Alum v Minister for Immigration and Citizenship

[2009] HCATrans 101

[2009] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S556 of 2008

B e t w e e n -

JAVED ALUM

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons for Directions

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 18 MAY 2009, AT 10.00 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear for the applicant. (instructed by Parish Patience Immigration Lawyers)

MS K.A. STERN:   May it please your Honour, I appear for the defendant.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Now, Mr Karp, you’re relying on two affidavits.  The first is that of Trilaksono Soeryoatmodjo which was filed on 15 December 2008.

MR KARP:   Your Honour, I am and I am also relying on another affidavit of Ilyong Jung of 18 March 2009.

HIS HONOUR:   I do not seem to have that at the moment, but it probably does not matter.  Ms Stern, do you object to those affidavits or any part of them?

MS STERN:   Your Honour, yes, we object to paragraph 5 of the affidavit of Mr Soeryoatmodjo on the basis that it is hearsay.  It is a matter that is, in any event, dealt with in the second affidavit, that of Mr Ilyong Jung, that my learned friend relies on.  I understand from discussions with my learned friend that he does not press paragraph 5 in those circumstances.  That is the only objection, your Honour.

HIS HONOUR:   Good, thank you.  Is that so, Mr Karp?

MR KARP:   It is, your Honour.  Your Honour, before we go any further, can I just say that my application today is for an adjournment.  That is on the basis that an affidavit from the Minister’s solicitors was served on my instructing solicitors on Friday.  That is the affidavit of Debra Elaine Bryant.  There are a number of matters in that affidavit that require my instructors to take instructions and reply to.

HIS HONOUR:   Before we just go any further, Mr Karp, Ms Stern, do you rely on that affidavit of Debra Elaine Bryant filed on 15 May 2009?

MS STERN:   Your Honour, we do.

HIS HONOUR:   Very well.  Now, you were saying, Mr Karp, that there were some matters you wanted to take instructions on?

MR KARP:   That is correct, your Honour.  The affidavit raises for the first time, formally I should say, questions of whether the email address to which Mr Jung, as a migration agent, sent material to the Minister was an unmonitored email address and whether, read with regulation 2.13, applies.  Now, there are a number of issues which stem from that.  The first is exactly what email address did Mr Jung send the successful skills’ assessment to.

HIS HONOUR:   Will that not emerge on the face of a document?

MR KARP:   Not necessarily, your Honour.  If your Honour can go to folio 1 of the exhibit to Mr Jung’s affidavit, if your Honour has that?

HIS HONOUR:   I have just sent someone off to see if they can find it, but I do have a recollection actually that, on the face of it, it does not contain either the correct email address or the offending email address. 

MR KARP:   It simply says “Processing ASPC”.  Now, exactly what that pertains to is something which I certainly need to take instructions on and which possibly my friend may wish to take instructions on. 

HIS HONOUR:   And where might you get these instructions from?

MR KARP:   From Mr Jung.

HIS HONOUR:   You are talking about some further search of documents in Mr Jung’s file that might reveal the correct – I do not know much about these things, but when one sends an email, one types out an email address and one can unload, as it were, the electronic communication and get a document that tells you what that email address was.  Are you saying there is some possibility that it may be possible to find out what the actual email address was to which it was sent?

MR KARP:   Yes, your Honour, that may be possible.  I am not electronically as literate as possibly I should be, but that is my understanding.  Mr Jung’s knowledge of this would be vital to my client’s case.

HIS HONOUR:   If it turned out that it had been sent to the correct email address, then your case would be extremely strong, no doubt. 

MR KARP:   It would.

HIS HONOUR:   Any other instructions that you need to obtain?

MR KARP:   Those are the instructions I think that are necessary at the moment.  I also need to consider, in the light of those instructions, the effect of regulation 2.13 and section 52 read together.  I am not at all persuaded, with respect to my friend, by her argument that one sentence in the space of a four‑page email reply, which outlines a large number of things, is sufficient notice to my client or to the agent that emails should not be sent

to that address.  But that is something which I would need to look at in addition after I get instructions.

HIS HONOUR:   Is there anything else you want to say in relation to the adjournment?

