Beni v Minister for Immigration and Anor
[2018] FCCA 756
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 756 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction due to late lodgement of the review application – whether an email is transmitted when it is not received considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116, 338, 379A, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 Sainju v Minister for Immigration [2010] FCA 461; (2010) 185 FCR 86 Sainju v Minister for Immigration & Anor [2009] FMCA 1206 |
| Applicant: | SHARMILA DEVI TULLOO BENI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3479 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers |
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
ORDERS
The application lodged on 8 December 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3479 of 2016
| SHARMILA DEVI TULLOO BENI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 27 March 2018, I dismissed the judicial review application in this case with costs. The following are my reasons for those orders.
The applicant (Ms Beni) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 November 2016. The Tribunal found it did not have jurisdiction in the review before it on the basis that the review application was not filed within the prescribed time limit.
The following statement of background facts is derived from the submissions of the parties.
Ms Beni is a citizen of Mauritius. On 10 September 2014, she was granted a Class UC (subclass 457) visa.[1]
[1] Court Book (CB) 2
On 27 July 2016, a delegate of the Minister (delegate) made a decision to cancel the visa, exercising the discretionary power to cancel contained in s.116 of the Migration Act 1958 (Migration Act).[2] Ms Beni was notified by email of this decision on the same day.[3] The cancellation decision was emailed to Ms Beni at [email protected], which was the email address provided by her for communication with the Minister’s Department.[4]
[2] CB 20
[3] CB 19-31; also see Annexure A to the affidavit of Ada Oi-Yee Wong sworn on 8 December 2017
[4] CB 10
Ms Beni claimed that she never received the delegate’s decision until 9 August 2016.[5] On 9 August 2016, Ms Beni sought review of that decision by the Tribunal.
[5] CB 47 at [6]; see also affidavit of Ms Beni, affirmed on 2 March 2018, at [8]
After forming the preliminary view that the application for review was lodged out of time, the Tribunal on 19 September 2016 invited Ms Beni to comment on the validity of the application for review.[6]
[6] CB 38-40
On 29 September 2016, the Tribunal received detailed submissions[7] from Ms Beni’s representative together with a statutory declaration from Ms Beni[8] and screenshots of Ms Beni’s email account.[9] In the screenshots, Ms Beni attached images from her email inbox from 26 July 2016 to 31 July 2016.[10] Ms Beni also attached the screenshot of 9 August 2016 which, in turn, attached the delegate’s decision.[11] Ms Beni asserted this was the “the first time” she had received the delegate’s decision.[12]
[7] CB 43-46
[8] CB 47-49
[9] CB 50-62
[10] CB 50-62
[11] CB 65-78
[12] CB 62-63
On 24 October 2016, the Tribunal sought clarification from the Minister’s Department regarding the method, date and record of transmission of the letter notifying Ms Beni of the decision to cancel her skilled visa.[13] On 25 October 2016, the Tribunal received from the Minister’s Department screenshots of outbound emails. The screenshots showed an email which had the subject line “BCC/2016/122401 – C6ZNDLZVR – TULLOO-BENI, SHARMILA DEVI – notification of decision” and date sent being 27 July 2016. The Minister’s Department advised that no delivery failure was received.[14]
[13] CB 79
[14] CB 80-83
The Tribunal accepted that Ms Beni did not receive the delegate's decision until 9 August 2016. However, the Tribunal found that the delegate's decision was despatched by email on 27 July 2016.[15]
[15] CB 90 at [11]
In finding that the decision was sent by email on 27 July 2016, the Tribunal determined that the application for review of that decision had to be made to the Tribunal by 5 August 2016.[16] As such, the Tribunal concluded that it did not have jurisdiction to review the delegate's decision.[17]
[16] See rule 4.10(1)(b) of the Migration Regulations 1994 (Cth) (Regulations), which prescribes that the time limit for seeking review for a decision to which s.338(3) applies, starts when the applicant receives notice of the decision and ends at the end of seven working days after the day on which the notice is received
[17] CB 91 at [19]
The present proceedings
These proceedings began with a show cause application lodged on 8 December 2016. Ms Beni continues to rely upon that application. The single particularised ground in that application is:
1. The Second Respondent failed to conduct the review required by s.348 of the Migration Act 1958 and or misinterpreted and misapplied the applicable law.
