FEDERAL COURT OF AUSTRALIA

SZQVV v Minister for Immigration and Citizenship [2012] FCA 871

THE COURT ORDERS THAT:

1.    Time is extended pursuant to Rule 35.14 of the Federal Court Rules 2011 for the making of an application seeking leave to appeal from a judgment (orders and reasons for judgment) of the Federal Magistrates Court of Australia published on 29 February 2012.

2.    Time is extended pursuant to Order 1 to 21 March 2012 being the date on which the applicant filed an application for extension of time including within that application, an application for leave to appeal from the judgment of the Federal Magistrates Court.

3.    Leave is granted to appeal from the judgment of the Federal Magistrates Court on the terms of the draft Notice of Appeal attached to the affidavit of the applicant filed 21 March 2012.

4.    The Notice of Appeal will be treated as having been filed this day and an appeal number will be allocated to the Notice of Appeal.

5.    The first and second respondents are taken to have been served with the Notice of Appeal this day.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This proceeding concerns an application under Rule 35.14 of the Federal Court Rules 2011 for an extension of time to seek leave to appeal from a judgment (Orders and Reasons for Judgment) of the Federal Magistrates Court of Australia published on 29 February 2012. The orders made by Federal Magistrate Smith were that the Application before the Court be dismissed under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2011 and that the applicant pay the costs of the Minister for Immigration & Citizenship (the “Minister”) in an amount of $3,123.00.

2    The Application before the Federal Magistrates Court was filed on 16 November 2011. By that Application, the applicant sought an order that the Minister and the Refugee Review Tribunal (the “Tribunal”) show cause why a remedy should not be granted in terms of the constitutional writs in relation to a decision of the Tribunal of 26 October 2011 that its jurisdiction had not been enlivened.

3    The Tribunal came to that view on the footing that the applicant had failed to apply to the Tribunal for review of the decision of the Minister’s delegate within the time prescribed by the Migration Act 1958 (Cth) (the “Migration Act”) and Regulations made under that Act (the “Migration Regulations”).

4    On 30 January 2012, the applicant filed an Amended Application for an order of review in respect of what is described as the purported decision made by the Tribunal on 26 October 2011 to affirm the decision of the Minister’s delegate to refuse the applicant the grant of a Protection Visa (Class XA) under the provisions of the Migration Act. The applicant sought relief in the form of the constitutional writs of certiorari, mandamus and prohibition for the quashing of the Tribunal’s decision, a direction that the Tribunal determine the applicant’s Application for Review before the Tribunal according to law and prohibition directed to the Minister preventing effect being given to the Tribunal’s decision. The Tribunal by its decision did not affirm the decision of the Minister’s delegate. The Tribunal decided that its jurisdiction had not been enlivened and therefore it had no jurisdiction under the Migration Act to undertake a review of the delegate’s refusal to grant the applicant a Protection Visa.

5    The orders of the Federal Magistrates Court were pronounced on 29 February 2012 and ex tempore reasons were given on that day.

6    The Court dismissed the Application under Rule 44.12(1)(a) of the Federal Magistrates Court Rules on the footing that Federal Magistrate Smith could not be satisfied that the Application (as amended) raised an arguable case for the relief claimed. Rule 44.12(2) provides that a dismissal of an application under Rule 12(1)(a) is an interlocutory order. An appeal from that interlocutory order lies to this Court with leave, under s 24(1A) of the Federal Court of Australia Act 1976. Under Rule 35.13 of the Federal Court Rules, the application for leave must be filed within 14 days of 29 February 2012. The applicant filed an Application on 21 March 2012 in the belief that the relevant time period was 21 days rather than 14 days. Accordingly, the applicant seeks an extension of time to seek leave to appeal.

7    In the affidavit in support of the Application also filed on 21 March 2012, the applicant says that after the hearing on 29 February 2012, he received the orders of the Court (and I assume a copy of the Reasons for Judgment) on 15 March 2012. The Reasons for Judgment were revised from the transcript and I infer that the revised reasons and orders were sent to the applicant a few days before 15 March 2012. The applicant says that he did not know that he had to file an Application for Leave to Appeal within 14 days and understood that 21 days from pronouncement of the orders was the relevant period.

8    Those matters are reasserted in brief written submissions. The affidavit exhibits a draft Notice of Appeal identifying two grounds of appeal. Those grounds are discussed shortly but before doing so it is important to set the proceedings in their proper context.

9    The applicant lodged an Application for a Protection Visa with the Department of Immigration and Citizenship on 21 March 2011.

10    The applicant says that he is a national of Bangladesh and in his application he sets out a short statement of the facts said to give rise to his well-founded fear of persecution should he return to Bangladesh.

11    The Minister’s delegate refused the grant of a Protection Visa on 27 May 2011. The applicant was notified of the delegate’s decision by a letter dated 27 May 2011. In that letter the case officer said this:

After careful consideration of all of the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

The attached Decision Record provides more detailed information about this decision and the applicant(s) it applies to.

