FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 398

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    Mr Harjinder Singh appeals from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had earlier held it had no jurisdiction to deal with his application for merits review of a decision of a delegate of the Minister for Immigration and Border Protection not to grant him a partner visa under the Migration Act 1958 (Cth).

2    The reason the Tribunal held it had no jurisdiction to deal with the application was that the application was lodged outside the 21 day time limit prescribed by the provisions of the Act and Migration Regulations 1994 (Cth) for seeking review, which calculate the lodgement period from the day a person is taken to have received notification of the refusal decision of the delegate.

3    To cut a long story short, as explained below, it appears that the application was not lodged within the prescribed time because of a change of personnel within No Borders Migration Advocates, the migration agent which was representing his interests.

4    On this appeal, Mr Singh essentially contends that by reason of mistakes he alleges his migration agent made, of which the Tribunal was not informed but the Circuit Court was apprised, he lost the opportunity to have a merits review of the delegate’s decision and in such circumstances, the Tribunal committed a jurisdictional error in holding it had no jurisdiction to deal with his application, or the Tribunal constructively failed to exercise its jurisdiction, and the Circuit Court erred in failing to so find.

5    Mr Singh also raises other, related issues on this appeal. In all, he states four grounds of appeal:

1.    There was judicial error made by the Department of Immigration and Border Protection.

2.    My first lawyer from ‘NO BORDERS’ did not notify me my decision on the time and he gave me wrong information that’s why I could not apply my M.R.T.

3.    My second lawyer from ‘Chand Lawyers’ force me to withdraw my file from federal court. That time my wife was hospitalised and I was carer of my wife, and I did what ever he advised me to do.

4.    The evidence provided by me was overlooked was related to my claims.

6    Before dealing with each ground, it is useful to record the sequence of events which led to the decision-making now under consideration.

Sequence of events

7    Mr Singh is a male citizen of India, born in 1988, who arrived in Australia on 18 February 2008 on a subclass 572 student visa which ceased on 15 March 2010.

8    From 22 December 2010 to 19 July 2011, following the expiration of his student visa, he lodged four protection visa applications which were deemed to be invalid. A fifth protection visa application, lodged on 6 October 2011, was refused on 20 January 2012.

9    On 30 July 2014, Mr Singh lodged an application for a Partner (Temporary) (class UK) (subclass 820) visa and a Partner (Residence) (class BS) (subclass 801) visa based on a spousal relationship.

10    In his partner visa application Mr Singh provided information required of him, including that he was married on 27 November 2013 and was working and living at an address in the Northern Territory. He provided a postal address in Milton, Queensland, which was the address of No Borders. He also nominated the email address emmab@nobordersgroup.com.au for electronic communications from the Department of Immigration and Border Protection and Ms Emma Maree Brockhurst of No Borders as his authorised recipient.

11    His application also identified his spouse as his “sponsor”, identifying her as an Australian citizen born in Australia. He indicated that the place of his marriage was Alice Springs. He provided other information about the relationship with his spouse including his declaration that the relationship was genuine and continuing.

12    By letter dated 30 July 2014, attached to the application, No Borders made submissions on behalf of Mr Singh as to how the relevant partner visa criteria prescribed by the Act and the Regulations were satisfied by his application. The letter was subscribed to by Ms Brockhurst as per Agnes Kemenes of No Borders.

13    By letter dated 6 August 2014, the Department acknowledged that the application had been received for processing. It noted that the original acknowledgement letter had been sent to Ms Brockhurst at her email address.

14    On or about 7 August 2014, an officer of the Department advised Ms Brockhurst by email that the partner visa application had not been validly lodged. The issue was whether Mr Singh met s 48 of the Act because, since last entering Australia on substantive visa, he was either refused a visa or had a visa cancelled. The email noted that it was possible to lift the s 48 restriction and lodge a partner visa application, however conditions must first be met under the Regulations. Forms declaring that the applicant and sponsor were in a married relationship, which forms were less than six weeks old at the time of lodgement, were required; as well as evidence showing that the declarants on the forms were Australian citizens or permanent residents.

15    The required documentation was then provided to the Department by No Borders after Mr Singh supplied materials.

16    By letter dated 20 November 2014, Mr Singh was invited to comment on information for his visa, including the compelling reasons criteria and evidence concerning his relationship with his spouse. That letter was also sent to Ms Brockhurst at the nominated email address.

17    By letter dated 17 December 2014, No Borders provided further submissions concerning these criteria to the Department on behalf of Mr Singh.

18    On 10 April 2015, the Department sent Mr Singh a notification of the delegate’s refusal of his partner visa application by email. That email, as in the case of earlier communications from the Department, was sent to Ms Brockhurst’s nominated email address.

19    The decision record of the delegate who made the decision was attached to the email. In relation to review rights, the notification advised the decision could be reviewed in the Migration Review Tribunal (MRT) (as it then was), stating:

An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter.

20    The notification did not specify what the expression “the day on which you are taken to have received this letter” meant. As it transpires, under the Regulations that day is the day upon which the notification was given to the applicant, that is to say, sent by email to his nominated email address for electronic communications, which was 10 April 2015.

