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[1999] FCA 196
Federal Court of Australia
1997-08-12
Foster J, Merkel J, Lehane J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Immigration Review Tribunal by which the Tribunal affirmed a decision refusing the applicant, Ms Susaki, a General (Residence) (Class AS) Subclass 805 (Skilled) Visa. One of the conditions, which Ms Susaki had to satisfy at the time of application for the visa, was criterion 3004 in Schedule 3 to the Migration Regulations: "3004. If the applicant: (a) ceased to hold a substantive … visa on or after 1 September 1994; … the Minister is satisfied that: (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; …" 2 Ms Susaki's visa application was initially refused, and the Migration Internal Review Office (MIRO) affirmed the refusal on the ground that, while that condition appeared to be satisfied, other conditions were not. The Tribunal, however, did not, in the reasons for its decision, consider the other conditions; it held that criterion 3004 was not satisfied.
Background 3 Briefly, the circumstances were these. Ms Susaki held a "substantive visa" which expired on 25 March 1996. Some months before that, she instructed a migration agent, Mr Richard Lieu, to assist her with her application for a special skills visa. To complete the material required by the Department in order to consider her application, she needed a form signed by an officer of the Commonwealth Employment Service (CES). In circumstances which do not matter, that form was received by Ms Susaki's employer only on Friday, 22 March. All of the other material required by the Department was then ready for lodgment. When Ms Susaki telephoned Mr Lieu during the afternoon of 22 March to tell him that the CES form had arrived, Mr Lieu informed her that the Department had already closed for the afternoon. It was arranged that Ms Susaki would bring the CES form to Mr Lieu's office on the morning of Monday, 25 March. 4 Ms Susaki called on Mr Lieu at 10.30 am on 25 March. She brought the CES form with her. She was due, during that day, to keep appointments with three Japanese tour companies; the appointments had been arranged, in the ordinary course of her employment, some time in advance. There are differences between Ms Susaki and Mr Lieu as to some aspects of the conversation between them on 25 March, which they had, but many of the important elements of it are not disputed. Mr Lieu's account of the conversation was this: "I said: "Will you deliver these papers to the Department of Immigration?" The Applicant said: "I am too busy. I have pre‑arranged appointments with Japanese clients." I said: "Would you be prepared to pay for a courier to deliver these documents or would you prefer they be sent by post?" She said: "I would prefer they be sent by post." 5 It is common ground that Mr Lieu did not suggest that there was any particular reason for preferring a courier to the post or any particular urgency about ensuring that the completed application reach the Department that very day. 6 The completed form was posted on 25 March. It arrived at the Department some days later, after the substantive visa had expired. In fact, it was not properly lodged until 3 April because Mr Lieu had miscalculated the fee and had sent, with the form, an amount somewhat less than that which was required. That matter was rectified on 3 April. 7 In those circumstances Mr Lieu prepared a statutory declaration for signature by Ms Susaki. She attended his office on 28 March and signed the declaration before Mr Lieu as a justice of the peace. The statutory declaration read: "I, Yoko SUSAKI, of 15 Ormond Street, Paddington in the State of New South Wales 2021 do solemnly and sincerely declare that I was unable to lodge an application to remain in Australia permanently on skilled occupational grounds on or before the last day of validity of my substantive visa on 25 March 1996 because: 1. My nominator, the Hyatt Hotel was only able to provide me with the requisite immigration form duly signed by an officer of the Commonwealth Employment Service on the last day of validity of my substantive visa although the matter relating to my nomination had been put in train for some months before. Note that CES signed the form in question on 22.3.1996 and the two following days were weekend holidays. 2. If an application were lodged on 25.3.1996, it would have been one which did not include a crucial document (the Form 785). While the application would be accepted upon insistence and therefore meet the black letter law, the application would still be incomplete and would have necessitated a completed form to be despatched to the department on a later date. As it is unlikely that the assessment of my application would have been made on the day of the lodgement of the application, the submission of an application containing all the material documents less than two days after the expiry of my substantive visa as opposed to an incomplete application lodged on the due date of my visa with additional material sent to the department later would make no difference to quality and outcome of my application. 