Jaswal v Minister for Immigration & Multicultural & Indigenous Affairs

The evidence adduced in the Federal Magistrates Court as recorded in his Honour's reasons for judgment. 15 Raphael FM recorded in his reasons for judgment below that he was provided by the appellant with the following material: (i) the transcript of the hearing before the MRT; (ii) an affidavit of the appellant; and (iii) an affidavit of the appellant's migration agent Mr Garg. 16 Mr Garg was vigorously cross-examined by counsel for the Minister, in the course of the hearing below, his evidence in chief taking the form mainly of an affidavit. The appellant was not however cross-examined below, his evidence in chief being entirely viva voce, involving however a number of controversial questions from his counsel to which objection was successfully taken by counsel for the Minister. Mr Garg sought to explain to Raphael FM why he did not give evidence in person to the MRT, asserting thereby that his written statement of 17 December 2002 tendered to the MRT evinced an implicit assumption on his part that he would be given the opportunity of further explanation orally to the MRT. His affidavit evidence tendered to the MRT included the following, which was set out also in his Honour's reasons below: '9. If the Tribunal had given the applicant a further opportunity to appear before it and had indicated that it was likely to find against the applicant in relation to the cheque dishonoured by his bank, I would have taken the following specific steps: a) I was aware of the importance of the $9 dishonour fee which the applicant added to a cheque sent to the Department on or about 10 September 1998, and the relevance of this fee in establishing that the applicant attended the Department on 6 August 1998 as he claimed. This is why, in the applicant's statutory declaration dated 24 May 2002, I ensured this point was covered. If the Tribunal had given the applicant a further opportunity to appear before it, I would have explained this matter to the Tribunal. b) If I had become aware that the Tribunal did not have before it a copy of the applicant's letter to the Department dated 9 September 1998, I would have given a copy of the letter to the Tribunal. c) In my view, the applicant's explanation of what the officer of the Department told him on 6 August 1998 in relation to the problem of issuing two receipts against one visa (see applicant's statutory declaration dated 24 May 2002) is consistent or corroborates with a file note of the Department dated 22 February 1999 (which refers to the same point and which I obtained under s.362A of the Migration Act). I would have explained this point to the Tribunal… 11. The Tribunal found that between July 1998 and September 1998 the applicant "was [never] in possession of sufficient funds" to pay the Department (see paragraph 62 of the Tribunal's decision). If the Tribunal had raised this matter with the applicant and asked him to provide evidence that he was in possession of sufficient funds, I would have told the applicant about the relevance of this matter and encouraged him to obtain objective evidence.' What that so-called 'objective evidence' could or would have been was not indicated by Mr Garg. Whatever it might conceivably have been, the same was not asserted to comprise monetary funds of a relevant minimum realisable level capable of demonstration by the production for instance of bank or other authentic records additional to those referred to in these reasons. Moreover no income tax returns of the appellant were tendered to the MRT in order to demonstrate viable sources of income, including any investment income. 17 For reasons unnecessary to record, Raphael FM permitted the appellant to re-open his case. His Honour summarised the appellant's consequential evidence to the Court below as follows: (i) the appellant was in receipt of regular payments from a company called RSL.Com Australia by way of commissions on sales; his Honour observed that the National Australia Bank's statements relating to the appellant's bank account established as much; and (ii) the sum of $1,600 was held by the appellant in cash at his home. Those limited documented details were not of the dimension postulated or hypothesised generally by Mr Garg's affidavit evidence. His Honour observed, in my opinion rightly, that the appellant's evidence 'did not extend to indicating that if he had the opportunity he could have obtained objective proof that he held $1,600', or was to the effect that the appellant, '[f]or example… might have been able to say that he obtained the $1,600 in cash [by] cashing a cheque for that amount on or around a particular day and would be able to produce a bank statement to establish this', or that he '… might have said that a friend gave the money to him and that he could produce evidence from the friend'.

