SINGH v Minister for Immigration
[2018] FCCA 3427
•27 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3427 |
| Catchwords: MIGRATION – Partner visa application – extension of time – applicable principles – no significant delay – no prejudice – substantive merits in contest – whether applicant incarcerated during period of determination of visa application – where applicant’s premises uninhabited, phone disconnected, mail returned unclaimed – where Department told applicant probably in detention – where migration agent had informed Department he would no longer act – where migration agent had registration cancelled for five years – where gist of misconduct involved failure to inform clients – where applicant claims not to have been informed in a timely way of Delegate’s decision to refuse application – where application for merits review time lodged out of time – where Tribunal decided that it had no discretion to extend time – whether Tribunal had power to extend time – whether Tribunal ought to have recognised that it had such power and ought to have treated the application as filed as a proper or at least constructive application for an extension of time – whether open to argue that decision tainted by fraud on basis that process of engaging jurisdiction tainted by fraud of agent – whether arguable – whether in interests of administration of justice to extend time – extension of time granted. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347, 376, 474, 476, 477, 494B, 494C, 494D Migration Regulations 1996, reg.4.10 |
| Cases cited: AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 |
| Applicant: | AMRITPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 164 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 20 November 2017 |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Tran |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time fixed by s 477(2) of the Migration Act1958 (Cth) as the time within which the applicant might apply for the relief sought be extended now for then to 24 January 2017.
Pursuant to r 12.02 of the Federal Circuit Court Rules 2001 a referral certificate be issued by the Registrar of the Court enabling the applicant an opportunity to obtain the assistance of Pro Bono counsel.
Direct that a copy of the transcript of the proceeding held on 20 November 2017 be provided to Pro Bono counsel upon their appointment.
By 4.00pm on Friday, 25 January 2019, the applicant file and serve any amended application for judicial review in relation to the decision of the second respondent made on 1 December 2016.
By 4.00pm on Friday, 8 February 2019, the applicant file and serve any further affidavits and submissions in support of his application.
By 4.00pm on Friday, 21 February 2019, the respondents file and serve any further affidavits and submissions in response.
The application is listed for hearing on 27 February 2019 at 11:30am.
The costs of this application are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 164 of 2017
| AMRITPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 24 January 2017, the applicant seeks an extension of time within which to apply for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) which was made on 30 November 2016. The Tribunal decided that, as the application had been made outside of the time fixed by s 347 of the Migration Act 1958 (Act) for doing so, it did not have jurisdiction to review the decision of a Delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa.
As the applicant had failed to make application to the Tribunal for a merits review of the Delegate’s decision within the time prescribed by s 347, it found that it had no discretion to extend the time for making the application. In those circumstances, no merits review of the decision was conducted.
For the reasons which follow, I have concluded that it is in the interests of the administration of justice to grant an extension of time as the question of fraud by the applicant’s migration agent is a live issue.
Background
The applicant, an Indian national aged 33 years, first arrived in Australia on 22 June 2008 as the holder of an educational subclass 572 visa which expired on 15 December 2010. The applicant held no visa while he remained in Australia in the period 2 May 2012 to 23 January 2013.
On 14 December 2010, the applicant lodged an application for a Skilled (subclass 485) visa, which application was refused on the ground that it was considered to contain information which was fraudulent. The information said to be false and misleading concerned a reference for a supposedly successful skills assessment. The Department had made its own inquiries and ascertained that the skills assessor, Trades Recognition Australia, had no record of having ever provided the applicant with any such skills assessment.
On 25 January 2013, the applicant was married to an Australian permanent resident.
On 25 January 2013, the applicant made application for a Partner (Temporary) (Class UK) visa. The applicant claimed to be in a permanent spousal relationship with an Australian permanent resident.
The administrative history of the matter has been most unfortunate.
On 12 February 2014, the Department of Immigration and Border Protection received an enquiry from Victoria Police who had placed the applicant in custody in relation to a driving offence. The police made enquiry as to the applicant’s visa status.