21    The decision record stated that the delegate, having considered all of the circumstances relevant to the application, had concluded that the reasons said to be supportive of it were not compelling. The decision record made references to:

    Mr Singh’s long periods of “unlawfulness” in rejecting his claim that he had been fully compliant with visa conditions or demonstrated a willingness to comply with all visa conditions, having regard to this immigration history.

    The nature of the relationship with his spouse and Mr Singh’s stated desire to remain in Australia while pursuing his application. The delegate said it was worth noting that applicants in similar situations to his had departed and lodged an offshore application even if this meant tolerating some hardship caused by a temporary period of separation from their partners. The delegate noted there had been no information provided to indicate that any hardship he or his sponsor would suffer would be more severely felt than other offshore applicants or their sponsor.

    That Mr Singh had detailed his sponsor’s heart condition and had provided a letter from Centrelink showing she was receiving a disability pension from Centrelink. However, the delegate noted, no evidence had been provided to demonstrate the level of care and support his sponsor required or the intensity of the care and support he provided to her for her condition. The delegate stated that no evidence had been provided to convince the delegate that the sponsor would be unable to manage her condition if he were to depart Australia to lodge an offshore partner application.

    The submissions and range of information provided, the delegate considering that the evidence did not necessarily lead the delegate to conclude that Mr Singh was in a genuine spousal relationship with his sponsor and added that the delegate had not undertaken a formal assessment of the relationship as, regardless, the existence of a genuine relationship is not, of itself, a compelling reason to waive the relevant criteria.

22    About 11 days prior to the sending of the refusal notification, without the Department having any knowledge of these events, it appears that within No Borders a Mr Nathan Joo replaced Ms Brockhurst as the person responsible for handling Mr Singh’s matter. This and related events may properly be inferred from material facts adduced in affidavit materials filed in this appeal and earlier proceedings in the Circuit Court and other materials that went into evidence on this appeal.

23    In this appeal, Mr Singh has put on his affidavit made 4 January 2017. The appeal book includes affidavits made 28 August 2015 in the Circuit Court filed by Mr Singh’s then lawyers, Chand Lawyers, and 24 November 2016 in the Circuit Court filed by him. Additionally, he has filed submissions in this Court, being those dated 3 May 2017 and 16 March 2018. The latter, with attachments, went into evidence without objection by the Minister at the hearing of the appeal.

24    From these various materials, as finally put in submissions, Mr Singh says that on 30 March 2015, just a short time before the refusal notification, he received an email from No Border that Nathan Joo would be his new migration agent. He duly produced that email from No Borders. It refers to a call he had made to the office of No Borders that same day. The full text of the email reads as follows:

Thank you for calling our office today. I apologise for not being able to transfer you through to your Migration Agent right away. I have checked our records and your new Migration Agent is Nathan Joo. I have attached a Form 956 signature page to this email. If you could please sign the last box on the page and return the form to us that would be greatly appreciated.

I understand that you have changed address. The form that we require to be completed is Form 929 Change of Address and/or Passport. I have attached the Form to this email for your convenience. Please complete the form and return it to us. We will update the Department of your new address.

Should you have any questions or concerns please do not hesitate to contact our office.

The email was signed by Tasnova Chowdhury as per Nathan Joo.

25    Mr Singh says that he signed both the Form 956 and the Form 929 on the same day and sent them to No Borders.

26    It now appears that the Form 929, notifying a change of address, was lodged by No Borders, through Nathan Joo, with the Department, but not the Form 956. It may be observed in passing that the No Border’s email only said the Form 929 would be used to “update the Department of your new address”. It may be that No Borders only required the Form 956 to be completed for their own internal purposes and it was never considered necessary that it should be lodged. The apparent consequence of the Form 956 not being lodged and the Department not being updated with Nathan Joo’s email address, was that the 10 April 2015 email notification of the refusal of the partner visa application was sent to the email associated with Ms Brockhurst and not directly to Nathan Joo.

27    I may note here – although it is ultimately irrelevant – that Mr Singh says he did not initially deal with Ms Brockhurst at No Borders in Brisbane, but dealt with Dr Timea Sandra Pocze-Graf as explained below. This claim was advanced in his initial proceeding in the Circuit Court but has not been substantively pursued since.

28    Returning to the sequence of events, Mr Singh says that he then received an email on 22 April 2015 from Nathan Joo about the visa refusal – that is, he learned about the refusal about 12 days after No Borders received it. He says that he read the email and rang Nathan Joo and was told by Nathan Joo that he had 28 days (not 21) to apply for the MRT review. He asserts that thereafter he was “continuously discussing with him [Nathan Joo] about my case through emails and on phone as well …”. Mr Singh says that on 4 May 2015 he received an invoice from Nathan Joo for his fee and MRT fee, to enable the merits review application to be lodged forthwith. An invoice from No Borders dated 4 May 2015 produced by Mr Singh confirms the sending of the invoice.

29    Mr Singh says Nathan Joo, however, called him on 4 May 2015 to apologise, and told him not to put any money into the No Borders’ trust account to cover the making of the review application as the time for making that application had in fact already passed. He says Nathan Joo told him that he (Nathan Joo) had passed on the wrong information and that Mr Singh could not apply to the MRT in the available timeframe.

