Arunasalam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 168
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arunasalam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 168
File number(s): PEG 308 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 18 March 2022 Catchwords: MIGRATION – Proposed judicial review application – decision of the Administrative Appeals Tribunal – Business Skills (Residence) (Class DF) Visa – citizens of Singapore – whether Administrative Appeals Tribunal received notification of change of email address from migration agent – whether invitation to provide comment sent to correct email
PRACTICE AND PROCEDURE – Extension of time application – factors for consideration – whether grounds of proposed judicial review application reasonably arguable
EVIDENCE – presumptions concerning sending and receipt of electronic communications
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Electronic Transactions Act 1999 (Cth) ss 9, 14A, Sch 1
Electronic Transactions Regulations 2000 (Cth) Sch 1, items 44, 45
Evidence Act 1995 (Cth) ss 136, 161
Migration Act1958 (Cth) ss 359C, 360, 363, 379C, 379F, 379G, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cl 892.213
Cases cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 61
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726
WZAVH v Minister for Immigration & Anor [2016] FCCA 1020; (2016) 309 FLR 363
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 25 August 2021 Date of hearing: 25 August 2021 Place: Perth First Applicant: Appeared in person Second Applicant: Appeared in person For the Third Applicant: The First and Second Applicants (by leave) For the Fourth Applicant: The First and Second Applicants (by leave) Counsel for the First Respondent: Ms C. I. Taggart Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 308 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARVATHI ARUNASALAM
First Applicant
BALAKRISHNAN VENGADACHALAM
Second Applicant
DHARANEESH BALAKRISHNAN
Third Applicant (and another named in the Schedule)
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The applicants’ application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) filed 15 October 2020 for an extension of time in which to file an application under s 476 of the Migration Act be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LUCEV
INTRODUCTION
On 15 October 2020 the applicants filed an application for an extension of time (“Extension of Time Application”) under s 477(2) of the Migration Act1958 (Cth) (“Migration Act”) for the filing of a proposed application for judicial review (“ Proposed Judicial Review Application”) under s 476 of the Migration Act. The Proposed Judicial Review Application is in relation to a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 11 August 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse the first applicant, Ms Parvathi Arunasalam’s (“Ms Arunasalam”), application for a Business Skills (Residence) (Class DF) Visa (“Business Skills Visa”). By order of a Registrar of the Court dated 12 November 2020 the matter was listed for hearing of the Extension of Time Application, and if the Extension of Time Application was granted, final hearing.
The second applicant (“Mr Balakrishnan”) and the third and fourth applicants, are the family members of Ms Arunasalam, being, respectively, her husband and her two adult children. These applicants have no distinct claims of their own and their visa applications are dependent upon the success of Ms Arunasalam’s Business Skills Visa application.
EXTENSION OF TIME APPLICATION
Legislation and law
The Proposed Judicial Review Application was filed on 15 October 2020, 65 days after the Tribunal Decision was made, and was thus 30 days outside of the 35-day time limit under s 477(1) of the Migration Act. The Proposed Judicial Review Application is, therefore, presently incompetent by virtue of s 477(1) of the Migration Act and remains so unless this Court grants an extension of time pursuant to s 477(2) of the Migration Act, which provides this Court may, by order, extend that 35 day period as the Court considers appropriate if:
(a)an application for that order has been made in writing to the Court, specifying why an applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Extension of Time Application satisfies the requirement for an application in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make an order extending time for the filing of the Proposed Judicial Review Application. Whether such an order is necessary in the interests of the administration of justice is discussed further below.
In considering the law with respect to delay in making an application for judicial review under the Migration Act, regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:
(a)a limitation period is the general rule and an extension provision is the exception to it: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
(b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated.”: Brisbane South Regional Health Authority, CLR at 553 per McHugh J.
With the above statements of principle in mind, the factors the Court generally takes into account when determining whether it is necessary in the interests of the administration of justice to grant an extension of time, pursuant to s 477(2) of the Migration Act are well-established, but not closed, and can be summarised as follows:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)the merits of the Proposed Judicial Review Application,
see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Extent of, and explanation, for the delay
The extent of the delay is 30 days. Of itself, that might be a sufficient delay to defeat the Extension of Time Application without an adequate explanation or reasonably arguable merits: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J; WZAVH v Minister for Immigration & Anor [2016] FCCA 1020; (2016) 309 FLR 363 at [104] per Judge Lucev. The applicants alleged that the Tribunal failed to send the Tribunal Decision to an email address (“Claimed Email Address”) said to have been notified to the Tribunal on 15 April 2020 (“Alleged Notice”) and that the applicants were therefore unaware of the Tribunal Decision until the time for applying for judicial review in this Court had passed. If that were to be proven, it would constitute an adequate explanation for the delay, and the extent of the delay and the adequacy of the explanation (if proven) would not impede an exercise of discretion by the Court to grant the Extension of Time Application. If, however, the explanation is not proven, then the length of the delay and want of an adequate explanation must weigh not insignificantly against the grant of the Extension of Time Application.
