FEDERAL COURT OF AUSTRALIA

Jalagam v Minister for Immigration & Citizenship [2009] FCA 197

MIGRATION – appointment of an ‘authorised recipient’ under s 494D of the Migration Act 1958 (Cth) – whether s 494D requires the written signature of the visa applicant – judicial review – fraud – requirement of causative connection between the fraud and the Tribunal being unable to discharge its functions – no link between the suggested fraud and the Tribunal’s decision-making process – no jurisdictional error in mere bad or negligent advice or other mishap.

HELD – the appeal be dismissed.

Migration Act 1958 (Cth) ss 65, 347(1)(b)(i), 494B(5), 494D 

AB v LB (Mental Health Patient) [1980] 1 WLR 116 cited

Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 cited

Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 cited

Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181referred to

McRae v Coulton (1986) 7 NSWLR 644 applied

Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 applied

SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 applied

SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 applied

SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199 referred to

SZHVM v Minister for Immigration & Citizenship (2008) 170 FCR 211cited

SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 cited

WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190cited

Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992)  

VENGAL RAO JALAGAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1594 of 2008

EDMONDS J

6 MARCH 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court (Smith FM) (Jalagam v Minister for Immigration & Anor [2008] FMCA 1417) dismissing an application for relief from a decision of the second respondent (‘the Tribunal’) that it did not have jurisdiction to review a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a Skilled – Independent Overseas Student (Residence) (Class DD, subclass 880) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2                     The Tribunal decided that it did not have jurisdiction because the application for review was received by the Tribunal outside the prescribed period of 21 days from the date the Tribunal found that the appellant was properly notified of the delegate’s decision.

Factual Background

3                     The factual background is set out in the reasons for judgment of his Honour.  The primary facts are not in dispute and I gratefully adopt those that are relevant to the issues raised on the appeal.

4                     The appellant employed a firm of solicitors to lodge, in an electronic form, an application for a Skilled ‑ Independent Overseas Student (Class DD, subclass 880) onshore visa.  The application was lodged on 15 September 2006 by someone at the firm, Tan & Tan Lawyers & Consultants.  There then ensued a series of exchanges between various employees and partners of the firm and officers of the Department of Immigration by way of email, facsimile, courier and post.

5                     A particular difficulty facing the visa application emerged in the correspondence because the appellant could not present the requisite evidence of his English language proficiency.  After further time was allowed, and no satisfactory evidence was forthcoming, a delegate made a decision on 17 January 2008 refusing the application.  The decision and the decision record were sent by email to an identified person, Mr Yat Tan, at Tan & Tan, by email sent to the email address nominated for the receipt of such correspondence in the original visa application.

6                     It was not disputed that the email was received by the firm at that address on 17 January 2008.   Nor was it disputed that, if Mr Yat Tan had been properly appointed and was still acting as the appellant’s authorised recipient under s 494D of the Act, the decision was deemed to have been duly received on that day by Mr Tan on behalf of the appellant pursuant to s 494D(2) (see also s 494B(5), and SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199, and Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181). 

7                     No issue was taken by the appellant with the contents of the notification of the delegate’s decision, nor that under relevant provisions of the Act and Regulations a mandatory time limit for seeking review by the Tribunal expired on 7 February 2008 after the expiry of 21 days (see s 347(1)(b)(i) and reg 4.10(1)(a)).  It was conceded that no application for review was lodged within that period.  The appellant lodged an application for a review of the delegate’s decision on 15 February 2008.

Inferences and Findings Below

8                     After reviewing certain documents, including the hard copy of the completed electronic application form and correspondence from Tan & Tan to the Department dated the same day, 15 September 2006, his Honour drew the following inference in the absence of any denial by the appellant: some employee or partner at Tan & Tan was responsible for completing the electronic application form, including the notification of a migration agent authorised to receive all written communications about the application and that they did both of these things at the appellant’s request and with his authority: [17].

