To state the obvious: inattention to detail in this Application (and other matters noted shortly) was, unfortunately, a significant feature of the documentation filed on the Applicant’s behalf.
The Application was supported by an Affidavit of Mr Ford (it is not specified whether it was sworn or affirmed). That Affidavit purported to outline an abbreviated procedural history as well as asserted what the AAT allegedly failed to take into account and how it failed [properly] in the exercise of its jurisdiction. Paragraph 13 of Mr Ford’s Affidavit (filed 28th March 2017) stated: “The AAT notified the Applicant of its decision on 27th March 2017 by way of e-mail addressed to the deponent. A copy of the notification attached as [sic] Annexure ‘D’.” That correspondence stated: “Good Morning Mr Ford, Please find relevant decision documents attached.” No other correspondence between Mr Ford and the AAT is attached to Mr Ford’s Affidavit. I return to Mr Ford’s Affidavit later in these reasons.
It is sufficient to note here that at the hearing on 1st September 2017, Mr Ford’s colleague, Mr Abbas, confirmed that (a) Mr Ford holds himself out as an expert or specialist in migration matters, (b) at no time since the hearing held on 15th September 2015 has Mr Ford filed a “notice of appointment”, and (c) this failure to file such a notice was an “omission” by Mr Ford.
From these admissions by Mr Abbas in relation to Mr Ford’s expertise and his actions in this matter, the Court may conclude that a likely way of understanding par.13 of Mr Ford’s Affidavit, filed 28th March 2017, is that he is seeking to have the Court understand that the email to Mr Ford (not to the Applicant, as Mr Ford deposed) was the first and perhaps only notice from the Tribunal of its decision. As the expert that he is in migration matters, and in the light of Mr Abbas’ acknowledgement that no relevant Notice of Appointment was ever filed by Mr Ford with the Tribunal, on its face, the Affidavit is misleading. It is certainly inaccurate. Moreover, the letter to the Applicant’s recorded “agent” (Mr Hourigan) was and remained the “contact” for the Applicant, as notified in the Tribunal’s letter to Mr Hourigan, dated 23rd September 2015.[13] That letter stated (in bold type): “By providing you with these documents, we are taken to have given the documents to the Applicant. You should ensure that the Applicant is informed of this notification as soon as possible.”
[13] CB 375.
In short, the logical inferences from the above are that (a) Mr Hourigan did not inform the Applicant of the Tribunal’s decision, dated 23rd September 2015, (b) Mr Ford never filed a Notice of Appointment as the Applicant’s “agent”, and (c) Mr Ford’s affidavit seeks to present the Tribunal as having notified the Applicant of its September 2015 decision only by email, dated 27th March 2017. If the last proposition is correct, it could (and likely would) constitute misleading the Court. At the very least, on the admissions by Mr Abbas, to which I have referred, and the matters set out in the original Application (and Mr Ford’s own Affidavit) the expertise of Mr Ford in relation to migration matters must be seriously put into question. This is more so the case in the light of other matters noted later in these reasons.
Mr Ford filed an Amended Application on 30th May 2017 on behalf of the Applicant. In that Application two things are clear on its face and also by comparison with the original Application: (a) nothing is “ticked” or otherwise marked in the section dealing with an Application for an extension of time, by which the Court (and or anyone else) would reasonably infer that no Application for an extension of time was now being sought, and (b) the grounds of the Amended Application were noticeably different to the grounds set out in the original Application filed on 28 March 2017.
Mr Ford filed an outline of submissions on 30th May 2017. He filed further submissions on 18th August 2017.
For completeness I note that the Minister filed two separate sets of submissions (both of them filed 25th August 2017): (a) the first set of submissions dealt solely with the extension of time Application; (b) the second dealt with substantive grounds of the [original] Application to review the Tribunal’s decision.
The final procedural matter (which also entailed some substantive issues) concerned the Court raising with Mr Abbas (for the Applicant) whether or not an extension of time was still being pursued given that the Amended Application sought no such Order. It was in the course of this longer discussion with Mr Abbas that some of the earlier- mentioned matters involving the lack of accuracy in the documents filed by Mr Ford on behalf of the Applicant were raised, and in particular, his failure to file a Notice of Appointment on behalf of the Applicant following his appearance on the Applicant’s behalf before the Tribunal in September 2015.[14]
[14] Generally in relation to the duties of registered migration agents (of which Mr Ford is one), see Part 3 Division 5 of the Act, and in particular ss.312A and 312B.
Among other things Mr Abbas initially submitted that the [substantive] grounds of review set out in the original [March 2017] Application, and those set out in the Amended Application, filed 30th May 2017, were largely identical. When it was pointed out to him that this was not the case, he suggested that the best course would be simply to proceed on the original Application for review, particularly since that was the only document before the Court that sought an extension of time, and because the Minister had [obviously] filed submissions on the extension of time. The solicitor for the Minister then confirmed that he had never been served with the Amended Application filed by Mr Ford. I checked further with Mr Abbas whether he needed to have the matter stood down briefly to get instructions in relation to withdrawing the Amended Application; he said he did not.