Review rights

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

If you make a valid application for review of this decision, your bridging visa will remain in effect until 28 days after the RRT has notified you of its decision. If you withdraw your application for review to the RRT, your bridging visa will cease 28 days after that withdrawal.

If the RRT remits your application to the department for reconsideration your bridging visa will remain in effect while your application is being processed.

Please note that this review period is prescribed in law and an application for review may not be accepted after that date.

As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.

Lodging an application for review

Applications for review can be lodged in person, faxed or posted to any registry of the RRT. Certain registries of the Administrative Appeals Tribunal (AAT) also accept applications for review on behalf of the RRT.

12    Apart from some other information set out in the letter, the address for the Registries of the Tribunal in New South Wales and Victoria are set out. So too are the address details for the Administrative Appeals Tribunal in Queensland, South Australia and Western Australia. The letter attached a document called a Visa Application Summary, a Client Service Information circular, a document described as “Refugee Review Tribunal R10”, the Decision Record of the delegate, and a digital recording of an interview with the applicant in relation to his application. The delegate’s letter of 20 April 2011 refers to an interview to be held at 11.00am on Wednesday, 25 May 2011.

13    The document described as “Refugee Review Tribunal R10” is a document which provides answers to a range of questions which is one method chosen to tell applicants about the Tribunal, who can apply for review, when the applicant must apply for review, when the applicant will be taken to have been notified, how an applicant might apply to the Tribunal, relevant fees and expenses and other matters, apart from the express matters set out in the body of the letter dated 27 May 2011.

14    The letter dated 27 October 2011 was sent to the applicant by registered post to the applicant’s residential address recited in the Protection Visa Application. The registered letter was despatched on 27 May 2011 to that address. The material before the Tribunal and the Federal Magistrates Court contained documents confirming the registered post number and the despatch of the letter.

15    On 9 September 2011, the applicant lodged an Application for Review with the Tribunal. On 9 September 2011, the Tribunal wrote to the applicant enclosing a review application receipt. The letter advised the applicant that a request had been made of the Department for the production of all documents and files considered by the Department relevant to the application.

16    On 15 September 2011, the Tribunal wrote to the applicant expressing the view that the application was not a valid application as it had not been lodged within the relevant time required by the Migration Act and Migration Regulations. The Tribunal said this:

The time limit is 28 calendar days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 27 May 2011 and, on the basis that 7 June 2011 was the date on which you are taken to have been notified, the last day for lodging the application for review was 5 July 2011. As the application was not received until 9 September 2011, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.

If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation. As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter. Accordingly please respond by this 10 October 2011. Your application, with any comments you make, will then be referred to a Tribunal Member to make a decision on your application. If the Tribunal Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

17    On 6 October 2011, the applicant responded to that letter, although the applicant’s letter is mistakenly addressed to the Migration Review Tribunal. In that letter, the applicant set out the relevant events and corresponding dates which he described as, the primary decision posted to him on 27 May 2011; the date on which he is taken to have received the letter of 27 May 2011, namely, 7 June 2011; the last day for lodging an application for review which he describes as 5 July 2011; and, the review lodgement date of 9 September 2011. Having recited those matters, the applicant then said this:

Under the above facts it is clear that I lodged the review application after the 28 days period run out. As a consequence, the Tribunal is in the view that my application is not a valid application.

Submission:

I am agreed with the Tribunal that I did not lodge this review application within the relevant time limit.

The real fact is that after I received the primary decision of [the Department] I consulted with one of the person who promised to help me lodging this review application. I left the decision with him and he advised me in words that he would lodge the review application. Since I left the primary decision with him I had regular contact with him. He also helped me to prepare my primary decision application lodged with [the Department]. On my question he continuously told me that he had lodged my review application and I would receive an acknowledgement from the Tribunal soon. He confirmed with me that he had lodged the application at MRT and advised me not to worry. After this conversation I received an acknowledgement letter on 9 September 2011 from the Tribunal.

I received another letter from the Tribunal on 15 September 2011. This letter advised me that I have not lodged my review application within the relevant time limit.

I was very shocked and straightway asked him what was happening. He again advised me not to worry. He also advised me that he would make a submission to the Tribunal.

However, I cannot rely on him further. I am preparing this response myself for your kind consideration.

I am not sure how the above fact will help me to make my review application valid. However, the fact is true in every word and as a result my life became very hard now.

I may contact with the relevant authority to lodge a complaint against the person who promised to help me. I am consulting with my friends and getting preparation how and where I will make a complaint against the person.

By the time I submit that I lodged this review application after the 28 days period run out. However, I also submit that it was beyond my control as I relied on a wrong person to help me lodging this review application.

I apologised for lodging this review application after the 28 days period run out.

I request the Tribunal to consider the above fact and make a favourable decision that my review application is valid.

18    In that letter, the applicant also advised the Tribunal that he had moved to a new address and the letter enclosed a “change of contact details” form reciting the new address. The letter bears the name of the applicant and his new address and a signature which is handwritten in capital letters. The change of address form bears a signature in capital letters in the same manner. The applicant’s application forms submitted to the Department bear his signature in approximately five places in freehand. The Application for Review lodged on 9 September 2011 contains a Section C (within the standard form) which asks “Do you have an adviser you authorise to act for you in relation to this application? (for example a migration agent)”. The applicant answered that question “No”.