The findings of the Federal Magistrates Court 18 Having set out in some detail the submissions of counsel for the appellant, who also represented the appellant on the present appeal, Raphael FM proceeded immediately to his reasons for rejecting the appellant's application for review of the MRT decision. 19 His Honour summarised the submissions advanced to him on behalf of the appellant to the effect, first, that 'the Tribunal did not have regard to the letter of 9 September [1998] and that if it had done so it would have found in that letter the objective evidence that [the appellant] attended at The Rocks [ie the Department's offices] on 6 August', and secondly, that 'there was a real failure to provide [the appellant] with procedural fairness in not arranging for a further hearing at which these matters could be discussed'. His Honour accepted that the said letter of 9 September 1998 (which I have extracted in [5] above), in the light of the date when the same was written, '… could corroborate the applicant's statement that he went to the DIMA office', but implicitly nothing more of relevance to the resolution of the issues arising. His Honour's reasons continued, in relation to that letter, as follows: 'What I do not accept is that the Tribunal ignored the letter, or more particularly the Tribunal ignored what was contained in the letter. It is quite clear from the transcript that the attendance at The Rocks office on 6 August was discussed between the Tribunal, the agent and the applicant.' 20 Raphael FM then observed that the two most important pieces of corroborative evidence put forward on behalf of the appellant to the MRT were the knowledge of the appellant of the $9.00 dishonour fee, and the alleged remark of the person behind the counter that a duplicate receipt could not be issued, and his Honour cited in that regard the following evidence of Mr Garg (recorded therein as 'Agent'), and of the appellant (recorded therein as 'Mr J'), the questioner referred to as 'TM' being the MRT Member (the evidence is literally reproduced, without correction of typographical errors): 'Agent: In the sec, third last paragraph, "Then when you client makes a payment for the dishonoured, ah, the fee (or face??) is to the receipted by the CPM. Not on CSS or CSM or ICSE." Which is the current system which is being operated by…because that created duplicated receipt. So, he was advised correctly on 6th August that he should wait for the letter to pay the money. That's what I was. Mr J: And, one thing more, you know. He said to put nine dollars on top of that because of, you know. TM: Yes, absolutely. Mr J: And, I said, "I will". Agent: And, that's why probably on 6th of August the officer at the counter 18 didn't accept the fees. TM: Yes. MR J: She said, "We can't". She actually took a lot of time, and she went inside, you know, and she then came up with, ah, this thing. She returned my money and she said, ah, well TM: Well that, regrettably they did not make note of your attendance on that day. Mr J: "Duplicate receipt, you know. We can't issue duplicate receipt for one visa." TM: Alright.' All that was insufficient, in his Honour's view, to take the appellant's case the distance necessary for review of the MRT decision, the MRT not having believed that conversational material, uncorroborated as it was by any objective evidence. His Honour further concluded that 'the applicant could not rightly argue that the MRT failed to consider the 9 September letter and thus made a Yusef error in failing to consider relevant material', referring thereby of course to the subsequent letter of 9 September 1998 extracted in [5] above, and to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323. 21 Having disposed of what appears to have been evidentiary functions of the principal case presented on the application for review, Raphael FM addressed the appellant's remaining three submissions made on that application, as recorded at the culmination of his Honour's reasons for judgment, as follows: (i) there was no scope for the appellant's reliance upon s 359 of the Act, for the reason that '[i]t is not necessary for the MRT to bring its thought processes to the attention of the applicant in relation to material submitted by or as part of the applicants' case', his Honour citing in that regard Tin v Minister for Immigration [2000] FCA 1109 at [54]; (ii) as to the so-called 'validity issue', it was clear that an application for a visa is valid if, and only if, any visa application fee that the regulations require to be paid at the time that the application has been made, has been in fact paid, and that the MRT found that no payment of the fee on 9 September 1998 could have operated retroactively to validate the otherwise invalid application earlier lodged on 15 July 1998; rather, so his Honour further found, that payment operated merely to complete the inchoate application and produce, for the first time, a valid application, in effect in the nature of a fresh application (his Honour citing in that regard Nadar v Minister for Immigration (2000) 101 FCR 352 at [56]); Raphael FM thus concluded that the appellant's purported application of 15 July 1998 was by 9 September 1998 already out of time, and the delegate and the MRT were entitled to decline to give the applicant the visa he had thus requested; and (iii) as to what his Honour referred to as the issue that remained outstanding, namely whether the MRT had erred 'in stating that it had asked for objective evidence that the visa applicant was in possession of funds to the extent of $1,600 at the time he claims to have gone to the Department on 6 August 1998', his Honour held that '… this is a wrong finding of fact that was not material to the decision'; since '[g]iven that evidence must be a material fact to show that there has been a denial of procedural fairness : Minister for Immigration ex part "A" [2002] 101 FCR 352 at [56]', …it is not an error which I am able to review'; his Honour added that '[e]ven so, the applicant gave oral evidence which was directed to what objective evidence he might have provided to prove he tendered the $1,600', being evidence that was in his Honour's view unsatisfactory; that was because such evidence was (in effect merely) to the effect that 'the $1,600 had been held by the applicant in cash at home'; that evidence in his Honour's view did 'not advance the situation any further than that which obtained when the matter was before the Tribunal', his Honour citing that the applicant had merely said: 'I had the cash in my hand.'