30    No direct evidence has been provided by Nathan Joo, or anyone else at No Borders about what actually transpired in this period. However, I infer from the material facts just outlined that, at some point, Nathan Joo became the migration agent responsible for the handling of Mr Singh’s matter within No Borders (in the place of Ms Brockhurst and/or Dr Pocze-Graf) and eventually became apprised, at the latest on about 22 April 2015 – some 12 days after the refusal notification was received at No Borders – of the refusal. One would have thought at that point that an experienced migration agent would have understood that the review application lodgement period was, under the Act and Regulations, only 21 days (not 28 days) and that it had begun running from the date the refusal notification email was sent to No Borders on 10 April 2015. Accordingly, a migration agent would have understood that any review application to the MRT needed to be lodged no later than 21 calendar days after 10 April 2015, that is, by 1 May 2015. Thus, it is understandable that Nathan Joo would have advised Mr Singh, on or about 4 May 2015, having come to appreciate all of this, that the time for applying for merits review had expired as of 1 May 2015. I infer this is what happened.

31    Mr Singh says that, at that point, on 4 May 2015, he was referred by a friend to a lawyer, Ms Ajit Shahi, from Naam Migration Australia. He says he told her about his case and the passing of the 21 days. He says that she advised him that if he was informed about the decision on 22 April 2015, he could still apply for merits review. He then supplied her with materials that she requested.

32    Naam Migration Australia lodged a merits review application with the MRT soon after, but on 3 August 2015 it was refused. The MRT had merged with the Tribunal in the interim (on 1 July 2015) and the Tribunal’s decision record stated that it had no discretion to accept an application lodged outside the prescribed timeframe and there was no provision for an extension of time to lodge an application for review. The Tribunal was satisfied that the decision notice dated 10 April 2015 was sent to Mr Singh’s nominated authorised recipient (Ms Brockhurst), meaning Mr Singh was notified in accordance with statutory requirements. The Tribunal referred to s 494D(2) of the Act and said that if the Minister gave a document to an authorised recipient, the Minister was taken to have given the document to Mr Singh.

33    Given its finding that Mr Singh’s authorised recipient was notified of the decision on 10 April 2015, the Tribunal found Mr Singh was taken to have been notified of the decision on the same date. It considered that this meant the prescribed period during which an application for review could be made finished on 1 May 2015.

34    The Tribunal held the application was not made in accordance with relevant legislation because it was not made within the required timeframe, and thus it had no jurisdiction in the matter.

35    Not content to let the matter rest there, on 28 August 2015, Mr Singh applied to the Circuit Court for judicial review of the Tribunal’s decision. The application was prepared by new lawyers, Chand Lawyers. In it he raised two grounds:

1.    The Tribunal fell into jurisdictional error by not taking an important consideration into account.

Particulars

a.    As part of the hearing at the Tribunal and in terms of its usual practice, the Tribunal has before it both the department’s file and its own file on the matter. The Tribunal failed to take into account that on Form 956, ‘Advice by a Migration Agent/Exempt Person of Providing Immigration Assistance,’ the applicant had appointed Ms. Timea Sandra Pocze-Graf as the authorised receipt of correspondence from the Department of Immigration and Border Protection (DIBP).

b.    The Tribunal failed to take into account that the department’s decision was sent to Emma Brockhurst on her email address emmab@nobordersgroup.com.au

c.    The Tribunal therefore had evidence that provisions in the Migration ACT 1958 governing the forwarding of correspondence to the authorised recipient had not been complied, thus denying the applicant to be notified in a proper and timely manner.

d.    The applicant’s participation in a decision-making process has been affected by the Tribunal misapplying the law.

e.     The Tribunal’s failed to note that the delegate’s action caused the applicant to be prevented from engaging with the Tribunal’s process as he would have wished.

2.    The Tribunal’s jurisdiction was affected by fraud.

a.    The fraud was inflicted on the Tribunal by No Borders Migration Advocate and the Applicant’s last agent, Ms. Ajit Shahi when the agent responded to the correspondence from the Tribunal.

b.    The conduct of the relevant persons (that is, the dishonest conduct of a third party, the agents) prevented the applicant from engaging the review process of the Tribunal.

c.    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 applicant by reason of the conduct of the third persons, the agents.

d.    The Tribunal review of the decision refusing the applicant the grant of a provisional spouse visa was entirely frustrated by the conduct of the delegate and arguably dishonest conduct of the third party advisers. In that sense, the conduct was a fraud on the Tribunal.

36    Mr Singh affirmed an affidavit on 28 August 2015 in support of his application for judicial review. In it he deposed that Ms Brockhurst was not his authorised recipient and appointed agent at material times and therefore the Department sent the notice of refusal to a party who was not the authorised recipient.

37    He further deposed that No Borders only sent him the notification of refusal on 22 April 2015, and advised him that he had 28 days to appeal, making the deadline 8 May 2015.

38    He stated that on 4 May 2015 No Borders sent him an invoice to lodge the application for review with the Tribunal. He deposed that he approached another migration agent friend, Ms Shahi, instead due to costs and she lodged the review application on 4 May 2015.

39    In his affidavit, Mr Singh said he had been deceived by No Borders because they sent him an invoice and correspondence regarding lodging an appeal on 4 May 2015, when the last day to lodge was 1 May 2015. He also stated that Ms Shahi did not advise him he was out of time to lodge.

40    Attached to his affidavit was one page of a Form 956 which Mr Singh stated showed he had given one person, Dr Pocze-Graf, authority to act, and not No Borders. The Part C declaration was not included.