19    On 26 October 2011, the Tribunal reached a decision that it did “not have jurisdiction in this matter”.

20    In reaching its decision, the Tribunal made these observations and findings.

21    The Tribunal found that the applicant was seeking review of an RRT-reviewable decision for the purposes of s 411(1)(c) of the Migration Act. In order to lodge a valid application enlivening the Tribunal’s statutory review function of such a decision under s 414 of the Migration Act, an application for review had to be given to the Tribunal within a prescribed period for the purposes of s 412(1)(b) being a period ending not later than 28 days after the notification of the decision. Regulation 4.31(1) of the Migration Regulations 1994 (Cth) provides, for the purposes of s 412(1)(b), that the prescribed period is the period recited in Regulation 4.31(2), which provides, that the prescribed period commences on the day on which the applicant is notified of the RRT-reviewable decision and ends “at the end of 28 days” (Regulation 4.31(2)(b)).

22    Section 66(1) provides that when the Minister refuses to grant a visa, he or she is to notify the applicant of the decision in a “prescribed way”. Regulation 2.16 provides that the Minister must notify the applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act. One method consists of the Minister handing the relevant document (letter) to the recipient. Another method under s 494B(4) consists of the Minister dating the document (letter) and then despatching it within three working days of the date of the document by prepaid post or by other prepaid means to the last address for service provided to the Minister by the recipient (applicant) for the purposes of receiving documents, or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.

23    Section 494C(4) provides that if the Minister gives a document to a person by the method described in s 494B(4), the person is taken to have received the document seven working days after the date of the document, in circumstances where the document was despatched from a place in Australia to an address in Australia. The decision notice was sent by prepaid registered post within three working days of the date of the letter. In fact, it was sent on 27 May 2011. Evidence of despatch of the letter was put before the Tribunal. The decision notice dated 27 May 2011 together with attachments was sent by prepaid post on 27 May 2011 from a place in Australia to the applicant at an address in Australia which was the last address for service provided to the Minister by the applicant for the purpose of receiving documents from the Minister.

24    Section 66(2) provides that the notification of a decision to refuse an application for a visa must contain information directed to these matters: if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specification of that criterion; if the refusal was based upon a provision of the Migration Act or the Migration Regulations, specification of the provision; written reasons for the decision; a statement that if the applicant has a right to have the decision reviewed, information stating that fact, the time within which an application must be made, who can apply and where applications might be made.

25    The Tribunal found that the content of the delegate’s notice complied with the requirements of s 66(2) of the Act.

26    Having regard to all of these factors the Tribunal was satisfied and found that the Decision Notice was despatched within three working days of the date of the letter to the correct address in accordance with s 66(1) and s 494B(4) of the Migration Act and, therefore, the applicant is taken to have received the Notice on 7 June 2011 being seven working days after the date of the Notice (letter) of 27 May 2011.

27    At [21] of the Tribunal’s reasons, the Tribunal recites the applicant’s letter of 6 October 2011 explaining the circumstances leading to the failure to give the Tribunal a review application by 5 July 2011 being 28 days after the date on which the applicant is taken to have received the letter. As to the applicant’s letter of 6 October 2011, the Tribunal said this at [22]:

The Tribunal has considered the applicant’s submission but nevertheless finds that the decision was validly notified and that there is no valid application for review. The Tribunal does not have the discretion to accept an application out of time.

28    Before the Federal Magistrates Court the applicant sought the issue of the constitutional writs on the footing that the Tribunal had engaged in jurisdictional error by failing to consider “the relevant laws about the notification of the delegate’s decision” (ground 1) and that the Tribunal had failed to provide the applicant “natural justice” (ground 2). As to ground 1, the applicant contended that the Tribunal had failed to consider and apply the relevant law relating to the notification to an applicant of the delegate’s refusal decision and had failed to consider the submission of 6 October 2011. As to ground 2, the applicant contended that the Tribunal had failed to “consider my fear of persecution at my home country on the basis that my application lodged at the Tribunal was not a valid application”. The applicant contended that at the time of the Tribunal’s decision, the applicant was suffering “political persecution”. In other words, the applicant contended before the Federal Magistrates Court that the Tribunal ought to have embarked upon the review function under s 414 of the Migration Act and given consideration on the merits to the applicant’s claim to hold a well-founded fear of persecution for a Convention reason.

29    In the proceeding before Federal Magistrate Smith, the applicant made written and oral submissions reasserting the elements of the letter to the Tribunal of 6 October 2011. The applicant contended that he had relied upon a friend to file or lodge the review application with the Tribunal. The applicant said that he had not discovered that the friend had failed to do so until he enquired about the matter of the Department approximately two months later. Federal Magistrate Smith notes at [12] that in oral submissions the applicant referred to the friend taking “some money” and Smith FM then observed:

… but it is unclear to me whether this was by way of remuneration or for payment of fees charged by the Tribunal.

