FEDERAL COURT OF AUSTRALIA

Bayer v Minister for Immigration and Border Protection [2014] FCA 1265

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia published as Bayer & Anor v Minister for Immigration & Anor [2014] FCCA 1723. By that judgment, a judge of the Federal Circuit Court (the primary judge) dismissed the appellants’ application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 18 April 2013. In doing so, the primary judge refused to issue a writ of mandamus requiring the Tribunal to rehear the appellants’ application.

2    The appellants, Gilbert Robert Bayer (the first appellant) and Rita Agnes Boros (the second appellant) are citizens of Hungary. They arrived in Australia on 24 July 2012 on tourist visas. On 23 October 2012, the first appellant applied for a Student (Temporary) (Class TU) visa. The second appellant was included in the visa application as a dependant of the first appellant.

3    On 18 December 2012, in a decision sent to the first appellant’s email address, the First Respondent’s (Minister) delegate (the delegate) refused the appellants’ applications for visas.

4    On 8 January 2013, the appellants applied to the Tribunal for review of the delegate’s decision. This was sent to the Tribunal by registered post and was received by the Tribunal on 11 January 2013.

5    The Migration Act 1958 (Cth) (the Migration Act) and the Migration Regulations 1994 (Cth) (the Regulations) prescribe certain time limits for the lodgment of applications with the Tribunal. Relevantly, s 347(1)(b) of the Act together with reg 4.10 of the Regulations require that an application of the kind made by the appellants be made within 21 days of the appellants being notified of the primary decision.

6    On 19 April 2013, the Tribunal notified the appellants, through their representative, that it had determined that it had no jurisdiction to determine their application. It set out its reasons for that determination in its decision record dated 18 April 2013. The reason given was that the appellants’ application was received by the Tribunal on 11 January 2013, three more days than the 21 days allowed under the Migration Act and the Regulations.

7    Prior to making its decision, the Tribunal wrote to the appellants to foreshadow that their application would be rejected on the basis that it was out of time and asked for a response. In response, a representative of the appellants wrote to the Tribunal alleging that the application was out of time due to “fraudulent” advice given to the appellants by Mr Jorge Avila (Mr Avila), who was described as an “education agent” at an organisation called “Gostudy”. It was asserted that the fraud was third party fraud on the Tribunal.

8    In its decision, the Tribunal determined that it was not necessary to consider whether Mr Avila’s conduct was fraudulent because fraud on the Tribunal was not possible before the Tribunal’s jurisdiction is engaged. In the Tribunal’s view, its jurisdiction had not been engaged because the application was out of time.

9    By an application dated 8 May 2013, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

10    It was accepted before the primary judge that the appellants’ application to the Tribunal was out of time. It was conceded by the Minister, and accepted by the primary judge, that the Tribunal was wrong in determining that it was not necessary to consider whether Mr Avila had acted fraudulently because any such conduct would have been engaged in before the Tribunal’s jurisdiction was enlivened. In that regard, the decision of Flick J in SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 was accepted as correct.

11    By reference primarily to the observations made at [53] of SZFDE v the Minister for Immigration and Citizenship (2007) 232 CLR 189 and [33] of the reasons for judgment in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17, the primary judge took the view that a fraud on the Tribunal, in the circumstances at issue, required him to be satisfied that Mr Avila acted dishonestly in the advice he gave to the appellants (see at [56] and [69]). On the evidence before him, the primary judge was prepared to accept that Mr Avila had given incorrect advice as a result of negligence or inadvertence, but considered that negligence or inadvertence did not amount to dishonesty.

12    Assuming that Mr Avila contravened the prohibition in s 280 of the Migration Act by giving immigration advice whilst not a registered migration agent, the primary judge was not satisfied that in the absence of dishonesty such a breach amounted to a fraud. The primary judge dismissed the appellants’ appeal.

13    On 22 August, 2014 the appellants appealed the decision of the primary judge. The Notice of Appeal contained three particularised grounds of appeal.

14    The appellants’ first ground challenged what is said to be the primary judge’s consideration of the merits of the appellants’ argument. It was said by the appellants that rather than doing that, having found that the Tribunal made a jurisdictional error, the primary judge should have remitted the matter to the Tribunal.

15    This ground misunderstands what the primary judge did and should be rejected.

16    It is apparent from the primary judge’s reasons for judgment that the question that the primary judge considered he needed to determine was whether or not the conduct of Mr Avila amounted to a fraud on the Tribunal (see at [22]).

17    The reasons do not reveal the precise basis upon which that inquiry was made. It could have been raised in the process of the primary judge determining whether he should exercise his discretion to refuse the grant of relief. Having found jurisdictional error on the part of the Tribunal, the primary judge could have refused the grant of the constitutional writ sought by the appellant if there was futility in remitting the proceeding to the Tribunal. If there was no fraud involved in the conduct of Mr Avila, there was a basis for declining relief on the basis of futility.

18    It seems to me, however, that the primary judge posed and answered the question as to whether Mr Avila’s conduct involved fraud not in the exercise of his Honour’s discretion, but because he regarded that the answer to that question provided a basis for supporting the ultimate decision of the Tribunal.