3. On 25 March 1996 I had appointments with three Japanese tour companies. These appointments were made some time in advance and they were in connection with the normal duties of my work. To break them on the day of the appointments would have been highly impolite and could have adverse consequences as far as my attempts to get their support to include a visit to the Yoshino Restaurant as part of their tour groups' itinerary during their stay in Sydney. 4. The application was posted on 25 March 1996 and delivered on 27 March 1996. Given the foregoing and the timing of the lodgement of the application, I contend that I have met the requirements of criteria 3001, 3003 (which does not apply) and 3004 of Schedule 3 in Subclause 805.211(2) of the Migration Regulations." 8 That, apparently, satisfied both the primary decision maker and MIRO. However, during a preliminary telephone conference on 22 January 1998 the Tribunal member made it clear that he regarded the contents of the statutory declaration to be unsatisfactory in support of a contention that Ms Susaki did not have a substantive visa, at the time when she made her application, because of circumstances beyond her control. Mr Lieu participated in that conference. It was, therefore, plain to Mr Lieu that, if the appeal to the Tribunal were to succeed, further material would need to be placed before the Tribunal on that matter. Ms Susaki gave evidence that Mr Lieu said to her shortly before the Tribunal hearing, once at his office and again outside the Tribunal's premises, "the only thing we have to worry about is the skill qualification. The fact that the document was lodged a few days late is not going to be a problem. Don't make any reference to that, or to me". Mr Lieu also said, according to Ms Susaki, "if they ask you why the application wasn't filed on time, tell them it was because you had appointments with the travel agents". Mr Lieu's affidavit evidence, in response to Ms Susaki's affidavits, was as follows (the references to paragraphs of her affidavits are to those in which she attributes to Mr Lieu the statements I have quoted): "6. I did not say to Ms Susaki the words attributed to me in paragraph 9 of her affidavit of 20 August 1998 and to the extent that paragraph 3 of her affidavit of 23 December 1998 suggests that I directed her to answer certain questions in a specific way, I say it is incorrect. 7. I recall prior to the Tribunal hearing discussing with Ms Susaki the issues that I thought would be raised, namely the necessary skill qualifications for the grant of a visa she had applied for and the fact that the document was lodged late. 8. I recall stating to her that, in my opinion, the skill qualification was a bigger obstacle and that I did not expect the fact that her application was lodged late would mean the refusal of her application." 9 In cross‑examination Mr Lieu accepted that he might have mentioned the appointments with travel agents as a matter to which Ms Susaki might refer if she were asked why the application was not lodged on time. During the hearing before the Tribunal Ms Susaki was asked about the reasons for the delay; she did refer to the meetings with travel agents and to a belief that it would be "impolite" (and therefore, presumably, bad for continuing business) to break the appointments on short notice. The Tribunal member again made it clear that he did not regard that as sufficient and gave Mr Lieu the opportunity to lodge further submissions on the subject, in writing. Ms Susaki herself did not seek to address the Tribunal; nor, apparently, did Mr Lieu. The hearing took place on 27 February 1998; on 26 March Mr Lieu lodged further submissions on the question whether the delay in lodging the application until after the expiry of Ms Susaki's substantive visa was due to circumstances beyond her control. As to any relevant factual matter, the submission added nothing to what the Tribunal had already been told. It is unnecessary to quote much of the long, discursive and, I fear, largely irrelevant submission. It commenced, somewhat unpromisingly perhaps, as follows: "The reason the application was sent on the last day of the validity of the applicant's substantive visa and received by the Department of Immigration two days afterwards was previously given. We will not attempt to further justify and find cause to show that the applicant's actions were factors beyond her control per Schedule 3 criterion 3004(c). We do, however, request the Tribunal to consider the fact that the Department of Immigration has consistently expressed the preference for applicants to lodge applications incorporating all relevant documents to address the legislative requirements and to support the applicant's claims." 