Zaki v Minister for Immigration
[2015] FCCA 2575
•15 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZAKI v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2575 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Tribunal erred in finding it did not have jurisdiction – whether sponsor properly acting on applicant’s behalf – whether application lodged in accordance with mandatory requirements – applicant entitled to relief – application granted. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 348, 476, 494B Migration Regulations1994, reg.2.16 |
| Hassan v Minister for Immigration [2015] FCCA 894 |
| Applicant: | KASHIF RIAZ ZAKI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 427 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 15 September 2015 |
| Date of Last Submission: | 15 September 2015 |
| Delivered at: | Perth |
| Delivered on: | 15 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Udall Martin Udall & Associates |
| Solicitors for the First Respondent: | Mr D Carroll Australian Government Solicitors |
ORDERS
A writ in the nature of a certiorari be issued to call up the record of the Tribunal and quashing the decision made on 3 December 2014.
A writ of mandamus be issued to the Administrative Appeals Tribunal requiring the Administrative Appeals Tribunal to review the delegate’s decision in accordance with s.348.
The name of the second respondent be changed to the Administrative Appeals Tribunal and the requirement to lodge any further document in that regard is dispensed with.
The first respondent to pay the applicant’s costs fixed in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 427 of 2014
| KASHIF RIAZ ZAKI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 3 December 2014 holding that the Tribunal did not have jurisdiction in the matter.
The grounds of the application failed to identify any jurisdictional error. There was an argument developed by the solicitor for the applicant in relation to a conversation that occurred on 3 October 2014, suggesting that there had been some denial of procedural fairness that might give rise to a jurisdictional error for noncompliance with s.66. I do not accept that anything that was conveyed in the conversation on 3 October 2014 gave rise to a noncompliance with the requirements of s.66 so as to constitute a jurisdictional error. The solicitor for the applicant did, however, advance evidence from the applicant and the sponsor to suggest compliance with the requirements of ss.347(2)(a) and (3), in the circumstances of this case, where it is alleged the sponsor was acting on behalf of the applicant.
Pursuant to s.66(1) of the Migration Act 1958 (Cth) and reg.2.16(3) of the Migration Regulations1994, when the Minister grants or refuses to grant a visa he or she must notify the applicant by one of the methods specified in s.494B of the Migration Act 1958. It is clear from the Court book in this case that a notification was sent. The notification sent identified a number of ways in which the application for review could be lodged, consistent with the regulations.
Section 347 relevantly provides:
(1) an application for review of an MRT reviewable decision must: (a) be made in the approved form;
(2) an application for review may only be made by: (a)if the MRT reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – the non-citizen who is the subject of that decision;
(3) if the MRT reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
The application to the Tribunal for review in the present case was lodged online electronically in respect of the decision of the delegate made on 12 September 2014. That application was lodged electronically online on 2 October 2014 at 5:26.47 pm. The evidence of Ms Rose, which I accept, was that the applicant was with her at the time of that lodgement and that she was doing so on his behalf. That evidence was corroborated by the applicant. There was no cross‑examination of Ms Rose or the applicant in that regard. I accept the evidence of Ms Rose, that she was assisting the applicant in relation to the review application because of his difficulty with English. Ms Rose said:
“I was the one to take responsibility, filling out the form on his behalf” ( emphasis added)
Ms Rose was not cross‑examined about that evidence. Ms Rose also gave evidence that funds for the payment of the application for review had been obtained via the applicant’s brother. I accept that evidence. The evidence was not the subject of challenge. The evidence before the Court was that it was the sponsor’s mother, being the mother-in-law of the applicant, whose credit card was used with the benefit of the funds obtained from the applicant’s brother to pay for the review application.
On the form for the application for review, the details of the person applying for review identified the sponsor. Those details were ones that provided for a completion of a number of boxes relevantly titled: family name, given name, Australian citizen or permanent resident, known by other family name, then by other given names, other name type. There were further boxes, however the reference to “Australian citizen or permanent resident” box sits at odds with the requirements of s.347(1), and s347(2)(a) where, as in this case, it is only the non-citizen who may apply.