19    At [79], the primary judge noted that the central issue for the Tribunal was whether the appellants had made an application to the Tribunal “within the time provided for by the Act”. At [80], the primary judge observed that the Tribunal had arrived at the right conclusion on that issue, but by taking “an erroneous avenue”, that is, by wrongly determining that fraud on the Tribunal could not occur prior to the Tribunal’s jurisdiction being invoked.

20     As the primary judge stated at [89], had fraud been made out, that would have led to a finding that the application for review to the Tribunal was not out of time and was thus valid. But in determining that fraud could not have been made out, the primary judge determined that there was a basis for supporting the Tribunal’s conclusion that the application was out of time. In that respect, the primary judge determined, as he was entitled to do, that the Tribunal’s error had not materially affected the Tribunal’s decision and that the application for a constitutional writ could be dismissed on that basis.

21    The second ground of appeal is that the primary judge erred in failing to consider the totality of the evidence. Four particulars are given of what are said to be “findings” made by the primary judge which ignored the available evidence referred to under each particular.

22    The first particular does not identify a finding. It selectively quotes from [43] of the reasons, where the primary judge said:

In the current case, the applicants’ submissions, it must be said in great part, in effect rose no higher than an assertion, and insistence, that Mr Avila’s conduct amounted to fraud. The applicants focussed on the outcome, that is, that they were deprived of an opportunity for review by the Tribunal, without seeking to explain how Mr Avila’s conduct amounted to fraud “in the necessary sense”, and as explained by the relevant authorities. There was nothing from the applicants, in their submissions to the Court, to say why or how Mr Avila’s conduct amounted to fraud.

23    The first particular relies on the last line of [43] as an evidentiary finding. It is not. It is an observation on the submissions made by the appellants which, read in context, amounts to no more than an expression of the primary judge’s view that the appellants failed in their submissions to point to any fraud of the requisite kind, namely, conduct involving dishonesty.

24    The other three particulars involve one finding and two observations that two aspects of the appellants’ claim were not adequately established by the evidence. Each of these particulars challenge an aspect of the primary judge’s finding at [45] that there was no evidence that Mr Avila held himself out to be a registered migration agent or practicing solicitor.

25    I do not accept that the matters raised demonstrate a failure by the primary judge to consider the totality of the evidence. Even if a failure of that kind was established in relation to the primary judge’s conclusion that Mr Avila had not held himself out to be a registered migration agent, that finding was not essential to the primary judge’s ultimate conclusion. The primary judge held (at [64]-[70]) that even if it were accepted that Mr Avila did hold himself out to be a migration agent, and thus a contravention of s 280 of the Migration Act occurred, the evidence did not establish fraud on the Tribunal.

26    The third ground of appeal is that the primary judge applied the wrong test. The particulars to that ground assert that the primary judge found that before there could be a finding that Mr Avila could be holding himself out to have any specialist knowledge of migration procedures, there needed to be a declaration to that effect. Reference is made to [74] of the primary judge’s reasons.

27    In my view, the appellant has taken the primary judge’s observations out of context. The observation at [74] of the primary judge’s reasons was made by the primary judge about the content of a particular letter written by Mr Avila. That observation is factual. The primary judge was not there propounding any particular test for determining what needs to be established before the Court could be satisfied that a person was holding himself out to have specialist knowledge of migration procedures.

28    Finally, during the course of the hearing, the solicitor for the appellants sought leave to amend the appellants’ Notice of Appeal by raising a new ground. The Minister opposed the grant of leave. The additional ground sought to be raised was that there was no sufficient evidence for the primary judge to have made the finding made at [75] of his Honour’s reasons, that there was no misrepresentation made by Mr Avila as to his specialist knowledge or expertise. At [75], the primary judge said:

On the evidence, I accept the Minister’s submissions that Mr Avila did not misrepresent his status or level of expertise. There is no evidence of an intent to deceive such as to support a claim of some level of dishonesty. On the evidence he was a student counsellor, or education advisor who sought to assist with some aspects of the applicants’ education and visa matters. He may have been “out of his depth” when it came to “visa matters”, but the absence of any misrepresentation, dishonesty or apparent gain for him at the applicants’ expense means the impugned conduct does not rise to “fraud” as that is explained by the authorities such as to affect the Tribunal’s decision.

29    I accept that there is some basis for a finding that Mr Avila did make a misrepresentation as to his level of expertise in relation to the making and determination of visa applications. The evidence was that Mr Avila made representations to the appellants as to their capacity to appeal the delegate’s decision and the number of days within which an appeal may be lodged. In making those representations, Mr Avila implied that he had some expertise about those matters. However, even if the primary judge was wrong in concluding that no misrepresentation was made, his Honour’s conclusion that dishonesty had not been established was based on two elements. First, the absence of a misrepresentation and secondly, the absence of any evidence that in making the misrepresentation there was an intent to deceive. A misrepresentation may be deceitful or it may simply be based on a misapprehension or mistake. The primary judge was not satisfied that a deceitful misrepresentation was made. His Honour was right to conclude that there was no evidence of a misrepresentation of that kind, even if he was wrong to conclude that no misrepresentation at all was made by Mr Avila.

30    In my view, the proposed ground of appeal is without merit. It would not be “expedient in the interests of justice” to grant the leave sought: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] (Kiefel, Weinberg and Stone  JJ).

31    For those reasons, I am satisfied that no appealable error has been established. It follows that the appellants’ application should be dismissed, with costs.

Associate:

Dated:    25 November 2014