Particulars:
(i) The Tribunal found that it did not have jurisdiction to review the Applicant's application for review of a decision made on 27 July 2016 by a delegate of the Second Respondent to cancel her Class UC (subclass 457) visa ('the delegate's decision').
(ii) The Applicant claimed that she did not receive the email that is said to have been sent to her on 27 July 2016, and which is said to have had the delegate's decision attached to it. The Tribunal found that it did not need to consider whether the Applicant did receive the email, because it concluded it only needed to consider whether the decision was sent by email to the Applicant by the Department of Immigration and Border Protection ('DIBP') on 27 July 2016. It found that it had been sent to the Applicant to an email address given to DIBP by the Applicant and therefore found that the Applicant is deemed to have received the decision at the end of the day on 27 July 2016.
(iii) The Tribunal misinterpreted and misapplied the applicable law because r 2.55(3)(d)(ii) of the Migration Regulations 1994 ('the regulations') provides that a document given by email must be transmitted. Relevantly, r 2.55(8) of the regulations provides that if the Minister gives a document to a person by transmitting it by e-mail, the person is taken to have received the document at the end of the day on which the document is transmitted.
(iv) The question then is whether the delegate's decision was transmitted. A communication is only transmitted if it is sent and received. As the Tribunal found that the decision was not received by the Applicant, the decision was not transmitted. As such, the delegate's decision was not given in accordance with r2.55. The seven working day period to seek review of the delegate's decision therefore did not start to run until the Applicant received actual notification of the delegate's decision. As the Applicant made the application for review to the Tribunal within seven working days of actual receipt of the delegate's decision, the Tribunal had jurisdiction to determine, and was required to determine, the Applicant's review application. It therefore committed jurisdictional error by finding that it did not have jurisdiction to review the delegate's decision.
In addition to the court book filed on 15 March 2017, I have before me as evidence the affidavit of Ada Oi-Yee Wong made on 8 December 2017 detailing the communication of the decision of the delegate to Ms Beni and the affidavit of Ms Beni made on 2 March 2018, in which she deposes as to her non-receipt of that communication. Neither of the deponents were required for cross-examination.
Ms Beni and the Minister both filed pre-hearing submissions. Only brief oral submissions were made at the trial, given that the legal principles binding this Court are clear.
Consideration
Regulation 2.55 of the Regulations relevantly provided, on 27 July 2016:
2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(ab) the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and
(b) the giving of a document under subsection 501G(3) of the Act relating to a decision to:
(i) cancel a visa under section 501, 501A, 501B, 501BA, or 501F of the Act; or
(ii) not revoke a decision to cancel a visa under section 501CA of the Act; and
(c)the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
Note: See regulation 5.02.
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
Note: Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.
(3A)If the person is a minor, the Minister must give a document mentioned in paragraph (1)(a) or (c) in 1 of the following ways:
(a) by handing it to the minor personally;
(b) by handing it to another person who:
(i) is at the last residential or business address for the minor that is known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the minor’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the minor’s last fax number, e‑mail address or other electronic address known to the Minister;
(e) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to a carer of the minor at the last residential address, business address or post box address for the carer of the minor that is known to the Minister;
(f) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to a carer of the minor at the last fax number, e‑mail address or other electronic address for the carer of the minor that is known to the Minister.
(4)Subject to subregulation (4A), for a document mentioned in paragraph (1)(ab) or (b):
(a)if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b)if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
Note: Subregulation (4A) deals with giving documents mentioned in paragraph (1)(b) to minors.
(4A) If the person is a minor:
(a)the Minister must give a document mentioned in paragraph (1)(ab) or (b) in 1 of the ways mentioned in subregulation (3A); and
(b)if the minor has held the visa for at least 1 year when the document is to be given, Immigration must try to find the minor.
(4B)If the Minister gives a document to a carer of the minor in accordance with this regulation, the Minister is taken to have given the document to the minor.
(4C)Nothing in subregulation (4B) prevents the Minister giving the minor a copy of the document.
