ACN23 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 755
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
ACN23 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 755
File number: MLG 74 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 21 August 2024 Catchwords: MIGRATION – Judicial review – where Tribunal sent invitation to appear to incorrect email and incorrect postal address – where other email communications were sent to the correct email address – where Authority relied on repeated attempts to contact the Applicant before determining to proceed without requesting further information from the Applicant – whether actions of Authority unreasonable – HELD that the Authority acted unreasonably. Legislation: Migration Act 1958 (Cth) ss 5J, 36(2)(a), 36(2)(aa), 46A, 473CB, 473DB, 473DC, 473HA, 473HB(6), 473HD(5). Cases cited: ACN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 189 Number of paragraphs: 28 Date of hearing: 15 July 2024 Place: Melbourne Counsel for the Applicant: Ms Grinberg (Pro Bono) Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 74 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACN23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority made on 31 May 2021 in matter number IAA21/09126 be set aside.
2.The matter be remitted to the Immigration Assessment Authority for determination according to law.
3.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
4.On or before 23 August 2024 at 5:00 pm, the Applicant file and serve a written outline of submissions on costs, with such submissions to:
(a)be contained to 5 pages;
(b)identify the rule he relies on; and
(c)attach a schedule setting out how the costs sought have been calculated.
5.On or before 28 August 2024 at 12:00 pm, the First Respondent file and serve any written submissions, with such submissions to be no more than 5 pages in length.
6.The Application for costs otherwise be determined on the papers.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 21 August 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 31 May 2021. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) (‘visa’) (Court Book (‘CB’) 99).
The Applicant filed his application in this Court on 13 January 2023. The application was accompanied by an affidavit of the Applicant. The application was filed out of time and the Applicant, as part of his application, sought an extension of time for the filing of the application. The application to extend the time for filing was granted earlier this year: see ACN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 189.
On 17 June 2024, the Applicant filed an Amended Application (‘Application’). At the hearing, the Applicant relied on the Application, his affidavit filed 13 January 2023, his outline of submissions, various documents referred to in the Court Book, and a document contained in the Supplementary Court Book filed 12 July 2024 (‘Supplementary Court Book’). The Minister relied on his written outline of submissions, and various documents in the Court Book. The parties filed a Joint Bundle of Authorities that I have also had regard to.
For the reasons that follow, I have decided to allow the Application.
BACKGROUND
In his written submissions, the Applicant outlines the background history of the matter. Save for three matters (that I will come to), the Minister took no issue with the background as set out by the Applicant in his submissions. The background to the matter as set out in the Applicant’s submissions, is reproduced below, with redactions of personal information as appropriate:
3.The applicant arrived in Australia on 2 June 2013 as an unauthorised maritime arrival (CB22 and 29). He is an Iranian citizen (CB 23). The applicant participated in an Irregular Maritime Arrival and Induction Interview on the same day (Supp CB 1 – 18).[1]
[1] Supplementary Court Book filed 19 April 2023.
4.On 14 July 2016, via a letter from the Department of Immigration and Border Protection (Department) the applicant was invited to apply for a temporary protection visa or a safe haven visa (CB 1-2). The letter was sent to:
(a) [address in Kingsville, Victoria].
5.On 9 June 2017 the Department send [sic] the applicant a letter stating that the deadline for any such application was 1 October 2017 (CB 3 – 6). The letter was sent to:
(a) [address in Braybrook, Victoria].
(b) [address in Footscray, Victoria].
6.On 8 September 2017 the Department sent a further letter to the applicant again setting out the deadline of 1 October 2017 (CB 7 - 10). The letter was sent to:
(a) [address in Braybrook, Victoria].
(b) [address in West Brunswick, Victoria].
7.A ‘last notice’ about the deadline was sent to the applicant on 21 September 2017 (CB 11 - 14). The letter was sent to:
(a) [address in Braybrook, Victoria].
(b) [address in West Brunswick, Victoria].
Visa application
8.On 25 September 2017, the Department received the applicant’s application for a temporary protection visa (CB 19 – 65).
9.The applicant’s claims for protection were set out in an accompanying statutory declaration dated 22 September 2017 (CB 53 – 57). The [sic] included:
(a)The applicant was arrested when he was 13 years old for playing cards in public with friends.