In July 2014, the Department made an attempt to contact the applicant and in doing so ascertained that his mobile phone was disconnected. As appears, the phone had been disconnected by reason that it had been confiscated by police as part of a criminal investigation.
On 21 July 2014, the Department wrote to the applicant by registered post stating that he was in breach of several visa conditions and had not reported to the Department since June 2014. He was asked to attend upon the Department as soon as possible.
During August – September 2014, the Department issued a notice of intention to cancel the applicant’s visa. It appears to have cancelled the visa but then reversed that cancellation on 26 September 2014.
Ongoing attempts to contact the applicant by telephone were fruitless.
The Department then turned its attention to the applicant’s migration agent. An attempt to yield a response to a telephone call was unsuccessful. An email was sent to the migration agent on 3 November 2014. On 5 November 2014, the agent contacted the Department advising that he had been in communication with the applicant and his spouse. He informed the Department that the applicant’s mobile phone had been disconnected. Further attempts to contact the agent by phone were unsuccessful. On 24 November 2014, the agent contacted the Department advising that he had lost contact with the applicant and his spouse and had resorted to making contact with the applicant’s friends. He relayed that the applicant may have been charged with cultivating a commercial quantity of cannabis.
On 18 November 2014, a Delegate of the Minister refused the visa application on the basis that the criteria for the visa were not met.
The Delegate was not satisfied the applicant met the criteria for the Partner visa by reason that the application had not been lodged with 28 days after the date on which the applicant last held a substantive visa. As the applicant had last held a substantive visa on 15 December 2010, the Delegate could not have been satisfied that the Partner visa application had been lodged within 28 days after that date.
The Delegate proceeded to consider whether, and was not satisfied that, there were compelling reasons for not applying the criteria prescribed by Sch 3, cll 3001, 3003 and 3004. The Delegate’s decision record indicates that the Delegate had invited the applicant’s migration agent to furnish information respecting the application and that the response to that invitation was that the agent was unable to contact the applicant.
The reason that the agent had been unable to contact the applicant was that he had been sentenced to a period of imprisonment following what he told me was a conviction for possession of a quantity of cannabis.
The Delegate was not satisfied that compelling reasons were shown to waive the Sch 3 criteria and accordingly refused the application.
Of some importance to the present application is that, for the purposes of the visa application, the applicant had nominated a registered migration agent as an authorised recipient of communications. In making that nomination, the applicant provided the email address of that migration agent.
On 3 December 2014, the applicant’s migration agent contacted the Department advising that he had attended the applicant’s residence and discovered it was uninhabited. He advised that he had ceased acting for the applicant. A Departmental case note records that an email had been received from the applicant’s migration agent advising that he no longer acted for the applicant.
In the midst of this administrative activity, on 11 December 2014, the Department wrote to the applicant in connection with the refusal of his application for a Skilled (subclass 485) visa, advising him that he had not been correctly notified of that refusal and that, accordingly, he was being renotified of the decision made on refusal of the application.
Next, on 13 May 2015, the Department recognised that history of administrative errors and, to adopt the Minister’s submission, addressed them by notifying the applicant that the original decision had been vitiated by jurisdictional error and rectifying that error by sending him a new decision.
On 18 November 2015, the applicant was notified of the Delegate’s decision to refuse the visa application. The notification was sent by email to the nominated email address of his migration agent. It was also sent by post to the applicant. The mail sent to the applicant was returned as unclaimed mail.
Although it was unclear, it appears that the applicant received notification of the refusal of his Skilled (subclass 485) visa while he was in prison. In contrast, the applicant complained that the Department’s notification of the refusal of the application for a Partner visa was not sent to him at prison.
On 18 November 2015, the migration agent sent an email to the Department advising that it would need to inform the applicant directly of the refusal of his visa application. The agent advised that the applicant’s spouse had been incarcerated at the Dame Phillis Frost Women’s Prison and it was likely the applicant was also in prison. The Department responded that the agent remained the authorised recipient of communications with the Department as the applicant had not withdrawn his nomination.