10 That, plainly, took matters no further and, particularly, failed to address the problem that all the material required for a complete application was in Mr Lieu's hands on 25 March and could have been delivered on that day. Indeed, it is fair to say that the submission virtually recognised that it failed to deal with the essential point: "The reason why a properly completed nomination form was not available before 25 March 1996 and why an application was not expediated [sic] through by courier, a runner, facsimile or any other means but sent by mail to the Immigration Department on the final day of the validity of the applicant's substantive visa was previously provided, we do not propose to restate the reasons save to contend that faced with the choice of either lodging an application lacking the fundamental and substantial element on which the application turns or lodging an application for the only purpose that it would be receipted on time, the applicant elected to lodge a substantially completed application." The "fundamental and substantial element" was, of course, the CES form. 11 There followed some submissions to the effect that the primary decision maker and MIRO had dealt with the substance of the matter, having accepted the reasons given for late lodgement, and that accordingly a "reasonable expectation" of some kind had arisen in the applicant. What the Tribunal was not told was that a reason (perhaps the reason) why the application was not delivered on time was that Mr Lieu had not suggested to Ms Susaki that there was any need to adopt a means of delivery which would ensure that it got to the Department on 25 March; indeed, on his own version of what was said, he put the matter to her in terms calculated to ensure that she did not understand that there was any urgency about it. When asked (during cross‑examination) whether it did not occur to him that there might be some merit in mentioning those matters to the Tribunal, Mr Lieu replied: "It did occur to me, your Honour, but the Tribunal member referred me to two cases. In both cases the person lodging the application admitted it was their tardiness or forgetfulness that led to the application being lodged late and that did not help the applicant at all. So I felt if I had mentioned that aspect to the Tribunal Member it would not have helped Ms Susaki's case." 12 Mr Lieu conceded that, in a discussion with Ms Susaki and her solicitor, after the Tribunal notified Ms Susaki of its decision, Mr Lieu had a "vague recollection" of making the statement "we all have to look after ourselves, you know". But he denied that he meant, in saying that, that a desire to look after himself led to his failure to disclose to the Tribunal what had occurred on 25 March 1996. He explained it this way: "It relates to the fact that in hindsight I should have been more assertive with the applicant in that I should have insisted that the applicant either deliver the application herself or pay for the courier charges. That's what I meant, your Honour."
Applicant's primary ground: fraud 13 One of the grounds on which a decision such as the present one may be reviewed by the Court is that it was "induced or affected by fraud": Migration Act 1958 (Cth), s 476(1)(f). Ms Susaki claimed that fraud on the part of Mr Lieu brought about the decision of the Tribunal that she failed to meet the criterion for the visa for which she applied. If Ms Susaki were able to establish that, as a matter of fact, to the appropriate standard (Briginshaw v Briginshaw (1938) 60 CLR 336; Slayman v Minister for Immigration and Multicultural Affairs (Foster J, Federal Court of Australia, 12 August 1997, unreported)) that ground of review would be made out: Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103; Slayman. 14 Ms Susaki's solicitor concentrated, in his submissions, on the statutory declaration of 28 March 1996, which I have already set out in full. Mr Lieu prepared the declaration before his meeting with Ms Susaki on 28 March; Ms Susaki simply read the declaration (her understanding of it may have been imperfect) and signed it. It was said that the statement in the opening paragraph of the declaration that Ms Susaki was unable to lodge an application on or before the last day of validity of her substantive visa was untrue and must have been known by Mr Lieu to be untrue; it was then said that the statement in paragraph 1 was untrue, because Mr Lieu knew that the CES form was available on 22 March; that equally paragraph 2 was untrue because a complete application could have been lodged (if other means of delivery had been chosen) on 25 March; and that while paragraph 3 was literally true, it was deliberately misleading because it failed to state the real reason for the late lodging of the application. 15 Those are by no means insubstantial submissions - particularly, I think, so far as they relate to paragraph 2 of the declaration. But in the end I am not convinced that the particular statements are to be looked at in isolation from their context. It was put to Mr Lieu, in cross‑examination, that those matters were false and that he knew them to be false. His answer, in substance, was that the statements were not false; that he did not intend to mislead the Tribunal; he merely wanted to put, from his client's point of view, the best face on matters. What was not concealed from the Tribunal was that a completed application was ready, and was despatched, on 25 March: paragraph 4 says as much. In truth, the declaration, and the later submissions, simply skirted around the problem: they avoided the question