41    On 24 April 2016, however, Chand Lawyers filed a notice of discontinuance of this proceeding on behalf of Mr Singh. On 28 April 2016, Judge Vasta of the Circuit Court made orders dismissing the judicial review application pursuant to the notice of discontinuance.

42    On 14 July 2016, Mr Singh was then taken into immigration detention.

43    On 19 October 2016, Mr Singh appeared before Judge Driver of the Circuit Court and applied to re-open the judicial review proceeding on the basis that he was forced to withdraw his application for judicial review. The judge permitted him to re-open his case.

44    On 26 October 2016, Mr Singh filed his application to re-open his case. He filed a supporting affidavit on 25 November 2016. In his affidavit, he stated that his lawyer, Mr Pamesh Chand, forced him to withdraw his application for judicial review and told him to seek ministerial intervention. He said he did not want to withdraw his application but nonetheless sent an email, on 21 October 2016, stating, “I want to withdraw my file from federal court”.

45    In his affidavit, Mr Singh also referred to his mental health at the time due to his wife being sick, and his subsequent lack of internet access while visiting her in hospital; and attached affidavit correspondence between himself and Mr Chand.

46    Mr Chand responded to the allegations made against him by affidavits made 11 November 2016 and 12 December 2016. He stated he did not induce Mr Singh to withdraw his Circuit Court application and explained the circumstances in which he was instructed to withdraw the Circuit Court proceeding.

47    The application to re-open came before Judge Vasta on 19 December 2016, who dismissed the application. The judge considered the correspondence between Mr Singh and Mr Chand and their respective affidavits. He found he needed to determine the reason for the withdrawal. He found the reason was that Mr Singh was given “strong and robust advice as to his prospects and what the consequences were of proceeding with an unmeritorious application”. The judge concluded on the evidence before him that Mr Singh acted on the advice he was given.

48    The judge also accepted that there was no real arguable case, given that the application to the Tribunal was not made within the specified time. The judge referred to two cases referenced in the correspondence before him, namely, Tangilanu v Minister for Immigration [2016] FCCA 815; and Singh v Minister for Immigration & Anor [2016] FCCA 549, and considered that these cases made it clear the Tribunal did not have any discretion to hear the merits review application.

APPEAL TO THIS COURT

49    Against this background, Mr Singh now comes to this Court appealing from Judge Vasta’s orders on the four grounds mentioned earlier:

1.    There was judicial error made by the Department of Immigration and Border Protection.

2.    My first lawyer from ‘NO BORDERS’ did not notify me my decision on the time and he gave me wrong information that’s why I could not apply my M.R.T.

3.    My second lawyer from ‘Chand Lawyers’ force me to withdraw my file from federal court. That time my wife was hospitalised and I was carer of my wife, and I did what ever he advised me to do.

4.    The evidence provided by me was overlooked was related to my claims.

50    His appeal is supported by the affidavit made 4 January 2017, which states:

1.    I am the applicant in the proceeding in the honourable court.

2.    Copy of my federal circuit court decision record is attached.

3.    Copy of my Department of Immigration and Border Protection is attached.

4.    There was judicial error made by the Department of Immigration and Border Protection in my decision.

5.    I did applied for partner visa application on 30 JULY 2014 and my lawyer name was Dr. Timea Sandra Pocze-Graf from ‘NO BORDERS’ in Brisbane, but Department of Immigration and Border Protection refused my visa on 10 April 2015.

(a)     My lawyer did not inform me on time.

(b)     I received an email on 22 April 2015 from nathan joo from ‘NO BORDERS’ about my visa refusal.

(c)     As I read the email and I rang him and he told me I have 28 days to apply for MRT and He was going to apply for in MRT.

(d)     I was continue discussing with him about my case on 4 May 2015 he emailed me invoice of his fee and MRT fee and he suppose to apply for my MRT on 5 may 2015

(e)     But he called me on 4-5-2015 and said sorry you must have to lodge MRT in 21 days witch already passed.

(f)     NATHAN JOO was not my lawyer I did not sing form 956 for him, I did sing form 956 for Dr. Timea Sandra Pocze-Graf and she was my lawyer

(g)     he passed me wrong information that’s way I could not apply for my MRT in my time frame.

6.    I did filed application in federal circuit court on 28/08/2015 and my file number is BRG775/2015 .my lawyer name was Pamesh Chand from ‘CHAND LAWYERS’

7.    My court date was on 28 April 2015 and he ask me for his all fee on 10 April 2016 and I paid his fee on 12 April 2015 and then he start to force me to withdrew my case. He told me he will go for me in Tribunal or Ministerial Intervention.

8.    That time I told him my wife is so sick and I am carer of my wife .

9.    I didn’t want to withdraw my case from federal circuit court but he keep forcing me to withdraw my case.

10.    He told me to write an email to him that ‘I want to withdraw my case from federal circuit court’ and I did write to him what ever he said to me.

11.    MY wife (…) she was sick that period of time and she had cardiac valve replacement surgery and she was hospitalised from 26/04/2016 and she was passed away on 21/06/2016 in Royal Adelaide hospital.

12.    I was with my wife (…) all the time while she was sick in home and while she inpatient in hospital. I was taking care of my wife . That’s why I could not could not consternate on my visa status and did lose my visa.