Preliminary Observations
Although the Applicant’s lawyer, Mr Ford, (a) filed the original Application which sought an extension of time, pursuant to s.477(2) of the Act, but (b) did not refer to the out of time Application in either of his two sets of written submissions, at the hearing his colleague, Mr Abbas, made the following brief submissions in relation to the out of time Application.
First, Mr Abbas initially sought leave to amend the Amended Application so as to “tick the box” to indicate that an out of time Application was sought by the Applicant.
Secondly, he said that the Minister obviously understood that there was an out of time Application before the Court because there were specific submissions in relation to that aspect of the proceeding. It was at this point that the solicitor for the Minister confirmed that he had not been served with the Amended Application. Mr Abbas suggested that an adjournment would be appropriate to give the Minister time to consider the Amended Application, but in this regard he said that the grounds of the substantive Application were largely the same. I have earlier noted that in the course of the hearing it was pointed out to him that plainly this was not the case.
Thirdly, Mr Abbas said that only one ground of the original Application was relevant and pressed (ground 12 – which referred to “the AAT also fell into jurisdiction [sic] error by asking itself the wrong question when it framed a question “whether Mr Singh meets the requirements for a subclass 801 visa.”).
Fourthly, he said that Mr Ford’s conduct in not chasing up the Tribunal, and not filing a Notice of Appointment to act for the Applicant and as the Applicant’s authorised recipient, or to act as the Applicant’s authorised representative, was not to be condoned. However, the Applicant should not be penalised for the failures of Mr Ford. Mr Abbas also suggested that the Tribunal was “confused” as to who was acting for the Applicant.
Fifthly, Mr Abbas said that the substantive Application has merit in that the Tribunal [allegedly] committed the same “jurisdictional error” as did the Tribunal in its first decision by not considering, or not properly considering the two visa Applications – for both a subclass 801 visa and a subclass 820 visa.
The Applicant’s Submissions
On 30th May 2017, the Applicant filed an Outline of Submissions, which were as follows:
1) In Paragraph 14, the tribunal acted unreasonably in not accepting the financial aspect of the relationship of the Applicant and his spouse despite the evidence about them having joint account and plausible explanation as to them having separate bank accounts.
2) In paragraph 15 of its decision, the tribunal failed to take relevant consideration into account that by virtue of section 5 F (d), the Applicant and his sponsor were not required to show that they had always lived together under one roof.
3) The tribunal erred in rejecting the claim of the Applicant and his spouse as to their living arrangement which was in accordance with the requirement of section 5 F(d) (ii) of the Act.
4) The tribunal finding as to the nature of household of the Applicant and his spouse is against the evidence on the record.
5) The tribunal acted unreasonably in not accepting that the there was enough evidence of social aspect of the relationship to treat it as a continuing relationship.
6) The tribunal committed an error of law in finding the relationship as fabricated on the basis that at the time of Application they were not living together. This finding was not open to the tribunal in view of section 5F (d) (ii) of the Act.
7) The finding of the relationship as fabricated is also contradictory to the tribunal's own finding where it accepted that the pair was still validly married.
8) The tribunal failed to ignore the plausible explanation of the sponsor as to her withdrawal of the sponsorship for the Applicant.
9) The tribunals finding against the genuineness and continuity of the relationship is against the law and facts of the matter.
In view of the above the Applicant submits that the Tribunal's decision suffers from Jurisdictional errors and therefore its decision may be quashed and it be directed to decide the case according to law.
On 18th August 2017, the Applicant filed further submissions, which provided as follows:
Introduction
Before this Honourable Court is an Application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal, (“Tribunal Decision” and “Tribunal” respectively) made on 23 September 2015 to affirm a decision of a Delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) made on 16 September 2013 to refuse the Applicant a Partner (Temporary) (Class UK) sub-class 820/ Partner (residence) (Class BS) (subclass 801) Visa under s.65 of the Migration Act 1958 (“the Visa”)
Background
The background to the Judicial Review Application is as follows:
1. The Applicant lodged an Application for the grant of a Partner (Temporary) (Class UK) (Sub class 820) Visa and a Partner (Residence) (Class BS) (Subclass 801) Visa on 16 September 2013 on the ground of being the spouse of an Australian citizen. The spouse also lodged a sponsorship in support of the Visa Application.
2. The Delegate decided that the Applicant did not meet requirements for subclass 801.221(1) of the Migration Regulations 1994 (Regulations) and is not the holder of 820 visa and therefore cannot be granted a subclass 801 visa.
4. The Delegate’s decisions were affirmed by the Tribunal.
Relevant legislation
Migration Act 1958
Regulation 2.25A, the Migration Regulations 1994
Clause 820.223 of Schedule 2 of the Migration Regulations 1994.
Clause 801.221 of Schedule 2 of the Migration Regulations 1994.
In determining whether to grant a visa s.65 of the Migration Act provides that the Minister (here the Tribunal) is required to be satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied, and if so to grant the relevant visa, but if not so satisfied, to refuse to grant the relevant visa.
