Waqas v Minister for Immigration
[2016] FCCA 1683
•23 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAQAS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1683 |
| Catchwords: MIGRATION – Application to review decision of former Refugee Review Tribunal – application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 379G, 477(1), 477(2) Migration Regulations 1994 (Cth), Sch.2, cl.573.211(3) |
| Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 |
| Applicant: | SYED MUHAMMAD WAQAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3496 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 June 2016 |
| Date of Last Submission: | 23 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to read "Administrative Appeals Tribunal".
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3496 of 2014
| SYED MUHAMMAD WAQAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 19 March 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.
The Tribunal decision was dated 19 March 2014. The Applicant did not seek judicial review until 17 December 2014. In those circumstances, he is outside the time provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act), which requires that an application to this court in relation to a migration decision must be made within 35 days of the date of the migration decision. However, under s.477(2) of the Act, the court may, by order, extend that period as the court considers appropriate if an application for such order has been made in writing specifying why the Applicant considers it is necessary in the interests of the administration of justice and the court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In this case, it is clear that the application was some months out of time and that an extension of time is required. The matter proceeded on the basis that the application for an extension of time would be determined as a preliminary matter.
Before considering factors relevant to an application for an extension of time, it is necessary to outline briefly the background to these proceedings. The Applicant applied for the student visa in issue on 8 November 2013. The application was refused by a delegate of the First Respondent on the basis that he did not satisfy cl.573.211(3) in Schedule 2 to the Migration Regulations 1994 (Cth) because for the second time since he arrived in Australia his application had been lodged after his last substantive visa had ceased (see clause 3005 in Schedule 3 to the Migration Regulations). Under the applicable criterion applicants were allowed only one opportunity to be granted a further substantive visa if at the time they applied they did not hold a substantive visa.
The Applicant sought review by the Tribunal. In connection with his review application, he appointed a migration agent as his authorised recipient. As the Tribunal application form indicated, this included authorising the agent to receive correspondence from the Tribunal in relation to the application. On 19 February 2014 the Tribunal wrote to the Applicant (care of his migration agent) inviting him to attend a Tribunal hearing. The letter enclosed a Response to Hearing Invitation Form for a hearing scheduled for 18 March 2014.
The Court Book contains a copy of an email from the Applicant’s migration agent dated 18 March 2014 at 8.50 am to the Tribunal in relation to the hearing. It stated that:
The Applicant hasn’t returned the signature for me for the response to hearing invitation. However, he has informed me that he will not be taking part in the Tribunal hearing for 18 March 2014. Thus, I am returning a blank response to hearing invitation PDF file to you. Should you have any questions, you may email me directly. Thanks very much.
In its reasons for decision the Tribunal recorded that it had invited the Applicant to a hearing in a letter that advised him that if he did not attend and a postponement was not granted, it may make a decision on his case without further notice and that at 9 o’clock on the morning of the hearing it had received an email from the Applicant’s migration agent stating that he had advised that he would not attend the hearing.
The Tribunal recorded that the Applicant did not appear at the scheduled hearing and that it was satisfied he was offered the opportunity to appear before it, but that he did not do so. In these circumstances, the Tribunal decided, pursuant to s.362B of the Act, to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal went on to consider the application. It found that on the previous occasion that the Applicant applied for a substantive visa he did not hold a substantive visa as it had expired and that this was also the situation in relation to the current application.
The Tribunal referred to the delegate’s decision, recorded that the Applicant had not contested the factual basis for the decision to refuse the application, and stated that it had no evidence before it to suggest that this was incorrect or based on a misunderstanding. The Tribunal also recorded that despite being invited to attend a hearing, the Applicant chose not to attend and directed his agent to inform the Tribunal he would not attend.
The Tribunal found that the issue was whether the Applicant satisfied clause 573.211 (see cl.573.211(3)) which relevantly required that he was not the holder of a substantive visa; that the last substantive visa held was, inter alia, a student visa; that the application was made within 28 days after the last substantive visa ceased to be in effect; and that the Applicant satisfy Schedule 3 criterion 3005. Clause 3005 relevantly required that a visa had not previously been granted to the Applicant on the basis of any of the Schedule 3 criteria (which in certain circumstances may be met by an Applicant who did not hold a substantive visa).