MR KARP:   Nothing further, your Honour.

HIS HONOUR:   Thank you, Mr Karp.  What is your position in relation to this adjournment application, Ms Stern?

MS STERN:   Your Honour, our position in relation to the adjournment is that we resist the adjournment on the basis that there is sufficient material before your Honour to draw inferences to which an email address, the email on 19 November was sent to, and that there is no other reason for the adjournment to be granted.  In relation to the late service of the affidavit of Ms Bryant – I am not sure whether your Honour has a copy of that affidavit. 

HIS HONOUR:   Yes, I do.

MS STERN:   If I could invite your Honour to turn to page 5, the pagination in the bottom right hand corner of the page, which is annexure A of the affidavit.  Your Honour will see that it comprises a letter which was sent to Mr Jung and which would plainly form part of the plaintiff, Mr Jung’s, file.  This document that is relied upon by the defendant and is annexed to Ms Bryant’s affidavit is a document which would at all times have been available to the plaintiff and which forms part of the essential factual context for the issues that are presented by this application.

HIS HONOUR:   If we just take that message from Julee Chea sent on 9 October 2007 at 1.09 pm, what do you get out of that particular page?

MS STERN:   Your Honour, that is an email which is sent to the applicant acknowledging the application for the visa and the last full paragraph on that page sets out that “This is a private work email address and returned emails will not be answered”.  That is part of the context of the department clearly notifying that there may be some email addresses which are permitted and which are not.  More particularly, there is a letter which was sent together with that email which commences at page 5.

HIS HONOUR:   Page 6, is it?

MS STERN:   Page 6, I apologise your Honour.  It is acknowledging receipt of the application.  Then over on page 7 your Honour will see two‑thirds of the way down there is a heading which says “By web form” in the left‑hand margin.  Two paragraphs above that is a very specific instruction as to how further documents can be provided:

If you need to send further documents in support of this application please refer to the section on Providing further documents in the attachment to this letter below.

That plainly applied to this applicant who had not sent a successful skills assessment, as required, together with his application.  If I could invite your Honour to turn through to page 10 which is part of the same document which was sent with Ms Chea’s email, your Honour will see a heading approximately just below halfway down the page, “Processing Information”.  Then in that section at the top of the next page, page 11, your Honour will see very clearly:

Information on processing is updated weekly and can be obtained by sending a blank e‑mail to:  [email protected].

Your Honour, that is the sending email address of the email reply which was exhibited to Mr Jung’s affidavit.  Your Honour, there is the further instruction that:

This is an automated service providing processing information only.  Please do not send any other enquiry or information to this e‑mail address.

Then, your Honour, over the page there is the heading which was referred to in the initial letter, namely, instructions on how to provide further documents and there are specific instructions in that section as to how further documents can be sent and the specific instruction in the last line under that heading:

Scanned documents should be emailed to [email protected].

So, your Honour, this affidavit shows clearly and without any ambiguity that instructions were given to the applicant through his migration agent as to the means by which further information was permitted to be sent by email to the Minister and included also a specific prohibition on sending documents to what, for ease of reference I will call the processing address.

HIS HONOUR:   Let us just take those words “specific prohibition”.  You get that out of?

MS STERN:   That is the top of page 11, your Honour. 

HIS HONOUR:   You were going to say something further. 

MS STERN:   I just wish to give your Honour the legislative context and its relevance.  Your Honour should have legislation which was copied by the defendant for the purposes of this application.

HIS HONOUR:   Yes.

MS STERN:   Your Honour will have under the Migration Act, section 52.

HIS HONOUR:   Yes. 

MS STERN: Section 52(1):

A visa applicant or interested person must communicate with the Minister in the prescribed way. 

HIS HONOUR:   Which really means, if a visa applicant is to communicate with the Minister then it is the prescribed way which must be chosen?

MS STERN:   Your Honour, yes, it is not a requirement to communicate as such, it is a requirement to communicate in the prescribed way. Your Honour may be aware that the “prescribed” way is defined in section 5, to mean in a manner “prescribed by the regulations”. Your Honour, section 52(2) sets out that:

The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. 

