Sweidan v Minister for Immigration

[2016] FCCA 1612

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWEIDAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1612

Catchwords:
MIGRATION – Partner visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the Tribunal did not, before proceeding to make its decision, inquire into the applicant’s failure to make foreshadowed written submissions.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, s.474

Migration Regulations 1994, cl.820.211 of sch.2, cls.3001, 3003, 3004 of sch.3

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25
Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213
SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: RIYAD SWEIDAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1138 of 2014

Judgment of: Judge Cameron

Hearing date: 23 June 2016

Date of Last Submission: 23 June 2016

Delivered at: Sydney

Delivered on: 4 July 2016

REPRESENTATION

Counsel for the Applicant: Mr L.J. Karp

Solicitors for the Applicant: Parish Patience Immigration

Counsel for the First Respondent: Mr D. Hughes

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1138 of 2014

RIYAD SWEIDAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a Lebanese-born Palestinian, applied for a Partner (Temporary) (Class UK) subclass 820 visa on 3 December 2010. On 2 February 2012 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. The criteria for the grant of a subclass 820 visa are found in pt.820 of the sch.2 to the Migration Regulations 1994 (“Regulations”). One of the criteria which the applicant had to satisfy was cl.820.211 which at the time he lodged his application relevantly provided:

   (2)     An applicant meets the requirements of this subclause if:

   ...

   (d)in the case of an applicant who is not the holder of a substantive visa — either:

   ...

   (ii)     the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

2. The sch.3 criterion which was relevant to the applicant was criterion 3001, which relevantly provided:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   ...

   (c) if the applicant:

   (i)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; ...

   ...

   whichever is the later of:

   (iii)  the last day when the applicant held a substantive or criminal justice visa; ...

   ...

BACKGROUND FACTS

1. The applicant arrived in Australia on 17 August 2008 as the holder of a student visa which was due to expire on 1 March 2010.  On 1 March 2010 he applied for a further student visa.  That application was refused on 27 May 2010 and the applicant’s application for review of that decision was unsuccessful. 

Partner visa application

1. As noted earlier, the applicant lodged his application for a partner visa on 3 December 2010. His application was sponsored by his wife, who is an eligible New Zealand citizen resident in Australia. On 21 November 2011 the delegate wrote to the applicant relevantly noting that he did not satisfy sch.3 to the Regulations because his last substantive visa had ceased on 1 March 2010 and he had only made his application for a partner visa on 3 December 2010, more than twenty-eight days after his last visa had ceased. The applicant was invited to put forward any compelling reasons which would justify the waiver of the sch.3 requirements. The applicant did not provide a response to that invitation. Ultimately, the issue whether the applicant satisfied the sch.3 criteria did not play a part in the delegate’s decision to refuse him a visa. She was not satisfied that he met the definition of “spouse” in the Regulations and it was for that reason that she concluded that he did not meet the requirements for the grant of a partner visa.

Tribunal proceedings

1. The applicant appeared before the Tribunal on 7 February 2014 and confirmed that his last substantive visa had ceased on 1 March 2010. He and his wife also gave evidence of what they said were compelling reasons for the waiver of the sch.3 criteria.

2. On 10 February 2014 the applicant’s representative wrote to the Tribunal requesting a recording of the Tribunal hearing and an extension of two weeks within which to provide submissions in support of the applicant’s application.  A file note in the Court Book records that on the same day a Tribunal officer telephoned the representative and advised him that the Tribunal would not be communicating with him further because his representation had been “withdrawn” by the applicant.  The file note records that the representative said that he would ask the applicant to re-appoint him.  On 12 February 2014 the representative sent the Tribunal a form signed by the applicant appointing him as the applicant’s representative.  In his covering letter the applicant’s representative once again sought a two week extension to provide submissions.  The Tribunal granted the applicant’s representative’s request for an extension of time up to 26 February 2014 and he was advised of that extension by telephone message on 12 February 2014.

3. On 13 February 2014 the Tribunal sent the applicant’s representative a copy of the recording of the hearing.  The covering letter accompanying the CD of the recording noted that the CD had been tested to ensure that it worked and the content was audible.  On 21 February 2014 the applicant’s representative wrote to the Tribunal stating that the recording would not play and seeking a further two week extension to provide submissions.  On the same day the Tribunal emailed a digital copy of the recording to the applicant’s representative.  Later that day the applicant’s representative responded stating that the digital file would not play on his firm’s computers.  The Tribunal then converted the hearing recording into MP3 format and emailed it to the applicant’s representative.  In the email attaching the MP3 recording the applicant’s representative was asked to confirm as soon as possible whether the recording worked.  The applicant’s representative did not respond to that email.

