BRAR v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 593
•2 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 593 |
| MIGRATION – Application for review of decision of Migration Review Tribunal that no jurisdiction as application for review made out of time – notification of delegate’s decision sent by e-mail to authorised recipient – salutation in covering e-mail addressed to another individual – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 66, 347, 359A, 476, 494B, 494C, 494D Migration Regulations 1994 (Cth), r.2.16 |
| Chand & Anor v Minister for Immigration & Multicultural Affairs [2000] FCA 1743 Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 SZIZO v Minister for Immigration & Citizenship [2008] FCAFC 122 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 |
| Applicant: | GURPREET BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3011 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 April 2012 |
| Date of Last Submission: | 13 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2012 |
REPRESENTATION
| Appearing for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Michael Jones, Solicitor |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 29 December 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3011 of 2011
| GURPREET BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application, made on 29 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 2 December 2011, that it did not have jurisdiction to review the decision of the delegate of the Minister to refuse the applicant a visa.
Background
The applicant is a citizen of India. On 23 April 2010 he applied for a Skilled (Provisional) (Class VC) Sub-class 485 (Skilled-Graduate) visa (“the visa”) (Court Book – CB – CB 1 to CB 29 with annexures). In that application the applicant appointed a “Sukhwinder Singh” as his authorised recipient for the purposes of receiving correspondence (CB 3 to CB 4).
On 14 March 2012 the applicant appointed another person, “Shadesh Barua”, a migration agent, as his authorised recipient for receipt correspondence (CB 30 to CB 32). The representative’s e-mail address was provided in that document and the representative indicated that he consented to the Department communicating with him by e-mail (Item 7 at CB 30).
The Minister’s delegate decided to refuse the application for the visa on 20 September 2011. On the same day the delegate’s decision record, a notification of decision letter (addressed to the applicant – CB40 to CB 43), and other relevant documents (referred to collectively as “the notification documents”) were sent to the e-mail address provided by the applicant’s authorised recipient, Mr Barua, for the purpose of such correspondence (CB 54). However the “covering” e-mail was addressed to the applicant’s previous migration agent, “Sukhwinder Singh” (CB 39).
The applicant claimed that he did not receive the notification documents ([4] to [5] of the applicant’s affidavit of 21 March 2012). Further, he asserted that he was only made aware of the delegate’s decision when he enquired at the Minister’s department on 15 October 2011 ([5] of the applicant’s affidavit of 21 March 2012).
The applicant appointed Mr M Jones (who represents the applicant now before the Court) as his “new” authorised recipient on 20 October 2011 (CB 50 to CB 52).
On 24 October 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 64 to CB 72).
The Tribunal decided, on 2 December 2011, that the application for review was not a valid application under s.347 of the Act, as it had been made more than 21 days after the applicant was taken to have been notified of the delegate’s decision (s.347(1)(b)). The Tribunal found that the applicant had been validly notified of the delegate’s decision, through the correspondence sent to his authorised representative, on 20 September 2011 ([23] at CB 87). Although the salutation of the covering e-mail was addressed to the applicant’s former migration agent and authorised recipient, the Tribunal found that the e-mail was sent to the e-mail address provided by the applicant’s current authorised recipient for the purpose of such correspondence and the notification letter, which was an attachment to that e-mail, was correctly addressed to the applicant ([22] at CB 87).
Application to the Court
The application to the Court contains one particularised ground:
“1. The Tribunal erred in law by finding that the application for review lodged by the Applicant on 24 October 2011 was not a valid application.
Particulars
The Tribunal found that a notice of refusal of a visa application made by the Applicant had been sent to the Applicant’s authorised recipient by email on 20 September 2011, and therefore the last day for filing an application for review was 11 October 2011. The notice was in fact sent to a person other than the authorised recipient and therefore the time for lodging an application for review had not commenced to run when the application was lodged on 24 October 2011.”
Relevant Legislation
Section 66 of the Act provides that an applicant must be notified, in the prescribed way, of a decision by the Minister’s delegate to grant, or refuse the grant of, a visa. The term “prescribed” is defined in s.5(1) of the Act as “prescribed by the regulations”.