Prejudice
The Minister made no submission as to any prejudice if the Extension of Time Application were to be granted. The Court notes, however, that an absence of prejudice is insufficient in itself to justify extending time: Hunter Valley Developments, FCR at 349 per Wilcox J. In the circumstances, prejudice is a factor that does not weigh against the grant of the Extension of Time Application.
Merits of the Proposed Judicial Review Application
Proposed grounds
The Proposed Judicial Review Application contains two proposed grounds of review set out at [50] (ground 1) and [55] (ground 2) below.
Law – whether reasonably arguable
In determining whether the merits of the Proposed Judicial Review Application are reasonably arguable it is not necessary for the applicants to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are reasonably arguable the Court is only required to deal with the grounds of review and to examine them in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review; the issue being not whether the applicants would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary, examination of the grounds of review reveals that any of the grounds of review might be reasonably arguable if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ).
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error in relation to a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The evidence
At the hearing of the Extension of Time Application, and to assist the Court in dealing with this matter, the parties tendered and led brief evidence about the sending and receipt of certain documents by email, so as to enable the Court to deal, at the requisite reasonably impressionistic manner, with the grounds of the Proposed Judicial Review Application.
At the hearing of the Extension of Time Application the affidavits of:
(a)Ms Parvathi Arunasalam sworn 13 October 2020 (“Arunasalam Affidavit”) filed by the applicants;
(b)Mr Massimo Cannavo affirmed 23 February 2021 (“Cannavo Affidavit”) filed by the Minister; and
(c)Ms Cody Nathalie Allen affirmed 11 August 2021 (“Allen Affidavit”) filed by the Minister,
were read, subject to the rulings made by the Court at hearing in respect of the Arunasalam Affidavit, discussed below at [14].
Arunasalam Affidavit
At hearing the Court made the following rulings regarding the admissibility of the evidence in the Arunasalam Affidavit:
(a)that the words “and/or the authorised recipient” and “after the authorised agent requested for the said documents form the Administrative Appeals Tribunal on 30 September 2020” of [2(g)] be struck out on the basis of hearsay;
(b)that the words “and/or authorised recipient also” of the first sentence and “or the authorised agent” of the third sentence of [2(h)] be struck out on the basis of hearsay;
(c)that the words “and the Tribunal had denied the applicant(s) natural justice” of [2(i)] be struck out on the basis that it is opinion;
(d)that the words “and/or the authorised recipient” and “after the authorised agent requested for said documents form the Administrative Appeals Tribunal on 30 September 2020” of the first sentence and “or authorised recipient” of the second sentence of [2(j)] be struck out on the basis of hearsay;
(e)that the words “As the applicant had not control over the matter” of [2(n)] be received as Ms Arunasalam’s opinion, and not as to the truth of the fact stated, pursuant to s 136 of the Evidence Act 1995 (Cth) (“Evidence Act”).
Relevantly, the Arunasalam Affidavit provides that:
(a)the Tribunal Decision to affirm the refusal of the Business Skills Visa was made on 11 August 2020: at [2(a)];
(b)the applicants were represented by Mr Jeyendran Ramachandran (“Mr Ramachandran”), a registered migration agent, whose email address for correspondence in relation to the Tribunal Review Application was the Claimed Email Address as notified to the Tribunal on 15 April 2020 in the Alleged Notice: at [2(b) and (c)];
(c)on 30 September 2020 Mr Balakrishnan rang the Tribunal and was informed that the Tribunal Decision had been made: at [2(e)];
(d)neither Mr Ramachandran nor the applicants received the Tribunal’s letter dated 14 July 2020 requesting specific information from the applicants (“Invitation”) or the Tribunal Decision: at [2(f), (g) and (h)] (noting there was no objection to the evidence in [2(f)]), and that the applicants were therefore unaware of the specific information requested in the Invitation: at [2(h)];
(e)the Invitation was sent to an email address (“Notified Email Address”) which was not provided to the Tribunal as the official email for communication in this matter, that official email being the Claimed Email Address in the Alleged Notice: at [2(l) and(k)]; and
(f)by the time that the applicants received the Invitation and the Tribunal Decision on 2 October 2020, the applicants were out of time for the making of a judicial review application under s 477 of the Migration Act.
