TRAD v Minister for Immigration
[2019] FCCA 97
•18 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 97 |
| Catchwords: MIGRATION – Application for judicial review – partner visa – application filed without requisite fee by agent – whether agent had acted fraudulently – whether there has been a fraud on the Tribunal – whether the Tribunal has jurisdiction to review decision – no fraud demonstrated – Tribunal’s jurisdiction not invoked – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476. Migration Regulations 1994 (Cth), reg.4.10(1)(a) |
| Cases cited: Awon v Minister for Immigration and Border Protection [2015] FCA 846 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZQVV v Minister for Immigration and Citizenship [2012] FCA 871 |
| Applicant: | NAJIB TRAD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1388 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 29 October 2018 |
| Date of Last Submission: | 29 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | S Brnovic |
| Solicitors for the Applicant: | Merhi & Associates |
| Counsel for the Respondents: | R Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 30 June 2016 and amended on 27 January 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1388 of 2016
| NAJIB TRAD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court by way of an application for judicial review filed 30 June 2017, amended on 27 January 2017. The Applicant seeks a review of a decision of the Administrative Appeals Tribunal
(‘the Tribunal’) dated 9 June 2016. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the
First Respondent which refused a grant of a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa (‘the Visa’).
Background
The Applicant is a citizen of Lebanon. He entered Australia on
11 September 2011 as the holder of a student visa. A further student visa was granted to him on 11 September 2013.
On 15 March 2015, the Applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The Visa application form stated that the Applicant's authorised recipient was his representative, Ms Wood, and gave her contact details, including her email address.
On 14 December 2015, Ms Elizabeta Naumovska, a delegate of the First Respondent, requested further information from the Applicant via an email to Ms Wood. Ms Wood forwarded the email to the Applicant shortly after.
On 4 and 9 January 2016, the Applicant replied to the request, attaching further information. This information was never received by the Department and the Applicant submits an inference can be drawn from the surrounding circumstances that Ms Wood did not provide this information.
On 25 February 2016, a delegate of the Minister refused to grant the Applicant a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa (‘the delegate's decision’). It was noted in the record of decision that the Applicant had never responded to the request for further information. The delegate's decision, together with correspondence informing the Applicant about the decision and his review rights, was sent to his authorised recipient, Ms Wood, by email.
The Applicant says that Ms Wood did not inform him of the decision and that she began compiling an application for review without the Applicant’s knowledge or instructions. The Applicant alleges that Ms Wood forged his signature on the Form M1 “Application for review – Migration” that was sent to the Tribunal.
At approximately 7.10 pm on 17 March 2016, the following documents were lodged with the Tribunal by facsimile:
a)an undated covering letter from Ms Wood to the Tribunal;
b)a completed application form for review of the delegate' s decision (the review application form); and
c)the delegate’s correspondence informing the Applicant about the decision and his review rights.
In the review application form, Ms Wood was named as the Applicant’s representative and his authorised recipient. The review application stated that it was agreed that correspondence be sent by email. The review application form also contained details for payment of the application fee. In this regard, Ms Wood's credit card details were supplied.
In a letter to the Applicant dated 23 March 2016, an officer of the Tribunal invited him to comment on the validity of his review application. The letter was sent to his authorised recipient, Ms Wood, by email on the same date. The letter stated that:
The Tribunal received your faxed application after hours on
17 March 2016, the last day of lodgement. Two attempts were made to take the application fee from the credit care details provided on 18 March 2016 but both of these attempts were declined due to insufficient funds.
I am of the view that your application is not a valid application as you did not pay the application fee before the expiry of the time limit for lodging the application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 6 April 2016. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
The Applicant claims that he was never informed of this development.
On 15 April 2016, the Applicant informed the Tribunal that he had appointed a new representative and authorised recipient, Ms Samia Fayad. He requested that correspondence be sent to her by email.
On 9 June 2016, the Tribunal handed down its decision. The Tribunal’s decision was sent to his authorised recipient, Ms Fayad, by email on the same date. At the time of its decision, the Tribunal had not received any response to the letter dated 23 March 2016.