30    Federal Magistrate Smith also said this at [12]:

I am not satisfied that the applicant has pointed to evidence suggesting that there was any fraud on him performed by the friend. It appears to me that the applicant’s statements point at best to negligence on the part of his friend.

                                [emphasis added]

31    On the question of whether the material put before the Federal Magistrates Court by the applicant (including oral submissions about particular facts) raised an “arguable case” for the relief claimed for the purposes of Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, Federal Magistrate Smith said this at [13], [14] and [16]:

13.    In any event, I cannot see that the circumstances narrated by the applicant, considered at their highest and assuming they could be verified if the matter proceeded to a hearing, would provide him with a ground for obtaining the relief he seeks. The rare occasions in which a Tribunal decision might be found invalid on the grounds of fraud, by an agent, are confined to frauds which subvert the procedures required under the Migration Act of the Tribunal after the receipt of a valid application for review (see SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [30] – [35] and [47]-[53]). I do not consider that the principles identified in SZFDE allow the Court to overcome or disregard the provisions of the Migration Act imposing a strict time limit on applications to the Tribunal.

14.    In any event, the circumstances put forward by the applicant do not come within the special circumstances found by the High Court in SZFDE. At best, the applicant has suffered by reason of “bad or negligent advice or some other mishap” in relation to the filing of his application (compare SZFDE at [53]).

16.    Taking into account all that the applicant has put to me, I am not satisfied that his application has raised an arguable case for the relief claimed, and I consider it appropriate that it should be dismissed under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

                                [emphasis added]

32    In the applicant’s letter of 6 October 2011 to the Tribunal which was the foundation of the factual contentions put to the Federal Magistrates Court, the applicant said that he “consulted with” a person (described before the Federal Magistrates Court as “a friend”) who “promised to help” him in the lodging of the Review Application. The person so helping the applicant told the applicant that he “would lodge the review application”. The person in question was not identified before the Federal Magistrates Court. In the letter, the applicant says that the person in question was the same person who had helped him prepare the primary visa application lodged with the Department. The content and character of the conduct of the assisting person, so far as it relates to the review application, seems to have assumed a dimension beyond mere promises because the applicant says (in the 6 October 2011 letter) that upon asking the assisting person (and I infer by reason of what follows that the inquiry was made a number of times) whether the review application had been lodged with the Tribunal, the assisting person “continuously told me that he had lodged my review application and I would receive an acknowledgement from the Tribunal soon” [emphasis added]. The reference to the imminent receipt of an acknowledgement was no doubt reinforcing of the representation made to the applicant that the assisting person had lodged the review application.

33    The applicant says that he received an acknowledgement from the Tribunal on 9 September 2011 but then received the letter of 15 September 2011 taking the point about late lodgement. The applicant says that he was “very shocked” and immediately asked the assisting person “what was happening”. The applicant says that he was again told “not to worry” and the assisting person advised that he would “make a submission to the Tribunal”. In the applicant’s letter of 6 October 2011 he says that notwithstanding that statement, the applicant felt that he could not “rely on him further” and thus the applicant elected to “[prepare] this response myself” for the Tribunal’s consideration. The applicant further says that he is not sure how these facts about the assisting person would affect the validity of his review application. He asserts that all of the facts put to the Tribunal about these events are “true in every word”. He further says that he intends to make contact with the “relevant authority” to lodge a complaint against the person who “promised to help me”. The applicant says that he is further consulting with his friends for assistance in making that complaint. It seems to me that these facts, if accepted, admit of an inference of material dishonesty on the part of the person assisting the applicant in representing a number of times that a review application had been lodged with the Tribunal when it had not which caused the applicant to be “very shocked” when the true position was revealed.

34    Before the Federal Court, the applicant makes the same submissions about the facts with a view to demonstrating that these facts at least give rise to an arguable case which needs to be determined on the facts. The additional matter put before the Federal Magistrates Court reflected in Federal Magistrate Smith’s comments at [12] is the suggestion that the assisting person may have been receiving remuneration of some kind for the assistance provided to the applicant. That matter is left as a matter of speculation as the reference to a request of the applicant for “some money” may have been a request for fees payable to the Tribunal or remuneration for the provision of the services.

35    Section 411(1)(c) of the Migration Act relevantly provides that a decision to refuse to grant a Protection Visa is an RRT-reviewable decision. Section 412(1) of the Migration Act provides that an application for review of an RRT-reviewable decision must be made in the approved form; be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and be accompanied by the prescribed fee (if any). An application for review may only be made by the non-citizen who is the subject of the primary decision and the non-citizen must be physically present in the migration zone when the application for review is made. Section 412(4) provides that Regulations made for the purposes of s 412(1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions.

36    There is no doubt that the conclusions reached by the Tribunal concerning each of the factual matters contemplated by s 412 (and the relevant Regulations applicable to the circumstances of this case) were conclusions on the facts open to the Tribunal in deciding whether its jurisdiction had been properly invoked. Moreover, those factual findings do not seem to be contested by the applicant. The legal consequences of what flows from those foundation facts for the validity of the applicant’s review application is in issue.

