Spurr v Minister for Immigration
[2010] FMCA 996
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPURR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 996 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal affirming decision not to grant visa – citizen of Canada – application for extension of time. |
| Migration Act 1958 Migration Regulations 1994 |
| BRGAC of 2009 v Minister for Immigration and Citizenship [2009] FMCA 1092 SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 |
| Applicant: | MARK EDWARD GALL SPURR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 977 of 2009 |
| Judgment of: | Burnett FM |
| Hearing dates: | 12 July & 14 October 2010 |
| Date of Last Submission: | 14 October 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 17 December 2010 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Solicitors for the First Respondent: | Clayton Utz |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
Application for an extension of time refused.
Application dismissed.
Subject to application being made within seven (7) days of today’s date for any other order, order that the Applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 977 of 2009
| MARK EDWARD GALL SPURR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Canada. He arrived in Australia on 27 February 2006 as the holder of an Electronic Travel Authority (Class UD Visa). On 31 August 2006 the applicant applied for a Business (Long Stay) (Class UC) (Sub-class 457) Visa. That application was withdrawn after the sponsor decided not to support the application.
On 17 October 2006 he then applied for an Employer Nomination (Residence) (Class BW) Visa which application was refused by the delegate on 2 July 2007. He was notified of that decision under cover of letter of the same date. The delegate refused the visa application on the basis that the applicant did not satisfy clause 857.211 of Schedule 2 to the Migration Regulations, particularly that he did not satisfy clause 857.211 because his last substantive visa was an Electronic Travel Authority (Class UD) visa.
On 30 July 2007 the applicant applied to the Tribunal for review of the delegate’s decision. Following exchanges between the applicant and the Tribunal the matter proceeded to hearing on 24 April 2008. Exchanges particularly included a written invitation by the Tribunal dated 15 February 2008 to provide comments on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review, being that clause 857.211 of the Migration Regulations 1994 seemed to preclude the applicant from meeting the requirements of the visa. The hearing was adjourned on a number of occasions at the request of the applicant before proceeding to hearing by video-link on 24 April 2008. The hearing conducted on 24 April 2008 included review of a submission prepared by a new migration agent appointed by the applicant.
Following the hearing the applicant’s agent submitted a further submission which the Tribunal acknowledged before releasing its decision on 29 April 2008. The points addressed in the supplementary submission were principally the same as those being advanced before this court on review. The decision dated 29 April 2008 was sent to the applicant’s agent on 7 May 2008.
On 21 December 2009 the applicant applied for a review of the Tribunal’s decision.
The resolution of the application before both the Tribunal and the Court has featured some delay. The delay events before the Tribunal were chronicled in its decision.
Following the filing of the application in Cairns the matter came on for first mention on 19 February 2010 when initial directions were made. The application was listed administratively for hearing in Cairns for two days commencing in July 2010. By the time the matter came on for hearing the applicant had become self represented and had relocated from the Cairns region to Melbourne. The matter progressed by way of telephone hearing in July 2010. To that point there had been a failure by the applicant to comply with earlier directions. Without commenting upon the question of fault concerning matters of non-compliance the applicant was permitted to give oral evidence and was cross examined in respect of that evidence at the hearing in July. At the conclusion of the hearing further directions were made concerning the provision of supplementary submissions. The applicant again failed to comply with directions in relation to the filing of further submissions. The respondent did deliver supplementary submissions. Finally a further hearing was conducted on 14 October 2010 at which time the applicant made further oral submissions.
The Tribunal’s decision
In its decision the Tribunal had decided that:
a)The application for an Employer Nomination (Residence) (Class BW) visa was a valid application; and
b)That the applicant was not eligible for such a visa because at the time of application a requirement of clause 857.211 was that the applicant be the holder of a substantive visa. At the date of application the applicant was the holder of a Bridging A Visa which is not a substantive visa. Accordingly the decision of the delegate not to grant the visa had to be affirmed.