In its decision, the Tribunal found that it did not have jurisdiction. In this regard, it stated that:
Pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) and reg 4.10, and accompanied by the prescribed fee (original emphasis) unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the Applicant is notified of the decision. In the present case, the prescribed period ended on 17 March 2016. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
In an email to the Tribunal dated 10 June 2016, Ms Fayad referred to the Tribunal' s decision and relevantly claimed that:
On 15 April I was appointed as his representative. My client was not aware that the fee was not paid for the review application nor was he told by his previous migration representative that a review application had been lodged.
Ms Fayad requested that the Tribunal reconsider its decision.
In a letter to Ms Fayad dated 15 June 2016, an officer of the Tribunal informed her that the Tribunal had carefully considered her request. The officer stated that, having made its decision, the Tribunal had no power to take any further action on the review application.
Grounds of review
The amended application filed 27 January 2017 listed the following grounds of review:
The Administrative Appeals Tribunal failed to exercise its jurisdiction as a result of the third party fraud of the Applicant’s (then) registered migration agent. As a result of this fraud "on” the Tribunal, its decision is affected by jurisdictional error.
PARTICULARS
(a)The Applicant's migration agent was informed of the delegate's decision by email on 25 February 2016, as a result of which the Applicant had until the end of the day on
17 March 2016 to lodge an application for review with the Tribunal.
(b)Instead of informing the Applicant of this, the migration agent prepared and lodged a review application without the Applicant’s knowledge or instructions, including by forging the Applicant's signature.
(c)The application was lodged within time but the prescribed fee was not paid within time because there were insufficient funds on the nominated credit card.
(d)But for the migration agent's fraud, the Applicant could and would have paid the prescribed fee, or lodged an application for a fee waiver, within the prescribed time.
Consideration
The Applicant submits that the failure on the part of Ms Wood to inform him of the outcome of his Visa application amounted to a “fraud on the Tribunal”. The main controversy in this matter is the question of whether the Tribunal’s jurisdiction was enlivened in this case, with the result that the decision was affected by jurisdictional error by the actions of
Ms Wood.
The Applicant relied upon affidavit sworn on 29 June 2016 which outlined his dealings with Ms Wood. The Applicant was cross-examined in relation to his affidavit. His affidavit confirmed the matters in relation to the conduct of Ms Wood that are set out in the background above.
The Applicant relied upon SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (‘SZFDE’). In that case, the Tribunal invited the Applicant to the hearing because it was unable, on the material before it, to reach a favourable decision. The Applicant however, did not attend as his agent had advised him not to go because the Tribunal was not accepting any applications at that time and that he was better off making a ministerial submission. At [32], the High Court held that a subversion of the operation of s 425 of the Act by the conduct of the agent led to a consequent subversion of the processes of the Tribunal. At [49] the Court held that the fraud had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellant and characterised the conduct as fraud “on” the Tribunal at [51].
In SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 (‘SZSXT’), Perram, Robertson and Griffiths JJ summarised some relevant principles established in SZFDE relating to fraud in a public law context, including a migration case. Those principles are set out in [51] of SZSXT (the paragraph references are to SZFDE):
(a)in the framework of general legal principle, fraud can come in various guises and is ‘infinite in variety’ [8];
(b)different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];
(c)‘fraud’ can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses ‘bad faith’ [17];
(d)in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];
(e)another practical aspect of fraud in public law which may set it apart from fraud in civil law is that ‘often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted’ [22];
(f)in a public law case, fraud is not limited to that of a decision-maker, a party or a party's representative [25]-[27]; and
(g)there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for ‘third party fraud’ of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue's fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud ‘on’ the Tribunal which meant that the Tribunal's jurisdiction remained constructively unexercised [51]-[52].
The Applicant’s submission correctly and helpfully referred to the relevant regulations dealing with the prescribed times for filing an application with the Tribunal (reg 4.10(1)(a)) as 21 days. The Applicant also accepted that this case was analogous to Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, where it was held that the Tribunal had no jurisdiction to review a decision where an application was filed within time but accompanied by a cheque which was dishonoured and then replaced with another cheque delivered out of time.