9                     Having regard to the appellant’s evidence to the Court, his Honour found that it was not a matter of particular concern to the appellant to know which of the persons he dealt with, or indeed, which other person within the firm of Tan & Tan, held registration as the migration agent responsible under the Act for the provision of the immigration services given to the appellant: [20]. 

10                  Having regard to documents tendered by the appellant to the Court being communications with various people at Tan & Tan, and communications between Tan & Tan and officers of the Department of Immigration after the lodgement of the application and before the decision of the delegate:

1.                  His Honour did not accept that the appellant ever thought that Ms Kwan, a legal assistant to partners in the firm of Tan & Tan, was holding herself out as the responsible migration agent in the matter: [24];

2.                  his Honour was of the opinion that none of these communications should be read as altering, or calling into doubt, the original nomination of Mr Yat Tan as the appellant’s authorised recipient for correspondence from the Department: [25].

11                  Considering all the evidence before him, his Honour refused to draw the inference that Mr Yat Tan did not take responsibility under the Act and within the firm of Tan & Tan for the appellant’s migration work.  Indeed, his Honour found that the contrary was strongly suggested by the correspondence from Tan & Tan to the appellant’s solicitor: [27].

12                  Further, considering all the evidence, his Honour was not prepared to find that, in fact, Mr Yat Tan was in any way derelict in his responsibilities as a registered migration agent under the relevant provisions of the Act, in particular s 280(1): [28].

13                  Having regard to the skimpy evidence before him as to the internal management of migration matters within Tan & Tan, his Honour said that this would not cause him to find that appropriate supervision and responsibility was absent on the part of Mr Yat Tan in relation to the performance of the work for which the appellant engaged Tan & Tan: [29].

Grounds of Review Below

14                  His Honour then turned to address the three grounds of review, being grounds 1, 4 and 5.  The appellant expressly disclaimed reliance upon grounds 2, 3, 6, 7 and 8.

15                  Ground 1 had the grounds:

The Tribunal made jurisdictional error in that it made a finding of existence of a jurisdictional fact without any evidence. 

or 

The Tribunal made jurisdictional error in that it misconstrued and misapplied s 494D of the Act leading to error of law and ultimately jurisdictional error.

16                  Section 494D provides: 

(1)        If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person. 

Note:    If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. 

(2)        If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person.  However, this does not prevent the Minister giving the first person a copy of the document. 

(3)        The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient. 

(4)        The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication. 

17                  After having reviewed the regulations prescribing the form of a valid visa application for the visa sought by the appellant, his Honour was of the opinion that those regulations envisaged a form of interactive internet application, such as was in evidence before him.  His Honour reiterated his finding that the internet application was completed by somebody unknown at Tan & Tan at the request, and with the full authority, of the appellant.  His Honour also repeated his indication that, in its very terms the form included provision for a notification of a person appointed as authorised recipient, and this was completed so as to give notice of an appointment of Mr Yat Tan.

18                  His Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form.  His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient.  He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment.  However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given.  Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992), at 799 – 800).  Considerations of convenience all pointed towards the section being intended to allow this. 

19                  His Honour was referred to Le v Minister for Immigration and Citizenship (2007) 157 FCR 321, where the Full Court referred to s 494D at [24] – [27], however, his Honour could not find anything in these paragraphs to the contrary of his Honour’s construction suggested in [18] above.

20                  Nor was his Honour persuaded that anything in the High Court’s decision in WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190 required him to construe s 494D as being confined in the manner of a notification as was submitted.

21                  His Honour therefore agreed with the Tribunal’s conclusion that there was an expiry of the time limit on an appeal to the Tribunal, which commenced from the date when Mr Yat Tan received the delegate’s decision.

22                  Ground 4 of the further amended application made a similar argument, but by reference to events subsequent to the lodging of the visa application and appointment of Mr Yat Tan as authorised recipient.  It contended: 

The Tribunal made jurisdictional error in that it should have held that the notification of the decision was defective as it was not sent to the correct authorised recipient.  DIAC was on constructive notice that Mr. Yat Tan was not the migration agent or the authorised recipient acting for the applicant. 

