FEDERAL COURT OF AUSTRALIA

Fahme v Minister for Immigration and Border Protection [2017] FCA 614

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court upholding a decision of the Administrative Appeals Tribunal that it did not have jurisdiction to review the application, that the appellant lodged with the Tribunal on 8 February 2016, for review of the Minister’s delegate’s decision made on 18 December 2015 not to grant the appellant a partner visa: Fahme v Minister for Immigration and Border Protection [2016] FCCA 3023.

Background

2    The appellant had applied for a Partner (Temporary) (Class UK) (Subclass 820) or Partner (Residence) (Class BS) (Subclass 801) visa based on his marriage to an Australian citizen. The delegate emailed the appellant’s solicitor/migration agent on 18 December 2015 attaching the delegate’s decision refusing the visa and informing the appellant of the time period of 21 days in which he could seek review by the Tribunal of the delegate’s decision, as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth).

3    The transmission of the decision by email to the solicitor/migration agent, as the appellant’s authorised recipient under s 494D of the Act, meant that, pursuant to s 494C(5), the appellant was taken to have received the decision at the end of the day on which it was transmitted namely, 18 December 2015. Accordingly, the last day on which the appellant could file an application for review of the delegate’s decision in the Tribunal was 8 January 2016. In the event, the appellant lodged an application on 8 February 2016, 31 days later than the time limit prescribed by law.

4    In essence, the appellant argued before the trial judge, and myself, that the reason why the application for review was only filed with the Tribunal after the 21 day period prescribed by reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) was because of a mistake or false representation made to him by his solicitor/migration agent.

The proceedings in the Tribunal

5    The Tribunal invited the appellant to put submissions as to why, in those circumstances, it had jurisdiction. He did so on 3 March 2016. He acknowledged that his application for review was made out of time. And in a letter to his solicitor/migration agent, dated 3 January 2015 (2015 being, no doubt, a typographical error, given the time of year, for 2016), he asked that the solicitor/migration agent inform the Minister’s Department that:

I will not be going ahead with a review application. Instead, I will be making an application to depart Australia on a Bridging Visa.

Please contact the Department of Immigration and Border Protection and arrange for me to attend for a Bridging Visa on departure grounds.

6    The appellant told the Tribunal that, subsequently, he changed his mind and wanted to proceed with the application for review because his wife’s health had deteriorated suddenly.

7    The Tribunal considered the appellant’s submissions but found that it had no discretion to accept an application for review that had been lodged outside the prescribed time period of 21 days after notification of the delegate’s decision, even where extenuating circumstances might exist. Accordingly, it concluded that it had no jurisdiction to consider the application for review that the appellant filed on 8 February 2016, because it had been filed outside the 21 day period allowed by the Act and reg 4.10(1)(a).

8    On 7 March 2016, the Tribunal informed the solicitor/migration agent of its decision that it that it had no jurisdiction to entertain the application for review.

The proceedings in the Federal Circuit Court

9    As noted above, the appellant filed an application in the Federal Circuit Court seeking Constitutional writ relief against the Tribunal’s decision. In his affidavit sworn on 31 March 2016, prepared by a new solicitor acting for him, he said:

I am aware that I am out of time in lodging this application, as after receiving the decision from the tribunal I wanted to leave back to Lebanon but after seeing the worsening condition of my Wife I decided to make an application to the Federal Court [sic], and I kindly ask the presiding [judge] to apply compassion in this case.

10    His Honour appears to have permitted the application to proceed before him substantively, and not summarily. In fact, the application for Constitutional writ relief was filed on 1 April 2016, and did not require any extension of time under s 477 of the Act.

11    His Honour noted that the appellant, or someone on his behalf, had filed with the Tribunal, in response to its invitation to establish that it had jurisdiction, a number of documents including a letter, dated 24 February 2016, that appeared to have been signed by the appellant, but which the appellant, at the hearing before his Honour, and in the course of argument also before me, asserted was a forgery. That letter also acknowledged that the appellant had lodged his application for review by the Tribunal out of time. It stated that the appellant had been notified of the delegate’s decision but he had not wanted to proceed with the application for review because he intended to make an offshore application, but had later changed his mind because of his wife’s deterioration in her health.

12    Sometime after 11 March 2016, the appellant sent another letter to the Tribunal, which his Honour considered in detail. In effect, in that letter, the appellant raised with the Tribunal his allegation, that he propounded both before his Honour and me, that the solicitor/migration agent had not acted for him appropriately because he had not filed the application for review within the 21 day time period. Subsequently the appellant alleged that the solicitor/migration agent had engaged in what, the appellant alleged, was the fraudulent creation of the letter of 24 February 2016.

13    His Honour identified the issue before him as whether the Tribunal’s decision should be set aside for any one or more of the grounds stated in the application for review and the arguments the appellant put forward at the hearing concerning the allegation that the solicitor/migration agent had attempted to mislead the Tribunal, in some way, by the letter of 24 February 2016.