37    Section 414(1) of the Migration Act provides that subject to the question of whether the Minister has issued a “conclusive certificate” (which is a matter not relevant for present purposes), the Tribunal must review the RRT-reviewable decision, “if a valid application is made under section 412” for review of that decision. The Tribunal may, for the purposes of that review, exercise all the powers and discretions conferred by the Migration Act on the original decision-maker. The Tribunal may affirm or vary the decision, remit the matter (subject to particular considerations) for reconsideration in accordance with directions permitted under the Migration Regulations, or set aside the decision and substitute a new decision. If the Tribunal varies or sets aside and substitutes a new decision, the decision as varied or substituted is taken to be a decision of the Minister. By s 415(4), the Tribunal must not, by varying a decision or setting aside a decision and substituting a new decision, purport to make a decision that is not authorised by the Act or Regulations. In the exercise of its powers and in carrying out its functions under the Migration Act, the Tribunal is required by s 420(1) to pursue the objective of “providing a mechanism of review that is fair, just, economical, informal and quick” and the Tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence and must act according to “substantial justice and the merits of the case”.

38    In making an application to the Department for a class of visa and, in particular, a Protection Visa, or in making an application for review and prosecuting such an application, an applicant may need the assistance of particular individuals, and persons might seek to assist for reward or otherwise applicants seeking to make such applications. Often, such applicants will also need the assistance of interpreters as they will simply not have the language skills to deal with the necessary matters. They often will have insufficient life experience or education to understand and deal with the documents and administrative requirements to be satisfied in making a proper application to the Department or making an application for review of a decision of the Minister’s delegate. Applicants in those circumstances are likely to need the assistance of migration agents or lawyers.

39    Section 280(1) of the Migration Act provides that a person who is not a registered migration agent must not give immigration assistance. An offence against s 280(1) is an offence of strict liability. The prohibition contained in s 280(1) is subject to s 280 which provides that the section does not prohibit a parliamentarian, a lawyer, an official (in the relevant circumstances) or a close family member of a person from giving immigration assistance to the person. Regulation 3H of the Migration Agents Regulations 1998 (Cth) provides, for the purposes of s 280, that a close family member in relation to a person means the person’s spouse or a child, adopted child, parent, brother or sister of the person. Section 280(5) provides that s 280 does not prevent an individual from giving immigration assistance to another person by preparing (having regard to the cross-reference to s 276(2A), or helping to prepare, a request to the Minister to exercise a power conferred under ss 351, 391, 417, 454, 501J, 195A, 197AB or 197AD, or by giving advice to a person about making a request of the Minister to exercise a power under any of those sections of the Migration Act. Giving “immigration assistance” means, by operation of s 276, a person’s use or purported use, knowledge of, or experience in, migration procedure to assist a visa applicant by:

(a)    preparing, or helping to prepare, the visa application …

(b)    advising the visa applicant … about the visa application … or

(c)    preparing for proceedings before a … review authority in relation to the visa application … or

(d)    representing the visa applicant … in proceedings before a review authority ...

40    Sections 276(3) and (4) provide for circumstances in which assistance given by a person does not constitute the provision of immigration assistance.

41    Section 281 is, relevantly, in these terms:

(1)    Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.

    Penalty: Imprisonment for 10 years.

(2)    Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.

    Penalty: Imprisonment for 10 years.

…

42    Section 281(3) provides that s 281 does not prohibit a lawyer from asking for or receiving a fee for giving immigration legal assistance or a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.

43    The particular circumstances, qualifications or standing of the person who assisted the applicant in connection with the preparation and lodging of the applicant’s visa application and the provision of assistance (or the purported provision of assistance) to the applicant in connection with the preparation and lodging of the applicant’s review application is not known. Those factual questions were not examined before the Federal Magistrates Court.

44    Although the question of the person assisting the applicant having received some money for something from the applicant was exposed, the content of that part of the engagement between the applicant and the person assisting the applicant was not examined in any detail. In the proceeding before the Federal Magistrates Court, the applicant appeared in person with the assistance of an interpreter. The applicant, by his visa application, claims to be a national of Bangladesh. Of course, these factual questions of nationality are not the subject of findings by the Tribunal as the Tribunal did not embark upon a review having formed the view that it did not have jurisdiction. The applicant was assisted before the Federal Magistrates Court by an interpreter fluent in the Bengali language. The applicant appeared before this Court assisted by such an interpreter.

45    Having regard to the content of the factual allegations made by the applicant, and assuming for present purposes those factual allegations are accepted or shown to be correct, the position may arguably be that a person has been providing immigration assistance to the applicant by helping the applicant to prepare both the visa application and an application before a review authority (the Tribunal) in circumstances where that conduct is arguably subject to the prohibition contained in s 280(1) of the Migration Act. It might also be the case that the person assisting the applicant has arguably sought a fee or other reward or charged a fee or other reward for the provision of immigration assistance in contravention of s 281 of the Migration Act. Having regard to the factual allegations, not only has such a person arguably engaged in the conduct just described, but that person in the course of providing assistance has falsely and dishonestly represented to the applicant on a number of occasions that an application for review had been lodged with the Tribunal; because the review application had been lodged, the applicant would receive a formal acknowledgement from the Tribunal to that effect in due course; and, the applicant ought “not to worry” about the lodging of the review application.