(b)When the applicant was 15, in or around 2009, the police arrested him for having consumed alcohol. He was lashed around 20 times with a long electricity cable. His father picked him up and took him to see a doctor. He still has a scar on his leg.
(c)Between 2007 – 2010 the applicant was frequently stopped by either Basij or the Iranian police for minor offences. He would be stopped, harassed and threatened or detained until his parents came to get him.
(d)The applicant departed Iran on a real passport however he had to provide a false letter saying that he was exempt from military service in order for the passport to be issued.
(e)The applicant is agnostic and struggled to conform to the rules and practices of the Iranian authorities.
(f)The applicant was concerned he would soon have to begin compulsory military service in Iran; he is a pacifist and was opposed to this idea.
(g)After arriving in Australia, in mid to late 2013 the applicant received a summons requesting him to go to court.
(h) He then received an arrest warrant telling him to go the police.
(i) In 2015 the applicant received a second arrest warrant.
(j)The applicant fears that if the [sic] returns to Tehran he will be arrested, detained, and mistreated by the authorities for leaving the country illegally and travelling on a falsely obtained passport.
(k)He also fears being forced to complete compulsory military service, and fears that if he does not do this, he will struggle to obtain government ID cards, without which it is impossible to access basic services and live legally.
(l)The applicant also fears that he will be mistreated because he is agnostic and would also be considered a westernised Iranian on account of the time he has spent in Australia.
(m)The applicant also referred to issues with depression he had experienced in Australia.
10.In the application, signed 22 September 2017, the applicant provided the following contact details (CB 25):
(a) Postal address (same as residential): [address in West Brunswick, Vic]
(b) Phone number: [xxxx xxx 805]
(c) Email: [[email protected]]
11.By letter dated 26 September 2017, the Department acknowledged receipt of the application for a visa and stated that a decision had been made to lift the bar under s46A of the Act and allow him to make an application for a Safe Haven Enterprise visa (CB 62-63). The letter was sent to:
(a) [address in Braybrook, Victoria].
12.By letter dated 5 October 2017 the Department sent a further letter to the applicant acknowledging receipt of the visa application, informing him that he had been granted a bridging visa (CB 64 – 65). The letter was sent to:
(a) [address in Braybrook, Victoria].
13. In approximately January 2021, the applicant accidentally left his backpack, containing his mobile phone and wallet, on a tram in Melbourne. As he had lost his phone, he could no longer access his emails and so created a new email address: [[email protected]], and got a new phone number.[2]
[2] Applicant’s affidavit, sworn 11.01.23 at [6].
14.Three and a half years after the previous communication, by letter dated 26 March 2021, the Department requested the applicant to attend an interview on 9 April 2021 at 11:30am in relation to his visa application (CB 66 – 68). The letter was sent to:
(a) [address in Braybrook, Victoria].
(b) Transmission method: email to [[email protected]]
15.On 30 March 2021 the interviewing case officer sent an email to the applicant to confirm the interview time: CN [sic] 69 - 70. This email did not attach the letter from 26 March 2021. The email was sent to:
(a) [[email protected]]
16.The case officer sent a further email to the applicant on 9 April 2021 noting that he did not attend the scheduled interview regarding his application for a safe haven enterprise visa, requesting an explanation for the failure to attend, and noting that if he did not respond in 7 days a decision would be made on his case. This was followed up by a reminder email sent 13 April 2021 (CB 69). The emails were sent to:
(a) [[email protected]]
17.On 3 May 2021 a delegate of the Department (Delegate) refused the application for a protection visa. The notification of refusal letter stated that the application had been referred to the Authority for review (CB 71 – 91).
(a) [address in Braybrook, Victoria]
(b) Transmission method: emails to [[email protected]]
The Delegate’s decision
18.The Delegate noted that on 8 April 2021 the Department tried to contact the applicant on the mobile phone number provided to the Department, but the phone number was disconnected (CB 75).
19.The Delegate did not accept that the applicant had received any summons or arrest warrants, noting that no evidence of them had been provided by the applicant (CB 78).
20.The Delegate accepted that the applicant was detained for short period by authorities on various small misdemeanours but found that this did not result in any profile with the authorities (CB 78).