23                  His Honour did not accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate’s decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt the currency of the appointment of the notified authorised recipient.  His Honour could not find anything in the correspondence which, as a matter of law, deprived that appointment of its effect for the purposes of s 494D. 

24                  His Honour, therefore, did not accept this ground, or its arguments, as a basis for finding that the Tribunal had jurisdiction in the matter. 

25                  Ground 5 contended: 

The Tribunal’s decision was affected by fraud on the Tribunal, on DIAC and the applicant because Yat Tan was not the migration agent acting for the client and as such in reality was not the authorised recipient but Tat [sic] & Tan and Yat Tan still gave the deceptive and fraudulent impression to DIAC that he was the migration agent for the applicant.  In fact the work was carried out by other people under his name for benefit of Tan & Tan.  A non‑migration agent was not supposed to represent the applicant with the DIAC. 

26                  The fraudulent conduct which was alleged was described in the appellant’s written submissions: 

The applicant was misled as to who his migration agent was.  The correspondence from Tan & Tan was carried out by people other than Yat Tan who should have acted for the applicant.  Communication to the applicant was also carried out by people other than Yat Tan.  There appears to be fraudulent effort by staff at Tan & Tan to give the impression that Yat Tan was to be and indeed was the migration agent.  [Alt]hough the applicant believed that he was represented by a licensed and qualified migration agent that was not the case in reality.

27                  His Honour observed that the authorities subsequent to SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189, for example, Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration & Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures. 

28                  In his Honour’s opinion, the suggested fraudulent activities or statements by any partner or employee of Tan & Tan were not identified with sufficient precision in the appellant’s evidence and submissions.  His Honour understood the broad contention to be that there were knowingly false communications by unspecified partners or employees to the appellant and/or the Department of Immigration, which incorrectly suggested that his visa application was being presented and pursued by a person at Tan & Tan who was a registered migration agent, when in fact that was not the case.  However, his Honour concluded that this contention failed at several points.  Essentially, it failed upon his Honour’s findings of fact that he was not satisfied that Mr Yat Tan was not the partner at Tan & Tan who undertook all the responsibilities, for the purposes of the Act, for the immigration assistance given to the appellant by the partners and employees of that firm. 

29                  The appellant did not himself identify any particular express communication which was false in the manner described, whether knowingly or unknowingly.  The documentation from Tan & Tan which was in evidence suggested to his Honour that it was a firm which was more probably performing its obligations under the contract with the appellant and the Act, both as a firm of legal practitioners and in the performance of migration work on behalf of its clients.  His Honour, therefore, was not satisfied as to any of the factual foundations for the allegations of fraud. 

30                  His Honour observed that there were other difficulties facing this ground also. 

31                  He identified a factual issue as to the causative effects of any fraudulent conduct by a person at Tan & Tan as alleged.  On the evidence before him, there was a substantial dispute between the appellant and Tan & Tan whether, in fact, the appellant actually received from them the delegate’s decision on the day it was delivered, and well within the time for appealing which was clearly stated in the delegate’s notification.  If he was sent it as claimed by Tan & Tan, then any preceding fraudulent conduct in relation to the registration under the Act of any person or persons at Tan & Tan was immaterial to the applicant losing his right of appeal. 

32                  His Honour’s short opinion was that he was not satisfied on the evidence before him that Tan & Tan did fail to communicate the delegate’s decision speedily, and in the manner that they claim in their correspondence with the appellant.  Such a finding in a context where the appellant had not presented evidence which might appear to be available to settle the matter from documents in the possession of Tan & Tan, or from witnesses who could have been produced to the Court from that firm under subpoena, was fatal.  As with the allegation of fraud, his Honour also took into account the seriousness of the implication of professional negligence by a non‑party, which underlay the appellant’s allegations about this matter. 