Ms Arunasalam was not cross-examined.
Cannavo Affidavit and evidence
Relevantly, the Cannavo Affidavit provides that:
(a)Mr Cannavo is an Assistant Director – Platform Services with the Tribunal;
(b)that the Tribunal uses Secure Internet Gateway (“SIG”) as its first contact point for all incoming emails to the Tribunal from an external source, and that the incoming and outgoing email logs for each day are kept on a portal at SIG: at [2];
(c)Mr Cannavo had checked the email logs containing lists of all emails received on 15 April 2020 for records of emails with a source address the same as that of the Claimed Email Address, and a subject line reading “Case Number: 1827435” (as appeared in the Claimed Email Address), or containing the number “1827435” in the subject line, to investigate whether the Tribunal had received the email purportedly sent from the Claimed Email Address on 15 April 2020, and had found no record of an email from the Claimed Email Address at all, nor any with a subject line reading “Case Number: 1827435” or containing “1827435” sent on 15 April 2020: at [4] and [5]; and
(d)although he was not the officer who conducted the searches in October 2020 (which resulted in the applicants being advised by the Tribunal on 2 October 2020 that the “Tribunal has conducted thorough checks of our email records and can find no record of an email been received from the … [Claimed email address]”: Cannavo Affidavit, Annexure MC-2; CB 386) he believed that the search undertaken by the relevant case officer at that time was accurate: at [6].
Mr Cannavo was cross-examined in relation to his searches, and further explained that:
(a)all emails coming into the Tribunal network must pass through a network device called a gateway, and that there was “no other way” and “no other channel” for an email to reach the Tribunal network: Transcript, p 10; and
(b)“if an email is received at the … [Tribunal], a record should be found in there, in the table of that device, because that’s the first point of contact for emails to come in through into the network. If an email is not found in that device, it hasn’t reached the … [Tribunal]: Transcript, p 10.
Mr Cannavo was re-examined in relation to forwarded emails, and in relation thereto said that it was possible with a forwarded email to change the subject, and to change any information that is below the forwarded line, including the subject line and time and date sent, in the email being forwarded: Transcript, p 13.
Allen Affidavit
The Allen Affidavit attests to the existence of a Tribunal Practice Direction dated 31 July 2019 entitled “Giving Documents or Things to the AAT” (“Tribunal Practice Direction”).
Legislative provisions concerning the giving and receiving of documents
Section 379G of the Migration Act provides that where an applicant gives the Tribunal written notice of the name and address of another person, authorised by the applicant to receive documents in connection with the relevant review (the “authorised recipient”), the Tribunal must give the authorised recipient, instead of the applicant, any document that it would have otherwise given to the applicant. Where the Tribunal does give such a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant: Migration Act, s 379G(2).
Section 379F of the Migration Act exhaustively prescribes the ways in which a person may give a document or thing to the Tribunal. That provision applies whether the document or thing is required or permitted to be provided to the Tribunal. Three ways of giving a document or thing to the Tribunal are prescribed:
(a)by giving the document or thing to an officer of the Tribunal;
(b)by a method set out in directions under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”); or
(c)if the Migration Regulations 1994 (Cth) (“Migration Regulations”) set out a relevant method, by that method.
Relevantly to the present matter, a practice direction under s 18B of the AAT Act that set out how documents or things were to be given to the Tribunal had been made (“Tribunal Practice Direction”): Allen Affidavit at [1] and Annexure CNA-1.
The Tribunal Practice Direction had effect from 2 April 2020 until 7 December 2020 and relevantly provided that a document (other than an application for review) could be provided to the Tribunal by one of seven means. One of those means was by “giving” the document or thing to the Tribunal by emailing it to an email address nominated in the Tribunal Practice Direction.
For the purposes of s 379F of the Migration Act, no deeming provision is made under the Migration Act (or the Migration Regulations) as to when the Tribunal will have been taken to have received or been given a document or thing from an applicant. That is to be contrasted with s 379C of the Migration Act which prescribes when a person other than the Secretary will be taken to have received a document from the Tribunal.