Your Honour, we also rely on section 56, which is two pages further on in the photocopied bundle.  Your Honour that is under the heading “Further information may be sought”.  Section 56(2):

Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

Your Honour, we say that can apply to a situation where it is not so much an invitation to give additional information as to an invitation that if additional information is to be provided it should be done in a specified way. 

HIS HONOUR:   Are you going to go to the regulation?

MS STERN:   Your Honour, I was just about to invite your Honour to turn to the regulation and, in particular, regulation 2.13 which is headed “Communication with Minister”.  Regulation 2.13(1) says:

For the purposes of section 52 of the Act (which deals with the way in which an applicant or interested person must communicate with the Minister), an applicant or interested person must communicate with the Minister about a visa application in the way provided in this regulation.

Then two pages on, regulation 2.13(6):

If an applicant (other than an applicant for a Visitor (Class TV visa) –

which is not relevant in the present case –

is required or permitted to produce a document in connection with the visa application, the document and the written communication that accompanies it may be in the form of an electronic communication only if . . . 

(b)the Minister has permitted the applicant or interested person to send the document by electronic communication.

HIS HONOUR:   May we take it that that note at the bottom of that page is irrelevant?

MS STERN:   Your Honour, for present purposes I do not need to rely on the note. I just rely on the text of the regulation together with the text of the legislation in sections 52 and 56.

HIS HONOUR:   What do you say about section 52(3)? If that subsection stopped at the word “received”, then of course your position on the assumptions of fact you are operating on would be unanswerable or hard to answer. Can it not be said that the Minister in fact received this document even though it was sent to the wrong email address and even though the plaintiff’s agent had been either specifically told not to or at least strongly advised not to?

MS STERN:   Your Honour, the Minister did not in fact receive the document.

HIS HONOUR:   Did the department not receive it?

MS STERN:   If I could invite your Honour to turn back to the affidavit of Ms Bryant.  Ms Bryant in paragraphs 3 to 6, which is page 2 of the affidavit, sets out the documents that are on the department’s file.  That does not include the email which was purported to be sent on 19 November 2007 which apparently exhibited the successful skills assessment.

HIS HONOUR:   I am sorry.  It does not actually say that those are the only things on the department’s file.

MS STERN:   No, your Honour, it does not.

HIS HONOUR:   Accepting that the document is not on the department’s file, is that not because the department, so far as I understand it, adopted a policy of not saving or filing any emails sent, as it were, to the wrong address?

MS STERN:   Your Honour, yes, but the question is whether or not that can be said that in the circumstances that it was sent to an unmonitored or unmanned email address and was not saved or filed, whether that should be taken to be in fact received by the Minister which is what is required for section 52(3). Your Honour, what we say is that there is no evidence before your Honour to suggest that the Minister in fact received the document which was ‑ ‑ ‑

HIS HONOUR:   The skills assessment.

MS STERN:   Your Honour, yes.

HIS HONOUR:   No doubt Senator Evans never received it and no doubt no responsible officer who might be advising the delegate or Senator Evans on this received it.  I appreciate that the department receives thousands of communications that it has to channel in various ways, but this is a most unfortunate case.  It is not the plaintiff’s fault that his application for a visa has not been considered on its merits and it may well not be the delegate’s fault either.  I will pause there and will not say anything more about whose fault it is, but the fact is that an apparently satisfactory skills assessment was sent to the department. 

When the department very late in the piece got in touch with Mr Jung and said, “We need two things, one of which is the skills assessment, kindly given to us straightaway”, he straightaway that very day sent off a skills assessment, but it was the wrong skills assessment.  It was the unsatisfactory skills assessment of 3 October 2007.  A series of slips and blunders has taken place.  In those circumstances I am not sure that it is easy to say that the department has not received the true skills assessment, even though it was not sent to the designated address.

MS STERN:   Your Honour, there is no escaping the facts of this case, but the question for your Honour is whether an order to show cause should be granted.  The only basis upon which an order to show cause is sought is on the basis of jurisdictional error on the part of the Minister.

HIS HONOUR:   The error was, it is said, that the delegate failed to take into account the existence of the valid skills assessment.  That is your understanding?