(5)If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6)If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7)If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
(8)If the Minister gives a document to a person by transmitting it by fax, e‑mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
(9)If:
(a)the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b)the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c)at the time specified by this regulation for that method; or
(d)if the person can show that he or she received the document at a later time—at that later time.
Relevantly, regulation 2.55(3)(d) provided:
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
…
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
The evidence appears to indicate that the delegate’s decision was emailed to the last email address of Ms Beni known to the Minister.[18] The question is whether, by so sending by email, the Minister has given the decision (accompanying letter and decision record) by “transmitting” it for the purposes of regulation 2.55(3)(d).
[18] see affidavit of Ms Wong, sworn on 8 December 2017, at [3] and Annexure A
The Tribunal decision
As noted above, the Tribunal found it had no jurisdiction to review the delegate’s decision.[19] The Tribunal found that the email received on 9 August 2016 and the documents in that email (being the notification of cancellation and decision record) were merely courtesy copies of the documents which had been previously sent to Ms Beni on 27 July 2016, “for the benefit of the applicant”.[20] In this regard, the Tribunal noted that the subject title of the email was “FW: Scan Data from NSWSYC-MFDL4Q3”.[21] The Tribunal rejected Ms Beni’s claim that the email received by her on 9 August 2016 could be considered the date Ms Beni was notified of the decision.[22]
[19] CB 88-91
[20] CB 90 at [12]
[21] CB 89 at [8]
[22] CB 90 at [12]
The Tribunal was “prepared to accept” Ms Beni did not receive the email regarding the cancellation of her visa in her inbox on 27 July 2016.[23] However, the Tribunal noted Ms Beni’s inbox had 18,648 unread messages and although “not absolutely clear” from the screenshots provided, it appeared from the left-hand side of the screenshots that Ms Beni had other mail folders which contained unread messages. The Tribunal found “it was possible” that the email had “gone to the applicant’s spam or other folders.” In any case, the Tribunal found it was not necessary for the Tribunal to “speculate” on why Ms Beni had not actually received the email sent by the Minister’s Department on 27 July 2016 notifying her of the decision to cancel her visa.[24]
[23] CB 90 at [13]. The Tribunal decision contains a typographical error and states “27 July 2006”
[24] CB 90 at [13]
The Tribunal considered the relevant regulations and case law[25] and considered itself bound by the Federal Court decision in Sainju v Minister for Immigration[26] and Singh v Minister for Immigration.[27] The Tribunal found that “transmitting” meant “sending”[28] and that the Minister’s Department had “sent” to Ms Beni the cancellation decision by email on 27 July 2016. The Tribunal found that the effect of s.494C(5) of the Migration Act was that Ms Beni was taken to have been notified of the decision to cancel her visa on 27 July 2016. The Tribunal found the prescribed period within which the review application could be made ended on 5 August 2016. As the application for review was not received by the Tribunal until 9 August 2016, it followed the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter,[29]
[25] CB 90 at [14] - CB 91 at [19]
[26] [2010] FCA 461; (2010) 185 FCR 86
[27] [2015] FCA 220; CB 91 at [18]
[28] CB 91 at [17]
[29] CB 91 at [19]
In my opinion, the Tribunal was correct in its finding as to its jurisdiction.
Regulation 2.55 of the Regulations sets out the methods by which the Minister must give the holder, or former visa holder, a document relating to the cancellation, which relevantly includes by transmitting the document by email.[30] Contrary to Ms Beni’s assertion in the grounds of application, the Federal Court has held that “transmitting” means “sending” and a person is taken to have received the document at the end of the same day on which it is sent.[31] The question in Sainju was whether the words “by transmitting” and “transmitted” in regulation 2.55(8) mean “by sending” or “sent”, regardless of whether the document was actually received. In holding that it was sufficient for the Minister to send or transmit the document, Jacobson J held at [51]–[54]:
What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.
The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.