On 7 December 2015, the Department sent a courtesy notification to the applicant’s last known address. The notification, which had been sent by registered mail, was returned on 30 December 2015. Another courtesy notification was sent to the applicant on 3 October 2016.
On 27 October 2016, the applicant’s spouse lodged an application for review of the Delegate’s decision to refuse the applicant’s visa application. The application nominated a representative for the purposes of the application for review. The applicant’s spouse also wrote a detailed letter in which she advanced a submission seeking a compassionate review of the application. Included in that letter was reference to the fact that the spouse remained on remand and that she would be defending her criminal prosecution. It also referred to the parties having had four children who were from 5 to 10 years of age. Also attached were copies of several letters which had been written by the parties and apparently paid testament to their relationship.
On 4 November 2016, a discussion was held between an officer of the Tribunal and the applicant’s representative respecting possible jurisdictional issues since the application appeared to have been lodged out of time. On that date, the Tribunal wrote to the applicant’s representative advising that, as the primary decision had been sent to the applicant’s appointed representative on 18 November 2015, the applicant had had until 9 December 2015 in which to lodge an application for review but had not done so until 31 October 2016. The applicant was afforded an opportunity to comment on this issue.
On 9 November 2016, the Department sent the Tribunal a certificate issued pursuant to s 376 notifying of information or documents in 30 folios of an identified file which contained information, the disclosure of which was considered to be contrary to the public interest.
On 14 November 2016, the applicant wrote to the Tribunal seeking consideration of his application. The letter complained of the non-receipt of various communications from the Department and attributed responsibility to his migration agent for having failed to properly represent him. On a date which I cannot discern, the applicant wrote a further letter to similar effect.
On 15 November 2016, the applicant’s spouse wrote to the Tribunal seeking consideration of his application. This letter also complained of the Department’s haphazard manner of communicating with the applicant and with herself in circumstances where, the Department had previously communicated with the police and, despite knowing that the applicant and his spouse were both incarcerated had failed to make any attempt to contact them through prison authorities.
On 1 December 2016, the Tribunal decided that it had no jurisdiction to consider the application on the basis that the application had been lodged well outside of the 21 day time limit fixed for doing so and furnished a statement of reasons for its decision: s 347(1)(b); Migration Regulations 1994, reg 4.10.
On 21 December 2016, the applicant again wrote to the Tribunal reiterating the problematic history of the matter and furnished his email address for the purposes of further communication with him. Further emails from the applicant followed in the period to late January 2017.
Procedural history
On 24 January 2017, the applicant filed an application for judicial review of the Tribunal’s decision. He sought an extension of time within which to file the application, stating that he was in immigration detention and had been hampered in his ability to do so.
The applicant filed an affidavit which detailed the history of the matter and provided an explanation as to the reasons for not having acted in a more timely way in the pursuit of his application. The applicant also provided a copy of the Tribunal’s reasons for its decision.
The Minster sought dismissal of the application on the basis that the decision was not affected by jurisdictional error.
The applicant filed a detailed submission to which he annexed many documents, one of which was a decision record dated 16 August 2016 respecting the applicant’s migration agent. The decision record indicates that the agent had been the subject of complaints for having failed to respond to departmental communications on behalf of clients. The Tribunal concluded that the agent was not a fit or proper person to provide immigration assistance and considered that the likelihood of the recurrence of misconduct was extremely high. The agent’s licence was cancelled for a period of five years. Further information filed with the applicant’s submission indicated that the agent was reported to have fled overseas after having had involvement in ~1,000 fraudulent visa applications and transferred substantial monies overseas.
On 24 April 2017, a solicitor for the Minister made two affidavits; the first exhibited in a sealed envelope the documents comprising the 30 folios of the departmental file addressed by the s 376 Certificate. The first affidavit identified that two of the documents in those folios contained information relating to the relationship between the applicant and his spouse. The Minister made a claim of public interest immunity. The first affidavit deposed that a copy of those documents had been provided to the Tribunal. The second affidavit was made in support of an application that the subject documents remain confidential.
