FEDERAL COURT OF AUSTRALIA

Awon v Minister for Immigration and Border Protection [2015] FCA 846

THE COURT ORDERS THAT:

1.    The appellant’s appeal be dismissed.

2.    The appellant pay the Minister’s costs of and incidental to his appeal.

3.    The name of the second respondent be changed to the Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

1    The appellant has appealed the decision of his Honour Judge Lloyd-Jones of the Federal Circuit Court of Australia made on 24 March 2015.

2    His Honour dismissed an application for judicial review filed on 1 August 2013 seeking inter-alia to quash the decision of the Migration Review Tribunal (the Tribunal). The appellant had applied for a Student (Temporary) (Class TU) visa (the visa). That application had been refused by a delegate of the first respondent (the Minister) on 11 January 2013. The appellant filed an application with the Tribunal on 7 February 2013 to review that decision. The Tribunal determined that it did not have jurisdiction to deal with the application for review. His Honour found that the Tribunal made no error and did not have jurisdiction to deal with the application.

3    In my view, for the reasons that follow, the appeal should be dismissed.

BACKGROUND

4    The relevant facts are not in dispute save as to one question of characterisation.

5    The appellant is a citizen of Pakistan. On 11 January 2013, a delegate of the Minister refused the appellant’s application for the visa. The delegate’s decision was sent by email on 11 January 2013 to the email address of Ms Yang, the appellant’s migration agent, at ‘jacqui@cyaassociates.info’. This was the email address that had been provided by the appellant in a ‘Form 956’ provided in December 2012.

6    On 11 January 2013, Ms Yang emailed the appellant informing him of the decision and that he had 28 days to file an application for review with the Tribunal. On 25 January 2013 the appellant attended Ms Yang’s office to discuss the decision. At that meeting, the appellant and Ms Yang discussed making an application for review of that decision to the Tribunal. It was agreed that such an application would be made. The appellant paid Ms Yang $2,200 to file an application and carry out other work relating thereto. Ms Yang told the appellant:

“You have 28 days to lodge your application. I will do it for you”.

7    Ms Yang lodged the appellant’s application with the Tribunal on 7 February 2013 (by facsimile transmission). It was out of time. The applicable time period was 21 days. The appellant and Ms Yang had been informed of the correct time frame as part of the notification of the delegate’s decision on 11 January 2013.

8    On 23 May 2013 the Tribunal wrote to the appellant and Ms Yang expressing the view that the application was not a valid application as it had been filed outside the 21 day time limit. The Tribunal invited Ms Yang and the appellant to comment on that aspect.

9    On 5 June 2013, the appellant was provided with a copy of that invitation by Ms Yang.

10    Subsequently, the appellant attended Ms Yang’s office to discuss the matter. The appellant asked what could be done. Ms Yang apparently responded:

“There is nothing we can do, so don’t respond to the invitation”.

11    No further communication was made with the Tribunal. There were other communications between the appellant and Ms Yang, but in my view the detail thereof is not important for present purposes.

12    On 28 June 2013, the Tribunal informed the appellant that it had no jurisdiction to determine his application; it had made that determination on 27 June 2013.

13    In its statement of reasons, the Tribunal set out the following:

1.    An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 11 January 2013, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    The review application was lodged with the Tribunal on 7 February 2013. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3.    Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4.    The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 11 January 2013 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5.    By letter of 23 May 2013 an invitation was sent to the applicant and his authorised representative to comment on the validity of the application for review in writing within 14 days of receiving this invitation.

6.    No submissions or comments were received by the Tribunal as at the date of these reasons.

7.    The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 11 January 2013. Therefore the prescribed period within which the review application could be made ended on 1 February 2013. As the application for review was not received by the Tribunal until 7 February 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

8.    The Tribunal does not have jurisdiction in this matter.

LEGISLATIVE PROVISIONS

14    Section 348 of the Migration Act 1958 (Cth) (the Act) confers jurisdiction and provides “if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision”.

15    The delegate’s decision was an MRT-reviewable decision within the meaning of s 338(2) of the Act.

16    Section 347 of the Act provided as follows:

“(1)    An application for review of an MRT-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; … and

(c)    be accompanied by the prescribed fee (if any).” (emphasis added)

17    Regulation 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) prescribed the relevant period as follows:

“(1)    For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

(a)    if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; …” (emphasis added)

18    There is no provision for an extension of time.

19    Regulation 2.16(3) provided that “[t]he Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”.

20    Section 494B of the Act provided:

“Coverage of section

(1)    For the purposes of provisions of this Act or the regulations that:

(a)    require or permit the Minister to give a document to a person (the recipient); and

(b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

…

Transmission by fax, e-mail or other electronic means

(5)    Another method consists of the Minister transmitting the document by:

(a)    fax; or

(b)    e-mail; or

(c)    other electronic means;

to:

(d)    the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

(e)    if the recipient is a minor—the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.”

21    Section 494C of the Act then deemed receipt of documents notified in accordance with s 494B as follows:

“(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

…

Transmission by fax, e-mail or other electronic means

(5)    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(6)    Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.”

FEDERAL CIRCUIT COURT DECISION

22    His Honour found that the Tribunal did not have jurisdiction to entertain the application for review because it had been filed out of time. The appellant sought to argue that by the conduct of Ms Yang there had been a fraud on the Tribunal and accordingly that the time bar could somehow be ameliorated.