With certain immaterial exceptions, the Electronic Transactions Act 1999 (Cth) (“Electronic Transactions Act”), Schedule 1, and Electronic Transactions Regulations 2000 (Cth) (“Electronic Transactions Regulations”), Schedule 1, items 44 and 45, did apply to the provision of information to the Tribunal for the purposes of s 379F of the Migration Act: Electronic Transactions Act, s 9.
Section 14A of the Electronic Transactions Act prescribes that, unless otherwise agreed between the originator and addressee of an electronic communication, the time of receipt of an electronic communication is:
(a)the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
Section 161(1) of the Evidence Act provides as follows:
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time--was received at that destination at that time.
Factual findings
The Court makes the factual findings set out hereunder.
The application for review in the Tribunal was commenced on 19 September 2018: CB 341 (“Tribunal Review Application”). In the Tribunal Review Application:
(a)Ms Arunasalam provided a personal email address (“Surabi Holdings Email”): CB 342;
(b)the applicants nominated a registered migration agent as their representative, that representative being Mr Ramachandran, and provided an email address for Mr Ramachandran, that email address being the Notified Email Address: CB 342-343; and
(c)uploaded a document identified as “APPOINTMENT OF AGENT JEYENDRAN.pdf”: CB 343.
The “Appointment of Representative Appointment of Authorised recipient – MR Division” (“September 2018 Appointment Form”): CB 344:
(a)is signed by Ms Arunasalam and Mr Ramachandran;
(b)appoints Mr Ramachandran as Ms Arunasalam’s representative and authorised recipient;
(c)provides the Notified Email Address as Mr Ramachandran’s email;
(d)agrees to the Tribunal sending all correspondence by email.
On 30 May 2019 the applicants’ representative and authorised recipient, Mr Ramachandran, was sent a letter by the Tribunal by email to the Notified Email Address (“30 May 2019 Ramachandran Letter”): CB 351-352, advising that (emphasis in original):
Our records show that you are currently the representative and authorised recipient for the above-mentioned applicants. We have recently received advice that your MARA registration … lapsed on 18 March 2019. We require you to provide information about any arrangements that may have been made for your clients.
Until advised of any new authorised recipient arrangements by the applicants, we are required to continue sending all correspondence to you. We will also send the applicants copies of all correspondence sent to you.
If another person is to be appointed as the applicant’s representative and authorised recipient, the applicants will need to submit a completed ‘Appointment of representative/appointment of authorised recipients – MR Division’ form –MR5.
If the applicants wish to cancel your previous appointment as their representative and authorised recipient but do not wish to appoint another person as their representative and authorised recipient the applicants should submit a completed “Change of contact details – MR Division’ form – MR6. Copies of these forms can be found on our website, have also written to the applicants to inform them that your registration is no longer current and to contact you to discuss whether you are able to continue to provide assistance (a copy of our letter is attached).
If you have any questions about this letter, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
The 30 May 2019 Ramachandran Letter was also sent to Ms Arunasalam at the Surabi Holdings Email: CB 350 and 352.
On 30 May 2019 the Tribunal also sent a letter specifically addressed to Ms Arunasalam at the Surabi Holdings Email (“30 May 2019 Arunasalam Letter”): CB 353-354, in which the Tribunal advised that (emphasis in original):
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Business Skills (Residence) (Class DF) visas.
In Australia, migration agents must be registered with the Office of the Migration Agents Registration Authority (MARA). We recently received advice that the MARA registration … of your nominated representative and authorised recipient Mr Jeyendran Ramachandran lapsed on 18 March 2019. You should contact Mr Ramachandran to discuss whether he is able to continue to provide assistance with your review application.
We are required to continue to send all correspondence to Mr Ramachandran unless you advise otherwise, in writing. While Mr Ramachandran continues to be your authorised recipient we will also send you copies of all correspondence.
If you wish to appoint another person as your representative and authorised recipient, please submit a completed ‘Appointment of representative/appointment of authorised recipient – MR Division’ form – MR5 (a copy is attached) to us.
If you wish to cancel your previous appointment of Mr Ramachandran as your representative and authorised recipient but do not wish to appoint another person as your representative and authorised recipient, please submit a completed ‘Change of contact details – MR Division’ form – MR6 (a copy is attached) to us. Copies of these forms can be found on our website, have also written to Mr Ramachandran to inform him about his current registration status and to ask for information about any arrangements that may have been made in your case (a copy of our letter is attached).