4. On 24 February 2014 the Tribunal wrote to the applicant’s representative again advising him that the applicant had been granted until 26 February 2014 to provide written submissions.  The applicant’s representative was advised that if the Tribunal did not receive any further information by the close of business on 26 February 2014 it would proceed to make a decision.

5. The Tribunal made its decision affirming the delegate’s decision on 27 February 2014. In its decision, the Tribunal noted that the applicant’s last substantive visa had ceased on 1 March 2010 and that he had applied for a partner visa on 3 December 2010. It found that his application had not been made within twenty-eight days of his last substantive visa ceasing and accordingly he did not satisfy criterion 3001 of sch.3 to the Regulations. The Tribunal also found that criteria 3003 and 3004 did not apply to the applicant.

6. The Tribunal then went on to consider whether there were compelling reasons for not applying the sch.3 criteria. The Tribunal referred to the claims of the applicant and his wife at its hearing. It also noted that the applicant’s representative had sought an extension of time to provide submissions and that although such an extension had been granted, it had not received any submissions by the time it made its decision. The Tribunal was therefore not satisfied that any aspects of the applicant and his wife’s relationship provided a compelling reason for not applying the sch.3 criteria. It therefore found that the applicant did not meet the requirements of cl.820.211 for the grant of a partner visa.

7. The Tribunal’s decision was sent by facsimile to the applicant’s representative on 27 February 2014.  On 28 February 2014 the applicant’s representative emailed the Tribunal challenging the statement in its decision that he had not provided a submission within the allowed timeframe, asserting that he had faxed a submission on 26 February 2014.  Attached to the applicant’s representative’s email was a fax transmission report dated 26 February 2014 and timed 10:03am.  The top of the report stated “The job has been sent” and included a picture of the submissions’ covering letter.  The report also stated:

#	Job	Remote Station	Start date & Time	Duration	Pages	Protocol Contents	Status
1	1564	MRT	2-26; 9:35	20:48	30/34	G3 15.                G3 Resend	Auto Send
2	1564	MRT	10:01	2:05	34/34		Completed

1. The applicant’s representative’s email attached the covering letter and the thirty-three page submission which he said had been sent by fax on 26 February 2014.  The representative asked the Tribunal to vacate its decision and take the submission into account.

2. On 12 March 2014 the Tribunal wrote to the applicant’s representative advising that extensive searches of its fax records showed no record of it having received the representative’s fax on 26 February 2014.  The representative was advised that the presiding member had decided to not re-open the case. 

PROCEEDINGS IN THIS COURT

1. In his amended application the applicant alleged:

   1.The Tribunal failed to complete the exercise of its jurisdiction by making an obvious inquiry about a critical fact, the existence of which could have been easily ascertained.

   Particulars

   (a)Failure of the Tribunal to telephone the applicant’s solicitors prior to the making of the decision to inquire as to whether on or prior to 26 February 2016 [sic] they had made a submission addressing the issue of whether compelling reasons existed for not applying the criteria in Item 3001 of Schedule 3 of the Migration Regulations, 1994.

   (b)Failure of the Tribunal to send a facsimile transmission to the fax number shown on its facsimile receipts log from which it had received four of 34 pages of a fax at 11.01 a.m. on 26 February 2016, to inquire;

   (i)     To which matter those pages referred, and,

   (ii)     To advise that only 4 of 34 pages had been received.

Evidence

Affidavit of Grant Nicholas

1. At the time he affirmed his affidavit on 2 December 2014 Mr Nicholas was the operations manager responsible for the Tribunal’s facsimile and email servers.

2. Mr Nicholas deposed that when a facsimile was sent to the Tribunal, the transmission was first received by one of the Tribunal’s private automatic branch exchanges (PABXs).  The Tribunal operated two PABXs, one in Sydney and one in Melbourne, and all the facsimiles it received nationally were sent to one of those PABXs.  The Tribunal also operated two fax servers linked to each of the two PABXs.  The fax servers resided on the computer systems in those two registries and were enabled with a feature known as a “virtual fax card” and software known as “RightFax”.  The RightFax software recorded a log of all facsimiles sent and received by the Tribunal’s Sydney and Melbourne facsimile numbers.  Mr Nicholas deposed that if a facsimile transmission failed before or at the point of receipt by one of the PABXs, the sender would receive a “busy” or “transmission error” signal and a call cost would not be incurred.  He deposed that if there were any “issues” with the fax server then the sender would also receive a “busy” or “transmission error” signal but a call cost would be incurred.  If RightFax detected an error with the facsimile transmission itself, such as insufficient data, the call would fail.

3. Mr Nicholas deposed that if a facsimile transmission was successfully received by one of the PABXs, it was automatically passed on to the Tribunal’s fax servers.  He deposed that once a facsimile transmission was received by one of the Tribunal’s fax servers, it was converted into a PDF document which was then attached to an email and sent to the Tribunal’s Outlook Mailbox.  The Outlook Mailbox was capable of being accessed by the Tribunal’s registry staff and was monitored by a designated person who then forwarded the emails to the relevant persons within the Tribunal for further action.