as to why the application was not hand delivered or sent by courier, except to the extent that it was hinted, at least, that Ms Susaki was not in a position to deliver it herself. Was, then, Mr Lieu guilty of deceit by deliberately suppressing the truth or deliberately telling half-truths? His answer was that he was not, because anything more that he said would only have compounded the problem. I have no doubt that, if Mr Lieu thought that, he was wrong: the decisions on which he claims to have relied (particularly Bedwell v Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 368) suggest that disclosure of the full story would have helped, not hindered. Mr Lieu, however, was not significantly challenged as to his view that the decisions suggested that Ms Susaki would not have been helped by full disclosure of what had happened on the morning of 25 March 1996, and in the end I am not satisfied to the requisite standard that, in this respect, his action, or inaction, was fraudulent. I have no doubt that Ms Susaki was not well served by her adviser and that, whether he recognised it or not, Mr Lieu had a conflict of interest. But I am not satisfied that the decision of the Tribunal was induced or affected by conduct on his part properly to be characterised as fraud.
Other grounds: failure to observe required procedures 16 It is a ground of review, and Ms Susaki relies on it, that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision of the Tribunal were not observed: s 476(1)(a). Ms Susaki claims that in three respects the Tribunal failed to observe procedures which it was required to observe, and I shall deal with them in turn.
(a) Section 361(1) notification 17 Section 361(1) of the Migration Act provides: "Where section 359 does not apply, the Tribunal shall notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and (b) of the effect of subsections (2) and (2A) of this section." 18 By letter dated 31 December 1997 the Tribunal gave to Ms Susaki what purported to be a notification under s 361. Ms Susaki complains that the notification did not comply with s 361(1)(a). Relevantly, it said: "As an applicant seeking review of a migration decision, you are entitled to a hearing, that is, to appear before the Tribunal and give oral evidence. You are requested to advise the Tribunal if you wish to have this hearing. To do this, please refer to the attached Applicant's Advice form and Explanatory Notes." 19 There can be no doubt, in my view, that s 361(1) is mandatory. There was no suggestion to the contrary. The notification given to Ms Susaki did not inform her of one of the matters of which the Tribunal was bound to inform her: that she was entitled to present arguments relating to the issues arising in relation to the decision under review. Thus, in my view, there was in that respect a failure to observe a procedure required by the Act to be observed. On behalf of the Minister, it was submitted that relief should not be given, as a matter of discretion, on account of that failure because Ms Susaki suffered no detriment as a result of it: she was asked questions which enabled her to put forward an explanation of the delay in submitting the application and her migration agent was given the opportunity, of which he availed himself, to make submissions on that issue. I shall deal with discretionary matters at the conclusion of these reasons.
(b) Section 366A: "Applicant's advice" 20 Section 366A provides: "366A. (1) The applicant is entitled, while appearing before the Tribunal, to have another person (the "assistant") present to assist him or her. (2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so. (3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person. (4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal." 21 The form of "applicant's advice" referred to in the notification of 31 December 1997 required Ms Susaki to state whether she would be represented at the hearing, and by whom; she completed the form in this respect by saying that she would be represented by Mr Lieu. Immediately beneath that section of the form the following appears: "(I understand that my representative is not entitled to present oral arguments to the Tribunal but may make written submissions.)" 22 It was submitted that those words misstated, or at least incompletely stated, the effect of s 366A(2) and that, in this respect also, there was a failure by the Tribunal to observe procedures required by the Act to be observed. On behalf of the Minister it was argued that the statement in parentheses was not incorrect, that a representative is not "entitled" to make oral submissions but may be permitted to do so only if the Tribunal is satisfied that there are exceptional circumstances. For reasons which will appear, it is in my view unnecessary to decide whether, strictly speaking, what occurred here amounted to a failure to observe required procedures. It is appropriate to say, however, that in my view the words complained of were calculated to give an applicant unversed in the intricacies of migration law the false impression that there was an inflexible rule that a representative might not present oral submissions.