The application was first listed for hearing on 28 June 2017. The applicant did not appear because, for no apparent reason, arrangements had not been made for the applicant to be brought from detention to court. It took some time before that fact emerged on 28 June 2017.
At the time that the matter was listed for hearing on the adjourned date, counsel for the Minister was otherwise occupied. The matter was stood over until later in the day when he became available.
Applicable principles – extension of time
By s 477(1), a 35-day time limit is fixed for the making of an application to this court for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is expressed as being subject to two conditions: (1) an application has been made in writing for such an extension; (2) the court is satisfied that it is necessary in the administration of justice to do so.[1] The first of those conditions was met by the request for an extension as made in the application for judicial review. The second condition is in issue.
[1]For the avoidance of doubt, the 35 day time limit commences to run from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to enlarge time for the commencement of proceedings is a broad one. It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the substantive application.[2]
[2]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
Consideration
As the application is 20 days out of time, an extension of time is required. The grounds for the application for an extension of time were articulated in the application by the applicant who was and remains self-represented.
Delay & prejudice
The Minister submitted that the delay in making application for judicial review was not overly significant having regard to the intervention of the Christmas holidays. I accept that submission particularly in light of the applicant’s circumstances at that time.
I also accept the Minister’s submission that the making of an application for Ministerial intervention does not adequately justify a failure to make application for judicial review in a timely manner.[3] Although it is not entirely clear, the materials in the court book contain some matter which may be understood as seeking such intervention.
[3] Fareed v Minister for Immigration and Border Protection [2016] FCCA 1179, [15]-[20].
No prejudice to the respondents was suggested.
Merit of substantive application
The Minister opposed the application on the basis that no substantive ground of review was articulated by the application. Expressed in positive terms, if the court concludes that there is no arguable merit to the substantive application, it is not in the interests of the administration of justice to exercise the power to grant an extension of time.
As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[4] MZABP v Minister for Immigration and Border Protection.[5]
[4][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[5][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. Her Honour stated:[6]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[7]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
[6][2015] FCA 1391, [62]-[63]
[7](1998) 195 CLR 516 at [7]-[9].
These statements reflect the reasoning in Spencer v Commonwealth.[8] There the case sought to be brought by the plaintiff was dismissed summarily by the primary judge whose decision was affirmed by a Full Court. Spencer’s claim was that certain restrictions which had been placed over his property constituted the acquisition of property other than on just terms. However unusual or ambitious the claim might have appeared, the High Court held that the argument could not be considered to have no reasonable prospect of succeeding in circumstances where a similar claim had been reserved for future consideration in another appeal to that Court. The plaintiff was held to be entitled to proceed to trial. While the claim was ultimately dismissed,[9] the approach taken in Spencer illustrates the lower threshold which applies in deciding whether a case should be regarded as being arguable (whether sufficiently or reasonably) or to have sufficient prospects of success. It is also instructive, whether the application be for summary judgment, an extension of time and, by extension, reinstatement.
[8](2010) 241 CLR 118.
[9]Spencer v Commonwealth [2015] FCA 754 (Mortimer J).
As was submitted in the course of the hearing, the grounds of review as stated in the application do not identify any known grounds of review and were virtually meaningless. On this basis it was submitted that if the application for an extension of time was granted, the application for judicial review should be dismissed in any event.
The Minister, in the role of model litigant, advanced further submissions having regard to the circumstance that the applicant was self-represented.
S 376 certificate of no present relevance
First, it was said that in light of the Tribunal’s decision that it had no jurisdiction to entertain a merits review of the Delegate’s decision, the issue of the s 376 certificate was of no consequence to the decision making process. Having regard to the basis on which the Tribunal acted, I will assume that this is so. I will also make no assumption whether the applicant may have suffered practical injustice arising from the Tribunal’s receipt and possession of such documents or information in those circumstances.