(emphasis added)
[30] regulation 2.55(3)(d)(ii)
[31] Sainju at [56]-[57] in relation to email notification provisions for visa cancellation decisions. See also Singh (Perry J, 16 March 2015) at [31]-[32]
Further context is provided by the decision of this Court at first instance[32] at [13]-[15] where Federal Magistrate Smith stated:
In this context, I am unable to accept the submission of Ms Sainju’s counsel that reg.2.55(8) should be construed as only defining the time at which an actual communication is taken to have occurred. In my opinion, the ‘deeming’ verb “is taken to have” clearly relates grammatically to the receiving of the document as well as the timing of the deemed receipt. Such a reading is also supported by the context and purpose of the provision, which is to provide certainty for the measurement of mandatory appeal limits, albeit at the risk of occasional unfairness. It endeavours to fix a precise point in time when receipt has occurred (see SZFKD v Minister for Immigration [2006] FMCA 49 at [10]-[19]), even if this were not found to be true if the facts were investigated. Necessarily, in my opinion, this objective encompasses deeming the fact of receipt as well as the time of that deemed receipt.
Giving full effect to the deeming provision eliminates all ambiguity and uncertainty about ‘transmitting’ a document by email to an email address. Ambiguity otherwise arises because ‘transmit’ can mean ‘send out’ as well as ‘communicate to’. I am inclined to accept Ms Sainju’s submission that, in isolation, the ordinary language of reg.2.55(3)(d) would suggest the latter meaning, since it identifies the recipient of a single communication rather than a process of broadcasting. However, this meaning would then give rise to considerable uncertainties in relation to emails, concerning whether a transmission would be completed when the email reached the email service provider’s mail server, or only when it was perused by the addressee when first accessing his or her mailbox. Obviously, satisfaction by a Tribunal or Court as to these matters would also be very difficult, particularly if it required reference to the computer logs of internet service providers.
On the construction of reg.2.55(8) which I prefer, all these uncertainties have been eliminated by deeming receipt of the email to have occurred at the end of the day of its dispatch, regardless of whether this can be proved to have actually occurred, and also regardless of whether it is proved not to have occurred. The effect of reg.2.55(8) can therefore be seen to assist proof that there has been a ‘transmitting’ of an emailed document to its recipient, by conclusively deeming the communication to have been completed by all relevant electronic means. Its presence therefore confirms that the words “by transmitting the document” in reg.2.55(3)(d) and in the opening words of reg.2.55(8) have the meaning only of ‘by sending’ and do not imply that any actual communication must have occurred.
[32] Sainju v Minister for Immigration & Anor [2009] FMCA 1206
Sainju was cited, with approval, by Perry J in Singh. These judgments were referred to and applied by the Tribunal in this matter.[33]
[33] CB 90-91 at [16]-[18]
In written submissions filed on 13 March 2018, Ms Beni concedes[34] that this Court is bound to apply the law as stated by Jacobson J above, but maintains for the purposes of any appeal that the word “transmitted” for the purposes of regulation 2.55(3)(d) means “sent and received”. In support of this proposition, the applicant refers to the judgment in Singh v Minister for Immigration & Anor[35] (Singh), in which Judge Harland found that a facsimile must be sent and received to be transmitted for the purposes of s.379A of the Migration Act, holding that “there must have been a legislative intention to draw a distinction between ‘dispatch’ and ‘transmit’”.[36]
[34] at [14]
[35] [2015] FCCA 2531
[36] at [13]
Given Ms Beni’s concession that the Court is bound by the construction as held by Jacobson J, it is not necessary for the Court to make a finding on this issue.
As the delegate’s decision was transmitted by email in accordance with the requirements of s.494B(5), the terms of s.494C(5) of the Migration Act provide that Ms Beni was taken to have been notified of the delegate’s decision at the end of the date on which the document was transmitted (namely, on 27 July 2016). Therefore, the Tribunal correctly found that Ms Beni was notified of the delegate’s decision on 27 July 2016 and that the seven day period in which she could validly lodge an application for review to the Tribunal expired on 5 August 2016.[37] As Ms Beni did not lodge the application until 9 August 2016, the Tribunal was correct in finding it did not have jurisdiction in the matter. The Tribunal did not have any discretion to waive this requirement.[38]
[37] CB 91 at [19]
[38] Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 at [35]
Conclusion
I conclude that the decision of the Tribunal is not affected by any jurisdictional error. The decision of the Tribunal is therefore a privative clause decision and hence my dismissal order was made.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 April 2018
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