13.    I am in Immigration detention in Perth from 14/07/2016.

14.     I did lodged Application in case on 26/10/2016.

15.    On 19 December 2016 court dismissed my application.

51    On 15 March 2017, Collier J made orders transferring the appeal from the Queensland District Registry to the Western Australia District Registry.

52    The Minister filed submissions in the appeal on 28 April 2017, submitting that the grounds of appeal do not allege an appellable error on the part of the judge. The Minister contended the appeal should be dismissed on this basis alone.

53    The Minister also submitted that no appellable error can be found in the judge failing to conclude that the Tribunal was in error in finding it did not have jurisdiction to review the delegate’s decision.

54    The Minister submitted there was no appellable error made by the judge in dismissing the application to re-open the case and the appeal should be dismissed.

55    Mr Singh filed submissions on 3 May 2017 as follows:

1.    The Honourable JUDGE VASTA erred in not recognising that Department for Immigration and Border Protection to a non authorised to recipient on 10th April 2015; details are as under with evidence attached.

2.    As per respondent’s lawyers outline of submission dated 28th April 2017 cb paragraphs 32 to 34.

3.    since my authorised recipient at the time of decision was Mr Nathan Joo who informed myself on the 22nd April 2015 that should be the date applicant received the document. From that date my 21 days for my lodgement should start.

4.    Considering above my lodgement of papers to AAT on 5th May 2015 were within the time frame of 21 days specified by AAT

5.    On 30 march 2015 NO BORDERS emailed me that Nathan Joo will be my new Migration Agent and told me to signature on Form 956 and Form 929 for change of Address. I did signature Form 956 and emailed back to NO BORDERS on same day and NO BORDERS confirm that through email that they have updated the Department website.

(Copy of emails and Form 956 with my signature and Nathan Joo signature attached in Attachment A )

6.    From 30 march 2015 my Migration Agent should be Nathan Joo and Department of Immigration and Border Protection send my decision on 10 April 2015 to Emma Brockhurts because she was not my lawyer. Department of Immigration and Border Protection send my decision on 10 April 2015 to Emma Brockhurts because she was not my lawyer

7.    I did Applied for partner visa application on 30 JULY 2014 and my lawyer name was Dr. Timea Sandra Pocze-Graf from ‘NO BORDERS’ in Brisbane, I did signed both form’s 956 and Client Agreement for POCZE-GRAF, Timea on 26/02/2014 at NO BORDERS office at Brisbane. On 27 FEB 2014, POCZE-GRAF, Timea emailed me where she ask me to send list of documents and and she ask my wife (…) to sign form 956 for her as well so its not possible that on 26/02/14 I have sign form 956 for Emma Brockhurts and my wife have sign on 27/02/14 for Timea-Graf as it not possible for me and my wife to have different lawyers for same case. ( copy of Client Agreement and copy of email and form 956 both attached in Attachment B)

8.    I never signed for EMMA BROCKHURTS. NO BORDERS/EMMA BROCKHURTS did miss use my signature for form 956 and send to IMMIGRATION AND BORDER PROTECTION, because I did signature on Form 956 on 26/02/2014 and BROCKHURST did signature on Form 956 on 05/06/2014. And there is a clear difference in between both form 956 which I sign for ms Pocze-Graf and other one which NO BORDERS send to IMMIGRATION.( copy of both Forms attached in Attachment C)

9.    I received an email on 22 April 2015 from Nathan Joo from ‘NO BORDERS’ about my visa refusal when 12 days already passed form 21days, As I read the email and I rang him and he told me I have 28 days to apply for MRT and He had to lodge my application in MRT Tribunal .I was continuously discussing with him about my case through emails and on phone as well on 4 May 2015 he emailed me invoice of his fee and MRT fee and he suppose to apply for my MRT on 5 may 2015. ( copy of emails on 22 April 2015 and 4th of may 2015 are attached in Attachment - D )

10.    But Nathan Joo called me on 4th may 2015 said sorry you must have to lodge MRT in 21 days which already passed. He passed me wrong information that’s way I could not apply for my MRT in my time frame.

11.    On 4th of may 2015 one of my friend told me about a lawyer Ajit Shahi from Naam Migration Australia and i rang on her mobile and told her about my case everything that I did passed 21 days of my MRT what I should do now. Ajit Shahi said to me if you receive the decision on 22 April 2015 you still can apply for your MRT and you send me copy of decision now and MRT fee and my fee (1604+2696) tomorrow on (5th of may) I will lodge your MRT and I send my documents on 4th may and I did send her fee and MRT fee on 5th and she did lodge my file on 5th of may 2015. (copy of lodgement and copy of tribunal Form last sign page which i send to Ajit Shahi attached in ATTACHMENT- E)

12.    I did send her my documents and Migration Review Tribunal (MRT) last page of form with my signature at 4:08 pm on 4th may of 2015 and she did lodge my file on 8:27 pm on Brisbane time and must check the my decision date (10/04/2015) when she fill and lodge the AAT Form online. ON 7th of may 2015 tribunal Officer Martha Maguire ask Ms Shahi to response about the validity of my application and if i gave her wrong information then why she never ask and she even did not told about that my application has not assessed .Ajit Shahi rang me my phone on 22 June 2015 and told me that Tribunal Officer ask for response about validity of my file and she told me to write a declaration that ‘your agent did not inform on time’ I did write and send back to her. On 3 August 2015 MRT refuse my file because it was out of time.