Issue for consideration before the Tribunal
In this matter, the relevant issue for consideration by the Tribunal was whether Mr Singh met the requirements for a UK subclass 820 and BS Subclass 801 visa.
Tribunal’s Decision
In its Decision, the Tribunal found that:
a) Based on the opinion of the member, the Applicant does not satisfy the essential requirements for the grant of subclass 801 visa because the Applicant is not the holder of a Subclass 820 Visa.
b) As the Application does not meet the primary criteria the decision of the Minister under review must be affirmed not to grant the Applicant a Partner Residence (Class BS) visa.
Grounds Of The Judicial Review Application
GROUND 1. The migration decision under review suffers from jurisdictional error and as such is not a ‘privative clause decision’ within the meaning given by subsection 474 (2) of the Migration Act 1958.
The grounds 2 to 4 show the decision of the Tribunal suffered from jurisdictional errors.
GROUND 2. The Tribunal wrongfully assessed the Application for BS Subclass 801 visa.
The Application for a Partner visa involves two stages. All onshore Applicants for a Partner visa are assessed against the criteria for UK Subclass 820 visa and BS Subclass 801 visa. In the first stage, Applicants undergo assessment against 820 visa criteria also known as provisional visa. The provisional 820 visa is normally granted for two years and after the expiry of this time and fulfilment of the requirements for this visa the Minister invites the holder of 820 visas to apply for 801 (permanent) visa. The Tribunal instead of assessing the Applicant for 820 visa first started assessing him for 801 which does not make sense and as a result made an error of law.
GROUND 3. The Tribunal’s flawed approach to make assessment of the Application for a partner visa.
While deciding the Application, the Tribunal did not assess the Application against Subclass 820 visa. Although, the Court remitted back the matter to the Tribunal for the assessment of the Application against Subclass 801. The tribunal must have assessed the Applicant for both 801 as well as 820 visa. The Tribunal during the interview questioned the Applicant whether he held 820 visa. In response the Applicant told the Tribunal he was not a holder of 820 visa as he was never granted 820 visa.
It was a wrong question by the Tribunal. The Applicant should have been assessed for the 820 visa first on the evidence available to the Tribunal. By failing to take into account the relevant consideration which was the assessment of the Applicant for 820 visa, the Tribunal committed a jurisdictional error.
GROUND 4. The Tribunal misunderstood/misinterpreted the directions of the Honourable Court while reviewing the Application.
The Court in its express directions asked the Tribunal to assess the Application for 801 visa. In the order, it is nowhere mentioned that the Tribunal should not assess the Applicantion for 820 visa. It was denial of the procedural fairness to the Applicant by the Tribunal by not making assessment of the Application for 820 first on the basis of the available evidence. The Tribunal at paragraph 10 mentioned that the review Application before the Tribunal is not for review of 820 visa. This failure of the Tribunal to assess the Application according to procedural fairness constitute a jurisdictional error on the part of the Tribunal.
In view of the above the Applicant submits that the Tribunal's decision suffers from Jurisdictional errors and therefore its decision may be quashed and it be directed to decide the case according to law.
It will be immediately apparent that there is no reference in either set of submissions to the “out of time” aspect of the Application. This is a serious omission, particularly from someone (Mr Ford) who holds himself out as an expert in migration matters. To state the obvious: time limits are a commonplace and crucial aspect of virtually all aspects of the law. In migration matters, time limits are crucial.
Submissions on behalf of the First Respondent
As earlier noted, the Minister filed two, separate Outlines of Submissions on 25th August 2017 – one in relation to the Applicant’s extension of time Application, and the other in relation to the substantive review Application.
The Minister’s submissions regarding the extension of time Application filed on 25th August 2017 were as follows (footnotes omitted):
1) These extension of time submissions are filed by the Minister in accordance with the orders made by his Honour Judge Neville on 18 April 2017. They are to be read alongside the Minister's written outline of submissions filed on 25 August 2017.
2) The Applicant’s Application for judicial review was filed on 28 March 2017, some 517 days outside of the 35 day period prescribed by s.477 of the Migration Act 1958 (Cth) (Act). The Applicant seeks an extension of time pursuant to s.477(2) of the Act. The Applicant has raised four grounds in support of that Application which are dealt with in substance below.
3) Although the prescribed time limit should ordinarily be obeyed (WAAD v Minister for Immigration [2002] FCAFC 399 at [5]), s.477(2) of the Act allows the Court to enlarge the time within which an Applicant can apply for judicial review. Such an Application must have been made in writing, and the Court must be satisfied that an extension is necessary in the interests of the administration of justice. The considerations relevant to what can be 'in the interests of the administration of justice' are not exhaustive. However, they are fairly summarised by Judge Nicholls in SZQDG & Anor v Minister for Immigration and Anor [2011] FMCA 836 at [23] as being: (1) the extent of the delay and the reasons for the delay; (2) whether there is any merit in the Application; (3) whether there is any prejudice to the respondents; (4) the impact on the Applicant; (5) the interests of the public at large; and (6) the Court's discretion itself.