46    The combination of conduct on the part of the person assisting which arguably contravenes these provisions of the Migration Act coupled with misrepresentations arguably dishonestly made as to the lodging of the review application elevates the matter, accepting the applicant’s version of the facts for present purposes, beyond mere promises or bad or negligent advice or simply some other class of unfortunate mishap.

47    The factual allegations made by the applicant seem to arguably suggest dishonesty, and conduct coupled with arguable illegality. These matters were not examined in any detail before the Federal Magistrates Court. That Court in exercising supervisory judicial review derived from the Migration Act but sourced in s 75(v) of the Constitution may, subject to procedural and evidentiary rules of admissibility on the relevant application, take account of any relevant material placed before it in a case of contended jurisdictional error on the part of the Tribunal arising out of alleged fraudulent conduct going to the exercise of the Tribunal’s jurisdiction. The question of whether inferences might be drawn or not from the facts as contended by the applicant so as to give rise to an arguable case of conduct reflecting illegality and dishonesty on the part of the assisting person and thus a fraud upon the applicant, as the contended source of jurisdictional error on the part of the Tribunal, was not considered in any real detail. The Tribunal’s decision on the jurisdictional question may be a privative clause decision but if it was reached in circumstances of jurisdictional error it is not a decision made or reached under the enactment.

48    The Federal Magistrates Court proceeded on the footing that, at best, the factual contentions gave rise to a claim that the applicant had been the subject of bad or negligent advice or some other mishap and, even if the applicant had relied upon fraudulent or dishonest conduct on the part of the person assisting him, that class of conduct is only relevant to the subversion of the procedures of the Tribunal once a valid application for review has been filed thus enlivening the statutory obligation of the Tribunal to undertake a review of the RRT-reviewable decision.

49    In this case, the evidence before the Federal Magistrates Court (limited as it was by the oral and written submissions of a self-represented litigant aided by an interpreter of the applicant’s homeland Bengali language) suggested, at least arguably, that the applicant relied upon the dishonest representations (possibly made for reward) of the assisting person which subverted the applicant from lodging an application for review within time. The evidence suggests that the applicant intended to lodge an application for review and intended to seek, through that review, a merits review of the delegate’s decision refusing the grant of a protection visa. He was not given an opportunity to open the Tribunal’s jurisdictional door by reason of third party dishonest conduct. Thus, the applicant has been denied an opportunity to press, explore or review his claims to a protection visa arising out of a contended well-founded fear of persecution for a Convention reason, in a fair hearing conducted according to law.

50    The appellant’s contended arguable case is that a fraud has been perpetrated upon him as a potential party to a review proceeding which was not commenced within time due to the conduct of the third party. Clearly, the Tribunal had no engagement in that conduct whatsoever. Although the obligation to give a review application to the Tribunal within the prescribed time was an obligation which fell upon the applicant under s 412 of the Migration Act, he failed to discharge that obligation in the circumstances already described.

51    The decision of the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 deals with a different set of circumstances. In that case, the jurisdiction of the Tribunal had been properly enlivened. The Tribunal had embarked upon a review of the delegate’s decision within the framework of the Migration Act. The Tribunal reached a decision in circumstances where the fraudulent conduct of a person assisting the applicant induced the applicant for review not to respond to an invitation to appear before the Tribunal under s 425(1) of the Migration Act which had the effect of subverting the operation of s 425 of the Migration Act which subverted the observance by the Tribunal of its obligations to accord procedural fairness to the applicant.

52    The subversion of the processes of the Tribunal by dishonest conduct of the assisting person, having regard to the significance of procedural fairness for the principles concerned with jurisdictional error sourced in s 75(v) of the Constitution, was regarded at [32] as a matter “of the first magnitude” in the administration of Pt 7 of the Migration Act which establishes the detailed regime for the review by the Tribunal of particular visa decisions. In that case, the fraud, although also perpetrated upon the applicant for review, was a fraud “on” the Tribunal as it disabled the Tribunal from the due discharge of its imperative statutory functions with respect to the conduct of the review.

53    The outcome of the appeal in SZFDE turned upon the critical importance Div 4 of Pt 7 of the Migration Play plays in the conduct by the Tribunal of reviews and, in particular, the place within that scheme of ss 425 and 426A. At [53], the Court observed that French J in the Full Court of the Federal Court had correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. Those observations of French J are more particularly set out at [129] in Minister for Immigration & Citizenship v SZFDE (2006) 154 FCR 365. French J also said this at [129]:

But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case.