Reasoning errors of no present significance
It was further submitted that a series of errors in the Tribunal’s reasons were immaterial. At least three errors were identified. However, the nature of the errors may suggest that the Tribunal’s reasons had been cut and pasted from an earlier decision in another matter. Again, having regard to the basis for the Tribunal’s decision, I disregard those errors.
Tribunal’s jurisdiction
The Minister further submitted that the substantial delay in the making of an application for review by the Tribunal was fatal to a conclusion that this application had any prospect of success.
The Delegate’s decision was a Part 5-Reviewable decision: s 347.
By para 347(1)(b)(i), a time limit of 28 days was fixed for the making of an application for review by the Tribunal. Further, by sub-s 347(5) the Regulations may prescribe different periods in relation to different classes of Part-5 Reviewable decisions. Relevantly, reg 4.10(1)(a) prescribed a 21 day time limit for the present application. That is because the Delegate’s decision fell within the discrete definition of a Part 5-Reviewable decision that is provided by sub-s 338(2). These provisions were described as guillotine provisions, such that failure to comply with the applicable time limit denied the Tribunal jurisdiction to conduct a merits review of the application and in circumstances where the Tribunal had no jurisdiction to grant an extension of time.
The Minister accepted, correctly, that it would be an understatement to describe the present application as having been affected by a multitude of errors. At the material times, there was evidence in the Departmental file that the applicant’s residence was uninhabited, his mobile phone had been disconnected, registered mail had been returned unclaimed, his migration agent was unable to contact him and it was known that he may be in prison. However, it was further submitted that the action taken on 13 May 2015 to accept that the Delegate’s decision had been affected by jurisdictional error was rectified by the issue of a fresh decision.
It was then submitted that the Tribunal had complied strictly with its statutory obligations by serving the applicant’s authorised agent with a copy of its decision and reasons. The Minister stressed that s 494D(1) was expressed in imperative terms such that the Tribunal was obliged to serve the applicant’s migration agent with those documents. It was further emphasised that only the applicant – and not the authorised recipient – was able to vary or withdraw a notice given appointing a person as their authorised recipient for the purposes of receiving documents in connection with the application. So much may be accepted. For the purposes of the present application, I accept that the Tribunal had given the applicant’s authorised representative notification of its decision in accordance with the Act.
By force of s 494C(5), the applicant was deemed to have received the notification of the Delegate’s decision on the date that it was transmitted to his authorised agent. One of the methods by which the Delegate was authorised to effect service of documents was email: s 494B(5). In the present case, the applicant’s authorised agent was served with a copy of the Delegate’s decision to the email address from and with which the Department and that migration agent had been communicating.
It follows that the 21 day time within which the applicant might have made an application for merits review by the Tribunal commenced to run from the date of notification of the Delegate’s decision on 18 November 2015. Thus, the applicant had until 9 December 2015 to exercise the opportunity to seek a merits review of the Delegate’s decision. The making of the application for review by the Tribunal on 31 October 2016 was significantly out of time.
In those circumstances, the Tribunal had to be satisfied variously that the application was out of time. The Tribunal reasoned that it had no jurisdiction to extend time and so had no jurisdiction to consider the application. It may be questioned whether that conclusion was correct. In Brown v Minister for Immigration and Border Protection,[10] Greenwood J held that a Tribunal had fallen into error in concluding that it had no power to extend the time for the making of an application under s 347(1)(b) of the Act. His Honour held that the Tribunal ought to have recognised that it had such power and ought to have treated the application as filed as a proper or at least constructive application for an extension of time. In those circumstances, it remained open to the applicant to press for a merits review of his visa application.
[10] [2018] FCA 1787, [25].
Fraud of agent?
The applicant may be understood as relying upon the fact of his migration agent having had his accreditation cancelled for a period of five years and of the manner in which, he says, his agent failed to act in his interests despite being paid a substantial sum to do so. The applicant’s submissions may be understood as indicating a complaint that the consideration of his application has been affected by fraud. The complaint may, more precisely, be understood as indicating that his migration agent was guilty of misconduct from the time that the matter was being considered by the Delegate and at all times thereafter.