4. Mr Nicholas deposed that on 28 October 2014 he connected to the Tribunal’s Sydney Fax Outlook Mailbox and located an email related to the applicant.  The email attached to Mr Nicholas’s affidavit indicated that the PDF of the transmission was received in the Sydney Fax Outlook Mailbox at 11:14am on 26 February 2014.  The subject of the email read:

   ACTIONED (FAX UNABLE TO SEND) APPLICANT CANNOT BE LOCATED IN CASEMATE – A new fax has arrived from [applicant’s representative fax number] (Part 1 of 1) on Channel 3

   The email recorded that the transmission had been received at 11:01:47am and consisted of four pages.  The four transmitted pages which were attached to the email were copies of the applicant’s wife’s pay slips, being the last four pages of the applicant’s representative’s submissions.  The top of the first page was marked “# 31/ 34”, with the following pages marked in sequential numbers.  There was nothing on those pages which identified the applicant.  

5. Mr Nicholas deposed that on 30 October 2014 he connected to RightFax and accessed the individual and combined logs for all transmissions received by the Tribunal’s Sydney and Melbourne facsimile numbers on 26 February 2014.  He deposed that the logs showed that one transmission of 2.06 minutes duration was received at 11:01am from the applicant’s representative’s fax number.  Mr Nicholas deposed that he had viewed the contents of each transmission received around that time for which no sender fax number was listed and found no other transmissions which appeared to relate to the applicant.

6. Mr Nicholas deposed that the fax server emails sent to the Outlook Mailbox also generated an exchange mail log which was recorded in batches of multiple transmissions, usually about a day’s worth.  Mr Nicholas deposed that while it was possible to delete a whole batch of transmissions, a single transmission could not be deleted from a batch without interrupting the sequential numbering of the transmissions.  He deposed that on 26 November 2014 he connected to the exchange log and extracted the logs for all facsimile transmissions received on 26 February 2014 between 11:12:42am and 11:17:42am.  The exchange log indicated that a transmission was received from the applicant’s representative’s number at 11:14:00am. 

7. Mr Nicholas deposed that, based on the outcomes of his searches, the only facsimile transmission received by the Tribunal from the applicant’s representative’s fax number on 26 February 2014 was the four page transmission of the applicant’s wife’s pay slips received at 11:01am.

8. Mr Nicholas was not required for cross-examination and I accept his evidence.

Consideration

1. The evidence satisfies me that, notwithstanding what I have no reason to doubt was a genuine attempt by the applicant’s solicitors to fax their submissions to the Tribunal on 26 February 2014, the greater part of those submissions was not received by the Tribunal before it reached its decision on the review.  I find that the only pages it received before that point were the four pages of pay slips referred to in Mr Nicholas’s affidavit.  The questions therefore presented by the particulars of the allegation made in the applicant’s amended application are whether:

   a)given the correspondence between the applicant’s solicitors and the Tribunal referred to earlier at [9] to [11] of these reasons, the Tribunal should have contacted the applicant’s solicitors before making its decision on the review; and

   b)given the metadata which accompanied the four pages which actually were received, the Tribunal should have made inquiries of the fax number which appeared on those pages.

Preliminary issue

1. A question arose at the hearing of this application concerning whether the four pages of pay slips which arrived unheralded at the Tribunal could be considered to have been “before the Tribunal” because they were not seen by the member conducting the review.  For present purposes it can be accepted that they were, even if the member conducting the review was unaware of them because the real issue was whether they had been received by the Tribunal, as an organisation which included a registry as well as Tribunal members, before it made its decision, which I find they had been: Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25.

Particular (a)

1. In his written submissions the applicant said:

   … There was here protracted correspondence starting on the first business day after the Tribunal hearing as to provision of a recording of the hearing, and a further request for an extension of time. It would also have been obvious to any Tribunal officer who had thought about it, that the applicant’s lawyers had intended to follow up the invitation to submit further evidence. There is no doubt that a simple phone call to the applicant’s solicitors would [have] elicited a response to the effect that a 34 page fax had been sent. This situation has some analogy to that in Wei v Minister for Immigration [2015] HCA 51 at [49]-[51] per Nettle J where his Honour found that a simple question asked during a phone call could have resolved the issue in the litigation.

