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.