54    In this case, the applicant’s participation in a decision-making process has been affected by the material dishonesty of another. It has caused the applicant to be prevented from engaging with that process as he would have wished, and sought to do, in reliance upon what ultimately turned out to be the arguably dishonest conduct of the assisting person. The material dishonesty of the assisting person has, in one sense, conveyed a false impression to the decision-maker that the applicant has chosen not to invoke the review jurisdiction of the Tribunal within the prescribed time or has chosen to invoke it by simply making an application outside the prescribed time.

55    Section 414 casts an obligation on the Tribunal to conduct a review of an RRT-reviewable decision according to law if a valid application has been made under s 412. Since the language of s 412 is imperative, an application must be lodged within the prescribed time according to the Migration Act and the Migration Regulations. The enlivening of the jurisdiction is dependent upon the jurisdictional fact of whether the application was given to the Tribunal within the prescribed statutory time.

56    In order for the Tribunal to treat the application as validly made thus enlivening the statutory review obligation cast upon the Tribunal by s 414, the language of the Parliament and thus the statutory intention to be derived from s 412, Pt 7 and the Act as a whole, must convey a limitation upon the imperative language.

57    One such construction of s 412 is that in circumstances where an applicant has been prevented from invoking a review of an RRT-reviewable decision due to the material dishonesty (that is conduct other than bad or negligent advice or some other mishap) of a person which has prevented that person from participating in the decision-making process before the Tribunal contemplated by Pt 7, the Tribunal may treat the application made or given to the Tribunal outside the time required by s 412(1)(b) as having been regularly made, if satisfied, for the purposes of s 414, that the failure to lodge within the prescribed time as required by s 412 was due to the material dishonesty of another which has had the effect of conveying a false impression of the true fact to the decision-maker of the jurisdictional fact as an anterior question for the Tribunal under s 414 to the discharge of the review function.

58    The conduct of the relevant person (that is, the dishonest conduct of a third party) is not only a fraud on the applicant but also a fraud on the Tribunal as the conduct has prevented the applicant from engaging the review processes of the Tribunal at all. Although, unlike SZFDE, the Tribunal has not been seized of decision-making in discharge of the review function, the statutory scheme for merits review before the Tribunal of administrative decisions refusing an applicant the grant of a protection visa was entirely frustrated by the arguably dishonest conduct of the third party adviser. In that sense, the conduct was a fraud on the Tribunal. It was not a fraud on the Tribunal in the SZFDE sense of subverting the exercise of a power within the expressly enlivened jurisdiction of the Tribunal in the course of the Tribunal discharging imperative functions. It was a fraud on the Tribunal in the sense that it prevented the Tribunal from becoming engaged in the exercise of its functions with the particular applicant by reason of the conduct of the third person.

59    Although the Tribunal was not seized of decision-making in the discharge of its review function under the Migration Act, the Tribunal was nevertheless seized of decision-making under the Migration Act as it had to decide for the purposes of s 414 whether the application for review was valid for the purposes of s 412 of the Migration Act as a jurisdictional question anterior to whether it was obliged to embark upon the imperative statutory functions it would have been required to discharge if the answer to the anterior question was that the application before it was valid or was to be treated as regularly made.

60    There is however no express power conferred upon the Tribunal to treat an application lodged outside the prescribed time as regularly made. Although the statutory scheme as a whole might well be served by construing s 412 in a way which prevents a person from being subverted from participation in a decision-making review process as a result of the material dishonesty of another, and prevents, in consequence, a fraud on the Tribunal by preventing the Tribunal engaging in its statutory review role, such a construction is inconsistent with the express language of the section and the express limitation contained within s 414. In Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407. In Fernando, Heerey J, applying the principles derived from Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [18 ff] construed the emphatic language of s 412 as making plain that if an application is not made in accordance with s 412, the application is not a valid one and the Tribunal has no jurisdiction to review the primary decision under s 414. Finkelstein J took the same view at [44 ff]. At [55], Dowsett J agreed with both Heerey J and Finkelstein J. That view of the construction of s 412 was affirmed by the Full Court in Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 133 FCR 570 per Gray, Whitlam and Mansfield JJ.

61    However, neither of these cases deal with an applicant’s failure to lodge a review application within the prescribed time due to material dishonesty on the part of a third party which has had the effect of subverting the applicant’s opportunity to engage the Tribunal’s processes and, in consequence, subverting engagement of the Tribunal’s statutory functions and powers. Both cases were decided before the High Court’s consideration of the role of third party material dishonesty in the discharge of the Tribunal’s imperative functions, once jurisdiction is enlivened. Neither case deals with the question of whether any principle about third party material dishonesty might have application in circumstances in which an applicant is prevented from engaging with the Tribunal at all by reason of third party material dishonesty and neither case deals with a construction of s 412 in the context of determining the notion of “validity” for the purpose of that section in circumstances of third party material dishonesty.

