ZHANG v BULJAN
[2016] FCCA 2426
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v BULJAN | [2016] FCCA 2426 |
| Catchwords: ADMINISTRATIVE LAW – Administrative Appeals Tribunal – migration – Business Skills (Provisional) subclass 188 visa – review of a registrar’s decision to reject documents for filing – whether application was an abuse of process or scandalous, frivolous or vexatious. |
| Legislation: Federal Circuit Court Rules 2001, r.2.06 Migration Regulations 1994, Sch.2, cl.188.252 |
| Case cited: Reaper v Luxton [2015] FCA 430 |
| Applicant: | WEN ZHANG |
| Respondent: | DANICA BULJAN |
| File number: | MLG 1876 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 September 2016 |
| Date of last submission: | 15 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| Advocate for the applicant: | Nigel Dobbie |
| Solicitors for the applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Advocate for the respondent: | No appearance |
| Solicitors for the respondent: | None |
ORDERS
The application and affidavit presented for filing on 24 August 2016 be deemed to have been filed on that date, subject to the application fee being paid today.
The application deemed to have been filed on 24 August 2016 be listed for directions before Judge Riley on 22 September 2016 at 9am.
The solicitor for the applicant have leave to appear at the directions hearing by telephone.
On or before 12md on 16 September 2016, the applicant file an amended application with proper particulars.
On or before 5pm on 16 September 2016, the applicant serve on the Administrative Appeals Tribunal and the Minister for Immigration and Border Protection:
(a)the application deemed to have been filed on 24 August 2016;
(b)the affidavit in support of that application; and
(c)this order.
The question of the costs of this application to review a decision of the registrar be adjourned to 22 September 2016 at 9am before Judge Riley.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1876 of 2016
| WEN ZHANG |
Applicant
And
| DANICA BULJAN |
Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application to review a decision of a registrar of this court. The application for review was filed on 31 August 2016. The registrar had refused to accept for filing an application under the Migration Act 1958 and the affidavit in support of it. The application sought review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), which had affirmed a decision of a delegate refusing the applicant a Business Skills (Provisional) subclass 188 visa.
The registrar’s power to refuse to accept a document for filing is in r.2.06 of the Federal Circuit Court Rules 2001. That rule permits the court to refuse to accept a document for filing if the document appears, on its face, to be an abuse of process or frivolous, scandalous or vexatious.
The registrar wrote a letter dated 25 August 2016 to the applicant. The letter set out the reasons the registrar gave for refusing to accept the document for filing. The registrar considered the application to be an abuse of process, or frivolous, scandalous or vexatious.
The registrar set out in her letter that the nature of the case before the Tribunal was an application for a business visa. One of the requirements for that visa was that the applicant at the time of decision had invested $A5,000,000 in a complying investment.
The registrar noted that the applicant had conceded that she had not, at the time of the Tribunal’s decision, made such an investment. Indeed, in her affidavit that she attempted to file in this court, the applicant said that she would be making a complying investment upon notification from the Department. The registrar in these circumstances considered that the application was an abuse of process, or frivolous, scandalous or vexatious.
The matter has now been brought before me by an application for review. The authorities show that decisions of the registrar to refuse a document for filing can be reviewed either by way of an application for review or by an Administrative Decisions (Judicial Review) Act 1977 proceeding.[1]
[1] Reaper v Luxton [2015] FCA 430.
In this case, the applicant has elected to use the application for review procedure. That procedure means that I am hearing this matter as a hearing de novo. That is, I am not considering whether the registrar made any error. I am simply looking at the matter afresh.
The application that was sought to be filed was evidently prepared by the applicant in person. It states three grounds of the application. They are:
1.The Respondent has fallen into jurisdictional error by refusing to grant a Business Skills (Provisional) Subclass 188 visa under cl.188.252 of the Migration Regulations.
2.The Respondent has fallen into jurisdictional error by asking the wrong question during the telephone hearing in relation to whether the applicant has made a complying investment.
3.The Respondent has fallen into jurisdictional error by paying regard to irrelevant considerations. The Respondents have made the decision to refuse the grant of the visa as it considers that the applicant has not made a complying investment of at least AUD5,000,000.
The applicant was represented today by a solicitor who has filed a written submission that runs to 15 pages. It largely deals with issues of procedural fairness. The critical point that the applicant wishes to argue arises from the fact that the Tribunal decided the case on a different basis to the delegate. The delegate’s decision was made on the basis that the applicant had nominated certain complying investment funds, which the delegate considered were not lawfully acquired and were not unencumbered. The Tribunal decided the case on the basis that the applicant had not made a complying investment at all. That conclusion was based on what the applicant herself had told the Tribunal.
Nevertheless, the applicant submitted that there was a denial of procedural fairness because the applicant was not alerted to the issue on which the Tribunal ultimately determined the case. The applicant submitted to the court today that, to give procedural fairness, the Tribunal should have told the applicant that the question before it was whether there was a complying investment at all and should have given the applicant an opportunity to provide evidence of a complying investment. The applicant said that necessitated an adjournment for the applicant to both make the complying investment and produce evidence of it.
The applicant said that the application that she sought to file on 24 August 2016, while not clearly articulating that alleged jurisdictional error, did raise sufficient grounds for the application not to be an abuse of process or scandalous, frivolous or vexatious on its face. In particular, the applicant relied upon the second ground of the application, which was that the Tribunal:
… has fallen into jurisdictional error by asking the wrong question during the telephone hearing in relation to whether the applicant has made a complying investment.
It seems to me that there is a glimmer of an arguable case in this matter. To be a relevant abuse of process, or relevantly scandalous, frivolous or vexatious, the application had to be doomed to fail. It is true that, when the Tribunal made its decision, the only decision it could have made was that the delegate’s decision be affirmed. That is because, at the time of decision, on the applicant’s own admission, she had not made a complying investment.
However, the fact is that the Tribunal could have given the applicant more time to make a complying investment. By not doing so, and by not alerting the applicant specifically to the need to have made a complying investment, it may be argued that the Tribunal did not afford the applicant procedural fairness. While it is true that the only decision the Tribunal could have made on the date when it made its decision was to affirm the delegate’s decision, it is not beyond argument that the Tribunal should not have made its decision on the day it did. The second ground of the application raised that issue, albeit tangentially and imperfectly. Accordingly, it is proper to allow the application to be filed.
The solicitor for the applicant has explained to the court today that there are issues relating to the applicant’s bridging visa that require that the application be deemed to have been filed on the day that she presented it for filing, being 24 August 2016. I see no difficulty with making an order that permits that. It is not appropriate that the applicant should have to go through the process of seeking an extension of time when she did, in fact, seek to file the document within time.
In addition, the applicant has indicated that an amended application can be filed by midday tomorrow and there will be an order requiring that. There will also be orders for service on the Minister for Immigration and Border Protection and the Tribunal. The matter will be adjourned back to me on 22 September 2016 at 9am for directions. As the applicant’s solicitor is from Sydney, he will be given leave to appear by telephone at the directions hearing.
The applicant also sought the costs of the application for review of the registrar’s decision. As the registrar has filed a submitting appearance, except as to costs, and as she has not appeared today, I will reserve the costs of the application to review her decision to the directions hearing.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 19 September 2016
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