21.The Delegate did not accept that the applicant would be imputed with values that are against the Iranian Government or that he would face any harm due to any tattoos or westernised appearance. In reaching this finding, the Delegate noted that the applicant had failed to attend interview and as such the Department was unable to verify whether he had any tattoos (CB 78).
22.In relation to the applicant’s claim to be a pacifist, the Delegate considered these to be high level, rather general and unconvincing and, in the absence of an opportunity to discuss them at interview, was unable to accept them (CB 79).
23.The Delegate stated that without interviewing the applicant and testing his claims they were unable to be certain that he has evaded military service and so did not accept the claim (CB 79).
24.The Delegate did not accept that the applicant obtained a fraudulent military exemption to obtain a genuine passport by fraudulent means. The Delegate found that the applicant had departed Iran legally (CB 80).
25.The Delegate considered that without an opportunity to question the applicant they were left ‘with no option but to conclude’ that if the applicant does suffer from depression, it is mild and does not impact on his day to day life in any meaningful way (CB 80).
26.In relation to the applicant’s religion the Delegate stated that without having questioned the applicant they could not be convinced of the agnostic claim but that they were willing to accept that he is a non-practicing Muslim.
27.The Delegate was not satisfied that the applicant would be identified as a person of interest upon return to Iran, nor that he would suffer serious harm for reason of being a failed asylum seeker from a Western Country (CB 81 –83).
28.The Delegate found that the applicant did not have a well-founded fear of persecution for being a non-practising Muslim (CB 84 – 85).
29.In these circumstances the Delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under s36(2)(a) or (aa) of the Act.
The Immigration Assessment Authority
30.On 7 March 2021 the Authority attempted to email the applicant a letter acknowledging that his application had been referred for review. The cover email stated that the Authority would contact him by email rather than post unless he advised otherwise. The email stated that a copy of the letter had been sent by post (CB 88 – 95). The following email and postal address were used:
(a) [[email protected]]
(b) [address in Braybrook, Victoria]
31. Attached to the 7 May 2021 letter was the Practice Direction for Applicant’s, Representatives and Authorised Recipients (CB 91 – 95). This practice direction provided information on, among other things, the provision of written submissions to the Authority and circumstances in which the Authority would consider new information. Also attached the letter was a document titled What you need to know about the IAA, in English and Farsi.
32.On 13 May 2021, Mr Joshua O’Connell, from the Authority, emailed the Department seeking clarification of the correct postal address for the Applicant. The email noted that the 2021 interview invitation and refusal notification letter was sent to: [address in Braybrook Vic], however the Authority checklist records the applicant’s address as: [address in Meadow Heights, Vic]. The email also notes that the correspondence had been sent to the applicant’s email address in line with his agreement in his SHEV application to receive electronic communication (CB 96).
33.The Department responded to the Authority’s enquiry on the same day, providing the following information:
(a)Applicant’s current home address: [address in Meadow Heights] (from 8/10/18)
(b)Applicant’s current postal address: [address in Braybrook] (from 26/09/16)[3]
34.On 31 May 2021 the Authority emailed the applicant the Authority’s decision (CB 97 – 112). The email was sent to:
(a) [[email protected]]
[3] See ACN23 v MICMA [2024] FedCFamC2G 189 at [33].
The Authority’s decision (CB 99-112)
35.The Authority noted that the applicant was invited to attend an interview scheduled on 9 April 2021 to discuss his protection claims, and that this invitation was sent to him by email. The applicant did not attend the interview and two further emails were sent to him on 9 and 13 April, asking him to contact the Department. No response was received: [2 – 3].
36.The Authority stated that the email communication was sent to the email address given by the applicant in his protection visa application and that the applicant had agreed to the Department communicating with him by email: [7].
37.The Authority was satisfied the applicant was appropriately notified of the interview by the Department: [7].
38.The Authority noted that it had sent the applicant a letter on 7 May 2021 to the email address given in his protection visa application and that a courtesy copy was sent by post to the address given as his postal address. Also, an attempt was made to phone the applicant on 7 May 2021 and a voice mail message was left. No response was received from the applicant and no correspondence has been returned: [8].