As concerned the issue of fraud, the Minister’s written submissions appeared to elide the factual basis upon which the issue was presented. It was said that the Minister’s written submissions had been prepared at a time when the fact of the findings of the migration agent’s unfitness to act were not known to the author of those submissions. Yet it appears that the applicant’s submissions had been lodged electronically with the court some three weeks before the submissions on behalf of the Minister were filed. Further, the procedural history outlined above lends some support for a conclusion that the fact of the agent’s unfitness had been a matter that had been squarely raised by the applicant’s submissions some six months in advance of the hearing on 20 November 2017.
In a public law context, fraud must actually induce or affect the decision under challenge.[11]
[11]SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [24], [47] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ).
In SZFDE v Minister for Immigration and Citizenship[12] the Court was concerned to decide the availability of certiorari to quash a decision made on a merits review of a decision to refuse a family a protection visa. The Tribunal grounded its decision in part on the failure of the applicant family to appear at the hearing. They had not done so by reason that their supposed migration agent, a rogue, had dishonestly told them in effect, not to appear. The Court, accepting that the Tribunal was blameless of any impropriety, recognised that in a public law context, references to an absence of good faith was more properly understood as meaning having acted for legitimate reasons.[13] The Court examined the vitiating effect of fraud and recognised that a somewhat different trend could be discerned in the sphere of public law in part by reason that the jurisdiction to grant certiorari was supervisory, not appellate. The Court allowed that one circumstance in which a decision may be quashed was where it was affected by fraud, which term encompassed bad faith.[14] The Court observed that Australia had applied English jurisprudence to grant certiorari respecting summary convictions recorded on a guilty plea induced or affected by the fraud of a third party and recognised that in migration, an available ground of review was that the decision had been induced or affected by fraud.[15]
[12](2007) 232 CLR 189.
[13](2007) 232 CLR 189, [13]-[14] (Gleeson CJ, Gummow, Kirby, Hayne, Callinnan, Heydon and Crennan JJ).
[14](2007) 232 CLR 189, [15]-[22].
[15](2007) 232 CLR 189, [23]-[25].
The Court endorsed the view that in a public law setting, the fraud must be shown to have actually induced or affected the decision and importantly, that fraud was not confined to that of a decision-maker, a party or a party’s representative. In the result, where fraud was an available ground of review, certiorari may be available in a case where the fraud is that of a third party where the decision had been actually induced or affected by that fraud. [16]
[16](2007) 232 CLR 189, [25]-[27] citing Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103, 111-112 (Lindgren J); see also Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63, [30] (Dowsett, Collier and Rangiah JJ).
In SZFDE, the Court concluded that it was unnecessary in that appeal to determine the scope of third party fraud or the availability of certiorari where such a ground was advanced as the basis for relief. Their Honours considered it appropriate to resolve the issue by regard to the nature, scope and purpose of the particular system of review and consideration of the decision or transaction which was the target of the review. [17] Notably, the Minister had accepted that, had the Tribunal actually appreciated the applicants had not appeared by reason of the misconduct of their agent, a real question would have arisen as to miscarriage of the Tribunal’s power to proceed in the applicants’ absence.[18] On their case, the appellants’ conscious decision not to appear had been the direct result of the agent’s fraudulent conduct and the Tribunal had not appreciated this to be so when making a decision.
[17](2007) 232 CLR 189, [29].
[18](2007) 232 CLR 189, [36]-[37].
Fraud is infinite in variety and bears different shades of meaning.[19] In public law the proof of fraud falls to be established on the balance of probabilities and, subject to applicable procedural and evidentiary rules, an applicant for certiorari may advance any relevant material for that purpose. [20] It is necessary for the court, when making a finding of fraud, to specify what that fraud was, what was said to be fraudulent, how it was fraudulent and how it had been acted upon. The court is able to make an inference of fraud notwithstanding the seriousness of the allegation and despite the absence of the person against whom the allegation is made. [21]
[19](2007) 232 CLR 189, [8]-[9] citing Reddaway v Banham [1896] AC 199 at 221.