MS STERN:   That is my understanding, and your Honour, if I may say so, correctly highlighted section 52(3) which gives rise to a question. The question is whether or not an email which is sent to an address which is specifically described as an automated service to which documents should not be sent should be found by your Honour to have been received in fact by the Minister. Your Honour will be aware that the scheme of the legislation – and your Honour can see it from the provisions in section 52 – that there is, in effect, a form of deeming provision when documents are sent in the prescribed way and absent compliance with that prescription as to the method of providing documents, the document is not taken to have been received unless the Minister in fact receives it.

So, in effect, a dichotomy is set up by that section whereby if applicants and interested persons comply with a prescribed mode of communication, then they do not have to prove what is clearly difficult, which is, namely, that the Minister in fact received the document.  But if that prescribed method of communication is not complied with, and we say manifestly not complied with here, then the effect is that the Minister has no mandatory requirement to consider the information unless he or she has actually received it.

HIS HONOUR:   You cannot mean by he or she, though, Senator Evans?

MS STERN:   Well, the Minister or the delegate who is exercising the powers of the Minister for the purposes of the visa application.

HIS HONOUR:   On that basis, you could have something sent in the correct fashion which, owing to some internal departmental breakdown, did not find its way to the delegate and that would not be receipt by the Minister, on your argument.

MS STERN:   Your Honour, it would be, because if it was sent in the correct fashion, then it would be sent in the prescribed way.

HIS HONOUR:   I see, it falls within the opening words.

MS STERN:   Your Honour, yes.  That is why I indicated that there is, in effect, a dichotomy set up.  Whilst obviously there is room for sympathy on the facts of the present case, one has to look at the way the scheme operates in practice.  In my submission, it would be absurd if the Minister, through his department, were to establish and clearly notify a system of committed mode of communication and prohibited mode of communication and that notwithstanding that, he was nonetheless under a mandatory obligation to consider all information sent by the prohibited method.  In my submission, that would be an absurd and unworkable system.

HIS HONOUR:   Well, if it were not, though, for the fact that when Mr Jung was asked – I just forget the precise date, some date like 26 August 2008 – “Send these skills assessment by return” and he sent a skills assessment which it would seem was inadequate for the purpose because it was adverse to the plaintiff, it is strange that inquiry was not triggered, as it were. Mr Jung must have had in mind some other document obviously. He sent the wrong document. Just as he communicated with the wrong address, he sent the wrong document on that occasion. I mean, this may not be the jurisdiction or area that Mr Karp is pressing at the moment. I think section 52 subsection 3 is a difficult provision. We have drifted a fair way from the adjournment application. Have you got anything further to say in opposition to that?

MS STERN:    Your Honour, yes.  The only two further points we wish to make in opposition to the adjournment application is, firstly, that bearing in mind the legislative scheme to which your Honour has just referred, it was clearly incumbent upon the plaintiff either to show something to indicate that he was permitted to send documents by email or that the Minister had in fact received the document.  No such material was served together with the application or in the further affidavit served in March and, your Honour, in those circumstances it is difficult to see how your Honour would have been in a position finally to determine this matter today in any event.  Thirdly, your Honour, we do rely on the failure that my learned friend  ‑ ‑ ‑

HIS HONOUR:   That last submission is really an acceptance of the need for an adjournment.

MS STERN:   Well, your Honour, we say no, because we have put information before your Honour in the affidavit of Ms Bryant which shows the scheme of prohibition and prohibited modes of communication.  So were that not before your Honour, your Honour would have no information from which your Honour could have reached a conclusion that communication by email was permitted, in any event.  So we say that if we had not served anything from Ms Bryant, my learned friend to make good

his application would have needed to provide further information in any event.  All my learned friend had provided was two affidavits which set out that there was purported communication by email, but bearing in mind the legislative scheme and, in particular, the requirements of regulation 2.13, that clearly is not good enough to establish the jurisdictional area which is asserted. 

HIS HONOUR:   Yes, anything more on the ‑ ‑ ‑

MS STERN:   Your Honour, no, those are the only submissions resisting the adjournment application.

HIS HONOUR:   Thank you.  Yes, Mr Karp.

MR KARP:   Your Honour, if your Honour has Mr Jung’s affidavit.