(c) Review "on papers" 23 The decision of the Tribunal was made by a member other than the member who had had the conduct of the review up to and including the hearing. After the hearing, but before making a decision, the member who had constituted the Tribunal resigned. The Principal Member then, on 10 July 1998, directed that the review be finished by another member. That course is contemplated by s 355 of the Migration Act which provides as follows: "(1) This section applies where a member who constitutes the Tribunal, or who is one of the members who constitute the Tribunal, for the purposes of a particular review (in this section called the "unavailable member"): (a) stops being a member; or (b) for any reason, is not available for the purpose of the review at the place where the review is being conducted. (2) If the unavailable member constitutes the Tribunal, the Principal Member shall direct another member or members to constitute the Tribunal for the purpose of finishing the review. … (4) Where a direction under subsection (2) … is given, the Tribunal as constituted in accordance with the direction shall continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. (5) In exercising powers under this section, the Principal Member shall have regard to the objective set out in subsection 353(1)." 24 That section provides, I think, statutory authority for what was done. The complication in this case, however, is that in the Tribunal's papers the standard form direction by the Principal Member, under s 355, is immediately followed by what appears to be part of a separate form, dated the same date, addressed to the (new) presiding member: the page is headed "Review on papers" and asks the presiding member, "Could you please conduct the review on papers?". 25 In my view it is, at least, unfortunate that the simple request to complete the review under s 355 (which required no elaboration) was followed by a request to conduct the review "on papers". The reason is that "on the papers" is a phrase used in the headings of s 359 and s 360 of the Migration Act, referring to a review conducted on the material lodged with the Tribunal, in circumstances where the Tribunal is prepared to make the decision or recommendation that is most favourable to the applicant. In those circumstances the Tribunal may make that decision or recommendation without taking oral evidence. In this case, of course, there had been a hearing and oral evidence had been taken. It was unnecessary, and at best confusing, to ask the presiding member in those circumstances to conduct the review "on papers". 26 That might not matter if it were clear that the member completing the review had had regard to what had passed at the hearing. Unfortunately, the reasons of the Tribunal by no means make it clear that regard was had to what had passed at the hearing. Under the heading "Evidence and Findings" the Tribunal says that its findings "are based on the evidence of the Visa Applicant and the material on the evidence of the Visa Applicant and the material on the relevant Tribunal and Departmental file" (obviously the phrase "on the evidence of the Visa Applicant" is inadvertently repeated). In what follows, however, no evidence of Ms Susaki, other than the statutory declaration, is referred to. There is no mention of anything that occurred during the hearing. There is, in the Tribunal's file, what appears to be a handwritten transcript of a very limited number of the questions asked of Ms Susaki during the hearing and her answers to those questions. But even that limited record is not referred to in the reasons. 27 Although, given my conclusions on other matters, it may not in the end make a difference, I think that in this respect there was a failure to observe procedures required by the Act to be observed. The procedure required by the Act in these circumstances was, simply, a direction that another member constitute the Tribunal for the purpose of finishing the review. Section 355(4) provides guidance as to the procedure to be adopted in finishing the review. What the other form did, by requesting a review "on papers", was either meaningless (and the Court should be slow to adopt that view of it) or purported to request the member to adopt an approach restricted in a way for which there is no warrant in the Act. That seems to me to fall squarely within the ground of review in s 476(1)(a).