33                  Another difficulty was his Honour’s acceptance of the submission of the Minister’s counsel, that if he accepted all the evidence led by the appellant, it would support, at most, a conclusion only that there was a failure by Tan & Tan speedily to convey the delegate’s decision to the applicant.  At most, in his Honour’s opinion, the appellant’s evidence might support a finding of negligence in communicating with a client of the firm on a significant matter.  However, on the above authorities this was not enough (reference was made to SZFDE at [53]). 

Grounds of Appeal in this Court

34                  The appellant filed a notice of appeal on 13 October 2008 raising three grounds but in that notice foreshadowed the filing of an amended notice of appeal when the written reasons for judgment below became available.  An amended notice of appeal raising six grounds was filed under cover of a supplementary notice on 23 October 2008.  The appellant relies on the six grounds in the amended notice of appeal and the respondent took no objection to that course on the understanding that it was not to be taken as, or seen to be, consent to the appellant reformulating any allegation of fraud.  The appellant also read an affidavit sworn 8 December 2008, without objection on the part of the respondent, which had been filed on 11 December 2008 annexing the transcript of the proceedings in the Federal Magistrates Court.

Ground 1

The learned Federal Magistrate erred by misconstruing s 494D of the Act.

35                  This ground seeks to challenge his Honour’s findings (under ground 1 below) that s 494D does not require that a signature from the appellant be part of the notice to the Minister envisaged by that section.  His Honour’s findings in this regard are set out at [40] and [41] of his reasons and summarised in [17] and [18] above.

36                  There is no requirement in s 494D (or elsewhere) for the notice appointing the authorised recipient to be in any particular form; any notice in writing meeting the elements of subs 494D(1) will suffice.  There is no requirement for the notice under subs 494D(1) to be signed at all – but even if there was a requirement that it be signed by the appellant, there would still be room for application of the presumption that the appellant could meet that requirement through an agent: McRae at 663D.

37                  In addition, there are a number of factual findings in the way of the appellant succeeding on this ground.  His Honour found that the interactive form was completed by someone (unknown) at Tan & Tan with the full authority of the appellant: [17] and [40] of his reasons.  His Honour also found that it was not a matter of concern for the appellant to know which person within the firm he dealt with or who within the firm was registered as a migration agent: [19] and [20] of his reasons.  His Honour also found that the contract between the appellant and the firm envisaged it making electronic visa applications on his behalf and sending/receiving on his behalf communications with the Department: [22] of his reasons; and finally his Honour’s rejection of the appellant’s submissions that Mr Yat Tan (a registered migration agent) had not appropriately supervised and taken responsibility for his matter: his Honour’s reasons at [27] and [28].

Ground 2

The learned Federal Magistrate made an error of law in failing to find that after Mr Yat Tan’s name was stated in the electronic application lodged at the beginning Mr Yat Tan abandoned his role as migration agent where there was no evidence at all of this role in the furthering of the visa application from any of the records or the appellant’s affidavit evidence before the Court.  His Honour thus wrongly failed to hold that DIAC was on constructive notice that Mr Yat Tan was not the migration agent or the authorised recipient acting for the appellant.

38                  This ground seeks to re-agitate his Honour’s findings under ground 4 below.  It is not suggested that his Honour’s findings at [48] and [49] of his reasons were not open on the evidence before him.  That being so, his Honour’s conclusion at [50] – his refusal to accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate’s decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt that currency of the appointment of the notified authorised recipient – should not be disturbed.

Ground 3

The learned Federal Magistrate made an error of law in misconstruing s 280 in relation to the difference between the right of a migration agent and a legal practitioner who is not a migration agent.  His Honour erred by (i) referring to legal services in [49] where there was only migration services performed and no legal services performed (ii) failed to understand that there can not be a contract of engagement for migration network between an applicant and an entity as only a person can be a migration agent and an entity can not be licensed as migration agent.  This misunderstanding led to his Honour to find that Mr Yat Tan did not fail to perform his duties as a migration agent.