13.    Parmesh Chand ask me for his all fee on 10 April 2016 and I paid his fee on 12 April 2015 he email me said today is last day for submission and if the money is not in Mr Peter Traver’s account, he will not give me a copy to file with Federal Circuit Court of Australia. (Both emails are attached in ATTACHMENT-F)

14.    I did putt on Mr Peter account on 12 April 2016 but he did not gave the copy of submission to Federal Circuit Court of Australia. On 17 April 2016 he rang me and told to withdrew my case from Federal Circuit Court of Australia and go back to Tribunal on the basis that you appointed Ms Timea Sandra Pocze-Graf and not Emma Brockhurst. And I have to pay the Minister’s costs of approximately $6,800.00 he send me two email as well on 17 April 2016 That time I told him my wife is so sick and I am carer of my wife I didn’t want to withdraw my case from federal circuit court but he keep forcing me to withdraw my case. He rang me on 19 April 2016 and said if I provide him my wife’s Medical reports from doctors he will put my Application for Ministerial Intervention and I will get my Permanent Residency he emailed me as well on 19 April 2016. (copy of emails are attached in ATTACHMENT-G)

15.    MY wife (…) was sick that period of time and she had Cardiac Valve Replacement Surgery and she was Hospitalised from 26/04/2016 and she was passed away on 21/06/2016 in Royal Adelaide hospital. I was with my wife (…) all the time while she was sick in home and while she inpatient in hospital. I was taking care of my wife and I was with her till her last breath.

16.    I have been in Immigration detention from 14/07/2016. I consider myself a victim and have suffered because the assigned lawyers did not represent my case seriously and honestly to Department of Immigration and Federal Circuit Court. Please give me a chance so I can re-apply my case to AAT.

56    The appeal initially came on for hearing on 8 May 2017 before Gilmour J in this Court. The Minister objected to new material sought to be relied upon by Mr Singh in his 3 May 2017 submissions. The Court adjourned the issue to a directions hearing.

57    On 9 May 2017, Gilmour J issued a certificate for Mr Singh to be referred for pro bono legal assistance.

58    Then, on 13 September 2017, his Honour made orders allowing Mr Singh to file further evidence and written submissions by 14 days prior to the adjourned hearing. As I apprehend it, Gilmour J considered that, if Mr Singh could establish that the Department had indeed been advised that Nathan Joo at No Borders was his authorised recipient, then the notification of the partner visa refusal of 10 April 2015 should have been sent to him, and not to Ms Brockhurst, and so his application before the Court might possibly succeed.

59    It was in those circumstances that the appeal then came back on for hearing before me (following the retirement of Gilmour J from the Court) on 16 February 2018. Mr Singh, as he had been throughout the appeal, was self-represented. After he explained the position, and after hearing from counsel for the Minister, I again adjourned the appeal, issued a pro bono lawyer certificate, and encouraged Mr Singh to ascertain if the Form 956 he signed on 30 March 2015 had been given to the Department and to put on appropriate evidence. My hope was that this factual question could be quickly resolved, if not by Mr Singh on his own, then with the assistance of a lawyer.

60    I also suggested that, as a model litigant, the Minister might cause further inquiries to be made within the Department to see if the Form 956 had been received but perhaps lost in the system.

61    On 12 March 2018, the Minister filed the affidavit of Ms Daphne Teresa Ann Jones-Bolla made on the same day attaching emails from the Department which refer to searches of the Department’s records regarding Mr Singh, which was read at the subsequent hearing. These emails state that the searches “confirm that the Department did not receive a Form 956 from No Border Migration Advocates on 30 March 2015”. The emails note, however, that a Form 929 – advising of a change of residential address – was received on that day.

62    On 13 March 2018, a representative of the Court notified Mr Singh by email that attempts to obtain pro bono legal assistance for him had been unsuccessful.

63    On 16 March 2018, Mr Singh filed written submissions responding to my earlier suggestion that he seek to ascertain whether Nathan Joo submitted the Form 956 to the Department. Mr Singh states that he contacted No Borders and was told that Nathan Joo no longer works there. Mr Singh says he was told that Nathan Joo received the Form 956 but did not update the Department’s website with it. A letter from No Borders to this effect was attached to the 16 March 2018 submissions and went into evidence at the hearing without objection together with the submissions.

64    Ultimately, Mr Singh’s submissions outline that he is not a lawyer and assert he was given wrong information. He says he has suffered in not being able to attend his wife’s funeral, following her subsequent death, and spent 15 months in immigration detention where he suffered mentally, physically and financially. Mr Singh submits he is the victim of his lawyer’s (which I take to mean his migration agent’s) mistakes.

Ground 1 – Did the Department make any error that bespeaks error by the Circuit Court?

65    Ground 1 of the notice of appeal asserts that there was “judicial error” made by the Department.

66    Having regard to the sequence of events outlined above, it is not open to find, on the evidence, that the Department made any relevant error in relation to the making and communication of the refusal by the delegate of Mr Singh’s partner visa. The visa application was regularly handled and the refusal regularly notified. The delegate caused the decision and the decision record to be sent to the authorised recipient, Ms Brockhurst, at the email address Mr Singh, by No Borders, had notified.