The issues specifically raised by the appellant on the appeal 22 The appellant formulated the following four issues or matters of controversy for consideration on the appeal from the decision of Raphael FM to this Court: (i) in a letter dated 17 December 2002, the MRT stated that it would provide the appellant with a further opportunity to appear before it; the MRT did not however provide the appellant with such an opportunity; in the circumstances of the case, this constituted a denial of natural justice and jurisdictional error; consequently the Federal Magistrates Court erred in finding that there was no denial of procedural fairness ('the Further hearing issue'); (ii) the Tribunal erred in finding there was no objective evidence before it to support the claim of the appellant that he attempted to pay the Department at any date prior to the date he presented the cheque from St George Bank; that error constituted jurisdictional error, and the Federal Magistrates Court erred in finding that the MRT did not fall into jurisdictional error in relation to that matter ('the Department attendance issue'); (iii) the Tribunal stated that it had asked for objective evidence that the appellant was in possession of funds to the extent of $1,600 at the time when he claimed that he went to the Department on 6 August 1998, but that such evidence had not been forthcoming; the MRT never asked the applicant that question, and again that error constituted jurisdictional error, and the Federal Magistrates Court erred in finding that the MRT did not fall into jurisdictional error in relation to that matter ('the Evidence query issue'); and (iv) at the time of the decision of the Minister's delegate in November 2000, the application originally made on 15 July 1998 was valid within the meaning of s 46(1) of the Act; the Tribunal's refusal to grant the visa on the basis that the application was invalid constituted jurisdictional error, and the Federal Magistrates Court erred in rejecting this submission ('the Validity issue").