HIS HONOUR:   Yes, I have that.

MR KARP:   The email of 19 November 2007 is at page 1 of the exhibit.  Paragraph 2 of Mr Jung’s affidavit refers to that.  Then at pages 3 and 4 of the exhibit there is the successful skills assessment which was sent along with the email, and paragraph 3 of Mr Jung’s affidavit refers to that.  Now, paragraph 4 of Mr Jung’s affidavit says:

I did not send any email communication to the ASPC on 19 November 2007, or on the two previous working days, other than that referred to in paragraphs 2 and 3 above.

Yet, in pages 4 to 7 of the exhibit to Mr Jung’s affidavit, there is an affidavit responding, quite clearly I would submit responding to Mr Jung’s email communication.

HIS HONOUR:   You said pages 4 to 7 there is an affidavit, I think you mean an email responding?

MR KARP:   There was an email responding, I am sorry, your Honour, yes. 

HIS HONOUR:   That is the 11.38 am email.

MR KARP:   That is correct, your Honour.  Now, there is a clear inference that Mr Jung’s email and the attachment were received at a departmental email address and responded to at pages 4 to 7.  That is the evidence which was put forward to the effect that the email and the skills assessment were in fact received.  But what my friend has put to your Honour and the way your Honour has indeed responded suggests that there are a number of issues arising in this case, not least of which are factual issues as to exactly what email address Mr Jung sent this document to and whether or not it was received by the department.  I would submit that Ms Bryant’s affidavit does not in terms deal with whether the skills processing decision was indeed received. 

Now, what I would propose to do in addition to getting instructions from Mr Jung is to ask my instructing solicitors to serve either a subpoena or a notice to produce on the department to search all email addresses that they have to find out whether this document was indeed received.

HIS HONOUR:   That technique is unlikely to produce a fruitful result if one believes Ms Bryant’s statement in paragraph 8 of her affidavit that the department has a policy of not monitoring the content and not saving or filing emails received at the ASPC processing address.  I appreciate your clinging to the hope that there might have been a correctly dispatched email, but the circumstantial evidence points to an email having been sent, but wrongly.  Ms Bryant is saying, we would have not saved that or not filed that, so there will not be any trace of it now.

MR KARP:   Well, there may or may not be, your Honour.  It may be that this email address, if it was sent to an incorrect email address, just collects emails without any monitoring.  It may be that incoming emails are simply deleted.  I do not know and, indeed, the Court does not know and Ms Bryant’s affidavit does not go to that.  In any case, there are these issues which I have raised and, indeed, which your Honour has raised which, in my submission, require further investigation as to the circumstances where this unfortunate series of events took place.

HIS HONOUR:   Can I just try and clear up a few small things with you.  You ask for an order enlarging time to the extent necessary.  There is no such occasion, is there, for any order of that sort?  You seek certiorari, but the application was in less than six months from the date of the decision of the delegate.

MR KARP:   It was, your Honour, and mandamus is a period of two months but the specific rule, I believe, only applies to an order of mandamus against a judicial tribunal of which this is not one.

HIS HONOUR:   Yes, right.  Next matter.  When, on 4 October, the plaintiff submitted an application for the visa through a migration agent, did that letter enclose a skills assessment of 3 October 2007 in which Trades Recognition Australia said that the application for a skills assessment was unsuccessful?  That is not in evidence.  That is the document that was in the end sent by Mr Jung the same day as he was told in haste to send the skills assessment.

MR KARP:   Your Honour, I do not know. I do know that there is a provision of the relevant Schedule 2 criteria to the effect that a skills assessment has to be applied for at the time of the application and clearly an unsuccessful skills application would satisfy that provision so long as a successful one was submitted by the time of the decision. I can refer your Honour to the specific provisions if you wish.

HIS HONOUR:   I am just interested in what there was before the delegate.  All we have is, in effect, the delegate’s reasons for decision.  Do we know anything more about that question?

MR KARP:   I am afraid not, your Honour.

HIS HONOUR: Apart from any question of section 52(3) and apart from any question of the relevant communications actually going to the correct address, what is your case?