The Tribunal found that this was the second occasion on which the Applicant did not hold a substantive visa at the time he applied for a student visa, that he had previously relied on the provisions of Schedule 3 to be granted a visa and that hence he did not satisfy clause 3005 and the requirements of clause 573.211(3)(d). Nor did he satisfy the equivalent provisions applicable to other subclasses of student visa. Hence the Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Tribunal wrote to the Applicant (again care of his migration agent) by letter of 20 March 2014 notifying him of the Tribunal decision, enclosing a copy of the decision and what was described as a Fact Sheet, which appears to be a reference to a document in the Courtbook headed “Information about Tribunal decisions [M25]”.
The Courtbook also contains a copy of a request by the Applicant of 28 April 2014 for Ministerial intervention, providing contact details for the same migration agent who had acted for the Applicant while the matter was before the Tribunal. Also in the Courtbook is a completed Form 956, recording the appointment of the migration agent for the purposes of the Ministerial intervention application, signed by both the agent and, as he acknowledged today in sworn oral evidence, the Applicant. This included an acknowledgement by the agent that she had been authorised to receive written communications on behalf of the Applicant in relation to the Ministerial intervention application.
The Department wrote to the migration agent on 19 November 2014, referring to the fact that she was authorised to receive correspondence on the Applicant’s behalf and enclosing a letter to the Applicant also dated 19 November 2014 advising that his request for Ministerial intervention had been unsuccessful.
The Applicant commenced these proceedings on 17 December 2014. It is in those circumstances that the Applicant seeks an extension of time.
In his application, the Applicant stated very briefly in relation to the grounds for an extension of time:
Given wrong information and given misleading information by agent.
In his affidavit of 19 November 2014 (filed on 17 December 2014), he sought to “appeal” and indicated he was “not given an opportunity to submit any claims”. In light of the generality of these claims and the need for the Applicant to give evidence in relation to any explanation for the delay and the extent of the delay in commencing these proceedings, and insofar as he appeared to be making claims about the conduct of his migration agent which may have intended to assert fraud, the Applicant was given the opportunity to give oral evidence and was cross-examined (See SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146).
It is well-established that all of the circumstances are relevant in considering an application for an extension of time. Factors usually of relevance include delay (as explained further below), the substantive merits of the application, whether there is any prejudice to the Respondents, the impact on the Applicant and the public interest and, more generally the appropriateness of exercising the court’s discretion (See SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] and SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14]-[16]). Although this is a convenient list of factors, the court is not confined to these matters and should have regard to all the circumstances. As the Minister submitted of particular relevance in this case is the delay, the length of the delay, the reasons for the delay and whether there was an acceptable explanation.
In his oral evidence, the Applicant explained the delay in commencing these proceedings simply on the basis that he had sought Ministerial intervention and had come to the court after the Minister declined to intervene. He made other claims in the course of his evidence that are relevant to the potential grounds of review, to which I will return.
He acknowledged that he was made aware of the Tribunal decision (which I note was sent to him care of his migration agent) and that he received the document headed Information About Tribunal Decisions which indicated broadly that if he thought the decision of the Tribunal was wrong in law, he may consider seeking judicial review in the Federal Circuit Court of Australia (although I note that it does not refer to the existence of a time limit on such a judicial review application).
The Applicant reiterated that he sought Ministerial intervention and he was not sure about whether he could seek judicial review, although he did not explain why that was so.
Reliance was placed by the First Respondent on the remarks of Nicholls FM (as he then was) in SZOCH v Minister for Immigration & Anor [2010] FMCA 300 at [38]. His Honour stated in that case that while the applicant could be said to have acted in a timely fashion after he was notified of the lack of success of his application for Ministerial intervention, the delay in coming to the court was not satisfactorily explained by his seeking the Minister’s intervention. A considerable number of authorities were cited.
It was clarified by the solicitor for the Minister that it was not contended that an application for Ministerial intervention could never be a satisfactory explanation for delay (or part of a satisfactory explanation for delay), depending on the particular circumstances of the case, although I note that there are many cases in which, in the particular circumstances of each of those cases, it has not been treated as an acceptable explanation (and see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 59).
The Applicant did not elaborate in any detail on why he chose to pursue Ministerial intervention, rather than coming to the court. He did not volunteer evidence about whether he was aware of the time limit on applications to the court (see Chen v Minister for Immigration & Anor [2014] FCCA 271).