39.The Authority then stated:
Noting the repeated unsuccessful attempts by both the department and the IAA to contact the applicant, including telephone calls and email to the email address given in the protection visa application, I am not satisfied that any further attempts to correspond with the applicant are warranted. In the circumstances I have decided to proceed on the information before me without inviting the applicant to provide further information. [9]
40.The Authority:
(a) Accepted the applicant’s identity and nationality [14].
(b)Accepted the applicant came to the attention for his behaviour [sic] and appearance in Iran due to breached of the moral code [15].
(c)Accepted the Basij continue to be a presence in Iran and continue to monitor the population and businesses for compliance with the moral code [16].
(d)Accepted that the applicant was arrested for consuming alcohol in 2009 and taken to a police station and held until his father came to collect him; but did not accept that he was lashed by the police [17].
(e)Accepted that the applicant is agnostic and growing up in Iran did not agree with the strict Islamic culture and struggled to conform to the rules and practices [22].
(f)Did not accept the applicant would face harm in Iran for reason of being agnostic or not practicing Islam [25].
(g)Accepted that the applicant preferred not to complete compulsory military training but was not satisfied that this is because he is a pacifist or for reasons of conscientious objection [27].
(h)Found that the applicant had a legitimate exemption from military service at the time he departed Iran [31].
(i)Did not accept that the applicant obtained a false military service exemption to obtain his passport and therefore did not accept he court [sic] summons or arrest warrants had been issued to the applicant to attend court in Iran [32].
(j)Did not accept that the applicant is of interest to the authorities in Iran because of his departure, or because he has not completed military service [32].
(k)Accepted that the applicant may be questioned on return to Iran because of his travel document but did not accept that this would result in harm or adverse interest [33].
(l)Accepted that the applicant had experienced depression in Australia but was not satisfied the applicant would be denied access to medical care for any s 5J reason [34].
(m)Was not satisfied there is a real change [sic] the applicant would experience harm as a result of returning as a failed asylum seeker [35].
(n)Was not satisfied the applicant met the requirements of the definition of a refugee [37], or the requirements for complementary protection in s36(2)(aa) of the Act [43].
41.In approximately June or July 2021, the applicant was in the Metropolitan Remand Centre in Melbourne for 10 days. During this time, he was contacted by the Department of Immigration. During this phone call, the applicant provided his new mobile number and email address. However, the applicant was not told that his application for a protection visa had been refused, he was under the impression that it was still being processed.[4]
42.On 23 December 2022, when he was assisted by the Asylum Seeker Resource Centre to contact the Authority, the applicant learned that his application for a protection visa had been refused. On 12 January 2023, the applicant lodged his application for review of that decision by this court.[5]
[4] Applicant’s affidavit, sworn 11.01.23 at [9] – [10].
[5] Applicant’s affidavit, sworn 11.01.23 at [17].
The three issues raised by the Minister in respect of the factual outline above are as follows. First, the Minister objected to the affidavit relied on by the Applicant. The Minister did not object to my reading the affidavit of the Applicant and it being used to prove ‘that, if some enquiry had been made, that perhaps some useful result might have ensued and the like’, however he did object to the affidavit being used for the purpose of assessing whether the Authority had acted reasonably at the time. The submission was in determining whether the Authority had made an error, regard could only be had to what the Authority knew at the time, and the Authority did not have the contents of the Applicant’s affidavit before it when it made its decision. I note that at the outset of the hearing, the Applicant accepted that proposition, and I accept it as well. I have therefore proceeded accordingly.
Second, the Minister raised the fact that the Applicant had not updated his contact details with the Department. This fact too, was accepted by the Applicant at the outset of the hearing.
Third, the Minister made a submission that the letters referred to in paragraphs [14] and [17] of the Applicant’s background (set out above) were not actually sent by post, but were sent by email only. I have reviewed the relevant documents in the Court Book. The letter of 26 March 2021 referred to in paragraph [14] of the Applicant’s background is addressed to the Applicant at an address in Braybrook. The letter clearly states, however, that the ‘Transmission method’ is by ‘Email sent to [[email protected]]’. Similarly, the letter of 3 May 2021 referred to in paragraph [17] of the Applicant’s background is addressed to the Applicant at an address in Braybrook, however the letter goes on to specify that the ‘Transmission method’ is by ‘Email sent to [[email protected]]’. The Applicant did not contest these submissions. In the circumstances, I accept that each of the letters referred to in this paragraph were sent by email only, and they were not posted by mail to the Applicant.
