Singh v Minister for Immigration
[2015] FCCA 1714
•23 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1714 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – application to Migration Review Tribunal out of prescribed time – whether Migration Review Tribunal had jurisdiction to hear review application – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66(1), 347, 348, 474, 494B(5), 494C(5), 494D(1) |
| Cheng v Minister for Immigration & Citizenship [2011] FCA 1290; (2011) 198 FCR 559 Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 628 Hu v Minister for Immigration & Anor [2014] FCCA 312 Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 Minister for Immigration & Citizenshipv SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 |
| First Applicant: | TARLOCHAN SINGH |
| Second Applicant: | NEELAM NEELAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 173 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 June 2015 |
| Date of Last Submission: | 23 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 23 June 2015 |
REPRESENTATION
| For the First Applicant: | In person |
| For the Second Applicant: | In person |
| Counsel for the First Respondent: | Mr P Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicants pay the first respondent’s costs in the sum of $6825 by 23 September 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 173 of 2014
| TARLOCHAN SINGH |
First Applicant
| NEELAM NEELAM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extemporaneously and later edited)
Introduction
The first applicant (“Mr Singh”), and the second applicant (“Ms Neelam”) commenced this proceeding on 11 June 2014 by filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 9 May 2014, is at Court Book 110-111. The Court Book (“CB”) containing relevant papers, including the Tribunal Decision, was marked as Exhibit 1. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent (“Minister”) to refuse Mr Singh and Ms Neelam Skilled (Provisional) (Class VC) visas (“Skilled Visas”). The Delegate’s Decision, made on 12 November 2013, is at CB 37-41.
Tribunal Decision
The Tribunal Decision, made on 9 May 2014 and which sets out the facts relevant to the issue to be determined, is as follows:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 13 November 2013, to refuse to grant Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
2.The review application was lodged with the Tribunal on 9 December 2013. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
3.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 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.
4.On 24 February 2014 the Tribunal wrote to the applicants advising of its preliminary view that it lacked jurisdiction because the review application appeared to have been lodged out of time. A response to the letter was received from the first named applicant in the form of a statutory declaration dated 17 March 2014. In it the applicant acknowledges that he did not lodge the application in time, however this was due to the fact that his then migration agent failed to advise him that his visa application had been refused until the day before the review application was due, despite the applicant contacting him numerous times. The applicant states that it was impossible for him to find another agent to help lodge the review application and find the required fee in time (i.e. only 24 hours).
5.The Tribunal also acknowledges an email submission from Mr Michael Stewart, Multinational Group, dated 22 December 2013 in support of the review application.
6.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 November 2013 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
7.The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 13 November 2013. Therefore the prescribed period within which the review application could be made ended on 4 December 2013. As the application for review was not received by the Tribunal until 9 December 2013 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.
The Judicial Review Application
On 11 June 2014 the applicants filed the Judicial Review Application in this Court seeking review of the Tribunal Decision. The Judicial Review Application was supported by an affidavit sworn by Mr Singh on 29 May 2014 (“Mr Singh’s Affidavit”).
In the grounds of the Judicial Review Application, the applicants refer to Mr Singh’s Affidavit in which Mr Singh contends that the Tribunal Decision was “unfair and unjust” in that:
a)the Tribunal did not take into account “the actual events and consequences and mistreatment by a registered Migration Agent” as outlined in Mr Singh’s Statutory Declaration of 17 March 2014 (“Mr Singh’s Statutory Declaration”); and
b)Mr Singh was “wrongfully misguided by a registered Migration Agent into believing [he] had a valid visa”.
On 23 July 2014 a Registrar of the Court listed the Judicial Review Application for final hearing today and ordered Mr Singh and Ms Neelam to file and serve an amended application giving particulars of the grounds of review and any further affidavits upon which they intend to rely at the hearing of the matter on or before 22 October 2014. Mr Singh and Ms Neelam were also ordered to file and serve an outline of submissions no less than 14 days before the hearing. Mr Singh and Ms Neelam have not filed and served an amended application, any further affidavits or an outline of submissions, but Mr Singh on behalf of both himself and Ms Neelam made oral submissions at hearing today.