Grounds for Review
In his application the applicant seeks a declaration that the initial visa application is invalid. The essence of his argument was that as the application was an invalid application being an application which was alleged to have been fraudulently completed and signed and accordingly no decision could be made on a void application meaning that in turn, there was no decision open for review by the delegate or the Tribunal.[1]
[1] If correct the argument fails to address the Tribunal’s observation that if it determined that the application was not valid it was not an MRT reviewable decision.
The grounds for his application were:
“1.The decision made by the Minister or delegate and the decision made by the Tribunal are both not authorised by the enactment, both decisions violate the jurisdictional fact doctrine as the visa application lodged with the Department was not the visa application that I had engaged Dr. Christopher White of Migration Plus to lodge on my behalf.
2.The signature on the visa application was not my own, but a forgery of my personal identifier in contravention of the Migration Act 1958 s46 and Migration Regulations 1994 2.08AC and other laws.
3.The Delegate of the Minister and the Tribunal both failed to take into consideration the facts of the Department’s file number CLF2006/117311 and the submissions made to the Department and the Tribunal.”
The applicant also applied for an extension of time on the grounds that:
“The decision made by the Minister or delegate and the decision made by the Tribunal are both decisions that commit jurisdictional error and are thus void, as per the High Court decision in Plaintiff S157”.
Leave to extend time
Before considering the substantive application the applicant requires an extension of time. Section 477 of the Migration Act 1958 (Cth) (the Act) sets out the time limit for applications to the Federal Magistrates Court for review of decisions of the Tribunal. Relevantly it provides:
“(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
There is no dispute that the relevant date of the migration decision as defined was 29 April 2008. Likewise it is not in contention that the application for review had to be filed by no later than 3 June 2008. The applicant in fact filed the application on 21 December 2007, that is approximately 18 months late.
In order to extend time beyond the 35 day period allowed by s.477(2) the applicant must apply for an order to extend time specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the court must be so satisfied. As the application was not filed until 21 December 2009, it is incompetent unless the court extends time pursuant to s.477(2). The Court only has power to do this if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
In SZNOR v Minister for Immigration & Anor [2009] FMCA 639 Scarlett FM set out a number of considerations that His Honour considered the court might take into account. In summary they are:
a)Whether or not an application has been made in writing to the court specifying why an extension is necessary in the administration of justice;
b)Whether the applicant has offered a reasonable explanation for the delay;
c)The extent of the delay;
d)A consideration of both sides of the litigation including the effect on the applicant if the application is not granted and the effect on the respondent or the detriment to be suffered by the respondent if the application is granted; and
e)The nature of the substantive application and whether or not the applicant could show and argue the case.
In SZNZI v Minister for Immigration and Citizenship [2010] FMCA 57 Smith FM at [11] when considering the court’s power to extend time stated:
“The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]‑[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.”
Application in writing specifying why administration of justice requires extension
Such a written application was contained within the review application. As earlier noted it did no more than claim there had been jurisdictional error committed by the Minister and the decision was void. Nothing was stated to explain why an extension of time is necessary in the administration of justice.
Reasonable explanation for delay
Neither the application nor the affidavit filed in support of the application attempt to explain the delay in the application made to the court. In addition the first respondent submitted that subsequent to the Tribunal’s decision and prior to this application made 21 December 2009 a number of other matters occurred which ought be noted. They include:
a)The applicant filed an application for a protection visa on 14 November 2008 which application was refused on 15 December 2008;
b)The applicant then sought review of the delegate’s decision by the Refugee Review Tribunal on 20 January 2009 which application was rejected with the Tribunal deciding to affirm the delegate’s decision on 14 April 2009;
c)The applicant sought judicial review of the Refugee Review Tribunal’s decision by an application for review dated 26 May 2009; and
d)His Honour Federal Magistrate Wilson dismissed that application on 30 October 2009.[2]
[2] BRGAC of 2009 v Minister for Immigration and Citizenship [2009] FMCA 1092.