THE APPLICATION
Ground 1
The first Ground of Review in the Application is:
1.The decision of the Second Respondent (Authority) is affected by jurisdictional error because the Authority made unreasonable or illogical findings:
Particulars
a.The Authority noted that the applicant had not attended an interview with the delegate of the first respondent to discuss his claims for protection.
b.Prior to considering the applicant’s claims, the Authority considered whether to exercise its discretion under s473DC to invite the applicant to provide further information.
c.In deciding whether to exercise this discretion, the Authority had regard to previous attempts made to contact the Applicant.
d.The Department of Immigration, Citizenship and Multicultural Affairs (Department) had attempted to notify the applicant of the interview by a letter dated 26 March 2021, that was sent to an incorrect email address, and not the email address provided by the Applicant in his visa application.
e.The Authority found the 26 March 2021 letter was sent by email to the email address provided by the Applicant in his visa application.
f.The postal address on the letter dated 26 March 2021 was not the postal address provided by the Applicant.
g.A further email sent by the Department to the Applicant on 30 March 2021 did not attach the original correspondence and did not state what why the interview was being held.
h.Two follow-up emails were sent to the Applicant on 9 April 2021 and 13 April 2021.
i.Despite not receiving any response to the emails, no attempt was made to contact the Applicant at the postal address provided by him.
j.The Authority was satisfied the Applicant was appropriately notified of the invitation to attend an interview by the Department.
k.The Authority sent the applicant a letter dated 7 May 2021, by email and by post. The letter was sent the email address [sic] provided by the applicant but was not sent to the postal address provided by the applicant in his visa application.
l.The Authority found that the 7 May 2021 letter was sent to the postal address and email address provided by the applicant.
m.The Authority obtained information from the Department on 13 May 2021 that indicated that the Department had not updated the Applicant’s postal address since 26 September 2016, and that the postal address the Department had for the Applicant was different to the postal address provided by the Applicant as part of his visa application on 25 September 2017.
n.The Authority did not acknowledge or have regard to the fact that the Department had not updated its records with the postal address provided by the applicant as part of his visa application.
o.The Authority was not satisfied that any further attempts to correspond with the Applicant were warranted and, in those circumstances, decided to proceed without inviting the applicant to provide further information.
p.The Authority’s findings set out above at particular’s (j), (l), and (o), and the ultimate decision of the Authority not to exercise its discretion under s473DC to invite the applicant to provide further information, were unreasonable and illogical.
This Ground of Review takes aim, inter alia, at the decision of the Authority to proceed with its assessment without inviting the Applicant to provide further information. Section 473DC of the Migration Act 1958 (Cth) (‘the Act’) provides, among other things, that the Authority may in certain circumstances, get information that was not before the Minister when the Minister made his decision, and that the Authority considers may be relevant. While section 473DC of the Act permits (in certain circumstances) the Authority to obtain new information, the Authority is primarily required to conduct its review on the papers: see section 473DB of the Act.
The Authority turned its mind to whether it should seek to obtain new information from the Applicant. The reasons and decision of the Authority in this respect are set out at paragraphs [2] – [9] and are reproduced below:
2.The applicant was invited to attend an interview scheduled on 9 April 2021 with a delegate of the Minister for Immigration (the delegate) to discuss his protection claims.
3.The invitation dated 26 March 2021 was sent to him by email. On 30 March 2021 the applicant was sent a further email asking him to confirm his attendance at the upcoming interview. The applicant did not attend the interview. On 9 April and 13 April 2021, the applicant was sent further emails asking him to contact the department to arrange a new interview time. No response was received from the applicant.
4. The delegate refused to grant the visa on 3 May 2021.
Information before the IAA
5.I have had regard to the review material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).
6.The review material outlines attempts made by the department to invite the applicant to attend an interview to discuss his protection claims and the follow-up attempts made to confirm his attendance or arrange a new interview after he failed to attend the scheduled interview.
7.The email communication was sent to the email address given by the applicant in his protection visa application. At Question 37 of the protection visa application forms he stated he agreed to the department communicating with him by email. I am satisfied that the applicant was appropriately notified of the interview by the department and provided the opportunity to discuss his protection claims.