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131450.
The 30 May 2019 Arunasalam Letter was also sent to Mr Ramachandran at the Notified Email Address: CB 354.
The applicants say that the Claimed Email Address was notified to the Tribunal by Mr Ramachandran on 15 April 2020, that being the Alleged Notice: Arunasalam Affidavit at [2(d)]. Attached to the Arunasalam Affidavit is an “Appointment of representative/Appointment of authorised recipient – MR Division” form (“April 2020 Appointment Form”), which is signed by Ms Arunasalam (on 10 April 2020), but which is not signed by the representative or authorised recipient.
On 14 July 2020 the Tribunal sent an email to Mr Ramachandran at the Notified Email Address and invited the applicants to provide certain information and comments to the Tribunal by 28 July 2020 (“Invitation”): CB 363-367. The Invitation was not sent to the Surabi Holdings Email.
The applicants did not provide the requested information or otherwise respond to the Invitation. On 11 August 2020 the Tribunal, therefore, proceeded to decide the Tribunal Review Application without taking any other step to seek the information that had been identified in the Invitation: CB 372-378. The Tribunal took the view that, by reason of s 359C of the Migration Act, the applicants were not entitled to appear before the Tribunal to present evidence or information relevant to the Tribunal Review Application.
The Tribunal Decision was made on 12 August 2020. For each of the applicants to be eligible for a visa, Ms Arunasalam was required to satisfy the primary criteria prescribed by Subdivision 892.2 of Schedule 2 to the Migration Regulations. That requirement concerned a need for the main business connected to the applicants in Australia to have had an annual turnover of at least AUD $200,000 in the 12 months immediately before the Business Skills Visa application was made. The Tribunal was not satisfied that cl 892.213(2) of Schedule 2 to the Migration Regulations had been met: CB 377-378 at [28]-[32]. Accordingly, the Tribunal affirmed the Delegate’s Decision: CB 378 at [38].
The Tribunal Decision was sent to Mr Ramachandran at the Notified Email Address on 12 August 2020: CB 368-378.
On 30 September 2020 a person called Deva Menon (“Ms Menon”), seemingly from Mr Ramachandran’s office at JJDS Migration Services, emailed the Perth Registry of the Tribunal’s Migration and Refugee Division forwarding an email, which is the Alleged Notice, from her to the Tribunal dated 15 April 2020 attaching an “appointment letter” and asking for an update as to whether the hearing date had been fixed (“30 September 2020 Email”): CB 380. Although sent by Ms Menon the 30 September 2020 Email is signed off by “Jeyendran” (presumably Mr Ramachandran): CB 380. The attached “appointment letter”, which is the April 2020 Appointment Form, changes no detail of the relevant appointment, save for a change to the postal and email contact address, the latter to the Claimed Email Address: CB 381. The change in the email address from the Notified Email Address to the Claimed Email Address is, on its face, from the personal business email of Mr Ramachandran: CB 344, to the personal business email of Ms Menon: CB 381, with the business in both cases being JJDS Migration Services, designated in both the Notified and Claimed Email Addresses as “jjdsmigration.com.au”. The April 2020 appointment form:
(a)agrees to the sending by email of all correspondence from the Tribunal: CB 382;
(b)was signed and dated by Ms Arunasalam on 10 April 2020, but is not signed by the nominated “representative/authorised recipient”, namely Mr Ramachandran, or by anyone else nominated in that capacity: CB 382.
The only truly contentious factual issues in these proceedings relate to the receipt, and also arguably, the sending, of the April 2020 Appointment Form.
The applicants have provided no direct evidence about the giving of the Alleged Notice to the Tribunal. The applicants’ evidence effectively rises no higher than an assertion as to the sending, by a migration agent, Ms Menon, of the Alleged Notice and the evidence of the April 2020 Appointment Form, the latter not signed by the person sought to be appointed as “representative/authorised recipient”, Mr Ramachandran.
Neither of the migration agents concerned, Ms Menon or Mr Ramachandran, gave evidence, either at all, or more particularly, relevant to the sending of the Alleged Notice, the unsigned April 2020 Appointment Form, or the 30 September 2020 Email.
The Cannavo Affidavit establishes that the Alleged Notice was not received by the Tribunal and was, accordingly, not capable of being retrieved by the Tribunal at its nominated email address. In light of the evidence contained in the Cannavo Affidavit, no presumption is available under s 161(1)(d) or (e) of the Evidence Act that the Alleged Notice was received by the Tribunal.