67    It is clear from all the materials provided on the appeal, including the recent advice from No Borders attached to Mr Singh’s 16 March 2018 submissions, that the Form 956 concerning Nathan Joo becoming the migration agent/authorised recipient within No Borders was not communicated to the Department.

68    There can, in those circumstances, have been no obligation on the Department to notify the decision to Nathan Joo.

69    As unfortunate as the sequence of events may be from Mr Singh’s perspective, there is no sustainable ground of appeal against the Minister on account of the Department’s conduct.

70    For these reasons, ground 1 fails.

Ground 2 – Does the failure of No Borders to notify the delegate’s refusal in a timely manner BESPEAK error by the Circuit Court?

71    Ground 2 alleges:

2.    My first lawyer from ‘NO BORDERS’ did not notify me my decision on the time and he gave me wrong information that’s why I could not apply my M.R.T.

72    In the result, it is not in dispute that Mr Singh was not advised of the delegate’s decision until he received that advice from Nathan Joo at No Borders on 22 April 2015. However, as the Minister points out, that was some nine days before the final date, of 1 May 2015, for making a merits review application to the MRT.

73    The delegate’s letter of 10 April 2015 which Mr Singh received on 22 April 2015 advised him, and No Borders, that any application to review the decision had to be given to the MRT within 21 calendar days after the day on which he was taken to have received the letter.

74    Although Mr Singh did not personally receive notification of the delegate’s decision until 22 April 2015, as he had advised the Department that Ms Brockhurst was his authorised recipient, and as she had agreed to the Department communicating with her via email, and the advice of the delegate’s decision had been sent to Ms Brockhurst at her email address on 10 April 2015, the combined effect of ss 494B(5), 494C(5) and 494D(1) and (2) of the Act is that the Minister is taken to have given Mr Singh notice of the delegate’s decision on 10 April 2015.

75    Accordingly, although Mr Singh was not personally informed of the delegate’s decision until 22 April 2015, that delay, in the circumstances of this case, is immaterial to the operation of s 494C(5) of the Act, which provides that where a document is given to a person by a method specified in s 494B(5), which includes email, the person is taken to have received the document at the end of the day on which the document is transmitted.

76    Mr Singh is therefore taken to have been notified of the delegate’s decision on 10 April 2015, and that any application for review of the delegate’s decision was required by s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations needed to be given to the MRT by no later than 1 May 2015. The Tribunal was therefore correct to conclude that it did not have any jurisdiction to consider the appellant’s application lodged on 5 May 2015, and there was no appellable error by Judge Vasta in not permitting the appellant to re-open his case and refusing judicial review on that ground.

77    The decision in SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [11]-[17] (Robertson J) and the authorities there referred to reinforce the strictness of the prescribed review period.

78    Ground 2 therefore fails.

Ground 3 – Did Chand Lawyers force Mr Singh to discontinue the Circuit Court proceedings?

79    In relation to ground 3 of appeal, the claim that Mr Singh was forced to withdraw his application was rejected by Judge Vasta on the evidence before him. No appellable error is revealed. The judge found, on the facts, that Mr Singh accepted and acted upon the robust advice that was given to him. That was a finding of fact open to the judge and not one that reveals appellable error.

80    Ground 3 therefore fails.

Ground 4 – Was evidence provided by Mr Singh overlooked?

81    Ground 4 of the notice of appeal merely states that evidence provided by Mr Singh was overlooked and was related to his claims. Even if Mr Singh, by this ground, intends to assert appellable error on the basis that Judge Vasta should have concluded that the Tribunal’s decision was in error because it had overlooked evidence by Mr Singh that he had not appointed Ms Brockhurst as his authorised recipient, but had appointed Dr Pocze-Graf as his migration agent and authorised recipient, there was simply no evidence before the Tribunal or before the Circuit Court which could support a finding that, at the time of the delegate’s decision, Dr Pocze-Graf was the appellant’s authorised recipient, and not Ms Brockhurst. The above sequence of events does not permit any other conclusion.

82    There is no evidence of any failure by Judge Vasta or the Tribunal overlooking any relevant material in relation to the decision they were required to make.

83    Ground 4 therefore fails.

Real issue – Did No Borders make mistakes which the Circuit Court should have considered indicated jurisdictional error by the Tribunal?

84    On the appeal the real issues, as Mr Singh put his case, were (1) whether Nathan Joo had failed to lodge the Form 956 with the Department; and (2) whether No Borders should have lodged a merits review of the delegate’s refusal on or before 1 May 2015, with the result that the Tribunal’s decision that it did not have jurisdiction to deal with the late merits review application was affected with jurisdictional error and the Circuit Court erred in not so finding. This issue is the primary issue flowing from the four stated grounds of appeal.

85    Mr Singh’s main complaint, as the hearing of the appeal developed before me, was that his migration agent, No Borders by Nathan Joo, made either one or two mistakes that have materially prejudiced his entitlement to have had a merits review of the delegate’s decision refusing his partner visa application.