8.The IAA sent the applicant a letter dated 7 May 2021 acknowledging his case had been referred for review; this was sent to the email address given in his protection visa application and a courtesy copy was sent by post to the address given by the applicant as his postal address. The IAA also attempted to contact the applicant by telephone on 7 May 2021; the call went to voice mail and a message was left. No response has been received from the applicant in reply to the acknowledgement letter or the telephone message, nor has the letter or email correspondence been returned.
9.Noting the repeated unsuccessful attempts by both the department and the IAA to contact the applicant, including telephone calls and emails to the email address given in the protection visa application, I am not satisfied that any further attempts to correspond with the applicant are warranted. In the circumstances I have decided to proceed on the information before me without inviting the applicant to provide further information.
Applicant’s submissions
The Applicant contends that the findings of the Authority were unreasonable or illogical because:
(a)the letter of 26 March 2021 (being the invitation to attend for an interview with the Department) was never sent to nor received by the Applicant, and the finding of the Authority at paragraph [3] and paragraph [7] is illogical;
(b)while the email of 30 March 2021 was sent to the Applicant’s correct email address, that email did not attach the letter of 26 March 2021;
(c)the Authority failed to have regard to the fact that no attempt was made to contact the Applicant at the postal address he had provided;
(d)the letter from the Authority of 7 May 2021, while sent to the correct email address, was not sent to the postal address provided by the Applicant; and
(e)while the Authority referred to its attempts to contact the Applicant by telephone, it made no reference in its reasons to the information contained in the decision of the delegate that the number had been disconnected at the time the Department attempted to phone it.
In addition to the above, the Applicant pointed to information contained in the Supplementary Court Book which disclosed that the Authority had contacted the Department to check the correct contact details for the Applicant. The Department provided the Authority with a postal address that was different to the address the Applicant had used in his protection visa application form. The Applicant submits that the Authority had no regard to this fact in reaching its conclusion.
Given the above, the Applicant submitted that a finding by the Authority that further attempts to correspond with the Applicant were not warranted, and therefore the Authority proceeding to conduct the review without inviting the Applicant to provide further formation, lacks an evident and intelligible justification and is unreasonable.
Minister’s submissions
The Minister accepts that the Applicant did not receive the letter of 26 March 2021 either by post or by email. The Minister submits, however that the Applicant received all of the following communications:
(a)the email from the Department dated 30 March 2021. The Minister acknowledges that while this email did not contain a copy of the letter of 26 March 2021, it contained the following sentence: ‘I wanted to confirm your attendance at your interview on Friday 9th of April at 11:30 am. Are you able to reply via email to confirm you will be attending this’;
(b)the email from the Department dated 9 April 2021. This email contained the following:
You were scheduled to attend an interview regarding your application for a Safe Haven Enterprise Visa at 2 Lonsdale St at 11:30 am today, the 9th of April 2021. Unfortunately you did not attend this interview.
Please respond to this email within 7 days to explain why you did not attend today and to arrange a new interview time. If you do not reply within 7 days we will make a decision on your case using the information we have at hand and without any further contact with you.
(c)the email from the Department dated 13 April 2021. This email contained the following:
This email is a reminder that the Department of Home Affairs requires a response to the below email sent on 9 April 2021 regarding your non-attendance for your Save [sic] Haven Enterprise Visa interview.
Please respond to the below email by close of business Friday 16th of April 2021.
(d)the email from the Authority dated 7 May 2021. The email attached a ‘Acknowledgement of Referral letter’. The Applicant was advised in the email that the Authority ‘will contact you by email rather than post unless you advise us otherwise. A copy of this letter has been posted to [address in Braybrook, Victoria 3019]. The ‘Acknowledgement of Referral’ informed the Applicant that his matter had been referred to the Authority, and the Applicant was also advised to ‘tell us immediately if you change your contact details such as your email address, residential address, mailing address or telephone number’.