4) The first two of these factors, being the explanation for the delay and the merits of the substantive Application, are generally considered the “critical considerations”: SZNZI v Minister for Immigration [2010] FMCA 57 at [11].
5) Extent of the delay and reasons for the delay: There can be no dispute that the delay is excessive. The relevant question then is whether the Applicant has provided a satisfactory explanation for the delay. In the Minister's respectful submission, he has not.
6) Under his grounds of Application for the extension of time, the Applicant asserts that he was never notified of the second Tribunal's decision of 23 September 2015. The Applicant continues that “[i]t was only on 27 March 2017 when the solicitor/migration agent of the Applicant made an inquiry with AAT regarding the decision that he was notified and sent the copy of the decision via his email address.”
7) The second Tribunal’s decision record is dated 23 September 2015. It was sent to the Applicant's migration representative at that time, Mr John Hourigan, under cover of an email sent at 2.36pm on 23 September 2015 to the following email address: [email protected] (CB 374-387). This email address accurately matches the email address that was listed at Part F, Question 23 (“Representative's details”) in the Applicant’s Application for review filed on 10 October 2013 (CB 222). Critically, Part F of the Application for review form contained the following note: “If you appoint a representative you will also be authorising them to receive correspondence from the Tribunal in relation to the your Application.” The Applicant was then asked at Question 21: “Do you want to appoint a representative to act on your behalf and to be your authorised recipient?” The Applicant ticked the box marked “Yes” (CB 222).
8) The Minister submits that the second Tribunal correctly addressed its correspondence to the Applicant, including its covering email attaching its decision notification, to the email address of the Applicant's authorised recipient in connection with his Application for review. Although the second Tribunal's hearing record of 15 September 2015 contains an annotation indicating that: (i) Mr Hourigan did not appear at the hearing and was required to complete a withdrawal of representative form; and (ii) Mr Ford appeared at the hearing on behalf of the Applicant and was required "to complete [an] appointment form" (CB 370), there is no material on the Department’s file or any evidence before this Court which indicates that either the Applicant, Mr Hourigan or Mr Ford submitted an ‘Appointment/withdrawal of an authorised recipient’ form (Form 956A) to the Tribunal before the second Tribunal's decision on 23 September 2015 (or at all), in accordance with s.379G(3) of the Act.
9) In light of the foregoing, and in accordance with the deeming provisions in ss.379A(5)(d) and 379G(1) of the Act, the second Tribunal was required to give to the authorised recipient, instead of the Applicant, any document that it would have otherwise given the Applicant (and which the Applicant is taken to have received). This is what it did. As the decision notification was emailed to the Applicant’s authorised representative on 23 September 2015, it was taken to have been given to the Applicant, pursuant to s.379G(2) of the Act. Accordingly, the Applicant is taken to have received notification of the second Tribunal’s decision on 23 September 2015. His explanation for the delay, when balanced against the length of the delay, is not adequate.
10) Merits of the substantive Application: for the reasons set out in the Minister’s written outline of submissions, the substantive Application is without merit.
Disposition
11) While the Minister does not contend that any prejudice has been suffered by reason of the delay, the Minister submits that the extension should be refused on the basis that the grounds stated in the judicial review Application are without merit and the Applicant has not proffered an acceptable explanation for the significant delay. These considerations are significant and outweigh any other factors in the circumstances of this matter.
The submissions in relation to the substantive Application are set out in full as follows (footnotes omitted):
1) There is before the Court an Application under s.476 of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the second respondent (Tribunal) on 23 September 2015, affirming a decision of a Delegate of the first respondent (Delegate) on 16 September 2013 to refuse to grant the Applicant a Partner (Residence) (class BS) (subclass 801) visa pursuant to s.65 of the Act.
2) These submissions are filed by the Minister in accordance with the orders made by his Honour Judge Neville on 18 April 2017 and respond to the Applicant's Application for review filed on 28 March 2017 (Application), and written outline of submissions filed on 18 August 2017.
3) The Minister submits that the Application does not establish jurisdictional error. For the reasons that follow, the Application ought to be dismissed with costs.
Background
4) The procedural history of this matter is outside of the ordinary course.
5) On 10 August 2010, the Applicant made a combined Application for a Partner (Temporary) (class UK) (subclass 820) visa (Subclass 820 visa) and a Partner (Residence) (class BS) (subclass 801) (Subclass 801 visa): Amended Court Book (CB), 1-53.
6) On 16 September 2013, the Delegate refused to grant the Applicant a Subclass 820 visa on the basis that the Applicant did not meet the prescribed criteria in 820.21 and 820.22 of the Migration Regulations 1994 (Cth) (Regulations) (F2013C00052) (CB 189-215). Further, as the Applicant had not be granted, and so was not the holder of a Subclass 820 visa, he was not eligible to meet the prescribed criteria for a Subclass 801 visa as set out in 801.221(1) of the Regulations. The Delegate therefore also refused his Application for the grant of a Subclass 801 visa (CB 201-202).
7) On 10 October 2013, the Applicant made a single Application for review to the Migration Review Tribunal (as it then was) (first Tribunal). In response to the question on his Application form “What decision do you want reviewed?”, the Applicant indicated the refusal of a visa being visa class “BS” and subclass “801” (CB 219). He paid a single Application fee of $1,604 (CB 224).