Insofar as the Applicant appeared to contend in his application that he was given the “wrong information” by his migration agent, when given the opportunity to elaborate on the reasons for the delay in commencing these proceedings in evidence, the Applicant did not suggest that he was given wrong information and misleading information in relation to the time limits on any judicial review application after the time of the Tribunal decision. Rather, the concern he expressed about wrong information provided by his migration agent related to events at the time of the Tribunal hearing.
The Applicant was aware of the Tribunal decision. He must be taken to have known of the decision at least by 28 April 2014, when he signed the form appointing his migration agent as his agent in relation to the application for Ministerial intervention. He was aware of the availability of judicial review. For whatever reason, he chose to pursue Ministerial intervention, although he did, relatively promptly after the Minister declined to intervene, seek judicial review.
While this is not an entirely satisfactory explanation for the delay, I bear in mind that there is no evidence in relation to whether the Applicant was aware of the time limit on making an application to the court. The Applicant is self-represented. Moreover, it is also appropriate to have regard to the strength of the merits of the application (see VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 in relation to an application to seek leave to appeal out of time).
Even if the Applicant’s explanation were to be regarded as an acceptable explanation in the particular circumstances of this case, the grounds of the substantive application are not such as to raise even an arguable ground of jurisdictional error on the part of the Tribunal.
In his application he claimed that he was:
not given more time to explain my case. I misguided by agent and got wrong case information. My case was not fully considered.
The Applicant did not in terms allege fraud. He was given the opportunity to give evidence to clarify what his concern was and to explore the role of the migration agent. I am not satisfied that what he said raised even an arguable case of fraud on the part of the migration agent. His concern in oral submissions and in his evidence focused on the fact that he did not attend the Tribunal hearing. He claimed in evidence that he had not received a copy of the invitation to appear or response to hearing invitation form from his migration agent and that he had “no idea” she had written the email to the Tribunal of 18 March 2014. It was put to him by the solicitor for the Minister that he was saying that his agent “fabricated” the email that she sent to the Tribunal, to which the Applicant responded “Yes. I didn’t inform her of this”.
However when given a further opportunity to elaborate on his claims (in order to ascertain whether or not he was making an allegation of fraud on the part of the migration agent in the sense considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2008) 232 CLR 189; 81 ALJR 1401; 237 ALR 64 such as to stultify the operation of the legislative scheme) the Applicant’s evidence did not raise any such arguable claim. He agreed and acknowledged that after he received the Tribunal decision he continued to use the same migration agent for the purposes of his Ministerial intervention application. Although he initially suggested that he had ensured that correspondence was sent to him, he subsequently conceded that he had signed the form of appointment of the migration agent which authorised her to receive written communications.
The Applicant was given every opportunity today, both in the witness box and in his submissions, to make any claim in relation to the migration agent which might raise, even in an arguable sense, concerns of the nature considered in SZFDE in circumstances where he had the benefit of the First Respondent’s written submissions which spelt out the law in relation to migration agent fraud. I have borne in mind that while fraud must be distinctly pleaded and proved, the Applicant is self-represented and it was important to give him the opportunity to clarify his concerns in that regard.
I have had regard to all of the evidence, in particular the Applicant’s continued use of the migration agent in circumstances where he conceded that he had received the Tribunal decision which recorded that at 9 am on the morning of the hearing the Tribunal received an email from the Applicant’s migration agent stating that the Applicant had advised that he would not be attending the hearing. Insofar as the Applicant did not appear to concede that he had read and understood the Tribunal decision, the Applicant clearly speaks and reads English. He participated in the hearing today speaking in very good English. He received the adverse Tribunal decision. He continued to use the migration agent.
I am not satisfied that the Applicant was intending to raise (or that the evidence before the court raised) an allegation such as would amount to fraud were it made out. Rather, at the most, what he was alleging was a failure to inform in some undefined way, possibly involving negligence or inadvertence, but not any suggestion of fraud in the requisite sense on the part of the migration agent. That is of significance. Even if the Applicant may be taken as alleging a failure to inform which may be attributable to or involve some negligence or inadvertence on the part of the agent, nothing that he said supports the possibility that he was intending to suggest or that the evidence before the court gives rise to any claim as to fraud on the part of the migration agent. His subsequent conduct is to the contrary. A failure to inform, bare negligence or inadvertence will not in itself be sufficient to give rise to fraud (see Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17). On the evidence and taking the concerns raised by the Applicant at their highest such a claim has no arguable prospects of success.