[20](2007) 232 CLR 189, [17], [25], [38] citing Craig v South Australia (1995) 184 CLR 163, 176.
[21](2007) 232 CLR 189, [38]-[41], [45], [47].
The ultimate issue is to consider the effect of the alleged fraud upon the decision-making process. [22] In SZFDE, the Court held that the agent’s fraud had had a stultifying effect upon the merits review of the adverse migration decision in which the decision-maker was obliged to invite the applicant to appear, present arguments and make submissions in relation to the decision under review and, in particular, where the centrality of that obligation was to be seen in a statutory scheme which constituted an exhaustive statement of the requirements of the natural justice hearing rule. The Court held that while the agent’s fraud had been practised most directly upon the appellant, this did not necessarily deny it from bearing a secondary legal character which was of decisive legal significance; namely, the concomitant stultification of the critically important natural justice provisions of the Migration Act.[23] The effect of such stultification was that the Tribunal’s decision was no decision at all by reason that its jurisdiction remained constructively unexercised.[24] In so holding, the Court emphasised that the case was distinguishable from those grounded upon an agent’s bad or negligent advice or some other mishap for which the applicant should not be heard to complain that such detriment has vitiated the decision the subject of challenge.[25]
[22](2007) 232 CLR 189, [47].
[23](2007) 232 CLR 189, [49]-[51].
[24](2007) 232 CLR 189, [52].
[25](2007) 232 CLR 189, [53]; cf Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ). SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
In this application, it was submitted that the material before the court did not establish fraud in respect of this applicant. It was submitted that the agent had informed the Department perhaps a year earlier that he had been unable to locate the applicant. Those circumstances were said to (and may well) deny a conclusion that the agent was guilty of any fraud. Indeed, they may only support a conclusion that the agent was guilty of negligence. And it may be accepted that cancellation of an agent’s accreditation for whatever kind of misconduct does not automatically vitiate any decision, whether of the Delegate or the Tribunal.
The material does however, establish that the agent’s accreditation was cancelled for five years on account of conduct of the very kind of which this applicant complained. His complaint may be understood as being that he was not told by his agent of the Delegate’s invitation to comment on whether the criteria under Sch 3, cll 3001, 3002 and 3004 should be waived. Had he been told of that opportunity in a timely way he would have had an opportunity to put before the Delegate such matters as he wished to rely upon in seeking the wavier of those Sch 3 criteria. It may be understood as being that he was not told by his agent in a timely way of the Delegate’s decision. The legal implications of a fraudulent failure to do so could lie at the heart of the present application.
Of central relevance to the present application is that fraud must actually induce or affect the decision under challenge. What the court must do is consider the effect of the alleged fraud upon the decision-making process.
The decisions in respect of which this court is conferred jurisdiction are decisions of the Tribunal which are not privative clause decisions or purported privative clause decisions.[26]
[26] See ss 474(2), 476(2)(a).
Upon the principles stated in SZFDE, it may be arguable that, if the applicant’s complaint is made out, he was never informed of the invitation to comment in relation to the possible waiver of the Sch 3, cll 3001, 3002 and 3004 criteria. If the applicant’s complaint of having not been informed of that opportunity was accepted, the agent’s conduct may be characterised as being a fraud upon the applicant. However, an alternative view may be that the conduct did not involve fraud but was merely negligent. Only in the former case might it be arguable that the agent’s fraud had stultified the decision making process of the Delegate. If that were so, the effect of such stultification may be that the Delegate’s decision was no decision at all. On this view, it would be for the Delegate to consider the application anew. By parity of reasoning with SZFDE, had the Delegate actually appreciated that the applicant had not responded to the invitation to comment on the issue of waiver of the subject criteria by reason of the misconduct of his agent, a question would have arisen as to miscarriage of the Delegate’s power to proceed to refuse the application. Alternatively, it may be that it remains open to the Delegate to adopt the stance which it had in May 2015 of accepting that the earlier decision was vitiated by jurisdictional error and that it remained for it to make its decision. To do so, the Delegate may need to afford the applicant an opportunity to address whether the requirements of Sch 3, cll 3001, 3002 and 3004 of the Regulations should be waived. In this context, I note that the applicant and his spouse now have four children who have apparently lived in Australia for some years.
