FEDERAL MAGISTRATES COURT OF AUSTRALIA
ASSAAD v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 352	

MIGRATION – Application for review of the decision of the Migration Review Tribunal and the Minister’s delegate – no jurisdictional error in the Tribunal’s decision – no jurisdiction to review the decision of the delegate – application dismissed.	

Migration Act 1958 (Cth), ss.66, 338, 347, 476, 494B, 494C, 494D
Migration Regulations 1994 (Cth), rr.1.21, 1.23, 4.10	

Applicant:	Mahmoud Assaad	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Migration Review Tribunal	

File Number:	SYG 2582 of 2011	

Judgment of:	Nicholls FM	

Hearing date:	30 April 2012	

Date of Last Submission:	30 April 2012	

Delivered at:	Sydney	

Delivered on:	30 April 2012	

REPRESENTATION
The Applicant:	In Person	

Appearing for the Respondents:	Ms N Johnson	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS
(1)	The application made on 14 November 2011 is dismissed.
(2)	The applicant pay the first respondent’s costs set in the amount of $3,800.00.
(1)	
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney	
SYG 2582 of 2011
Mahmoud Assaad	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
1.	This application, made on 14 November 2011, on its face states that it seeks review of two decisions. The first is a decision made by the Migration Review Tribunal (“the Tribunal”), on 12 October 2011, in which it found that it did not have jurisdiction, in the circumstances, to review the earlier decision made by a delegate of the respondent Minister. That decision was to refuse the applicant the grant of a Partner (Residence) Visa. The applicant also seeks review by this Court of that decisions (but see further below at [24]). 
2.	For reasons which will become apparent, it is important to note that the application to the Court seeks to invoke the Court’s jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).
Background
3.	The applicant is a citizen of Lebanon (Court Book – “CB” – CB 4). On 17 May 2009 the applicant was granted a prospective marriage visa. He arrived in Australia, on that visa, on 22 June 2009.
4.	On 3 July 2009 he applied for a Partner (Residence) Visa (“partner visa”) (CB 2 to CB 25). He was granted the temporary version of the visa for which he applied in November 2009 (CB 62 to CB 63). 
5.	On 22 January 2010 the applicant appointed Mr Toufic Laba-Sarkis as his “authorised recipient” for the purpose of receiving correspondence from the Minister’s department (CB64 to CB 68). In April 2010 he appointed Mr Robert Balzola, a migration agent, for the same purpose (CB 70 to CB 71). I note subsequent advice from Mr Balzola as to his latest address for service (CB 130 to CB 131).
The Delegate
6.	Following the breakdown of the applicant’s personal relationship. The Minister’s delegate referred the applicant to an independent expert on 7 March 2011 for the purpose of assessing his claim to have suffered “family violence”, more colloquially known as “domestic violence” (CB 137). That independent expert found that the applicant had not suffered family violence as set out in r.1.21(1) of the Migration Regulations 1994 (Cth) (“the Regulations”). 
7.	By letter dated 27 April 2011 the Minister’s delegate, appropriately, sent to Mr Balzola a letter for the applicant advising of the independent expert’s assessment. The Minister’s delegate sought any comments on this within 28 days (CB 133 to CB 145). No comment was received from the applicant or Mr Balzola.
8.	On 20 June 2011, the delegate moved to make a decision and decided to refuse the grant of a partner visa to the applicant. The delegate found, amongst other things, that the applicant was no longer the spouse of the individual nominated as his sponsor in the partner visa application (CB 153). Further, that the applicant did not satisfy any of the other relevant subclasses for the grant of a partner visa. 
9.	While it is the case that the relevant part of the Regulations provides when such an applicant may be deemed to have suffered family violence (Div.1.15 of the Regulations), there was no evidence in the applicant’s case to support such a finding. The delegate further found that, to the contrary, the independent expert’s report, obtained pursuant to r.1.23(10)(c)(i) of the Regulations, supported a finding that the applicant had not suffered family violence (CB 154). 
10.	In light of the Tribunal’s subsequent finding it is important to note that the applicant was notified of this decision by letter dated 20 June 2011. The letter was sent to Mr Balzola, as the applicant’s representative and authorised recipient for the purpose of receiving correspondence, and enclosed the formal notification of the delegate’s decision to refuse the visa (CB 148 to CB 151).
The Tribunal
11.	Some seven weeks after the delegate’s decision, on 9 August 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 165 to CB 171). On that occasion the applicant was assisted by a different migration agent, Mr Raed Rahal of Cambridge Migration Services (CB 163 and CB 183 to CB 184). Mr Rahal was appointed as his authorised recipient for the purpose of the review which the applicant wished the Tribunal to conduct (CB 168, CB 173). 
12.	Accompanying the application for review was a statutory declaration, made by the applicant on 25 July 2011. In this he claimed that he was only notified by his previous representative of the delegate’s decision to refuse his application for a partner visa on 19 July 2011 (CB 172). That is, some four weeks after the date of the delegate’s decision, and some three weeks after the date that the authorised representative would be taken to have received the notice of the delegate’s decision. The applicant declared that the first time he was told his application had been refused was on 19 July 2011 and that he had not received any telephone calls or correspondence from his representative prior to that date.
13.	On 5 September 2011, the applicant was invited, by letter to his authorised recipient, to comment on the “validity of his application for review” (CB 177 to CB 178). That letter noted the date of the delegate’s decision, the date on which that notification was sent to the applicant’s representative and that, on that basis, 20 July 2011 was the date by which the application for review should have been made if it was to be made “on time”.