14    The grounds of the application before his Honour were that the decision of the Tribunal had been affected by jurisdictional error in that the Tribunal:

(1)    took into account irrelevant considerations;

(2)    failed to have regard to relevant material considerations; or

(3)    was unreasonable.

15    His Honour noted that the appellant had made no submissions in relation to grounds (1) and (3) above but had argued, in relation to ground (2), that the Tribunal had provided a bank cheque to the solicitor/migration agent refunding the fee that had been paid when the 8 February 2016 application for review had been filed. The appellant made no other submission in relation to the grounds of the application in the Court below.

16    His Honour found that the grounds in the application before him appeared to be premised on the view that the Tribunal’s decision consisted of an incorrect exercise by the Tribunal of a discretionary power. Rather, as his Honour found, the Tribunal’s decision related to its jurisdiction and his Honour proceeded to determine whether the Tribunal had correctly applied the law in finding that it had no jurisdiction.

17    His Honour held that the Tribunal had jurisdiction to review a Pt 5-reviewable decision, as defined in s 338 of the Act, that included the delegate’s decision of 18 December 2015. His Honour noted that the Tribunal’s jurisdiction to review a Pt 5-reviewable decision arose under s 348(1), “if an application is properly made under section 347 for review of a Part 5-reviewable decision”, in which case the Tribunal had to conduct a review. Under s 347(5), the regulations made for the purposes of s 347(1)(b) could specify different time periods for an application to review to be lodged in relation to different classes of Pt 5-reviewable decisions. As I have mentioned, reg 4.10(1)(a) provided for a 21 day period in which to lodge an application for review after the day on which the applicant received notice of the Tribunal’s decision under s 347(1)(b)(i). That section provided that an application for review of a Pt 5-reviewable decision had to be given to the Tribunal within the prescribed period.

18    His Honour found that the appellant’s application for the visa identified the solicitor/migration agent as the appellant’s authorised recipient of communications for the purposes of s 494D of the Act, hence the delegate’s communication to the solicitor/migration agent on 18 December 2015 of his decision not to grant the visa.

19    His Honour held that, in those circumstances, the Court had no power or jurisdiction to grant, as the appellant had asked him and repeated to me, an opportunity for the appellant to present his case to the Tribunal. I agree with his Honour’s reasons for coming to that conclusion.

20    His Honour then considered the appellant’s oral arguments about the solicitor/migration agent allegedly having practised a deception on the Tribunal and the appellant, after the solicitor/migration agent had received notice, on 18 December 2015, of the delegate’s decision. His Honour noted that the appellant’s arguments suggested that the solicitor/migration agent had failed to notify the appellant of the delegate’s decision before 8 January 2016, being the day on which the 21 day period prescribed by reg 4.10(1)(a) expired, and that that failure was at least due to negligence.

21    His Honour noted that in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 the High Court had decided that a fraudulent representation by a person purporting to be a migration agent to an applicant for review in the then Refugee Review Tribunal (whose functions and powers were analogous to the Tribunal before the amalgamation effected by the 2015 reforms), could amount to a fraud on the Tribunal itself. In that case, the agent had allegedly told that applicant for review that the Tribunal was not accepting visa applications, after the application had been lodged with the Tribunal.

22    The Court held that, in those circumstances, the ultimate issue to be decided was the effect of the fraud of the agent upon the Tribunal’s decision-making processes which the Parliament had provided in Pt 7 of the Act. As I have noted, Pt 7 is relevantly analogous to Pt 5 of the Act in respect of the relevant functions and powers of the Tribunal in the appellant’s case. The Court held that the provisions of the Act obliging the Tribunal to invite an applicant for review to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review and empowering the Tribunal to make a decision on the review in the absence of an appearance, were of central importance for the legislative scheme set out in Div 4 of Pt 7 for the conduct of reviews. They held that the fraud of the agent had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants in that case: SZFDE 232 CLR at 205-206 [47]-[49].

23    As his Honour identified, because of the alleged fraud of the agent in that case, the Tribunal had been disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review: SZFDE 232 CLR at 206 [51]. However, his Honour found that there was nothing in the matters on which the appellant relied before him that could reasonably suggest that any arguable deception arose on the material in evidence that could have prevented or stultified the Tribunal from exercising its jurisdiction. He found that the matters on which the appellant relied could only have arisen after 8 January 2016. (I note that there is a typographical error in [25] of his Honour’s reasons that such an error could only have arisen after 6 January 2016, rather than, as his Honour obviously meant, 8 January 2016.)

24    His Honour found that, while it was (theoretically) possible that the solicitor/migration agent had fraudulently withheld from the appellant the fact that the delegate had decided not to grant the visa, there was nothing in what the appellant had argued that could reasonably suggest the actual existence of any such fraud. Moreover, his Honour held that even if it were possible that there were such an arguable case, there were no grounds for contending that that arguable case could have affected the operation of the 21 day period prescribed under the Act and reg 4.10(1)(a) within which an applicant had to apply to the Tribunal for a review of the delegate’s decision.