62    On one view, the Parliament’s intention is to impose a strict time limit by operation of s 412 (and the setting of prescribed times by the regulations) which renders an application not lodged within the prescribed time an invalid application, in circumstances where the applicant, bearing the obligation to lodge within time, has failed to do so notwithstanding that the applicant has been subverted from participating in a decision-making review process by the material dishonesty of another, and irrespective of where the merits might lie for a person claiming to hold a well-founded fear of persecution for a Convention reason. That position may be different in circumstances where the relevant inquiry demonstrates that the Tribunal has engaged in a way which has caused the applicant not to lodge a review application within time by, for example, encouraging the applicant to believe that an application would be accepted as valid if lodged outside the prescribed time. Other questions would necessarily arise as to the validity of the application in any event, in those circumstances.

63    The policy approach adopted by the Parliament reflected in the language it has chosen, viewed in context, might be seen as one of certainty and finality so that the review body is not confronted with applications to extend time as might have been the case had a statutory discretion to extend the time for lodging been conferred on the Tribunal or a limited discretion to treat as regularly lodged, an application lodged outside the prescribed time, attributable to the material dishonesty of another which has had the effect of precluding an applicant from access to a decision-making process of review.

64    The review of protection visa decisions under Part 7 of the Migration Act is a central pillar of the statutory scheme which affords a person whose application has been rejected an opportunity of merits review. That opportunity is framed in terms of the obligations cast upon an applicant for review and the imperative duties cast upon the Tribunal in respect of a valid application. Section 422B provides an exhaustive statement of the natural justice hearing rule in the conduct of a review by the Tribunal. Within that limitation and subject to the question of whether the Tribunal has exceeded its jurisdiction, an applicant whose protection visa application has been rejected is afforded an opportunity to test the merits of that decision. An applicant can only do so if the application is valid for the purposes of s 412 and the jurisdiction under s 414 is enlivened. Is s 412 to be construed in a way that qualifies the imperative language “must” such that an application lodged outside the prescribed time might be treated by the Tribunal as valid if third party fraud or material dishonesty is the cause of a failure to lodge within time or, does the imperative language of s 412 convey a Parliamentary intention that an application will only be valid (whatever the cause of the failure to lodge might be) if the application is lodged in conformity with s 412 and the relevant prescribed times as determined by the Migration Regulations?

65    The Explanatory Memorandum relating to s 412 does not ventilate the question of the role third party material dishonesty might play in preventing an applicant from lodging an application for review within time.

66    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.

67    Accordingly: first, an arguable case of material dishonesty arises on the version of the attenuated facts (having regard to the circumstances of the applicant in this case) put before the Federal Magistrates Court; second, those facts, if proven, give rise to an arguable conclusion that the applicant was denied an opportunity to engage the processes of the Tribunal by reason of the material dishonesty of another; third, the Tribunal, in the circumstances, was entitled to treat the applicant’s Application for Review as regularly filed; fourth, the Tribunal concluded, without considering the explanation of the applicant concerning the effect upon his conduct of the material dishonesty of the assisting person, that it had no jurisdiction as the Application was filed outside the “prescribed time”. In those circumstances, the Tribunal fell into jurisdictional error when it concluded that it had no jurisdiction.

68    The Tribunal invited the applicant to put submissions to it concerning the reasons for failing to lodge the review application within the prescribed time, in the exercise of its decision-making about the jurisdictional fact. The Tribunal recited the content of the 6 October 2011 letter in its reasons on the jurisdictional question. However, it decided that notwithstanding the content of the submission, the imperative language of s 412 of the Migration Act did not enable the Tribunal to treat the application as regularly made, notwithstanding any aspect of the content of the letter or the contended prejudicial conduct. In so deciding, the Tribunal failed to have regard to a proper construction of s 412. In so doing, it fell into jurisdictional error in deciding the question arising under s 412 (for the purposes of s 414) that it had no jurisdiction.

69    The question of whether s 412 ought to be construed in a way which comprehends a power in the Tribunal to treat an application irregularly made as regularly made in circumstances where an applicant for a protection visa has been prevented from participating in a decision-making process of review by reason of the material dishonesty of another, is the central matter in issue in determining whether the Federal Magistrates Court fell into error by failing to find an arguable case advanced by the applicant, and in dismissing the applicant’s Application before that Court.

70    I conclude that an arguable case arose on the material before the Federal Magistrates Court that the Tribunal fell into jurisdictional error in deciding that it did not have jurisdiction, assuming the facts contended for by the applicant at their highest.

71    It follows that an extension of time is to be granted for seeking leave to appeal from the interlocutory decision of the Federal Magistrates Court in terms of the draft Notice of Appeal annexed to the affidavit of the applicant filed 21 March 2012. Because the Application was also argued on behalf of the Minister on the footing of whether leave ought to be granted if an extension of time were to be granted, I also grant leave to appeal from the orders of the Federal Magistrates Court on the footing of the draft Notice of Appeal.

72    The result of these orders is that the appeal, for which leave has now been given, needs to be determined.

73    Upon the determination of that appeal, the appropriate order might be that the orders of the Federal Magistrates Court be set aside and the matter be remitted to the Federal Magistrates Court to determine, on the facts, whether material dishonesty on the part of the person assisting is made out. For present purposes, the only questions alive are whether an extension of time for seeking leave to appeal ought to be granted and whether leave to appeal ought to be granted.

Associate:

Dated:    17 August 2012