From those matters the respondent submits a number of facts are demonstrated or open to be inferred. In particular it is to be inferred that the applicant was well acquainted with the review mechanisms of the court concerning decisions under the Migration Act. Significantly he chose to pursue the protection visa avenue and review rights emanating from a decision in respect of that application rather than to pursue his review rights in respect of the visa under review here. Following that conscious choice it was only when the subsequent visa application failed that the applicant sought to reinvigorate his claim for his first visa by applying to this court. In that regard the respondent noted the observations of the West Australian Court of Appeal in the context of an application for an extension of time that, “…if a party’s fresh evidence or change of mind were good reason to extend time, there would be little point in having time limits at all.”[3]
[3] Willoughby v Clayton Utz [2007] WISCA 5 per Wheeler JA at [8].
The only real explanation provided by the applicant for his delay was his statement of a misunderstanding by him as to his ability to bring a review application without the assistance of legal representation. At the hearing on 12 July 2010 he deposed that he had been advised that the cost of such an application would be something in excess of $10,000.00. He said he could not afford that cost and so he elected to have his representatives seek a less expensive ministerial intervention under s.351 of the Migration Act.
The applicant’s statement to this effect did oversimplify the action taken by him following the Tribunal’s decision. In fact after the Tribunal’s decision was made the applicant sought a Protection Visa which visa was refused by the Minister. As has been earlier noted the review of the Minister’s decision before the Refugee Review Tribunal was also unsuccessful. However while this process was on foot the applicant was also seeking ministerial intervention.
Plainly before seeking this review the applicant chose to pursue, first, an application for ministerial intervention, and, secondly an application for a Protection Visa. In particular the application for a Protection Visa invoked the same processes as are involved in this application. Accordingly there is some doubt about the potential cost of this application being a major determinant of the applicant’s decision to delay in bringing it.
The authorities are unsettled on the issue as to whether an application for ministerial intervention is of itself a satisfactory explanation in seeking an extension of time. However of some assistance in the context of this case are the observations of the Full Court in Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [28] - [29] where Jessup J (Gyles and Besanko JJ agreeing) held:
“…The only explanation proferred on behalf of the applicant was that, after the publication of the Federal Magistrate’s judgment, he requested the Minister to substitute a decision more favourable to him than that of the Tribunal.
…
I do not think that the applicant’s approach to the Minister under s.351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under s.351 proved unsuccessful.”
In this case I have come to the same conclusion. Indeed not only was the review a kind of “plan B” in the event of an unsuccessful application to the Minister, but also in the event of an unsuccessful application for a Protection Visa. That was particularly so in the circumstances of this case where the applicant was or ought reasonably have been aware that his visa application would be unsuccessful on legal grounds, not discretionary grounds as is commonly the case.
By reason of those matters I am not satisfied there is in this case a reasonable explanation for delay.
Extent of Delay
The delay in this instance runs to over 18 months. In the presence of such a lengthy delay particularly when no explanation has been provided places the case into a category of cases where prima facie it is not in the interests of the administration of justice to grant an extension of time. The matter is ultimately one of discretion, but delay of this kind weighs heavily against its exercise in favour of the applicant.
Consideration of the effect of the grant of extension on both parties
The respondent acknowledges that it would not suffer prejudice by the late application. However in answering this consideration it noted that the Full Court has held that the “mere absence of prejudice is not enough to justify the grant of an extension”.[4] In addition the respondent submitted that regard must also be had to the public interest in the finality of litigation particularly having in mind the extensive delay in filing the application.[5]
[4] Parker v The Queen [2002] FCAFC 133 at [6] endorsing the comments of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344.
[5] See SZNOR at [16].
Merits of the application
The essence of the applicant’s substantive case was that the application before the Tribunal was a nullity and accordingly any decision based upon an inefficacious application was also void and a nullity.
The applicant contended that the grounds for the contention of invalidity were that:
Ground 1
The decision made by the Minister or delegate and the decision made by the Tribunal are both not authorised by the enactment, both decisions violate the jurisdictional fact doctrine as the visa application lodged with the Department was not the visa application that I had engaged Dr Christopher White of Migration Plus to lodge on my behalf;
Ground 2
The signature on the visa application was not his own but a forgery of his personal identifier in contravention of the Migration Act 1958 s.46 and Migration Regulations 1994 2.08AC; and
Ground 3
The delegate of the Minister and the Tribunal both failed to take into consideration the facts of the Department’s file number CLF2006/117311 and the submissions made to the Department and the Tribunal.