MR KARP:   The case would be that if the communication went to an incorrect address it was in fact received.

HIS HONOUR: But that is really a section 52(3) argument you are relying on? You are relying on the last few words?

MR KARP: Yes. I think, your Honour, my case rests on section 52 and regulation 2.13.

HIS HONOUR:   What do you get out of regulation 2.13?  It is against you.  It is arguably and strongly arguably a prohibition.  It says if an applicant is required or permitted to produce a document – and certainly the 26 August 2008 request was a requirement – then you are entitled to give an electronic communication of that document only if the Minister has permitted the applicant to send a document by electronic communication.  That really means you can only do it in one way.  You must do it this way.  If you are to do it at all, you must do it this way.

MR KARP:   Yes.

HIS HONOUR:   There is nothing in that for you.  You have to fall back on 52(3).

MR KARP:   Except, at least arguably, sending a document by electronic communication is exactly what was done.  It was simply the address of which my friend complains.

HIS HONOUR:   Your point is it just says electronic communication, it does not say a particular mode of electronic communication?

MR KARP: Yes, or to an address permitted by the Minister. My friend used the word “prohibited”. That is not a word which appears in the legislation. Your Honour, getting back to the question you asked a couple of minutes ago, what apart from section 52 and the regulation do I rely on. This is not part of my case at the moment. There is an issue, I suppose, to whether the Minister was required in some way or by some means to make a search. I had not actually contemplated that until now. I understand there is a case before the Full Court in the next couple of weeks which goes to whether and in what circumstances inquiries should be made.

HIS HONOUR:   Can I ask you to look at Ms Bryant’s affidavit, annexure B, page 13.  That is when Mr Jung was asked, after an earlier letter of 30 June which is not in evidence and a “telephone call of today’s date” the contents of which are not in evidence, Ms Wiseman requested the skills assessment no later than 29 August and “no further extensions will be approved and no further reminders will be sent.”  Then a skills assessment result was sent.  Was that sent to the correct email address?

MR KARP:   I do not know, your Honour.  That is something I cannot inform your Honour about at all.

HIS HONOUR:   Well, Ms Bryant has it, so it cannot have been subject to the policy of not saving or not being filed.

MR KARP:   My friend has just pointed something out to me.  Annexure B, page 13, there is an email address at the bottom of that page, [email protected], and there is a ‑ ‑ ‑

HIS HONOUR:   This is a new permission, I suppose, is it?  Ms Wiseman is saying you can communicate electronically, please do so to adelaide.gsm.team?

MR KARP:   Yes.

HIS HONOUR:   It just seems to me there must be some inference open that the delegate – and it is not in the circumstances appropriate to criticise the delegate – but that the delegate did have the original application, one would think, the unsatisfactory skills assessment if it was sent with the original application which we do not really know, then the delegate would have had Ms Wiseman’s sort of final demand, as it were, followed by Mr Jung’s response to that final demand.  My trouble is that on the face of Mr Jung’s response, it is not a response which invites the question, what was Mr Jung intending to send that might have been useful?

MR KARP:  Yes, I can see that point, your Honour. On that basis, I would go back to the case which I articulated previously based on section 52 and regulation 2.13.

HIS HONOUR:   Very well.  You have nothing further to say?

MR KARP:   Nothing, your Honour.  I simply press the request for an adjournment.  Thank you, your Honour.

HIS HONOUR:   This is a very troubling case.  The plaintiff seeks relief by way of certiorari, mandamus, prohibition and an injunction against the defendant.  The parties agree that it is not possible to remit the matter to either the Federal Magistrates Court or the Federal Court of Australia.

The background is that on 3 October 2007 it seems that the plaintiff was informed by Trades Recognition Australia that his application for a skills assessment was unsuccessful. The next day, through a migration agent, he submitted an application for a Class VC subclass 485 Skilled (Provisional) Graduate Visa to the Adelaide Skilled Processing Centre of the Department of Immigration and Citizenship (“ASPC”). It seems that that application did not contain the skills assessment which would have been required before the visa could have been granted pursuant to paragraph 485.221(1) of Schedule 2 to the Migration Regulations 1994.