39                  This ground has no foundation.  His Honour did not       misconstrue s 280 of the Act in the ways contended; rather, the appellant and his legal representatives have totally misconstrued his Honour’s reasoning.  His Honour showed no error as to his understanding of the role of a registered migration agent.  Moreover, on his Honour’s findings of fact:

(a)                the authorised recipient in this case, Mr Yat Tan, was a registered migration agent (although there is no requirement in the Act that an ‘authorised recipient’ must be a registered migration agent);

(b)               his Honour was not satisfied that Mr Yat Tan ‘did not take responsibility under the Migration Act and within the firm of Tan & Tan for [the appellant’s] migration work’ [27] and [56];

(c)                nor was his Honour satisfied that Mr Yat Tan was ‘in any way derelict in his responsibilities as a registered migration agent under the relevant provisions of the Migration Act, in particular s.280(1)’ [28]; or that he was deficient in his ‘supervision and responsibility’ [29].  (Emphasis added)

40                  His Honour was not denying the role of a ‘registered migration agent’.  To the extent that he referred to the agreement between the appellant and the firm, his Honour was doing so only to examine whether the authority given by the appellant to partners and employees of Tan & Tan was wide enough to give the notice of the kind contemplated by subs 494D(1).  He was not suggesting that ‘the firm’, as opposed to Mr Yat Tan, had the responsibilities of a registered migration agent.

Ground 4

 The learned Federal Magistrate made an error of law by finding at [63] that he is not satisfied on the evidence before him that Tan & Tan did fail to communicate the delegate’s decision speedily, and in the manner that they claim in their correspondence with Mr Jalagam.

41                   This ground also has no foundation.  The finding complained of was one of fact, well open to his Honour and no appellable error is shown.

42                  Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being ‘disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review’: SZFDE at [51]; such that its decision was, in law, no decision at all: (SZLIX at [18]; also [20]).  If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour’s finding, that there was some dishonesty by anyone at Tan & Tan) would not have made any difference.  There would be no link between the suggested ‘fraud’ and the Tribunal’s decision-making process: SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.

43                  The onus was on the appellant to make out his case of fraud.  There was no concession of the point.

44                  It was, however, one point that was not necessary to decide and his Honour’s judgment did not depend upon it.  This was only one of a number of alternative bases for rejecting the appellant’s attempt to make out fraud.

Ground 5

The learned Federal Magistrate made an error of law by holding at [58] that there were no factual foundations for the allegations that there was fraud.

45                  First, it should be noted that the finding in question (at [58]) was: ‘I am, therefore, not satisfied as to any of the factual foundations for the present allegations’.  The appellant carried the onus of proof (as indicated by his Honour in the balance of [58]) and plainly did not satisfy his Honour as to underlying facts.  The matters which led his Honour to that conclusion were each of those referred to by his Honour at [56] and [57]: the failure of the appellant to satisfy his Honour that Mr Yat Tan was not the partner at Tan & Tan who undertook all the responsibilities, for the purposes of the Migration Act, for the immigration assistance given to the appellant by the partners and employees of that firm ([56]) and the failure of the appellant himself to identify any express communication which was false in the manner described [(57)].  It was open to his Honour to find as he did in these respects and no appellable error is shown.

46                  In any event, once again, his Honour gave multiple alternative reasons for not being satisfied as to the appellant’s ground 5 and, even if (contrary to the Minister’s submissions) the conclusion at [58] was flawed, the judgment did not depend upon that conclusion and the alternative bases would also need to be vitiated for the appellant to succeed.

Ground 6

The learned Federal Magistrate made error of law by holding at [64] that if all the appellant’s evidence is accepted it would only constitute negligence.

47                  That finding was open to his Honour and no appellable error is shown.  It attracts what was said in SZFDE at [53] as to there being no jurisdictional error in mere bad or negligent advice or other mishap.

48                  In any event, the appellant has not shown the combination of elements required to make out jurisdictional error of the kind discussed in SZFDE and the other cases to which reference was made.

Conclusion

49                  No appellable error by his Honour or jurisdictional error by the Tribunal is established.

50                  The appeal must be dismissed, with costs.

Associate:

Dated:         6 March 2009