Grounds 1 and 2
A finding on the validity of a visa application is a “jurisdictional prerequisite” to the excuse of the Tribunal’s power to consider, and then refuse or grant a visa: Minister for Immigration v Li (2000) 103 FCR 486 at [59]. The Tribunal was entitled to consider for itself whether the application for the visa was valid for the purposes of determining whether it had power to conduct the review on the merits: Sevin v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 114 FCR 126 at [82]-[83]. That was a matter the Tribunal could determine for itself: Zhang v Minister for Immigration and Indigenous Affairs [2005] FCA 1706 at [7].
Irrespective of the Tribunal’s findings of fact, it is now well settled that even if an application is false or contains false information where an application is lodged on behalf of an applicant it is taken to have been completed by him or herself: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199. In the context of the applicant’s complaint concerning his signature the respondent particularly noted the refusal of an application for special leave to the High Court where it considered and refused leave in respect of an argument that an application not signed by the visa applicant cannot be cured by s.98; NAWZ v Minister for Immigration and Multicultural Affairs [2005] HCA Trans 853. It follows the better view presently is that s.98 does cure any such defect.
On the point of inaccurate information included within an application Bennett J in SZGJO v Minister for Immigration and Multicultural Affairs [2006] FCA 393 held that:
“The applicant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information as in NAWZ, s.98 applies. Section 98 does not require a covert purpose to mislead. The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid.”
In the application before the Tribunal the applicant admitted throughout the review process that he intended for the visa application to be made. The Tribunal’s decision also recorded that “the applicant stated at the hearing that he wished the application to be made as he wanted to gain residency in Australia…”.[6] The Tribunal proceeded to find that:
a)The applicant intended that the Class BW Visa application being lodged on his behalf and that he was aware of the application;
b)The applicant understood that the Class BW Visa application was to be lodged on his behalf and he was subsequently aware it had been lodged on his behalf. Further the application involved a nomination by ARTEC Composition Pty Ltd.;
c)During the processing of the Class BW Visa the applicant was advised at a meeting with the Department on 6 March 2007 that the application could not succeed. He raised concerns about his agent but did not repudiate the Class BW Visa application that had been made nor suggest that the application had not been lodged on his behalf nor did he then withdraw the authority of Migration Plus to act on his behalf; and
d)It was only during the review process when the applicant first became aware that the form lodged contained differences, including his signature that he sought to question the application.
[6] Tribunal’s decision page 9 VRD.
Upon that basis the Tribunal concluded that the visa application had been authorised and that the fact that he may not have signed the actual visa application form ultimately lodged did not militate against that. It concluded that s.98 had been triggered deeming the application to be his and the application was valid.
The principal contentions against validity were that he had been defrauded by his agent to whom he said he had not given instructions for the visa application to be lodged and who, he alleged, had forged his signature.
In the course of the hearing on 12 July 2010, the applicant gave evidence. That evidence confirmed earlier evidence given by the applicant before the Tribunal. It was plain from his evidence that the agent’s advice to the applicant was to apply for a Sub-class 857 visa. In accordance with that advice he then proceeded to find a sponsor for a Sub-class 857 visa and the nomination for the Sub-class 857 visa was in fact approved. He stated that he had paid Dr White $2,000.00 to begin processing this application and that he had asked Ms Leszuk (an employee of Dr White) to prepare a visa application based upon a form that he had prepared to be given to Dr White. It had been prepared so Dr White could submit the application to the Minister. In cross examination he conceded that he had been advised by his agent that lodging a Sub-class 857 visa application was a good idea and that the Sub-class 857 visa was “the preferred option”.[7] The applicant agreed that he was asked if he wanted to lodge a visa application on the basis of that advice. He answered in the affirmative. In addition, in support of that application, he collected documents to lodge with it. In his evidence he affirmed that he did intend for Migration Plus, the migration agent, to lodge an application for a Sub-class 857 visa on his behalf.[8] He also acknowledged that he had been told by Kaska Leszuk, an employee of Dr White at Migration Plus, that she had taken the application to the Cairns regional office of the Minister and lodged it in person and used Dr White’s American Express card to pay the fee.[9]
[7] Transcript 12 July 2010 page 38 lines 39-40.