Beyond this, there is nothing in the material before the Court or in what the Applicant said, when given the opportunity to elaborate on his concern about the Tribunal review, that is such as to raise even an arguable case of jurisdictional error such as to support his application for an extension of time.
The Applicant claimed that he was not given “more time” to explain his case. If this concern was intended to take issue with the manner in which the Tribunal complied with its statutory obligations, no arguable error is identified or apparent. The Tribunal invited the Applicant to a hearing under s.360 of the Act. As the First Respondent submitted, the invitation was properly made in accordance with the requirements of s.360A of the Act. It was sent to him care of the agent in accordance with the Applicant’s nomination of the migration agent as his authorised recipient in the review application (See s.379G(1) of the Act.) The hearing invitation letter was addressed to the agent’s postal address. It is apparent from the agent’s response to the Tribunal that it was received by the agent. The invitation provided the requisite period of notice and contained the requisite information, hence amounting to a valid invitation which the Applicant was deemed to have received. Moreover, the Tribunal received an email from the agent confirming that the agent had received it and that the Applicant would not be attending the hearing. He did not attend the hearing.
I have considered whether an issue arises in relation to the exercise of the Tribunal’s discretion under s.362B of the Act to proceed to make a decision. There is nothing in the circumstances of this case to support any contention that the Tribunal failed to exercise that discretionary power reasonably, having regard to the advice given to the Tribunal by the Applicant’s authorised recipient that the Applicant would not be attending the hearing.
Insofar as the First Respondent brought to the attention of the court the judgment of North J in AZAFB v Ministerfor Immigration and Border Protection [2015] FCA 1383, I agree that the present case is distinguishable from the facts considered in AZAFB, in particular because in this case there is evidence that the Applicant’s authorised recipient received the hearing invitation, having regard to the agent’s email to the Tribunal. The Tribunal relied on the indication of the agent that the Applicant had been informed of the invitation, but had expressed an intention to not appear at the hearing. The Tribunal’s decision to proceed on the assumption that the Applicant was aware of the hearing, as it had been informed by the migration agent, is such as to distinguish this case from the circumstances considered in AZAFB.
No arguable case has been made out of jurisdictional error on the basis that the Applicant was not given more time to explain his case or in relation to the Tribunal’s exercise of its discretion to proceed to make a decision without giving him a further opportunity to give evidence or appear before it.
Finally, the Applicant alleged that the Tribunal did not fully consider his case. It is not entirely clear what the Applicant intended by this ground. It may be that his concern (as addressed in his submissions) was that the Tribunal did not consider his explanation for not holding a substantive visa when he applied. The Applicant drew the court’s attention to the explanatory email he sent to the Department in relation to the reason for the application being made after his substantive visa had expired. However the Tribunal understood that, relevantly, the application had been made after the substantive visa had expired and that (contrary to the applicable criteria) this was the second occasion on which this had occurred. In such circumstances the Applicant’s reason for the delay in lodging the visa application did not have to be addressed by the Tribunal. It considered the applicable criteria. There is no arguable case of jurisdictional error on this basis or in relation to the Tribunal’s application of the law. Hence the substantive application has no arguable prospects of success.
The First Respondent acknowledged that there is no suggestion of any prejudice to the Respondents. No submissions were made in relation to other factors of potential relevance in relation to the application for an extension of time.
There is no suggestion of a particular impact on the Applicant, albeit that obviously there is an impact insofar as his application for a visa was refused and he would seek a favourable decision in that regard were the matter to be remitted to the Tribunal. However that this is not an application for a protection visa and the issues that arise in that context have no relevance in the present case. I have borne in mind the interests of the public at large in the application of the law and had regard to all the circumstances insofar as possible on the evidence before the court.
The delay in this case is approximately eight months, having regard to the requirement to file a judicial review application within 35 days after 19 March 2014 and the fact that it was not filed until 17 December 2014. That is a substantial delay. The Applicant’s brief explanation that he applied for Ministerial intervention, was not an entirely satisfactory explanation. Moreover, the Applicant has not raised an arguable case of jurisdictional error on any of the bases contended for or arising on the material before the court. Even if there was, at least in part, a satisfactory explanation for some or most of the period of delay, (notwithstanding that the Applicant was aware of his right to pursue judicial review) or if a substantial delay may be outweighed by sufficient merit in the application, this is not such a case.
In these circumstances, I am not satisfied that it would be in the interests of the administration of justice to extend the time for making the application for judicial review. The application for an extension of time should be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 6 July 2016
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