Having regard to all the evidence, the Court has concluded, based primarily on the unimpeached evidence of Mr Cannavo, that the Tribunal did not receive the Alleged Notice.
Having regard to:
(a)the non-receipt of the Alleged Notice by the Tribunal;
(b)the fact that the April 2020 Appointment Form was not signed by the nominated “representative/authorised recipient”, namely Mr Ramachandran, or by anyone else nominated in that capacity;
(c)the fact that Ms Arunasalam did not put into evidence a copy of the April 2020 Appointment Form signed by the nominated “representative/authorised recipient”, namely Mr Ramachandran, or by anyone else nominated in that capacity; and
(d)that neither Mr Ramachandran nor Ms Menon were called to give evidence as to the sending of the April 2020 Appointment Form, or the sending of the 30 September 2020 Email allegedly forwarding the Alleged Notice and the April 2020 Appointment Form,
the Court has also concluded that there is no, or no sufficient, evidence that the April 2020 Appointment Form was ever sent to the Tribunal by either Ms Menon or Mr Ramachandran.
Whether grounds of the Proposed Judicial Review Application and the Surabi Holdings email matter are reasonably arguable
Applicants’ submissions
The applicants submit that:
(a)the failure of the Tribunal to send, in particular, the Invitation to the Claimed Email Address, denied the applicants the opportunity to put before the Tribunal information and comments sought by the Tribunal relevant to the Tribunal Review Application, and that the applicants were therefore denied procedural fairness; and
(b)had the Invitation been sent to Surabi Holdings, it would have been irrelevant that the Invitation was not sent to the Claimed Email Address, as the applicants would have received it and been able to respond.
Minister’s Submissions
The Minister submitted that:
(a)the evidence revealed that the Tribunal did not receive the Alleged Notice and the Tribunal, therefore, complied with its obligations under s 379G of the Migration Act by sending the Invitation and the Tribunal Decision to the Notified Email Address; and
(b)the mere fact that, following the 30 May 2019 Arunasalam and Ramachandran Letters, no further correspondence was sent by the Tribunal to the Surabi Holdings Email, does not establish that the applicants relied upon, or acted to their detriment in reliance upon, the Tribunal’s advice that future correspondence would also be sent to the Surabi Holdings Email.
Proposed ground 1
Ground 1 of the Proposed Judicial Review Application is as follows:
1.The Tribunal denied the applicant natural justice when the applicant was denied the opportunity to respond or comment to the specific information request by the Administrative Appeals Tribunal in their letter dated 14 July 2020.
The duty to afford procedural fairness is an obligation to ensure that the process followed or adopted by the decision-maker leading to the making of a decision is practically fair: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 (“Lam”) at [37] per Gleeson CJ; Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 at [38] per Bell, Gageler and Keane JJ. A critical question in this case is whether a procedural failure by the Tribunal, if any occurred, deprived the applicants of the possibility of a successful outcome: Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 at [60] per Gageler and Gordon JJ.
The alleged procedural unfairness must arise from the process or procedure adopted by the Tribunal. The procedure adopted by the Tribunal is a question of fact.
The Tribunal’s processes and procedures in this matter were not practically unfair for a number of reasons:
(a)the Alleged Notice was not received by the Tribunal;
(b)there is no, or no sufficient, evidence that the Alleged Notice was sent to the Tribunal;
(c)there is no evidence that the Tribunal’s processes or procedures caused the Alleged Notice not to be received by the Tribunal; and
(d)there was no error (whether jurisdictional or otherwise) in the Tribunal providing the Invitation (and subsequent communications) to the Notified Email Address rather than the Claimed Email Address identified in the Alleged Notice. Indeed, providing the Invitation to the Notified Email Address (that is the email address of the authorised recipient) was in compliance with the legally prescribed procedures under s 379G of the Migration Act.
It follows from the foregoing that ground 1 of the Proposed Judicial Review Application is not reasonably arguable as a basis for asserting jurisdictional error in the Tribunal Decision, or on the part of the Tribunal.
Proposed ground 2
Ground 2 of the Proposed Judicial Review Application is as follows:
2.The Tribunal made the decision on 11 August 2020 without the Applicant's response to the Administrative Appeal Tribunal's special information request which was crucial and relevant to the applicant's case and committed procedural and jurisdictional error.