The essential difficulty in the plaintiff’s path is that when that application was acknowledged the ASPC, on the defendant’s case, ordered him to respond only to one particular email address, perhaps on the plaintiff’s case merely courteously requested him to do so, but what the agent for the plaintiff in fact did was to send a successful skills assessment to another email address.  There is no doubt that if one looks at the matter in hindsight, one can pick the relevant statements out of the quite complicated documents that were sent to the agent for the plaintiff and see the regime which the Department of Immigration and Citizenship had in mind but with which the agent for the plaintiff did not comply.

In due course, on 21 September 2008, a delegate of the defendant refused the application for a visa.  She did so on the ground that the plaintiff had not provided a suitable skills assessment.  Shortly before she reached that decision, after an officer of the department had asked for a suitable skills assessment, the agent for the plaintiff had sent the skills assessment of 3 October 2007, which was unsuccessful from the plaintiff’s point of view. 

The consequence is that there has not been a consideration on the merits of the plaintiff’s application.  There may have been other obstacles which the plaintiff had to overcome, but one clear obstacle, namely, the existence of a skills assessment favourable to him, could have been overcome if the correct document had been sent to the correct address instead of the position which actually prevailed, which was that the correct document was sent to the wrong address and the wrong document sent to the correct address.

The plaintiff’s prosecution of this application has not been particularly energetic.  The application to show cause was filed on 15 December 2008 supported by one affidavit.  On 13 March a further affidavit affirmed by the migration agent was supplied and although the matter could have been heard before now, it has not been heard before now.  On Friday, 15 May, the last working day before today, the day when the application was set down for hearing, the defendant filed an affidavit of Debra Elaine Bryant evidencing various practices with the department. 

The Counsel for the plaintiff, Mr Karp, has asked for an adjournment on the ground that he wishes to investigate, and support that investigation by the use of a subpoena or a notice to produce, the question of what documents were on the department’s file. Although Mr Karp did not put this to the forefront of his submissions, in the course of debate this morning an issue has arisen as to what the precise construction of section 52(3) of the Migration Act 1958 (Cth) is. Section 52(1) provides that a visa applicant “must communicate with the Minister in the prescribed way.” Subsection (3) provides, “If the applicant . . . purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.” There may be considerable room for argument about the meaning of the last seven words.

To my mind, the unfortunate position in which the plaintiff finds himself, and nothing in the evidence suggests that it is his personal fault, is such that he should be given every opportunity to investigate means of getting out of that position and returning to the position he was in just before the delegate began to consider the decision under challenge.  For that reason, which is not really perhaps a reason advanced by Mr Karp, I am disposed to accede to the adjournment application. 

I would say that the evidentiary position in this case is as untidy as is possible to imagine for what is factually quite a simple case.  I think it would be in the interests of the parties for that matter to be closely examined during the adjournment.  Now, Mr Karp, how long should this adjournment be for?

MR KARP:   Your Honour, I would wish an adjournment for four weeks.  During that time my instructing solicitors will file an affidavit with all the relevant documents, with a chronology.

HIS HONOUR:   Yes.  Today is 18 May, so four weeks would take us up to something like 22 June, is that right?  Monday, 8 June is a public holiday.  Let me just get one thing straight about this affidavit. 

MR KARP:   Your Honour, I am sorry, if I can interrupt for a second.  Prior to today’s hearing my friend and I discussed a simple timetable for the parties were the adjournment to be granted.  If I could suggest this timetable to your Honour.

HIS HONOUR:   Yes.  You have a document which I cannot see, perhaps you could just read it out.

MR KARP:   It is actually in my friend’s handwriting and I am having a bit of trouble reading it.

HIS HONOUR:   Perhaps Ms Stern can read it.

MR KARP:   Thank you, your Honour.

MS STERN:   Your Honour, I am in the fortunate position of being able to read my own handwriting.  Your Honour, we had suggested that there should be two weeks until 1 June for the plaintiff to file further affidavit evidence.

HIS HONOUR:   Yes.  Does Mr Karp agree with that?

MR KARP:   I do, your Honour.

HIS HONOUR:   Yes, very well.

