Awon v Minister for Immigration and Border Protection

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.

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. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.