[8] Transcript 12 July 2010 page 38, line 46.
[9] Transcript 12 July 2010 page 36, lines 15-18. Also page 40, line 31.
An additional complaint made by the applicant was that the form prepared by the migration agent and submitted on his behalf to the Department was different to the form prepared by him. However it is plain from the evidence given by the applicant on 12 July 2010 that in all material respects the form filed on behalf of the applicant contained the primary information contained in the form prepared by the applicant and provided by him to the migration agent.
A matter of moment for the applicant was the treatment of his former spouse on the form. The applicant took some pains to emphasise that he desired his ex-spouse to be included on the application despite being advised against that course.[10] The matter of his ex-spouse being on the form was a matter of great concern to the applicant. The form lodged for the Department by the migration agent included information relevant to the ex-spouse and all the information given by the applicant to his agent for that purpose. That is in contrast to the form which was prepared and signed by the applicant. In a curious twist the applicant conceded in cross examination that the application he signed did not include information concerning his ex-spouse but the form actually lodged with the Department did.[11] Still the form as filed complied with his ultimate instructions.
[10] Transcript 12 July 2010 page 28, lines 27-29.
[11] Transcript 12 July 2010 page 41, lines 4 and 20-21; Page 42, lines 7-11 and 25-27.
Given the applicant’s evidence I accept the respondent’s contention that the vast majority of the information contained on the form filed was correct and/or materially the same as the information on the form signed by the applicant. The only significant difference concerned spouse details. However the form filed by the migration agent conformed with the applicant’s instructions. Otherwise any other differences between the two forms were minor or relatively inconsequential.
The applicant gave evidence that he did not give instructions for Ms Leszuk specifically to lodge the form. However he did not challenge the issuing of instructions to Migration Plus, Dr White’s agency, to prepare and lodge the form. Ms Leszuk was an employee of that agency and appears to have been acting within both her actual and ostensible authority for the agency when she lodged the documents with the Department. So much is to be inferred by her use of Dr White’s credit card. Clearly it was the applicant’s intention that a Sub-class 857 visa be lodged on his behalf and to that end he collaborated with Migration Plus to achieve that outcome.
In light of the above facts it is in my view plain, that the Tribunal was acting within its jurisdiction in concluding from the facts that s.98 applied to fix the applicant with responsibility for the application. Clearly the applicant intended that the application be lodged and gave instructions to that effect. The application was completed and lodged on the applicant’s behalf and accordingly that is sufficient for the visa application to be valid. In my view grounds 1 and 2 of the review application would fail.
Ground 3
In ground 3 the applicant complains the Tribunal (and the delegate) had failed to take into consideration the material in the Departmental file together with the submissions made. The applicant’s submission on this ground was glib and lacked particularity. However even a cursory review of the material demonstrates the Tribunal had before it the Departmental file and was familiar with the history of the applicant’s file. It relevantly discussed the applicant’ history, referred to the previous application and subsequent application and correspondence.
The applicant also complains that the Tribunal did not consider his submissions. This submission is not supported by the material which clearly demonstrates the Tribunal’s consideration and response to contributions made were comprehensively and relevantly addressed in its reasons for decision. In my view this ground will also fail.
Decision extension of time
In summary I consider the substantive application will fail. In addition other discretionary grounds militate against the application to an extension of time, I am not satisfied that in this case it is necessary in the interests of the administration of justice to order an extension of time. The application is refused.
Substantive application
In the absence of an order extending time, the substantive application is incompetent and fails.
In the event I were in error in the exercise of my discretion on the extension of time, I consider that in any event the substantive application would fail for the reasons I have detailed above.
I dismiss the application.
Orders
Application for an extension of time refused.
Application dismissed.
Subject to application being made within seven (7) days of today’s date for any other order, order that the Applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 17 December 2010
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