2. At the outset, it should be noted that the facts in Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213 were significantly different from those of the present case, most relevantly by reason that the decision-maker in Wei’s case knew that communication with the visa applicant had failed.  Nor are the facts of this case similar to those considered in SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14, where it was found that it would have been apparent to the Refugee Review Tribunal (“RRT”), from its receipt of a fax coversheet but not the accompanying pages, that the applicant in that case had been attempting to exercise his statutory right to comment on information notified to him either under the Act or under the general executive power. In that case it was found that by proceeding to a decision without inquiring into what the applicant had been attempting to do by his fax, the RRT had undermined the reality and meaningfulness of the invitation to comment and so had committed jurisdictional error. That finding might nowadays be expressed in terms of an unreasonable exercise of discretion leading to jurisdictional error: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.

1. The contention propounded by the applicant turns the respective rights and obligations of an applicant and the Tribunal on their head.  Relevantly, it is an applicant’s right to place material before the Tribunal and it is the Tribunal’s duty to consider that material.  If an applicant wishes the Tribunal to consider material then he or she must ensure that the Tribunal has received it. 

2. The circumstances of this case are unfortunate and regrettable but the Act did not require the Tribunal to remedy the applicant’s failure to communicate his submissions by 26 February 2014. Further, although the Tribunal could have made the inquiry contended for by the applicant, the Act did not require it to consider doing so and nothing suggests that it turned its mind to the question. Common law procedural fairness did not mandate the propounded inquiry either: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1128-1129 [24].

3. There being no relevant statutory or common law duty and no miscarriage of discretion, the first particular of the allegation in the amended application does not identify any jurisdictional error on the Tribunal’s part.

Particular (b)

1. In his written submissions, the applicant said:

   It may however be noted that that email was flagged, “Follow up”. That was sensible, because it would have been obvious to anybody who examined these pages that they were but part of a much larger document. That is because the numbers imprinted by a fax machine in the top right hand corner of pp 65-68 of Annexure “D” to Mr Nicholls’ [sic] affidavit are “31/34” ... to “34/34”, indicating of course that there were a further 30 pages which had not been received. It was also clear, from the content of Mr Nicholas’s affidavit, that the Tribunal had a record of the fax number from which those four pages were sent. It would have been a simple matter for an officer of the Tribunal to send a brief fax to that number enquiring as to which matter the pages were relevant, and if so to re forward the entire document.

   …

   It may be accepted that the Tribunal receives many electronic communications. As a matter of experience some such communications will be incomplete. However, many, perhaps all, will be vital to the Tribunal’s very important functions.  In those circumstances a brief fax as suggested above would not only be administratively appropriate, but would in the circumstances of this case be legally necessary. Using the template in SZIAI, the enquiry was obvious, it was easily made, it was about a critical fact, and would have resolved the issue.

2. In SZIAI the High Court relevantly said:

   The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (at 1129 [25])

3. In the context of a duty to review, lack of inquiry by the Tribunal could only amount to jurisdictional error if the proposed inquiry concerned a “critical fact”.  That term points to factual inquiries or investigations, not to reminders or follow-ups of applicants and their agents.  That is to say, the duty to inquire, when it exists, applies to matters of substance, not to matters of procedure: SZIAI at [24]. Particular (b) is concerned with a matter of procedure and so no duty to inquire is identified by it.

4. It might be considered that, notwithstanding the absence of an SZIAI-sourced duty to inquire, the Tribunal should nevertheless have sought to make contact with the sender of the four pages of pay slips because that was a reasonably open and regular administrative step.  In SZJBA, Allsop J said:

   ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation.  That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Part 7 of the Migration Act. (at 27 [53])

5. However, I accept the Minister’s submission on this point, again noting that the facts in SZJBA were significantly different from the facts in this case.  The Minister said in his written submissions:

   And it cannot possibly be said that “reasonably open and regular administrative procedural steps” would have ascertained the connection with between [sic] the fax and the review application.  For the applicant’s case to succeed, it would be necessary to conclude that the Tribunal’s jurisdiction depends on answering every fax, no matter how obscure, with [sic] 24 hours or so.  That would be an enormous burden.  And why would the obligation be limited to facsimiles?  It would also have to apply to emails and to missed phone calls.  That needs only to be stated for the problem to become apparent.

6. To the extent that his Honour’s reasoning in SZJBA was not an early explanation of the law as later stated in Li and Singh, making the inquiry contended for by the applicant in this case could not, in my view, be characterised as a regular administrative step.  Were it to be so, no decision by the Tribunal on any review pending at the time such a communication was received could be published until inquiries into the communication had run their course.  The potential for disruption of the Tribunal’s operations would be disproportionate to the value of the enquiry, particularly as inquiries might be inconclusive.  The potential for an intentional disruption of the Tribunal’s operations should also not be overlooked when considering whether the Tribunal should be expected to pursue such enquiries as an incident of its administration of a review file.

7. For these reasons the second particular of the allegation does not identify any jurisdictional error on the Tribunal’s part.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 4 July 2016