MS STERN:   Then until 9 June for the plaintiff to file submissions.  Then 16 June for the defendant to file submissions, 18 June for the plaintiff to file any submissions in reply and then the application should be back before the Court on the first available date after the 22 June.

HIS HONOUR:   On 22 June the Court will be in Brisbane and we have done the best we can this morning with video link, but I think it is undesirable that the matter should be heard on video link to Brisbane.  Would Tuesday, 30 June be a day suitable for the parties?

MS STERN:   Your Honour, Tuesday the 30th is certainly suitable for my part.

MR KARP:   And for mine, your Honour.

HIS HONOUR:   It is suitable for Mr Karp?

MR KARP:   Yes, your Honour.

HIS HONOUR:   That timetable does not allow for any affidavit evidence in reply from the defendant.  I appreciate there may well not be any, but it does not allow for any time to issue a notice to produce and time within which it can be responded to.  Do you want to add that, Mr Karp?

MR KARP:   Your Honour, the notice to produce could be filed within the two weeks permitted for the ‑ ‑ ‑

HIS HONOUR:   It probably does not have to be filed.  It just has to be served.

MR KARP:   I am sorry, your Honour.  You are correct, your Honour.

HIS HONOUR:   I think in the circumstances it should be served very quickly, within a day or two.

MR KARP:   Yes, your Honour.

HIS HONOUR:   So if we said, for example, 20 May, to be responded to by 27 May?

MR KARP:   Your Honour, could it be 21 May?

HIS HONOUR:   Yes.

MR KARP:   I will be in Canberra tomorrow.

HIS HONOUR:   The only problem is, we have to bear in mind one of the teachings of Ms Bryant’s affidavit, which is that the Department of Immigration is not some little corner shop that has a tidy little bundle of documents.  It is a vast organisation with probably hundreds of thousands of people troubling it each year.  This notice to produce had better be something that is fairly easy to comply with.

MR KARP:   I understand, your Honour.

HIS HONOUR:   I will order that it should be complied with by 27 May, but if it cannot be, the Department, I think, will be in a position to get an indulgence.  Ms Stern, what do you say about this date, 27 May?  I know it is difficult to deal with in the abstract when one has not seen the notice to produce and I know that it might be quite a simple answer, namely, there is nothing, in which case ‑ ‑ ‑

MS STERN:   Your Honour, we anticipate being in a position to respond by 27 May and if there are difficulties and it requires some form of sophisticated investigation, then we will seek to agree some indulgence with my learned friend, if not, bring it back to the Court in some way, but I anticipate that 27 May should be fine.

HIS HONOUR:   Very well.  Is there any other direction that is needed?

MS STERN:   Your Honour raised the issue of evidence from the defendant.  Your Honour, we had not anticipated putting on any further evidence.  In the light of the point identified by your Honour as to whether or not the matter was as clear as it possibly could be in Ms Bryant’s affidavit, we may seek just simply to resolve that.  If there is any evidential matter that requires a response from the department, at present we cannot really see anything that would come out of the plaintiff’s evidence that would require a response, but if there is, I wonder if we might file that together with our submissions on 16 June?

HIS HONOUR:   Is there any problem with that, Mr Karp?

MR KARP:   No, your Honour.

HIS HONOUR:   Very well.  I make the following orders and directions:

1.The matter be adjourned for hearing on 30 June 2009.

2.On or before 21 May 2009 the plaintiff is to file any notice to produce he desires to on the defendant.

3.I order the defendant to comply with that notice to produce on 27 May 2009 or any later date agreed between the parties or fixed by the Court.

4.I order the plaintiff to file any further affidavit evidence on or before 1 June 2009.

5.I order the plaintiff to file written submissions on or before 9 June 2009.

6.I order the defendant to file written submissions on or before 16 June 2009 and also to file any evidence in reply.

7.I order the plaintiff to file any written submissions in reply to the defendant’s written submissions on or before 18 June 2009.

8.I fix the matter for hearing on 30 June 2009.

Does that cover everything?

MR KARP:   Yes, it does, your Honour.

HIS HONOUR:   Thank you for your attendance and assistance this morning.  I will now adjourn the matter.

AT 11.00 AM THE MATTER WAS CONCLUDED