The conclusions of the Court 23 It is first convenient to summarise in chronological sequence the following documentary evidence placed before the Court: (i) on 15 July 1998, an application was lodged at the Department for a Subclass 805 visa; (i) the appellant's Subclass 413 executive visa expired on 16 July 1998; (iii) on 21 August 1998, the Department noted in its records that a cheque in payment of the visa application fee had been dishonoured; that cheque had been made out for payment in cash in the sum of $1,565; (iv) on 10 September 1998, the appellant's migration agent Mr Garg, under cover of a letter dated 9 September 1998, forwarded to the Department a bank cheque for $1,574 in purported payment of a Subclass 805 visa fee of $1,565, plus $9.00 bank fees in the relation to the earlier dishonoured cheque; (v) on 30 March 1999, that bank cheque totalling $1,574 was presented by the Department for payment; and (vi) on 17 November 2000, the appellant was notified by Departmental letter, first, of acceptance of payment of the application fee 'in full', though only however 'as at 10 September 1998' (by which latter time of course the applicant's Subclass 413 visa had expired). It was upon that prima facie chronological footing that the Department's letter of 17 November 2000 indicated, at least implicitly, that no valid application for a Subclass 805 visa had been made. 24 It was open to the MRT to reach the conclusion of fact that the appellant's evidence as to his subsequent attendance at the Department's offices on 6 August 1998, and as to his tender on that occasion of $1,600 in cash, uncorroborated as it was by any documentary material, was not creditable. As Raphael FM rightly pointed out, no objective evidence was placed before the MRT as to any actual tender of cash on that controversial occasion; for instance, no documentary evidence as to the availability from the appellant's resources of that amount of money as at 6 August 1998 was provided to the Department, and moreover, no explicit reference was made in his migration agent's letter of 10 September 1998 to the fact of that tender of cash having been earlier made, nor was any contemporaneous record made by the appellant, or confirmatory letter sent, concerning the events of that occasion, whether contemporaneous or otherwise. On the contrary, the migration agent's letter reproduced in [5] above made no mention of that allegedly critical circumstance. The appellant's claim as to becoming aware of the fact of dishonour of his cheque only upon receipt of his bank statement for the month of July 1998, was an unacceptable explanation to the MRT, and understandably so, once regard is paid to the content of that bank statement. To those observations may be added what I have otherwise mentioned in [4]-[5] above. 25 Addressing specifically the so-called 'Further hearing issue' and the 'Department attendance issue' together, which is the appropriate course because of the connection of one to the other, the Minister's response was first that '[c]learly, the MRT thought that the appellant had lied to it and rejected his evidence accordingly'. That finding was open to the MRT to be reached. 26 The appellant's case to the effect that objective evidence was placed before the MRT, contrary to the MRT's finding, that the appellant had tendered to the Department in cash the sum of $1,600 on 6 August 1998, said to constitute objective evidence by virtue of the addition of the dishonour fee (albeit that such fee amounted only to $9.00), has no substance. The reasonable inference open to be drawn, in the context of those particular circumstances, was conversely to the effect that the appellant did not have at his disposal the funds required for an effective application for a Subclass 805 visa until about the time of the later tender of that St George bank cheque. 27 Particularly in the light of those compelling circumstances, there was no obligation in my opinion imposed on the MRT to have put to the appellant the proposition, in the course of the MRT hearing, that he was at no material time 'in possession of sufficient funds to do so as he claimed'. Nor is there substance in the appellant's submission that '[a]ccordingly, he (ie the appellant) never had an opportunity to provide evidence that he did have the funds'. Moreover it may be additionally observed the very circumstance that the appellant's cheque provided to the Department on 15 July 1998 was dishonoured on presentation tended to impute an evidentiary onus to the appellant to establish the existence of funds otherwise available to the appellant to have satisfied the presentation of the original cheque in the first place, or at least to have forthwith made good the dishonoured cheque, being an onus which the MRT inferentially considered not to have been discharged by the appellant. Moreover the matters which the migration agent Mr Gang ex hypothosi said that he would have explained and emphasised to the appellant constituted material which would have been appreciated by the appellant from the very outset as necessary to have been presented to MRT. 28 I would therefore reject the submissions of the appellant that the MRT denied the appellant procedural fairness by failing to give the appellant the opportunity of a further hearing, or otherwise, and moreover that there existed evidence before the Tribunal to the effect that any such opportunity would have produced a converse result. 29 I would further reject the related submission of the appellant that he was denied procedural fairness 'by deciding the issue concerning his attendance at the Rocks office of the Department adversely to him without giving him an opportunity to address the matter'. Essentially for the reasons that I have already formulated, the MRT extended to the appellant whatever opportunity, to which the appellant was reasonably entitled, to present his case. In the light of the evidence already placed before the Tribunal, and of the opportunity implicitly afforded to the applicant by the Tribunal to put forward any material or relevant evidence, the provision of any further hearing was rightly open to the Tribunal to characterise as lacking 'any utility'. The appellant's submission, in particular in the context of the so-called 'Department attendance issue', purported to afford a significance to the letter of 9 September 1998 of the appellant's migration agent that it did not ever import or carry, such as to attract the operation of the Yusef principle, or otherwise. 30 I would now address the so-called 'Evidence query issue', which was based upon par 26 of the decision of the Federal Magistrate reading as follows: 'There remains outstanding the issue of the Tribunal's error in stating that it had asked for objective evidence that the visa applicant was in possession of funds to the extent of $1,600 at the time he claims to have gone to the Department on 6 August 1998. I am of the view that this is a wrong finding of fact that was not material to the decision. Given that evidence must be a material fact to show that there has been a denial of procedural fairness (his Honour thereby citing Minister for Immigration and Multicultural Affairs;Ex parte 'A' (2002) 185 ALR 489 at [54] per Kirby J sitting as a single justice) it is not an error which I am able to review.' 31 The Minister correctly submitted that the erroneous finding of the MRT that it had sought such objective evidence (see again [14] above) was not material to the decision of Federal Magistrate Raphael, as is apparent from his Honour's reasons in particular as set out in [21(iii)] above. If that 'unsatisfactory' evidence of the appellant, to adopt his Honour's description, had been genuine, why was not the cash produced or a bank draft tendered to the Department at least by 6 August 1998, instead of a bank draft not being tendered to the Department on 9 September 1998, it is appropriate to observe. It was plainly unsatisfactory, as his Honour proceeded to implicitly point out, for the appellant merely to have asserted 'I had the cash in my hand', without more. 32 Finally as to the 'Validity issue', the appellant referred to the circumstance that at the time of consideration of the viability of the appellant's application lodged on 15 July 1998 for the subject Subclass 805 visa application, s 46(1)(ba) of the Act stipulated that 'any visa application charge that the Migration Regulations required to be paid at the time when the application [was] made [had] been paid'. It was contended by the appellant that 'at the time of the decision of the [Minister's] delegate's decision, the application made on 15 July 1998 was valid within s 46(1)' of the Act, and reference was made to Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 for authority to the effect that the words 'shall be accompanied by', in a legislative setting, may be satisfied if the requisite matter is provided prior to the processing of the application. Upon that footing, the appellant submitted that payment for the Subclass 805 visa was not necessarily required to be made at the time of making application therefor. This submission must be rejected. As the Minister rightly contended, the finding of the MRT was not that the application was invalidly conceived in substance, but rather that it was not made until 10 September 1998, when the replacement bank cheque was provided to the department, and thus payment for an application of that specification effectively made. 33 Moreover as to the so-called 'Validity issue', the Minster pointed out that the Braganza decision turned relevantly on the basis that the appellant there involved had applied for a waiver of the fee (see the passage at 375). Here of course no application for a fee waiver had been made, and as above indicated, the fee was not paid by the appellant until 10 September 1998. To adopt the contention of the Minister, '[t]he usual meaning of the clear words of the section do not in this case give rise to any absurd result which requires an alternative construction'.