The Minister has filed an outline of written submissions pursuant to the Registrar’s orders of 23 July 2014. It is unnecessary to set out the Minister’s submissions in detail. It suffices to observe that they contend that the Tribunal was not in error to find that it had no jurisdiction to hear the application to the Tribunal for review of the Delegate’s Decision.
Mr Singh’s Statutory Declaration
Having regard to the importance that Mr Singh’s Statutory Declaration assumes in the grounds of the Judicial Review Application, and to what is asserted by those grounds, it is appropriate to set out its content, which was as follows:
1. That in October 2012 I engaged the services of Mr Gajender Pal Singh, Migration Agent Registration Number 1169960, of Express Visa Migration Services Perth to assist with my Migration matters.
2. That I paid him all his agent visas and all the DIAC lodgement costs upfront
3. That on 29 December 2012 at 9:21:54 PM this agent received confirmation from DIAC being my AUTOMATIC NOTIFICATION OF BRIDGING VISA GRANT UNDER THE ONSHORE GENERAL SKILLED MIGRATION PROGRAM
4. That it was not until 25 February 2013 3:16:19 PM (some 2 months later) that this agent formally advised me of this Bridging Visa Grant despite my many calls to his office and even visiting his office but we was always too busy to see me or was supposedly not available.
5. That for the next 6+ months I made constant calls to this agent every couple of weeks to see how the process of my visa application was going and progressing and over this 6+ month period I only ever received 3 return phone calls from him all of which he had the same answer which was “its in progress”.
6. During the month of September, October and early November I made various personal visits to his office and on each occasion was told he is either not available, not in the office or busy with other clients.
7. By this .time I was very anxious, worried and somewhat angry.
8. During the .second half of the month. of November I was calling his office on a 2 or 3 times per day and he never accepted my call and I never received a return phone call either.
9. During this same period I again attended his office on numerous occasions but was told the same reason that either not available; not in the office or busy with other clients.
10. On 30 November the agent called me and requested mine and my wife's passport copies and I asked him what for and he said he would advise me later and I also asked him in this phone call about my visa application progress and he said he will have to call me back.
11. On 3 December 2013 he called me and said my application was refused and I now must lodge a MRT and I asked him what an MRT was and he said he was too busy to talk but I was lodge an MRT or else I will have to leave the country in 28 days and I was pleading with him to explain but he said he was busy and will call me back.
12. I asked him can he please send me a copy of the rejection refusal notification from DIAC and he said he would email it to me.
13. He never called me back.
14. A friend then helped me with inquires and through these inquiries without any help from the agent I worked out I had 24 hours to lodge this MRT and the lodgment fee was $1604.00.
15. It was impossible for me to not only find the $1604.00 lodgment fee in 24 hours but also find another professional who was genuine and sincere (unlike my agent Mr Gajender Pal Singh) to help me lodge an MRT.
16. My application was lodged after the 4 December as stated in the MRT letter dated 24 February 2014 but it was it was impossible for me to have it lodged any earlier for the above stated reasons.
17. My MRT application is valid and genuine and it is impossible for me to lodge papers on time and make payment when a registered agent has withheld all information and simply abandoned me after taking my money and then advise me at the last minute with only a 24 hour time frame left
18. I firmly believe he intended never to tell me about the refusal and that I would have to leave the country and then he can wash his hands of me.
19. These are the true and genuine facts.
(Transcribed from Mr Singh’s Statutory Declaration without amendment).
Consideration
Under s.347(1)(b)(i) of the Migration Act and reg.4.10(1)(a) of the Migration Regulations 1994 (“Cth”) (“Migration Regulations”), an application for review of the Delegate’s Decision had to be made by Mr Singh and Ms Neelam within 21 days after they were notified of the Delegate’s Decision.