14.	On 19 September 2011 the applicant’s then migration agent responded to the Tribunal’s letter and, in essence, asked the Tribunal to compassionately assess the position of his client on the basis that the applicant had been unable to lodge a request for review sooner due to financial difficulties (CB 183 to CB 184). Further that he was “distressed” and “in a state of shock”. Included with the letter were several documents, including “proof of financial difficulty” and “stress and depression” (CB 184 to CB 187).
15.	The migration agent is said to be Mr Raed Rahal. It must be said that, given the state of the law to which the Tribunal was compelled to have regard, the agent’s submissions to the Tribunal appear to have no knowledge of, or to deliberately ignore, the relevant law. 
16.	On 12 October 2011 the Tribunal found it had no jurisdiction to consider the application for review as the application was made out of time as provided in the relevant statutory and regulatory regimes that applied to the Tribunal ([22] at CB 194 to [25] at CB 195).
17.	Given the state of the law, the Tribunal properly had regard to whether the notice of the delegate’s decision had been properly effected. That is, made in compliance with the relevant statutory and regulatory regime that governs the giving of notifications by the Minister of refusals of applications for visas.
18.	The Tribunal found that the notice of the decision was dispatched to the applicant’s authorised representative, at his most recent address for service, within three working days after the date of the letter. The applicant was taken to have received the notification seven working days after the date of the notice ([18] to [19] at CB 194). The Tribunal noted that the submissions of the applicant’s representative provided no basis, having regard to the relevant legislative provisions, for accepting the review application as the legislative provisions did not permit such circumstances to be considered ([20] – [21] at CB 194). 
19.	In light of what is before the Court, the Tribunal was undoubtedly correct in that assessment. The letter from the migration agent was focused on the time that the applicant was said to have been actually notified. But even then the submissions seek to explain the delay by reference to the applicant being in a state of shock and financial difficulty. The Tribunal was therefore correct in finding that there was nothing in the letter from the representative to address the relevant legislative and regulatory provisions that apply to the notice of the refusal of visa and the time in which the application for review of such a decision must be made to the Tribunal.
20.	It is not known to the Court whether the Tribunal took steps to report the agent’s apparent lack of basic understanding of the relevant regulatory and statutory requirements. That is, whether any steps were taken to refer this to the relevant body that is empowered to oversee the conduct of registered migration agents. That is the Migration Agents Registration Authority (“MARA”). 
21.	If no such referral has already been made then I would ask Ms Johnson (who appears for the Minister today) to refer it to those responsible in the Minister’s department for consideration as to whether this is a matter that should be referred to MARA for investigation. Particularly to ask why a migration agent should be ignorant of the time limits which apply in the making of applications to the Tribunal. 
Application to the Court
22.	The application to the Court contains one ground of review:
	“1. The decision of DIAC is infested with jurisdiction error of law as they have taken the opinion of the independent expert as correct while the applicant was denied procedural fairness by the independent assessor at interview when asked about domestic violence.”
Before the Court
23.	At the hearing the applicant appeared in person. He was assisted by an interpreter in the Arabic language. Ms N Johnson appeared for the first respondent. In addition to the application the Court had before it the Minister’s formal Response to the application, the Court Book and the Minister’s written submissions. 
Consideration
24.	At the first Court date I raised with the applicant a matter on which he should have already been on notice given the Minister’s formal Response. That is, that the sole ground of the application sought judicial review of the decision of the Minister’s delegate and not that of the Tribunal. The reference in the application to the Tribunal was only to recognise that it had made a decision on 12 October 2011.
25.	Sections 476(2) and (4) of the Act make clear that the Court cannot review the delegate’s decision. The delegate’s decision is a “primary decision”, as that term is understood under the Act. That is, even though it was not reviewed by the Tribunal it would have been reviewable under Pt.5 of the Act had an application for review been made within the specified period. 
26.	In this case, having regard to the relevant sections and regulations (s.347(1)(b)(i) of the Act and r.4.10(1)(a) of the Regulations), is within 21 days from the date on which the applicant is taken to have been notified of the decision. This was the time period in which the application for review to the Tribunal should have been made. Given the provisions set out in s.476(4)(b) of the Act (“… that is reviewable under Part 5 or 7 …(whether or not it has been reviewed), or that would have been so reviewable if an application for such review was made within the specified period”), this means that any such decision is still taken to be a “primary decision”.
27.	Despite being on notice, both as a result of what the Court told the applicant at the first Court date, on 30 November 2011, and from the Minister’s formal Response to his application, the applicant has put nothing further before the Court other than the bare claim to which I have already referred.
Adjournment Application