Estoppel or waiver 34 In the course of the addresses of Counsel, I raised for consideration the possibility that the Minister's retention of the whole of the sum of $1,574, belatedly tendered by the appellant on 10 September 1998 to the Department by bank cheque, and the ultimate banking of that bank cheque by the Minister, may conceivably constitute an estoppel or waiver on the part of the Minister. I refer to the purported reliance of the Minister ultimately by way of decision based upon the absence of payment not having been effectively made at the time of lodgement of the visa application on 15 July 1998. Submissions in writing were subsequently provided after the hearing of the appeal by counsel for the Minister on the matters of estoppel and waiver.

35 The Department's standard form of communication relating to dishonoured cheques for application fees, sent to the appellant at the address 3/57 Harris Street Harris Park on 22 February 1999, included the following:

'I refer to your application for a permanent visa in the General Residence Class which was lodged at this office on 15 July 1998. Payment of $1,565 was made on that day by cheque No 55 drawn in the name of Jaswal, Jagmohan Singh. We have been informed by the Revenue Management branch in Canberra that this cheque has been dishonoured. A PAYMENT OF $1,565 PLUS $9.00 (DISHONOURED CHEQUE FEE) MUST BE MADE WITHIN FOURTEEN (14) DAYS OF THE DATE ON THIS LETTER FOR PROCESSING OF YOUR APPLICATION TO CONTINUE. ALL PAYMENTS MUST BE ACCOMPANIES BY A COPY OF THIS LETTER. Payment may be made through the post… Payment through the post must be by BANK CHEQUE OR MONEY ORDER…'

36 As I have already indicated, payment of $1,574 had been earlier made by the appellant's migration agent by means of a St George Bank cheque (see [5] above). I agree with the Minister's submission that no issue of estoppel duly arose, there being for instance no reliance operating to the appellant's detriment. I observe moreover that it was emphasised by a Full Court (Davies, Whitlam and Branson JJ) in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 that the Court cannot make an order so as to contradict the provisions of a statute by way of relieving against non-compliance with a requirement which the statute intends shall be satisfied. The question as to possible waiver requires perhaps closer consideration. The decision of the delegate made in November 2000, as recorded by Raphael FM, was to the effect the appellant was not entitled to a Subclass 805 Visa because a valid application, being an application accompanied by the appropriate fee, had not been made.

37 The position adopted by the Minister in summary was to the effect that the visa application was in fact considered by the Minister, and that '[a]ccordingly, the applicant got what he paid for : a consideration of the application'. The basis for rejection of the application, as extracted from the 'Decision Record' in [10] above, was that the application had not been validly made within 28 days of 16 July 1998, because payment of the applicable fees was not effectively made until 10 September 1998, and thus not within 28 days of the 'relevant day' in satisfaction of Schedule 3 criteria 3001. Upon that footing the Minister pointed out that the appellant had not satisfied the requirements of Subclause 805.211(2) of the Migration Regulations. 38 It was somewhat enigmatic for the Delegate to have apparently adopted the stance that the Minister could not consider the appellant's visa application in the absence of payment of the requisite fee, and yet subsequent to such payment being tendered and accepted albeit belatedly, to have thereafter decided that the application should be rejected on the ground of non-payment of that fee in the first place. However I observe that the Delegate also concluded that none of the requirements of the General (Residence) (Class AS) relating to subclasses 801, 804, 814 and 832 were in any event satisfied by the appellant. Precisely what was entailed within the scope of the Minister's submission that the Minister 'did in fact consider the application' is nor entirely clear. Be that as it may, I am unable to conclude that there was any waiver on the part of the Minister which operated adversely the Minister's decision to reject the appellant's visa application. 39 The appeal should therefore be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 6 February 2004 and 2 March 2004