In Cheng v Minister for Immigration & Citizenship [2011] FCA 1290; (2011) 198 FCR 559, (“Cheng”) the Federal Court observed as follows:
a)at [16] per Flick J:
An application received outside the time limit prescribed has been held not to be a valid application and one that the Tribunal does not have jurisdiction to review: e.g., Keo v Minister for Immigration and Citizenship [2009] FCA 676; 177 FCR 479. See also: Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303. The time limits imposed have been described as “stringent”: Han v Minister for Immigration and Multicultural Affairs [2000] FCA 1071; 103 FCR 517 at [21]; at 521 per Sackville J.
b)at [19] per Flick J:
Where a document has been sent by a method specified in s 494B(4), s 494C “conclusively deems it to have been received by the person to whom it was sent seven working days after the date of the document”: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621; 186 FCR 271 at [36]; at 278. Barker J there went on to observe that “[s]ending a notification letter in accordance with [s 494B(4)] therefore has the result that the notification is taken to have occurred at the end of the relevant period, regardless of whether it was actually received”.
There are numerous judgments of this Court finding that there is no discretion under the Migration Act or the Migration Regulations that would allow the Tribunal to review a decision where the application is not made to the Tribunal within the prescribed period: see, for example, Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 628 at [15] per Judge Driver; Hu v Minister for Immigration & Anor [2014] FCCA 312 at [17]-[19] per Judge Lucev; Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 at [35] per Judge Lloyd-Jones.
Section 66(1) of the Migration Act requires the Minister to notify an applicant of a decision to refuse to grant a visa in the prescribed way. Regulation 2.16(3) of the Migration Regulations prescribes that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in the s.494B of the Migration Act.
Notice of the Delegate’s Decision was given to the applicants by email addressed to their authorised recipient in accordance with ss.494B(5) and 494D(1) of the Migration Act. Mr Singh and Ms Neelam were therefore notified of the Delegate’s Decision in accordance with the statutory requirements, and they do not contend otherwise.
In accordance with s.494C(5) of the Migration Act, the applicants were taken to have been notified of the Delegate’s Decision at the end of 13 November 2013 when the document was transmitted: CB 31-32, 68-69, 91-92. The prescribed period within which the review application to the Tribunal could be made ended on 4 December 2013. As the application for review was not received by the Tribunal until 9 December 2013, it was not properly made under s.347 of the Migration Act, and the Tribunal therefore had no jurisdiction under s.348 of the Migration Act to review the Delegate’s Decision.
Mr Singh and Ms Neelam rely upon two grounds of review, as set out at [4] above. In reaching its finding that it lacked jurisdiction, the Tribunal clearly took into account and referred to Mr Singh’s Statutory Declaration which it summarised at CB 111 at [4]. The Tribunal also acknowledged the submission from Mr Singh and Ms Neelam’s then current migration agent, Mr Michael Stewart of Multinational Group, dated 22 December 2013: CB 111 at [5]. The Tribunal made no specific findings in relation to the claims made by Mr Singh and Ms Neelam against their former migration agent Mr Gajender Pal Singh, but the alleged negligent conduct displayed by the former migration agent would not ordinarily give rise to jurisdictional error on the part of the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (“SZFDE”).
As in Cheng at [40] per Flick J and Minister for Immigration & Citizenshipv SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) even if fraud on the Tribunal were a circumstance giving rise to jurisdictional error where the Tribunal did not otherwise have jurisdiction, a proposition not conceded by the Minister, there is an insufficient evidential basis upon which to make a finding on that basis in this matter. In SZLIX at [32]-[33] per Tamberlin, Finn and Dowsett JJ the Full Court of the Federal Court observed as follows:
[32] We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking review can in turn be characterised as a ‘fraud on the Tribunal’.
[33] … The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
In this case the facts relied upon, as set out in Mr Singh’s Statutory Declaration, might demonstrate that Mr Singh and Ms Neelam’s then migration agent, Gajender Pal Singh, was guilty of delay, prevarication, negligence, omission or incompetence, but there is nothing in the evidence which raises a case of fraud, either on Mr Singh or Ms Neelam or in relation to the Tribunal, such as to give rise to jurisdictional error in the Tribunal Decision.
The Court further notes Mr Singh and Ms Neelam did, in any event, have an opportunity – albeit a difficult opportunity – to make an application for review to the Tribunal within time.
Mr Singh was advised by his then migration agent on 3 December 2013 that he “must lodge” a review application with the Tribunal: Mr Singh’s Statutory Declaration at [11], and Mr Singh understood, albeit as a result of his own inquiries, that he had “24 hours to lodge” the review application with the Tribunal: Mr Singh’s Statutory Declaration at [14].