The Court repeats its findings at [53] above, and in relation to proposed ground 2 the Court observes as follows:
(a)in the absence of any reply to the Invitation, the applicants were not entitled to a hearing before the Tribunal: Migration Act, ss 360(3) and 363;
(b)the Tribunal became entitled - but not obliged - to determine the Tribunal Review Application without taking any other steps to obtain the information that had been sought in the Invitation: Migration Act, s 359C; and
(c)having invited the applicants to provide the information identified in the Invitation and having received no response to that Invitation, the Tribunal decided to determine the application on the basis of the information before it and without a hearing, as it was entitled to do: Migration Act, s 359C. It is noted that in the Tribunal Decision the Tribunal observed that there had been no response to the Invitation and the Tribunal, therefore, proceeded to make the Tribunal Decision without a hearing: CB 373 at [6]. There was no unfairness in the process or procedure adopted by the Tribunal in so deciding, as it followed a process prescribed by the Migration Act.
It follows from the foregoing that ground 2 of the Proposed Judicial Review Application is not reasonably arguable as a basis for asserting jurisdictional error in the Tribunal Decision, or on the part of the Tribunal.
Surabi Holdings Email
No practical injustice: Lam at [37] per Gleeson CJ, would appear to arise by reason of the failure of the Tribunal to forward the Invitation (and the Tribunal Decision) to the Surabi Holdings Email. That is because in circumstances where the April 2020 Appointment Form was relied upon by the applicants as having been sent to, and received by, the Tribunal, there can have been no expectation that correspondence would continue to be sent to the Surabi Holdings Email. That is particularly so where the April 2020 Appointment Form, signed by Ms Arunasalam, re-appointed Mr Ramachandran as the applicants’ “authorised recipient”, provided the Claimed Email Address to the Tribunal, and expressly nominated that all correspondence from the Tribunal would be sent by email.
It follows from the foregoing that the Tribunal not sending the Invitation and Tribunal Decision to the Surabi Holdings Email is not reasonably arguable as a basis for asserting jurisdictional error in the Tribunal Decision, or on the part of the Tribunal.
Conclusion on whether grounds of the Proposed Judicial Review Application and Surabi Holdings Email matter are reasonably arguable
For the reasons set out at [50]-[59] above, the grounds of the Proposed Judicial Review Application and the other matters raised and considered are not reasonably arguable as a basis for asserting jurisdictional error in the Tribunal Decision, or on the part of the Tribunal.
Further consideration of the reason for and length for the delay
The applicants’ case is premised upon the contention that by sending the Alleged Notice on 15 April 2020, the Tribunal was advised that Mr Ramachandran’s contact details had changed. The applicants contend that the Tribunal did not send correspondence to the Claimed Email Address identified in the Alleged Notice and that consequently the applicants were prevented from receiving the Invitation and the Tribunal Decision. The fundamental difficulty for the applicants is that the Court has found that there is direct and unimpeached evidence that the Tribunal did not receive the Alleged Notice: see [46] above; also Cannavo Affidavit at [4]-[6]. Whilst the applicants’ explanation for the delay is understandable, it does not assist the applicants in circumstances where there is no reasonably arguable case of jurisdictional error in relation to the proposed grounds of the Proposed Judicial Review Application, or in relation to the Surabi Holdings Email issue. Further, the length of the delay, whilst not significant, is also not insignificant.
CONCLUSION AND ORDERS
Having:
(a)particular regard to the significance of the failure of the applicants to make out that the grounds of the Proposed Judicial Review Application and the Surabi Holdings Email matter are reasonably arguable as a basis for asserting jurisdictional error in the Tribunal Decision, or on the part of the Tribunal, and are therefore unlikely to have any reasonable prospect of success; and
(b)some regard to the not insignificant length of the delay in filing the Proposed Judicial Review Application, the explanation for the delay and the absence of prejudice to the Minister,
the Court has concluded, primarily because there is no reasonably arguable case of jurisdictional error in the Tribunal Decision or on the part of the Tribunal, that it should not exercise its discretion to extend time for the filing of the Proposed Judicial Review Application. It follows that there will be an order that the Extension of Time Application be dismissed.
Due to the dismissal of the Extension of Time Application, it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 March 2022
SCHEDULE OF PARTIES
PEG 308 of 2020 Applicants
Fourth Applicant:
SIVAKUMAR BALAKRISHNAN
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