8) By letter to the Applicant dated 11 October 2013, the first Tribunal incorrectly acknowledged that the Applicant made an Application for review of the Delegate's decision to refuse to grant him a Subclass 820 visa (CB 227). The Tribunal made no reference to the Applicant having made an Application for review of the Delegate’s decision to refuse to grant him a Subclass 801 visa.
9) On 23 December 2014, the first Tribunal purported to affirm the Delegate’s decision to refuse the Applicant a Subclass 820 visa (CB 318-323). The Tribunal did not in fact determine the Applicant’s Application for review of the Delegate’s decision to refuse to grant him a Subclass 801 visa.
10) On 19 January 2015, the Applicant sought review of the first Tribunal’s decision in the Federal Circuit Court: Federal Circuit Court Proceeding No. CAG16/2015 (first proceedings).
11) On 11 May 2015, this Court made orders by consent quashing the first Tribunal’s decision and remitting it back to the Tribunal, differently constituted, for determination according to law (CB 328-329).
12) On 27 May 2015, the Migration Review Tribunal, differently constituted (second Tribunal), wrote to the Applicant’s authorised representative in relation to the first Tribunal’s decision, Mr John Hourigan, notifying him that the Court had remitted the Applicant’s Application for review to the Tribunal for reconsideration (CB 331).
13) On 16 June 2015, the second Tribunal wrote to Mr Hourigan and invited the Applicant to appear before it on 15 September 2015 (CB 345). A further hearing invitation was sent on 11 September 2015 and Mr Hourigan provided a response later that day (CB 353-363 and 364-368).
14) On 14 September 2015 at 11.16pm, Mr Hourigan emailed the Tribunal indicating that he would not be appearing on behalf of the Applicant at the hearing on 15 September 2015 (CB 369). The following day the Applicant appeared before the second Tribunal to give evidence and present arguments. The second Tribunal's hearing record indicates that the Applicant was represented at the hearing by Mr Hugh Ford, and not by Mr Hourigan (CB 370-371).
The Second Tribunal's decision
15) On 23 September 2015, the second Tribunal affirmed the Delegate's decision to refuse to grant the Applicant a Subclass 801 visa on the basis that the Applicant was not a holder of a Subclass 820 visa and therefore did not satisfy cl.801.221(1) of the Regulations (CB 375-387).
16) In reaching its decision, the Second Tribunal took into consideration the evidence that was previously put before the first Tribunal and the Delegate, in addition to the oral evidence provided by the Applicant at the hearing: Decision Record (DR) at [8]. At the hearing, the Applicant stated that he was not the holder of a Subclass 820 visa. The Applicant also stated that he and his sponsor had been in a relationship since 2009, and asserted that their relationship was genuine and continuing. The Tribunal discussed with the Applicant that pursuant to cl.801.221(1) of the Regulations, it was a mandatory requirement for the grant of a Subclass 801 visa that “the Applicant is the holder of a Subclass 820 visa.” DR at [9].
17) The Tribunal then considered a submission advanced by the Applicant's representative that it was to be inferred from the Court's consent orders of 11 May 2015 that the second Tribunal was required to review both the Delegate’s decision to refuse the Subclass 801 visa and the Delegate’s decision to refuse the Subclass 820 visa. The Tribunal did not accept this argument. It observed that the Court's orders, which were made by consent, stated that the Applicant’s Application for review lodged on 10 October 2013 was an Application seeking review of the Delegate’s decision to refuse a Subclass 801 visa. It then observed that what ‘Part 5-Reviewable decision’ is the decision under review is a jurisdictional fact and so a matter open to determination by the Court. As such, the Tribunal considered itself bound by the ‘agreed statement of error’ attached to the Court's consent orders and found that the Applicant had applied to the Tribunal for review of the Delegate’s decision to refuse the Subclass 801 visa, and not for review of the Delegate’s separate decision to refuse the Applicant a Subclass 820 visa: DR at [10].
18) In light of the above, as the Applicant was not the holder of a Subclass 820 visa, the Tribunal was unable to be satisfied that he met the prescribed criteria of subclause 801.221(1) of the Regulations. The second Tribunal affirmed the Delegate’s decision to refuse the Subclass 801 visa: DR at [13].
Second Application for Review
19) On 28 March 2017, the Applicant applied for judicial review of the second Tribunal’s decision (Application).
20) The Application includes twelve grounds. The first eight grounds recite the procedural history of the matter. The balance of the grounds complain that the second Tribunal erred in failing to review both the Delegate's decision to refuse the Subclass 801 visa and the Delegate's decision to refuse the Subclass 820 visa. Although the Applicant's written outline of submissions purport to raise four new grounds (for which the Applicant would require leave), the gravamen of these complaints appears to be substantially the same as those advanced in the Application.