23    Accordingly, the principal issue that his Honour considered was whether the actions and advice of Ms Yang equated to fraud on the Tribunal.

24    His Honour held that Ms Yang had made a mistake and had not deliberately attempted to commit any fraud on the appellant or the Tribunal. Accordingly, there had been no fraud on the Tribunal.

25    The appellant has sought to challenge these findings and has raised three grounds of appeal. The Minister has asserted that the appellant requires leave to raise one of the grounds. If such leave is necessary, I would grant that leave.

GROUNDS OF APPEAL

Ground 1

26    The appellant asserts that his Honour was in error in finding that the failure of a registered migration agent to comply with the Code of Conduct for registered migration agents (the Code) was not unlawful behaviour. The appellant sought to argue that Ms Yang had engaged in unlawful conduct and that somehow this should be equated to “fraud” for the purposes of establishing the assertion of a “fraud on the Tribunal”.

27    Section 314 of the Act mandates that a migration agent must conduct herself in accordance with the Code.

28    Clauses 2.1 and 2.4 of the Code relevantly provided:

2.1    A registered migration agent must always:

(a)    act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and

(b)    deal with his or her client competently, diligently and fairly.

However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.

…

2.4    A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.

29    In my view the factual findings made by his Honour clearly establish that Ms Yang acted erroneously and incompetently. His findings demonstrate that Ms Yang failed to act in accordance with relevant provisions of the Code and s 314. To that extent, and whatever her state of mind, she failed to conduct herself in accordance with the Code and thereby contravened s 314. That was unlawful conduct.

30    I do not agree with his Honour’s finding at [108] where he said:

“A negligent failure to comply with the Code of Conduct is not unlawful behaviour when considered with complex questions of intent or physical elements. There is nothing to suggest that Ms Yang intentionally failed to comply with the Code of Conduct.”

31    In my view, such a state of mind as is suggested by his Honour, was not necessary to establish a Code breach and therefore a breach of s 314.

32    But in my view, even accepting that an error has been made on this question of characterisation of Ms Yang’s behaviour, this does not establish any error that goes to impugning his Honour’s ultimate decision. Even accepting that Ms Yang engaged in unlawful conduct, that does not establish any relevant fraud. And more importantly, it does not establish error on the part of the Tribunal in its determination that it lacked jurisdiction.

Ground 2

33    The appellant also sought to impugn his Honour’s finding that Ms Yang had not acted fraudulently or intentionally or in wilful disregard of the relevant time limit. The appellant’s focus was on one narrow aspect that the appellant asserted demonstrated fraud.

34    It was expressed in the following terms:

“The Court relied upon the repayment of the fees by the Registered Migration Agent as evidence that her conduct was not fraudulent [113]. However, the Court had previously found that the Registered Migration Agent had failed to repay all the fees to the Appellant [101]”.

35    This ground of asserted factual error goes nowhere. Even if it is accepted, it does not demonstrate any relevant fraud on Ms Yang’s part. His Honour thoroughly considered all the evidence. It is plain that Ms Yang made an unintentional and apparently negligent error. It is also plain that after she realised her error she offered to repay and in fact repaid most of the fees. There was no fraud, let alone fraud on the Tribunal (see Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ).

Ground 3

36    Ground 3 is expressed in the following terms:

“The Court found that the “strict time limit” for lodging applications with the Migration Review Tribunal meant that an application lodged outside those time limits was unable to be reviewed by the Tribunal even if that late lodgement had been affected by fraud on the Tribunal.

The federal Court has found that dishonest representations made by Registered Migration Agents which prevented an applicant from lodging an application to the Migration Review Tribunal could amount to fraud on the Tribunal

SZQVV v MINISTER FOR IMMIGRATION & CITIZENSHIP [2012] FCA 1471

SZQVV v MINISTER FOR IMMIGRATION & CITIZENSHIP [2012] FCA 871”. (emphasis in original)

37    In my view, the appellant has not established that any “fraud on the Tribunal” had been committed. On his Honour’s factual findings, there was no fraud. But even if there was fraud, alternatively Ms Yang’s “unlawful conduct” as described earlier could be characterised as such, alternatively the category of “fraud on the Tribunal” was extended to “fraud or any other unlawful conduct which impacted upon the exercise by the Tribunal of its jurisdiction”, in the present case none of this would in any event establish any error on the part of the Tribunal in its determination that it lacked jurisdiction.

38    The Tribunal lacked jurisdiction because the strict time limits were not complied with. This is not a case where the Tribunal’s jurisdiction had been properly invoked and then subsequently interfered with by fraudulent conduct that affected how the Tribunal dealt with a matter otherwise within its jurisdiction, but which it was prevented from exercising (see for example SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189).

39    Whatever the width of the common law principle underpinning the concept of “fraud on the Tribunal”, it cannot operate to:

(a)    re-write the strict time prescription;

(b)    give the Tribunal jurisdiction which the statutory provisions denied it.

40    If the reasoning in Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 at [48] and [49] per Keane CJ, Collier and Logan JJ is correct, then a fortiori, the conduct of a remoter agent of the appellant could not justify any re-writing of the statutory time frames. To the extent that SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [19] and SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472 at [57] suggest otherwise, I would respectfully disagree.

CONCLUSION

41    The appellant’s appeal must be dismissed with costs.

Associate:

Dated:    14 August 2015