Whatever substance there may be in the conclusions expressed above in relation to the decision making process of the Delegate, they are not matters in relation to which this court has jurisdiction under the Act. The Delegate’s decision was a primary decision within the meaning of sub-s 476(4) with the result that this court has no jurisdiction to conduct a judicial review of that decision: par 476(2)(a).
The decision of the Tribunal is likewise amenable to review only if it is affected by jurisdictional error: s 476(1).
Although the application for a merits review of the Delegate’s decision was manifestly out of time, the Tribunal had power, but did not consider an application, to extend the time for making such application. The Tribunal’s failure to consider the exercise of that power is an arguable basis for seeking judicial review. Further, I consider that for the applicant’s complaint as to the agent’s conduct to afford a basis for judicial review, it would be necessary to conclude that the Tribunal’s decision that it had no jurisdiction was no decision at all by reason that it was tainted by the fraud of his agent. For that to be so, it would seem necessary to establish that an alleged fraud, in failing to inform an applicant of a Delegate’s decision and of his or her right to seek a merits review by the Tribunal, fell within the ambit of the decision-making process for which judicial review is available. However ambitious that proposition may appear, the present question is whether it is one which is arguable. Factually, the applicant has advanced a basis upon which his complaint might be advanced. Whether it is of any substance is to be assessed on a different threshold to that which would apply at trial.
Conclusion
At all relevant times, the applicant has been self-represented or represented by a migration agent to whom he has apparently paid substantial monies and who had been found not to be a fit or proper person to act as a migration agent. There is some evidence that the agent has committed fraud on ~1,000 visa applicants. The applicant complains that he is one of them. The gravamen of his complaint is that the agent did not relay to him information concerning the progress of his application. The reasons of the Tribunal which was concerned to sanction the agent with a five year cancellation of his migration accreditation make plain that the complaints of failure to inform clients of the progress of their application lay at the heart of that decision.
Given the administrative history of the matter, I am satisfied that it is in the interests of the administration of justice that the applicant be granted an extension of time within which to apply for judicial review. In particular, I am satisfied upon the applicable threshold that the applicant has arguable claims that the decision of the Tribunal may have been affected by jurisdictional error by reason of a failure to consider a constructive application for an extension of time and less arguably, that the decision that it had no jurisdiction was affected by fraud. From one perspective, it distracts attention from the relevant inquiry to approach the issue on the basis that the Tribunal had no jurisdiction. The anterior questions are whether the Tribunal’s decision was arguably affected by error because of the failure to consider an extension of time or because the decision that it had no jurisdiction was no decision at all by reason that it was affected by fraud.
In reaching these conclusions, I am conscious of the applicant’s history as detailed in these reasons. I am equally conscious that the applicant appears to have been non-responsive to Departmental communications for a considerable time. It is said not infrequently that strict adherence to the requirements of the Act is to be expected of decision-makers – a corollary of that proposition is that such adherence is reasonably to be expected of those who pursue a visa application. Nonetheless, the present inquiry is whether the claim is arguable. For completeness, I express no further view as to the merit of the claim.
As stated above, the present grounds of review are wanting. I have decided that the nature of the issues presented by this application warrant a referral to the pro bono committee of the Victorian Bar.
It is appropriate also to make directions listing the matter for final hearing. Directions have been given to afford the applicant a further opportunity to file an amended application, any further evidence and submissions. The Minister may then respond to that material.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 27 November 2018
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