Consideration
Issue estoppel
21) It is submitted that the Consent Orders made by this Honourable Court on 11 May 2015 have the effect that the Application must fail by reason of the operation of the doctrine of issue estoppel with respect to a matter of fact. The distinction between res judicata and issue estoppel was explained by Dixon J in Blair v Curran (1939) 62 CLR 464, 532 as follows:
‘In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.’ (emphasis added)
22) In Outram v Morewood (1803) 3 East 346 at 355; 102 ER 630 at 633, in a statement cited by Fullagar J in Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 at 466, Lord Ellenborough explained that an issue estoppel precludes the parties and their privies “from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them ... has been, on such issue joined, solemnly found against them”.
23) These principles apply to judgments and orders made by consent: Isaacs v Ocean Accident and Guarantee Corporation Limited [1958] SR (NSW) 69 at 75 (Street CJ and Roper CJ in Eq); Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508. They can arise even where the cause of action in each proceeding is entirely different: Blair v Curran (1939) 62 CLR 464, 532; Jackson v Goldsmith (1950) 81 CLR 446, 460-461. However, with respect to factual questions, the issue estoppel applies only to what are described as “ultimate” facts and does not extend to “mere evidentiary facts”: per Fullagar J in Jackson v Goldsmith at 467. An ultimate fact may be found by the Court, or admitted or agreed between the parties for the purpose of determining the matter directly in issue: Hoystead v Commissioner of Taxation [1926] AC 155 at 165, 170.
24) The state or issue of “ultimate” fact that was resolved by the parties by consent in the first proceedings was set out in the following note in the Consent Orders made on 11 May 2015:
“4. The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error as the Second Respondent purported to determine an Application for review of the Delegate's refusal to grant a Partner (Temporary) (Class UK) Subclass 820 (Partner) visa and, in doing so, failed to correctly identify and determine the Application for review which the Applicant had made, being an Application seeking review of a decision of the Delegate to refuse to grant a Partner (Residence) (Class BS) (Subclass 801) (Partner) visa.”
25) The note contained within the Consent Orders of 11 May 2015 was expressed clearly. As set out above, it noted that the first Tribunal “…failed to correctly identify and determine the Application for review which the Applicant had made, being an Application seeking review of a decision of the Delegate to refuse to grant a Partner (Residence) (Class BS) (Subclass 801) (Partner) visa.” Accordingly, the Minister submits that the second Tribunal was correct to find that, as a matter of jurisdictional fact, the parties had consented to have the first Tribunal’s decision quashed and remitted back to the second Tribunal so that it could properly determine the review of the decision in respect of which the Applicant had actually sought review, that is, the Delegate’s decision to refuse to grant the Applicant a Subclass 801 visa. It is not now open to the Applicant, in this new Application, to raise an argument that the Tribunal was required to review both the Delegate’s decision to refuse the Subclass 801 visa and the Delegate's decision to refuse the Subclass 820 visa, in circumstances where that matter had been finally determined in the earlier proceeding, with the consent of both parties. The Application should therefore be dismissed.
The Application does not in any event disclose jurisdictional error
26) If notwithstanding, the Court is not disposed to dismiss the proceeding because of an issue estoppel, the Minister in any event submits that the Application does not disclose any jurisdictional error on the part of the second Tribunal and is without merit.
27) From the outset, the Minister submits that the Applicant’s argument cannot rest on any notion that because the Applicant lodged a combined Application for Subclass 820 and Subclass 801 visas, the Delegate's decision of 16 September 2013 was similarly ‘combined’ or one singular decision. A similar characterisation of a Delegate's partner visa subclass refusal decisions was advanced by the Applicant before Judge Harnett in the decision of Basra v MIBP & Anor [2017] FCCA 1302 (Basra). It was not accepted by her Honour. For the same reasons advanced by the Minister in Basra at [32] (and as accepted by the Court at [34]), the Minster submits that on 16 September 2013, the Delegate made two separate decisions to refuse the grant of a Subclass 820 visa and a Subclass 801 visa respectively.
28) With this in mind, it is submitted that the second Tribunal was correct to find that it only had jurisdiction to review the Subclass 801 decision as this was the only decision for which the Applicant had sought review. Specifically, in circumstances where:
a) the Applicant clearly identified under ‘Part C - Decision to be reviewed’ of his Application for review to the Tribunal dated 10 October 2013 that he sought review of the Delegate's decision to refuse his “BS 801” visa (CB 219);
b) the Applicant did not make a separate Application for review to the Tribunal on 10 October 2013 seeking review of the Delegate’s separate decision of the same date to refuse his Subclass 820 visa; and
c) the Applicant’s representative signed consent orders on behalf of the Applicant which expressly stated that the decision was being remitted back to the Tribunal for review of the Delegate’s decision to refuse to grant the Applicant a Subclass 801 visa,
the Minister respectfully submits that it is not open for the Applicant to now assert, contrary to the terms of the Consent Orders of 11 May 2015, and contrary to the terms of his Application for review to the Tribunal dated 10 October 2013, that the second Tribunal ought to have reviewed both of the Delegate's decisions to refuse each partner visa subclass.