The Minister also submits that in reaching its conclusions, the Authority was relying on the email communications that were sent to the Applicant, and not the postal communications. The Minister notes that the Applicant expressly agreed to the Department communicating with him by fax, email or other electronic means in his protection visa application form. Further the Minister submitted that support for that construction he advances can be seen from the following:
(a)in reaching its conclusion at paragraph [9], the Authority expressly references attempts to contact the Applicant by telephone and by email, and makes no mention of attempts to contact the Applicant by post;
(b)paragraph [8] of the reasons of the Authority discloses that the primary means of communication that the Authority uses is email. So much can be seen from its use of the word ‘courtesy copy’ to describe the postal communication sent to the Applicant;
(c)the context of the reasons of the Authority support the conclusion that the Authority was relying on email communications to the Applicant. For example, in paragraph [3] of its reasons, the Authority refers only to email communication sent to the Applicant. In paragraph [7] of its reasons, the Authority refers again only to email communications, and expressly notes that the Applicant had agreed to the Department communicating with him by email. At paragraph [8] of its reasons, the Authority refers to its email of 7 May 2021 and provides a clear indication that post is not the principal means of communication when it refers to the Applicant having been sent a ‘courtesy copy’. In paragraph [9] of its reasons, the Authority expressly refers to telephone calls and emails, but not to post.
The Minister also submitted that the conclusion above is strengthened when one has regard to the scheme of the Act. The Minister points to section 473HA, 473HB(6) and 473HD(5). It was submitted that those provisions give the Authority the choice to give documents by email and where that occurs, the person has been deemed to have received documents in accordance with those provisions. The Minister also points out that the Applicant agreed to be contacted by email.
Consideration
It is necessary to make some initial observations about the reasons of the Authority:
(a)the only issue the Authority considered in determining whether to invite the Applicant to provide further information were the ‘repeated unsuccessful attempts by both the department and the IAA to contact’ him;
(b)the Authority is clearly wrong when it states at paragraph [3] that the invitation sent by the Department on 26 March 2021 was sent to the Applicant by email. The Department used an incorrect email address being [email protected]. The invitation of 26 March 2021 was not properly sent to the Applicant, and was never received by him. The Minister concedes as much;
(c)at paragraph [3], the Authority refers also to emails sent to the Applicant on 30 March 2021, 9 April 2021 and 13 April 2021. These emails were sent to the correct email address ([email protected]) being the email address nominated by the Applicant on his protection visa application form;
(d)the Authority states in paragraph [7] that the ‘email communication was sent to the email address given by the applicant in his protection visa application’. There is a question as to what the Authority is referring to when it uses the phrase ‘email communication’. A number of emails were sent to the Applicant by the Department and were referred to in paragraph [3] of the reasons of the Authority. In my view, the better view of the words ‘email communication’ in paragraph [7] is that it refers to all of the email communications listed by the Authority in paragraph [3] of its reasons. Had the Authority wanted to specify a particular piece of communication in this paragraph, it would have referred to it explicitly, as it had in the opening words to paragraph [3] of its reasons;
(e)the statement by the Authority in paragraph [7] that ‘email communication was sent to the email address given by the applicant in his protection visa application’ is partly correct, and partly incorrect:
(i)the statement above is clearly wrong insofar as it refers to the email communication sent to the Applicant on 26 March 2021; and
(ii)the statement above is correct to the extent that the Authority refers to emails sent to the Applicant on 30 March 2021, 9 April 2021 on 13 April 2021.
(f)the statement by the Authority in paragraph [8] of its reasons that its letter of 7 May 2021 had been ‘sent to the email address given in his protection visa application’ is correct; and
(g)the statement by the Authority in paragraph [8] of its reasons that ‘a courtesy copy was sent by post to the address given by the applicant as his postal address’ is incorrect, a matter the Minister accepted in written submissions.
The ultimate conclusion by the Authority under challenge is the conclusion at paragraph [9] that ‘Noting the repeated unsuccessful attempts by both the department and the IAA to contact the applicant… I am not satisfied that any further attempts to correspond with the applicant are warranted. In the circumstances I have decided to proceed on the information before me…’.
The conclusion of the Authority at [9] rests on the following. First, the conclusion in paragraph [7] that the ‘applicant was appropriately notified of the interview by the department and provided the opportunity to discuss his protection claims’. The conclusion that the Applicant was ‘appropriately notified’ of the interview rests in turn on the finding that all (and not some) of the ‘email communications’ referred to in paragraph [3] of the reasons of the Authority were sent to the email address given by the Applicant in his protection visa application’. For the reasons set out earlier, that is plainly incorrect. The letter of 26 March 2021 was never sent to the Applicant by email, or otherwise. This letter was significant. Its significance can be seen from the fact that the Applicant is instructed that ‘This letter is proof of your appointment and you will need to present this letter to the security guard together with any identification documents to be granted access into the office’. Thus, a significant foundation of the ultimate conclusion reached by the Authority at paragraph [9] is undermined. It is no answer to this to state that the Applicant was subsequently reminded of his interview in the emails that followed. The Authority was relying on all of the communications referred to at paragraph [3] having been sent to and received by the Applicant. That did not occur.