Mr Singh and Ms Neelam seem to place reliance upon the fact that they needed a professional to guide them through the process, but as is evident from the application for review (Form M1) ultimately lodged: CB 74-84, there are no particular complexities involved in completion of the Form M1. The only requirements to be completed on the form M1 (if Mr Singh and Ms Neelam were not being assisted with the Skilled Visas application by a representative) were:
a)Mr Singh’s name, date of birth, sex, nationality, passport number, citizenship or permanent resident status, interpreter requirements, address and phone and email contacts;
b)Ms Neelam’s name, date of birth, relationship to Mr Singh, and sex;
c)the visa sub-class for the refused Skilled Visas and the date of the Delegate’s Decision;
d)details of the letter from the Department notifying of the Delegate’s Decision, including its date;
e)Mr Singh’s capacity to apply for the review (that is, as applicant);
f)details as to the mode of payment of the application fee; and
g)signing of the relevant declaration.
There was no necessity for Mr Singh, who did not require an interpreter: CB 75, Form M1, question 4, to have a representative to assist him to complete the Form M1. Ms Neelam, as the secondary applicant, was not required to do anything towards completing the Form M1.
Mr Singh and Ms Neelam also assert that the fact they only had 24 hours in which to lodge the application for review precluded them from raising the money to lodge the application in time. But, bare assertion apart, there is no evidence of:
a)the actual financial position of Mr Singh and Ms Neelam at the time; or
b)the capacity of Mr Singh and Ms Neelam to borrow money to pay the $1604 application fee; or
c)what steps, if any, were taken to obtain the partial fee relief which was available: Migration Regulations, reg.4.13(4).
In any event, such evidence would not assist: impecuniosity, and any incapacity to pay the application fee (if that be the case), does not establish jurisdictional error by the Tribunal. Likewise, in the absence of any fraud (and particularly fraud upon the Tribunal) jurisdictional error is not established by the fact that the applicant only had limited time in which to lodge the application for review with the Tribunal, and no assistance from a representative in doing so.
As the High Court observed in SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ:
… [T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. …
In relation to the contention that Mr Singh, and by extension Ms Neelam, were wrongfully misguided by a registered migration agent into believing that they had a valid visa, there is no evidence of this before the Court. Even if there were, it would not constitute a jurisdictional error by the Tribunal. In submissions, Mr Singh did refer to advice given to him by Mr Stewart in relation to the validity of his visa and permanent resident status, but those events were not matters which were put before the Tribunal, and, in any event, Mr Stewart’s actions could not constitute jurisdictional error by the Tribunal, even if there were evidence of them before this Court.
The grounds contained in the Mr Singh’s Affidavit cannot therefore establish jurisdictional error in the Tribunal’s finding that it did not have jurisdiction to review the Delegate’s Decision. Accordingly, the Tribunal was correct to find that it had no jurisdiction in relation to the matter. It follows that the Judicial Review Application must be dismissed.
Conclusions, costs and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. The Judicial Review Application must therefore be dismissed. There will be an order accordingly.
Mr Singh and Ms Neelam pleaded impecuniosity, and a depressive illness (of which there is no evidence) on Mr Singh’s part, in an endeavour to avoid an order for the payment of costs, but neither is a matter which will ordinarily prevent the Court from awarding costs, and so there will be a further order that Mr Singh and Ms Neelam pay the Minister’s costs in the sum of $6825 by 23 September 2015.
The Court notes the serious allegations now made by Mr Singh and Ms Neelam with respect to the conduct of their migration agents. For reasons set out above those matters do not impinge upon the validity of the Tribunal Decision in this matter. If the allegations are correct (and the Court is not in a position to make any findings in that regard on the insufficient evidence available) they are a matter for the Migration Agents Registration Authority (“MARA”), and should be taken up with MARA. Given the nature of the allegations, which go to failure to provide a proper service and what might arguably be significant overcharging, the Court would encourage Mr Singh and Ms Neelam to take the matter up with MARA. That is probably cold comfort to Mr Singh and Ms Neelam, for making a complaint to MARA will not directly assist them in relation to any visa applications or applications concerning their residential status.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 25 June 2015
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