29) If it was the Applicant's intention to have sought review of both of the Delegate's Subclass 801 and Subclass 820 visa refusal decisions, he would have needed to have: (1) lodged a separate Application for review with the Tribunal, “made in the approved form” (i.e. the Tribunal's ‘Form M1’), for the purposes of s.347(1)(a) of the Act; (2) responded to the question on the ‘Form M1’ “What decision do you want reviewed?” by indicating the refusal of a visa being visa class “UK” and subclass “820”, dated “16-Sep-2013”, and (3) paid the Application fee prescribed in the ‘Form M1’, pursuant to s.347(1)(c), so that the Tribunal could identify whether its jurisdiction to review the Delegate’s decision to refuse the Subclass 820 visa had been engaged, in accordance with s.348(1) of the Act. By not taking any of the above steps within the period prescribed by s.347(1)(b)(i) of the Act, the Applicant effectively lost his opportunity to seek review of the Delegate’s decision to refuse to grant the Subclass 820 visa. While the Minister acknowledges that the consequences of the manner by which the Applicant applied to the Tribunal for review on 10 October 2013 are unfortunate, the Applicant (who has been represented at all relevant times) nevertheless did only apply for review of the Delegate's Subclass 801 visa refusal decision.
30) Finally, and for the sake of completeness, the Minister submits that there was no factual or legal error in the second Tribunal's findings and conclusion. The second Tribunal was correct to find that the only decision under review for which the Applicant had sought review was the Delegate’s decision to refuse the Subclass 801 visa. The second Tribunal was also correct to find that, based on the Applicant's own evidence, the Applicant was not the holder of a Subclass 820 visa. As the Applicant did not hold a Subclass 820 visa, his Application for review was effectively futile because he could not satisfy cl 801.221(1) of the Regulations and therefore was not eligible for the grant of a Subclass 801 visa.
Conclusion
31) For the reasons given above, the Application should be dismissed with costs.
Consideration & Disposition
The basic principles to apply in relation to extensions of time are well-known and are set out in cases such as Hunter Valley Developments Pty Ltd v Cohen, Seiler v Minister for Immigration, Local Government and Ethnic Affairs, and SZTES v Minister for Immigration and Border Protection.[15] From these decisions it is sufficient to note the following.
[15] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J) (“Hunter Valley Developments”); Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at [98] (French J); SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [44] & [49] (Wigney J).
In Hunter Valley Developments, Wilcox J observed (in the citation already given) that the “interests of justice” (as used in s.477 of the Act) include considerations relating to:
(a)The extent of the delay;
(b)The explanation of the delay;
(c)Any prejudice to the Respondent;
(d)Any relevant impact on the Applicant;
(e)The interests of the public at large; and
(f)The merits of the substantive Application.
In the current matter, the delay must be considered to be in the very large if not extreme range – 517 days, or approximately 17 months.
The explanation of the delay is effectively, though implicitly, due to the omission of one or both of the migration agents who have acted for the Applicant. The Applicant contends that he was not or never was notified of the Tribunal’s decision. But what is particularly curious is that the Applicant himself has never filed an Affidavit in the current proceeding. The Affidavit in support of the original Application, filed 20th March 2017, was affirmed by his solicitor, Mr Ford. To state what should be obvious: by swearing an Affidavit, Mr Ford could thereby have made himself a witness in his client’s case, however remote that possibility might be, in circumstances where his client has not put any evidence himself before the Court.
The primary Affidavit in support of the Application to review, as just stated, was affirmed by the Applicant’s solicitor. The first 8 paragraphs of it simply recount the very basic history of the Applicant’s original hearing before, and the determination by, the Tribunal culminating in the Consent Orders of this Court, dated 11th May 2015.
The remaining 5 paragraphs of this supporting Affidavit are in the following terms:
9. Again on 23 September 2015, the Administrative Appeal [sic] Tribunal “AAT” failed to exercise its jurisdiction according to law and the directions made by FCC [sic].
10. In deciding the matter for the second time on 23 September 2015 the AAT failed to take account of a relevant considerations [sic] when it affirmed the decision not to grant the applicant a partner visa by stating that since the applicant is not the holder of a subclass 820 visa therefore the applicant was not eligible for subclass 801 visa.
11. The AAT also fell into jurisdiction error by asking itself a wrong question when it framed a question “whether Mr Singh meets the requirements for a subclass 801 visa.”
12. The decision of the AAT is attached as annexure “C”.
13. The AAT notified the applicant of its decision on 27/3/17 by way of email addressed to the deponent. A copy of the notification attached as annexure “D”.
I make the following comments in relation to this Affidavit.
First, as earlier noted, the Affidavit is affirmed by the Applicant’s solicitor. There is nothing sworn or affirmed by the Applicant.
Secondly, the five (5) paragraphs set out above constitute the only “evidence” before the Court regarding both the substantive review Application and in relation to the Applicant seeking relief, pursuant to s.477(2) of the Act, in circumstances where the Application was filed 17 months or so after the Tribunal’s decision.
Thirdly, it is readily apparent that paragraphs 9, 10 and 11 of Mr Ford’s Affidavit are framed primarily as either legal conclusions or submissions. The factual bases for them is not set out.