25    He also considered, but rejected, the possibility that the matters on which the appellant relied as arising from the alleged conduct of the solicitor/migration agent could have affected the validity of the decision of the delegate, having regard to the Full Court’s decision in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141. As a result, his Honour concluded that the Tribunal did not make any jurisdictional error in finding that it had no jurisdiction to entertain the application for review and he dismissed the application with costs.

This appeal

26    The appellant’s grounds of appeal were that the Tribunal:

(1)    had been given misleading information by the solicitor/migration agent, who had not informed him of any matter relating to the Tribunal until after the date and that caused the application for review to be lodged late. This ground also stated “Evidence will be provided”; and

(2)    should reopen his case so that he could provide information and documents required for the review.

27    The appellant represented himself before me today and repeated the substance of his arguments to the trial judge. He said that he had only been notified of the Tribunal’s decision on 28 January 2016 by a friend, and that then he went to see his then solicitor/migration agent to seek a review by the Tribunal.

28    I asked the appellant to identify what provision in the legislation would enable the Tribunal to have jurisdiction in the circumstances. Understandably, he could not do so, as he was a person representing himself in a language that was not his first and in a forum in which he was not a lawyer.

29    The appellant laid the blame for his predicament with his former solicitor/migration agent and asserted that it was not his fault that he had not filed an application for review with the Tribunal in time. He contended that, in those circumstances, the Court had power to, in some way, extend the time for filing the application so that the Tribunal could review the delegate’s decision. He repeated his arguments about the alleged fraud or fraudulent representations of the solicitor/migration agent that he had made unsuccessfully to his Honour. He said that he had a USB stick which contained a recording of a conversation between him and the former solicitor/migration agent that would corroborate his account. He asserted that his Honour had told him that he could put that material evidence before this Court.

30    I refused to allow the evidence to be put in the appeal. The appellant had made no application to his Honour to adduce that evidence. In my opinion, it was not evidence of the kind that should be received, in the circumstances, under s 27 of the Federal Court of Australia Act 1976 (Cth) as relevant to the jurisdictional issue or otherwise admissible, in the absence of any satisfactory explanation of why the appellant had not sought to adduce the material in the Court below.

31    I have considered all of the material in the appeal book and the appellant’s written and oral submissions that he made today. The fundamental difficulty with what the appellant seeks in his notice of appeal is that he wishes to, in some way, get around the requirement in s 348(1) that an application for review had to be “… properly made under section 347 for review of a Part 5-reviewable decision”, where the Act provided that the application for review under s 347 had to be given to the Tribunal within the period prescribed, relevantly, here, of 21 days after the communication of the delegate’s decision, under reg 4.10(1)(a).

32    In this case, it is incontestable that the application for review was not filed within the 21 day prescribed period. The considerations applicable to time periods prescribed under provisions such as s 347(1) of the Act recently have been explained in Minister for Immigration and Border Protection v Kumar [2017] HCA 11 at [24]-[25]. There, Bell, Keane and Gordon JJ noted that there was a difference between a provision that the last day for doing something under an Act was to be calculated by reference to the occurrence or existence of a particular event, such as the service of a statutory notice or, in this case, the delegate’s decision, and a provision that required or allowed a thing to be done by a particular time.

33    Likewise, in Awon v Minister for Immigration and Border Protection [2015] FCA 846 at [37]-[40], Beach J held that even if, as had been alleged in that case but not found, a migration agent had acted, through her unlawful conduct, in a way that could come within the category of “fraud on the Tribunal”, the Tribunal could not acquire jurisdiction if there had not been compliance with a statutory time limit for the lodgement of an application for review. He held, and I agree, that the common law principle underpinning the concept of “fraud on the Tribunal” could not operate, however wide it might be, to rewrite a strict time prescription or to give the Tribunal the jurisdiction which the statutory provisions denied it.

34    The appellant had a full opportunity to put his case to the trial judge. His Honour, in my opinion, correctly rejected the appellant’s grounds advanced in his application for Constitutional writ relief and his additional oral arguments for the reasons that his Honour gave.

35    Moreover, at no point did the appellant assert to the trial judge or me that his letter dated 3 January 2016 to his solicitor/migration agent was other than correct. Even if it were not, for the reasons I have given, there was no power in the Tribunal to extend the 21 day time limit under reg 4.10(1)(a) so that, in some way, it could have entertained the appellant’s application to it for review that he ultimately filed 31 days after the expiry of that time limit.

36    The two grounds of appeal are, in effect, an invitation to engage in merits review which is beyond the jurisdiction of the Court. They have no substance.

Conclusion

37    For these reasons, I am of opinion that the appeal must be dismissed with costs.

Associate:

Dated:    30 May 2017