28.	When I reminded the applicant today of the difficulties he faced with his application, he confirmed that he had not spoken to any lawyer to receive legal advice as he had been urged to do at the first Court date. He gave as reasons that he was unemployed, and that he was receiving workers compensation benefits, but did not receive any other support. 
29.	He nonetheless sought an adjournment to see if he could now obtain the services of a lawyer and at least some legal advice. That application for an adjournment was opposed by Ms Johnson. I refused the application for an adjournment.
30.	The reasons were, in summary, from what was earlier said during this hearing, that the applicant was put on notice by the Minister and the Court some five months ago that he should seek legal advice. He has not done so. His explanation before the Court is not satisfactory. But even in the circumstances presented, the applicant has not said what has changed such as to now facilitate his seeking legal advice. Further, given what follows, there is no basis to believe that any adjournment would be other than an exercise in futility. 
Ground of the Application
31.	It is quite clear that the application before the Court seeks to challenge the decision made by the Minister’s delegate, and not that made by the Tribunal. The claim against the delegate is that she fell into error because she relied on an “opinion” from an independent expert as to whether the applicant had been the subject of domestic violence, and that the applicant was denied procedural fairness when interviewed by that expert.
32.	Given the state of the law, even if some jurisdictional error were evident in the delegate’s decision, this Court has no power to grant the relief the applicant seeks given the provision of s.476(1) of the Act, and in light of s.476(4). Therefore the application to the Court, having regard to the sole ground as asserted, should be dismissed. 
33.	It is also the case that I agree with the Minister’s submission that, despite assertions to the contrary, the applicant has not otherwise explained how any failure of procedural fairness, or indeed any other legal error, occurred in circumstances where he was interviewed by an independent expert in relation to the matter of whether he suffered domestic violence, the applicant’s representative was notified of this expert’s opinion and was invited to submit any new evidence or make comment (CB 134 to CB 136 and CB 154). The fact that the applicant and his then representative elected not to make any response does not demonstrate any failure of procedural fairness by the Minister’s delegate.
The Tribunal’s Decision
34.	Although not raised as a ground in these proceedings by the applicant, some reference was made to the decision of the Tribunal elsewhere in the application before the Court. I did therefore consider whether legal error was attendant on the Tribunal’s analysis and conclusion that, in the circumstances, it did not have jurisdiction to review the delegate’s decision. In the circumstances presented to the Court, I can find no legal error in the Tribunal’s approach, nor in its conclusion.  
35.	In my view, given what was before it, The Tribunal correctly held that the notification of the delegate’s decision complied with the relevant statutory and regulatory requirements. Namely it had been sent by registered prepaid post to the address for service provided by the applicant’s representative (s.66(1), s.494B and s.494D(1) of the Act and [16] at CB 193). That is, the last address provided for the relevant purpose. 
36.	Further, the letter of notification was sent within three days of the date appearing on it (s.494B(4)(a) and s.494C(4)(a) of the Act and CB 182). Importantly, that letter of notification alerted the applicant to the fact that that decision was a decision reviewable by the Tribunal (s. 338 and s.66(2)(d) of the Act, and CB 149 to CB 150). As such the applicant was taken to have received the document seven working days after the date of that notice. That is by 29 June 2011. 
37.	The fact he claims not to have been notified by his authorised representative until sometime later in 2011 is immaterial in these circumstances. As I said to the applicant today, once he elected to be represented, and authorised that individual to receive correspondence on his behalf, he placed himself in the hands of the representative. For this purpose the representative stood in his shoes. As the Tribunal correctly found, “if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant… “ ([11] at CB 193 and s.494D(2) of the Act). 
38.	In all the circumstances I am satisfied that there is no legal error in the Tribunal’s decision that it did not have jurisdiction in this matter. So even if the applicant had raised such a ground it would not have succeeded. The applicant had nothing of substance to put before the Court, other than the application for an adjournment.
Conclusion
39.	The Court has no jurisdiction to deal with the complaint set out in the sole ground of the application, that is the assertion of legal error on the part of the delegate. In relation to the Tribunal’s decision, in respect of which the Court does have jurisdiction, there is no legal error in the Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision.
40.	In these circumstances, the application to the Court should be dismissed. I will therefore make an order dismissing the application to the Court.
Costs
41.	It is appropriate in this case that an order for costs be made. As I have already said, although unfortunately and regrettably for him, the applicant has come to this Court in a highly unprepared state. Nonetheless, he has come to this Court, and by so doing has brought the Minister also to the Court. The Minister has, as is his right, chosen to appear in this Court through his legal representatives. Those representatives have incurred legal costs in responding to the application. The impecunious state of the applicant is not a sufficient reason not to make the order. 
42.	In terms of the amount I am satisfied, having regard to the work actually done, and what is on the Court file, that the amount sought is a reasonable amount and I will make the order in the amount sought today.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  8 June 2012