Fourthly, paragraph 13 impliedly relates to a purported claim regarding the notification of the Tribunal’s decision. Unfortunately, the terms in which it is expressed are misleading because the email (dated 27th March 2017) attached to the Affidavit is not, in any relevant sense, a “notification” of the Tribunal’s decision. Rather, as the email makes plain, presumably following an inquiry or request from Mr Ford, the Tribunal forwarded to him, as attachments, (a) the Tribunal’s decision (2 documents) and (b) the decision notification.
Fifthly, in my view there is no relevant evidence to support the Court exercising its discretion to grant an extension of time pursuant to s.477(2) of the Act. An Applicant who seeks such indulgence, in my view, is required to set out in proper form the factual basis that would enable the Court to grant an extension of time. Here there is no such evidence.
Moreover, even in the Applicant’s written submissions there remains complete silence regarding the factual and legal bases for seeking the Court’s indulgence under s.477(2).
Having regard to the considerations set out by Wilcox J in Hunter Valley Developments, noted above, in my view, the time delay in bringing the Application borders on the extreme; there has been no proper or remotely relevant explanation; the Minister acknowledges that there is little prejudice to him in the grant of an extension; the merits of the Application are, as I note briefly below, extremely low, bordering on being without merit.
Otherwise, I accept the submissions of the Minister in relation to the out of time Application. In this regard, I note in particular those submissions (at pars.6-9) which refer to the formalities prescribed under the Act regarding notification, namely ss.379G(1) and (3). Indeed, not only was the Applicant’s original migration agent (Mr Hourigan) notified of the hearing before the Tribunal and also sent a copy of the Tribunal’s decision, but also (and critically) Mr Ford attended the hearing with the Applicant. I have earlier noted that there is a notation (at CB 370) on the Hearing Record that Mr Ford was “to complete Appointment Form.” Plainly, this never occurred, as was acknowledged by Mr Abbas at the hearing before me.[16]
[16] For detailed discussion of the requirements and operation of s.379G, see the Full Court decision in MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; (2013) 137 ALD 466.
True it is that there is some sense of disproportion or injustice, as indicated or submitted by Mr Abbas, that the Applicant could be penalised due to the omissions of his migrations agents. There is more than some sympathy for such an argument. However, in the absence of any explanation, and the abject failure to take the most basic of steps both to explain the delay and to file a form that is standard practice and which was noted to Mr Ford at the hearing with the Applicant, in my view it would be inapt to grant the extension of time.
For these reasons, the Application for an extension of time must be dismissed, with costs.
I turn very briefly to the substantive Application for the sake of completeness.
First, I accept and adopt the submissions of the Minister.
Secondly in particular, the Applicant’s submissions are both misplaced and misguided, primarily because they seek to argue matters that are plainly not possible in terms of the Migration Regulations, and because of the terms of the Consent Order signed by Mr Ford on the Applicant’s behalf on 11th May 2015.
By these comments I mean simply that the terms of the Consent Order in May 2015 formally precluded the Tribunal considering anything other than the precise terms of Reg.801.22(2)(a), which requires that the Applicant be a “holder of a Subclass 820 visa”, which he plainly is not. Just as the terms of that Consent Order bound the Tribunal, so it likewise bound Mr Ford (who signed that Consent Order) and his client. Accordingly, the Applicant could not later argue that the Tribunal did not relevantly consider the refusal of an Application for a subclass 820 visa. Indeed, as the document at CB 219 plainly shows, the Applicant only ever sought review of the decision regarding the subclass 801 visa. He cannot, so long after that original decision and clearly stated Application, now seek a review of decisions regarding both subclasses of visa.
The Tribunal’s decision regarding the subclass 801 visa is plainly correct. Simple assertion of “jurisdictional error” without evidence and without relevant submissions, which is unfortunately a commonplace for Mr Ford, is insufficient to warrant the Court’s intervention.
Accordingly, the Application must be dismissed with costs as per Schedule 1 Part 3 of this Court’s Rules. Having regard to the poverty of the Application and the clear failure by him to file the requisite form to receive notifications on behalf of his client, particularly given that it was notified at the hearing before the Tribunal, it is a matter for Mr Ford whether he pays his client’s costs. In my view he should, but I make no formal Order in this regard.
Finally, this is but another in a significant list of matters in which the Application and submissions filed, and the conduct of the matter, by Mr Ford have been problematic. In this case, as set out earlier, his colleague, Mr Abbas, noted and accepted a series of errors by Mr Ford, which in the conduct and the result of the proceeding has led (at least in part if not substantially) to its dismissal and an adverse costs Order made against the Applicant. In such circumstances, as with earlier matters involving Mr Ford, these Reasons will be sent by the Registrar to the Presidents of the ACT Bar Association and Law Society. Because I have listed relevant authority in earlier judgments, I will not do so again here in relation to the Court’s grave concern to protect the Court’s limited resources, and to the degree that the Court can do so, to protect litigants from wasting funds on advice and or the conduct of litigation which is, in my view, seriously unprofessional.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 18 May 2018
2
12
3