86    The first alleged mistake is that, Nathan Joo having been apprised (by inference) of the delegate’s refusal at least by 22 April 2015, failed to advise Mr Singh that Mr Singh needed to lodge a review application with the MRT no later than 1 May 2015. Instead Nathan Joo appears to have thought, initially at least, that the relevant period for lodging a review application was 28 days after notification of the decision (on 10 April 2015). While, to an uninformed reader of the Act, s 347(1)(b) of the Act appears to specify a 28 day application period, the Regulations clearly prescribed that the lesser period of 21 days is the relevant period. One would have expected a migration agent to have been alert to the prescribed review period at all material times.

87    As a matter of fact, again drawn by inference from the materials before me, Nathan Joo came to realise that a merits review needed to be lodged by 1 May 2015, as, according to Mr Singh, Nathan Joo advised Mr Singh on 4 May 2015 that the date for seeking merits review had in fact passed, and so there was no need for Mr Singh to put monies into trust to cover the merits review application invoice. As I have said above, Nathan Joo must have appreciated by then that the period was 21 days and ran from 10 April 2015.

88    The second mistake alleged is that No Borders or Nathan Joo, having earlier received the signed Form 956 and Form 929 from Mr Singh, only lodged the latter on the Department’s website and not the former, with the result that Nathan Joo was not nominated as Mr Singh’s authorised recipient to receive the refusal notification from the delegate when it was emailed on 10 April 2015. If the refusal notification had gone directly to Nathan Joo then it may have been that the merits review application to the MRT would have been lodged on time. It might also, more substantively, have been open to argument that the sending of the notification to another person, Ms Brockhurst, was totally ineffectual under the Act and that the refusal remained un-notified for the purposes of the Act.

89    Dealing with the second attribution of mistake first, the evidence before the Court is that only the Form 929 was put on the Department’s website by No Borders on 30 March 2015. The Form 956 was never so lodged. I have so found. The Department was never given a change of electronic communications email address.

90    That conduct does not appear, in my assessment, to involve any element of fraud by anyone. One cannot be sure, but No Borders may not have thought it necessary to lodge the Form 956 on the understanding that any notification would come to No Borders through the agency of Ms Brockhurst’s email address. One way or another, no later than 22 April 2015 Nathan Joo was aware of the notification and did advise Mr Singh of it. A merits review application could have been lodged on time.

91    As to the first attribution of mistake, it appears as though No Borders by Nathan Joo, failed to appreciate, until it was too late that the merits review application needed to be lodged by 1 May 2015. The question is whether such a mistake has the effect of rendering the Tribunal’s decision that it had no jurisdiction to deal with the late application invalid.

92    The question of a decision of a Tribunal fixed with jurisdiction to decide a matter under the Act where there has been some anterior fraud committed, by a migration agent, has been raised in earlier cases. In SZFDE v Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35, the Refugee Review Tribunal (RRT) had invited a family to appear before it in connection with their application for merits review regarding protection visas which had been refused. A rogue, who wrongly claimed to be entitled to practise as a solicitor and migration agent, advised the family not to attend the hearing. The family followed the advice. The RRT relied on the family’s failure to appear as a ground for rejecting the applications for review.

93    As the headnote to the report of this decision in the Commonwealth Law Reports states, s 425(1) of the Act required the RRT to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. If an applicant invited to appear did not appear, s 426A entitled the RRT to make a decision without taking further action to allow or enable the applicant to appear before it.

94    The High Court first held that the conduct of the rogue in his dealings with the family was fraudulent. Secondly, it held that the legislative scheme established by s 425 and s 426A was of central importance to the provision of natural justice in the conduct of applications for review by the RRT. It held that the fraud of the rogue stultified the operation of that scheme. The fraud was accordingly perpetrated on the RRT as well on the family. The jurisdiction of the RRT therefore had not been exercised and relief should be granted.

95    At [51], the Court accepted that the rogue was fraudulent in his dealings with the family. But it also noted that: “the concomitant was the stultification of the operation of the critically important natural justice provisions…”. In short, the Court found that the RRT was “disabled” from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs, the Court said, merited the description of the practice of fraud “on” the RRT. The consequence, the Court explained at [52], was that, in law, the RRT made no decision at all. Its jurisdiction remained constructively unexercised.

96    In my view, as regrettable, from Mr Singh’s point of view, as the mistakes he alleges No Borders made may be, neither the alleged failure to lodge the Form 956 nor the alleged failure to appreciate, until it was too late, that a merits review application to the MRT needed to be lodged no later than 1 May 2015, merits description as a fraud. In neither case, in any event, could it be described as a fraud or a mistake affecting the exercise by the Tribunal of its functions. Neither mistake had the effect of disabling the Tribunal from exercising its jurisdiction. Neither can be said to have had the effect of infecting the Tribunal’s decision with jurisdictional error or resulting in a constructive failure to exercise jurisdiction by the Tribunal.

97    It follows that the Circuit Court did not err when it found no such error and refused to re-open Mr Singh’s judicial review application in the Circuit Court.

98    This ground must fail.

A question of ministerial intervention

99    The dismissal of this appeal is not to say that it might not be open to the Minister, if not under then Act then under s 33(1) or (3) of the Acts Interpretation Act 1901 (Cth), to remake or vary the delegate’s decision. I, however, do no more than note the apparent power of the Minister to so consider these provisions.

CONCLUSIONS AND ORDERS

100    For these reasons, the following orders should be made:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Associate:

Dated:    23 March 2018