Discretion 28 I would, in any event, set aside the decision of the Tribunal on the ground that in giving its notification under s 361 the Tribunal failed to observe procedures which it was required to observe. Even if it is accepted (and I make no finding about it) that Ms Susaki would have acted no differently had she been told that she might make oral submissions, it does not follow in my view that the discretion under s 481(1) of the Migration Act should be exercised against Ms Susaki. The proper exercise of the discretion was considered by Merkel J in Nguyen v Minister for Immigration and Multicultural Affairs (Merkel J, Federal Court of Australia, 16 October 1998, unreported). His Honour said, at 10, 11: "Although the discretion in s 481(1) of the Act to grant relief is conferred in general terms, it is a discretion that must be exercised judicially. Prima facie, upon an applicant establishing that the ground for review under Part 8 has been made out, the applicant is entitled to appropriate relief unless a valid reason exists for refusing it. As was pointed out by Sackville J in Rahim v Minister for Immigration (1997) 78 FCR 232 at 238, it is a proper exercise of the discretion conferred by s 481(1) to decline to grant relief and to affirm a decision of the IRT, notwithstanding that it has erred in law, if the IRT's findings of fact preclude the applicant from satisfying the criteria upon which the fate of the application depends. Sackville J states that remittal of the matter in those circumstances "would be futile". … I considered the discretion of a Court to refuse relief in respect of an administrative decision where there was a denial [of] natural justice in Wasfi v The Commonwealth of Australia and Another (Federal Court of Australia, Merkel J, 5 June 1998) at 19‑20. In that case, I concluded that even without a provision such as s 481(1), there is a discretion in the Court to decline to grant relief if the administrative body on the remitter would be "bound in law" to arrive at the same decision, as the case that could be put for any other decision was "hopeless". … However, as Beaumont J pointed out in Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540, the Court ought not to exercise the discretion to refuse relief if it is "possible" that the end result might not be the same at a further hearing." 29 This is not a case where any findings of fact made by the Tribunal, in the decision under review, on the question whether there were circumstances beyond Ms Susaki's control, will govern, or even be particularly relevant, upon a further review. Ms Susaki would be entitled to put the full story before the Tribunal and the full story might well lead the Tribunal to a different result. It cannot be said that her case is hopeless or that it would be futile to remit the matter to the Tribunal. There is no authority of which I am aware, and in my view no principle which suggests, that in exercising the discretion under s 481 I should not take account of all the evidence before me. The suggestion may be that Ms Susaki, having failed in her allegation of fraud, should not be entitled fortuitously to take advantage of evidence led in support of that allegation in order to have a decision set aside on the basis of a failure to follow procedures which, itself, was inconsequential. If so, the answer, in my view, is that an applicant before the Tribunal has a right to insist that the Tribunal follow the procedures required by the Act and the regulations; failure to do so is a ground of judicial review; prima facie, if an applicant establishes such a ground he or she will succeed in an application to set the decision aside. If the Court is satisfied that it would be futile to set the decision aside, perhaps because the applicant's case on any view is hopeless, then the Court's discretion may be exercised against granting relief. It is not easy to think of other circumstances in which ordinarily it would be appropriate to refuse relief and it is unnecessary to try: for the reasons I have given, I am not satisfied that the circumstances demonstrated in this case are among them.
Conclusion 30 For those reasons, the applicant is entitled to succeed. Ms Susaki, somewhat optimistically, sought a declaration that her failure to lodge her primary application was caused by a factor beyond her control, a declaration that the decision of the Tribunal was induced or affected by fraud and an order that her application for a visa be granted. None of those orders should be made, if only for the reasons that I am not satisfied that fraud has been made out and the evaluation of the evidence going to factors beyond Ms Susaki's control is a matter for the decision maker (in this case the Tribunal) not the Court. Accordingly, the orders of the Court are that:
Associate: Dated: 10 March 1999 Solicitor for the Applicant: Douglas Knaggs
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 11 and 17 February 1999
Susaki
Minister for Immigration & Multicultural Affairs
(1996) 71 FCR 103
(1938) 60 CLR 336
(1997) 78 FCR 232
(1985) 58 ALR 527