Second, the conclusion of the Authority at paragraph [9] rests on what the Authority refers to as the ‘repeated unsuccessful attempts’ to contact the Applicant. As noted, the Minister submits that the Authority was principally concerned with email communications to the Applicant, and to a lesser extent, telephone communications in reaching its conclusion that attempts had been made to contact the Applicant, and not postal communications. I am unable to accept that submission for the reasons that follow.
It is plain that the Authority (when its reasons are read fairly and in context) was relying on all of the unsuccessful attempts to contact the Applicant when it decided not to correspond with him further. I accept that the Authority referenced email communications in paragraphs [3], [7] and [8]. I also accept the Applicant had indicated a preparedness in his protection visa application form to be notified by email (as noted by the Authority at paragraph [7]). The Authority also, however, relied on its attempts to telephone the Applicant (at [8]). Moreover and importantly, the Authority plainly relied on, and took into account, its attempts to contact the Applicant by post at paragraph [8]. Not only did it expressly refer to a copy of the correspondence of 7 May 2021 being sent by post at paragraph [8], but it also expressly mentioned and referred to the fact that the letter had not been returned. There was no reason for the Authority to mention the copy sent by post at [8] (or even to send what it referred to as a courtesy copy) if it had not intended to rely on it in reaching its conclusion that there had been ‘repeated unsuccessful attempts’ to contact the Applicant.
The Minister seeks to downplay the importance of the letter of 7 May 2021 being sent to the wrong postal address by submitting that it is not of significance because it was only sent as a ‘courtesy copy’. In my view, little turns on that. By referring to the fact that a courtesy copy was sent by post and was never returned, the Authority was relying on the letter of 7 May 2021 being sent by post and never being returned as being a further fact to support its ultimate conclusion that further attempts to contact the Applicant were not warranted.
The Minister further submits that even though the Authority incorrectly referred to the 7 May 2021 letter being sent by post to the ‘the address given by the applicant as his postal address’, that mistake is not unreasonable because the Authority checked with the Department and quite reasonably relied on the information provided by it. That submission fails to take account of the fact that the Authority had the protection visa application form before it, which had the actual postal address nominated by the Applicant upon it, and that the address on the protection visa form post-dated by approximately one year, the record of address supplied by the Department (the Department email specified the Applicant’s postal address as being ‘from 26/9/16).
The Minister also submitted that the reference by the Authority in [9] to attempts to contact the Applicant ‘including telephone calls and emails to the email address given in the protection visa application’, point toward the conclusion that the Authority was not relying on postal communication, only emails and telephone. I disagree. The word ‘including’ is a word without limitation. I also refer to what I stated earlier. There was no reason for the Authority to refer to the copy it sent by post and the fact that copy was not returned, had it not intended to rely on it in reaching its ultimate conclusion at [9].
For all of the above reasons, the conclusion reached by the Authority at paragraph [9] lacks evident and intelligible justification and was unreasonable. The Authority in reaching its conclusion, relied on all previous attempts to communicate with the Applicant. There are clear errors made by the Authority in reaching its conclusions, and those errors are material. The particular circumstances that the Authority confronted required detailed examination of the material and careful checking. The reasons of the Authority do not grapple with nuances with which it was confronted. The failure of the Authority to do so in my view renders its ultimate conclusion as unreasonable. The Ground of Review should be upheld.
Given the conclusion above, and given the manner in which Ground 2 is pleaded and that it relies on the particulars to Ground 1, it is unnecessary to consider the matter further. The Applicant has succeeded, the decision of the Authority should be set aside, and the matter should be remitted to the Authority for reconsideration.
The Applicant seeks costs of $12,000. This amount exceeds the scale and I propose to hear submissions on this issue now and determine the matter separately.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 21 August 2024
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