The form correctly filled out the primary visa applicant’s details, albeit that in relation to correspondence details, it was the sponsor’s details that were completed. I accept the sponsor’s evidence that this occurred in circumstances where she was seeking to act on behalf of the applicant due to his difficulty with English. Prior to the lodgement electronically of that form on 2 October 2014, the sponsor in her name, had lodged an application for fee reduction, which relevantly identified the support received from her partner, the applicant, and also referred to an earlier loan from the brother-in-law. That application for reduction was signed by the sponsor and the evidence from Ms Rose was that they decided not to pursue that application, given the funds that they had been able to borrow from the brother-in-law.
I accept the evidence of Ms Rose that she was acting on behalf of the applicant, being her husband when the application for review was made in this case on 2 October 2014. Ms Rose received a communication on 3 October 2014 leaving a telephone message of the effect:
Incorrect person applying for review and to request new application.
That message was one given to Ms Rose as the review applicant for review. The message records:
I left the message for her to contact the Tribunal.
It is entirely consistent with the position of the spouse in this case, in fact, acting on behalf of her husband that it was the sponsor to whom a request was made for a new application. There is no suggestion the any steps were taken to contact the applicant to request a new application.
Further, in this case it is apparent that it was the fee that was paid on 2 October 2014 that was retained by the Tribunal in circumstances where a fresh application, in terms of correctly identifying the applicant, was ultimately lodged on 17 October 2014.
There is a further file note on 3 October 2014 which records that the applicant for review being named as the spouse in this case:
Returned my call.
The message records:
I explained to her how the application should be completed. She will send a new application via fax.
That communication is entirely consistent with an understanding that it was the sponsor who was acting on behalf of the applicant in the lodgement of that form.
That evidence in relation to the file note is consistent with the evidence from Ms Rose the new form had to be only Zaki’s details. For that information to be provided to the sponsor and for the sponsor to be told she should send a new application via fax is entirely consistent in this case with the factual position being that the sponsor was acting on behalf of the applicant in making the application for review.
The requirements of s.347 in so far as whether or not the application has been made in accordance with the mandatory requirements of that provision give rise to a question of jurisdictional fact. A jurisdictional fact is a matter for this Court to determine.
On the evidence before this Court I accept that the applicant made an application for review in the approved form whilst he was physically present in the migration zone when the application for review is made.
The erroneous identification of the sponsor in the application for review in this case does not give rise to any noncompliance with a mandatory statutory criteria under s.347. The details in the application for review referring erroneously to the sponsor rather than the applicant in the circumstances of this case does not give rise any noncompliance with the requirements of s.347(2). In this regard I have taken into account both the incongruity in the form in the box referred to above and the evidence of both Ms Rose and the applicant.
In the course of the case leave was granted to Mr Udall to adduce oral evidence from the sponsor and following an application by Mr Udall to adduce evidence from the applicant evidence-in-chief was adduced from the applicant. At the end of that evidence-in-chief, Mr Carroll, on behalf of the respondent, sought an adjournment on the basis that the issues raised appeared to be of importance for the purpose of the Tribunal and also to seek to put on further submissions in relation to illegal issues.
The adjournment was opposed by the solicitor for the applicant. The Court declined the adjournment as nothing was said that identified any evidentiary reason why the case should be adjourned in respect of the evidence adduced. The issue relating to the mandatory requirements of s.347 were clearly and squarely raised by the first respondent in their submissions in answer to the applicant’s case and there is no utility in granting an adjournment where it will only unnecessarily increase the costs and unnecessarily utilise limited court time.
Section 348 requires the Tribunal to review the decision if the application is properly made under s.347. The solicitor for the first respondent took the Court to the decision of Hassan v Minister for Immigration [2015] FCCA 894 in which a form had been filled in and signed by both the sponsor and the applicant and in the facts of that case there was found to be compliance with the requirements under s.347.
The first respondent sought to distinguish the case on the basis that in that case there had been a signing of the form. In the present case the form was lodged electronically and there was no opportunity for the applicant to also join in signing the form. Clearly there would have been no issue of alleged noncompliance had the application for review been filled out in the name of the applicant rather than in the name of the sponsor. Nonetheless, in this case I find that the sponsor was acting on behalf of the applicant in doing so. In those circumstances I find that the application was made by the applicant who was the noncitizen, the subject of the decision.
Accordingly, I find that the requirements of s.347 were satisfied and that the Tribunal had an obligation to review the matter under s.348. For these reasons the applicant is entitled to relief.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 September 2015
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