The Applicant submitted that the act of the agent’s fraudulent conduct had to be considered. The Applicant relied on SZQVV v Minister for Immigration and Citizenship [2012] FCA 871. In that matter, in the context of an appellant seeking leave to file an appeal from a decision of a Federal Magistrate out of time, the appellant claimed that he had failed to lodge an application on time because of being he was being assisted by third party who had repeatedly assured him that the application had been filed. Greenwood J held that these claims gave rise to an arguable case that a third party’s dishonest conduct was “not only a fraud on the applicant but also a fraud on the Tribunal as the conduct had prevented the applicant from engaging the review processes of the Tribunal at all’.[1] At [66], His Honour stated that:
It seems to me consistent with the principle identified in SZFDE that where an applicant has been prevented from engaging with the Tribunal by reason of third party material dishonesty, that conduct represents not only a fraud upon the applicant but also a fraud upon the Tribunal’s processes and role for the purposes of the Migration Act. The Commonwealth has established a law which is designed to provide applicants whose protection visa application has been rejected with a statutory scheme of merits review. A third party by reason of arguable material dishonesty has frustrated an engagement between the applicant and the Tribunal and has prevented the statutory scheme from functioning at the very threshold. That seems to me to involve a fraud upon the Tribunal and not only a fraud upon the applicant.
[1] SZQVV v Minister for Immigration and Citizenship [2012] FCA 871 [58].
On a subsequent appeal, Flick J agreed with Greenwood J’s dicta and rejected the Minister’s argument that the principle in SZFDE should be limited to fraudulent conduct arising after the Tribunal’s jurisdiction had been invoked.[2]
[2] SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 [19].
The First Respondent does not concede that the conduct of the agent in this case amounted to fraud and characterised the conduct as negligence. Relying on Beach J’s observations in Awon v Minister for Immigration and Border Protection [2015] FCA 846 (‘Awon’) at [38] - [40], where His Honour stated:
The Tribunal lacked jurisdiction because the strict time limits were not complied with. This is not a case where the Tribunal’s jurisdiction has been properly invoked and then subsequently interfered with by fraudulent conduct that affected how the Tribunal dealt with a matter otherwise within its jurisdiction, but which it was prevented from exercising (see for example SZFDE v Minister for Immigration and Citizenship [2007] HCA 35). Whatever the width of the common law principle underpinning the concept of “fraud on the Tribunal”, it cannot operate to:
(a) rewrite the strict time prescription;
(b)give the Tribunal jurisdiction which the statutory provisions denied it.
If the reasoning in Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 at [48] and [49] per Keane CJ, Collier and Logan JJ is correct, then a fortiori, the conduct of a remoter agent of the appellant could not justify any re-writing of the statutory time frames. To the extent that SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [19] and SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472 at [57] suggest otherwise, I would respectfully disagree.
The Applicant asked the Court to choose between the analysis and dicta of Greenwood and Flick JJ in the two SZQVV decisions and that of Beach J in Awon in favour the SZQVV decisions.
The First Respondent submits that:
a)in both the first and second SZQVV decisions, the Federal Courts’ observations about the effect of fraud on the strict time limits are obiter dicta ;
b)it was relevant in the first SZQVV decision that Greenwood J had noted that the person assisting the applicant was not a registered migration agent and by so assisting was probably breaching the Act; and
c)
the second SZQVV decision involved an assessment of whether the Applicant had an arguable case for leave to appeal. At [20], Flick J determined that it was ultimately unnecessary to determine how, if at all, fraud might affect the time limits imposed by s 347 and
reg 4.10.
I agree with submissions of the First Respondent that it is difficult to ascertain what the fraud on the Tribunal in this case was said to be. The agent submitted an application on behalf of the Applicant without the Applicant’s knowledge but it is plainly an application that the Applicant wished to have submitted. The problem with the application as far as the Applicant is concerned is the fact that that there were insufficient funds on the agent’s credit card, the details of which were provided by the agent to cover the cost of the filing fee. Whilst this has had very significant impact on the Applicant and is most regrettable, I do not consider that it can be characterised as a fraud rather than negligence or inadvertence on the agent. The agent’s conduct, whilst impacting on the Tribunal’s function, does not amount to a fraud on the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [32]-[33]. In that case, the Full Court, when considering the effect of an agent’s failure to notify an applicant of a hearing date, stated:
32We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a “fraud on the Tribunal”.
33The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
Further, I accept the correctness of Beach J’s observations in Awon and it is not possible to give the Tribunal jurisdiction which the statutory provisions denied it because the strict time limits have not been complied with.
Conclusion
For the reason given above, the application will be dismissed. Finally, the Court notes its appreciation of the clear written and oral submissions provided by both counsel.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 18 January 2019
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