Relevantly, r.2.16 of the Migration Regulations 1994 (Cth) provides that:
“(1) For subsections 66 (1) and 501G (3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
Refusal to grant visa
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”
Section 494B of the Act relevantly provides that:
“(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor – the last address for a carer of the minor that is known by the Minister.
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to:
(d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
…”
Since the applicant had given notice in writing that Mr Barua was his authorised recipient, s.494D of the Act was also applicable in the current case. Specifically:
“(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
…”
Finally, if the applicant was successful in establishing that there had been an error in the notification, then it was argued by the Minister that s.494C(7) operated to make that error of no consequence. That section provides that:
“If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
Before the Court
At the hearing Mr M Jones appeared for the applicant. Mr B D Kaplan of counsel appeared for first respondent. The Court had before it the Court Book, the applicant’s affidavit of 21 March 2012 (the second sentence of [5] was not pressed), and written submissions filed on behalf of both the applicant and respondent.
Admission of Evidence: Affidavits
Further, the applicant sought leave to file in Court the affidavits of Mr Sukhwinder Singh, affirmed on 4 April 2012, and Mr Shadesh Barua, affirmed on 12 April 2012. Both affidavits went to the issue of whether Mr Barua had received the e-mail sent by the Minister’s department attaching the notification documents.
Mr Kaplan indicated that he had only been given a copy of the affidavits on the morning of the hearing. Further, that he objected to their admission on the basis of relevance. Mr Kaplan submitted that, given that the applicant conceded that the e-mail attaching the notification documents had been sent to the e-mail address provided by Mr Barua for the purpose of receiving such correspondence, it was irrelevant whether he had actually received it. In support of that submission Mr Kaplan referred the Court to s.14A of the Electronic Transactions Act 1999 (Cth) (“the ETA”) and s.161(1)(e) of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The affidavits were provisionally admitted and I reserved my decision on their admissibility.
Subsequent to the hearing, on 24 April 2012 and by e-mail to Chambers, the Minister’s solicitor advised that their oral submissions made at the hearing in relation to the operation of s.14A of the ETA and s.161(1)(e) of the Evidence Act were withdrawn. Further, the Minister submitted that, despite oral submissions made at the hearing to the contrary, the ETA and s.161 of the Evidence Act did not apply to s.494C(7) of the Act.
The Submissions
The submissions from both parties had two limbs. The first addressed the applicant’s ground. The second addressed the alternative argument, raised by the respondent in written submissions, in the event that the applicant was successful on the ground of his application.
The Applicant’s Submissions on the Ground: s.494B(5)
The applicant’s ground was that s.494B(5) of the Act was not complied with as the e-mail, although sent to the correct e-mail address for service, was not addressed to the applicant’s authorised recipient as at the relevant time. Mr Jones referred the Court to various authorities, all relating to postal notification under s.494B(4) of the Act, for the proposition that notification under the Act required that the document be sent not only to the correct address, but also addressed to the correct individual (Chand & Anor v Minister for Immigration & Multicultural Affairs [2000] FCA 1743 at [17], Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 (“SZKPQ”) at [22] per Emmett J and SZIZO v Minister for Immigration & Citizenship [2008] FCAFC 122 (“SZIZO”) at [97] – [99]).
Mr Jones drew the Court’s attention to s.494B(4) of the Act and the absence of any explicit requirement that postal correspondence be addressed to the relevant individual. Yet, as a practical requirement, the authorities provided that it was a necessary element that postal correspondence be addressed to the relevant person and that a failure to observe that requirement could result in jurisdictional error (SZIZO).
It was submitted by the applicant that there was nothing inherently different, or “special”, about e-mails such that a similar requirement could not be implied with regard to s.494B(5) of the Act. Particularly as e-mail addresses, like postal addresses, were not exclusively linked to a single individual. In the circumstances, the applicant submitted that an analogy could be drawn between postal and e-mail correspondence such that the authorities applied also to s.494B(5) of the Act, and that section should be read as requiring that an e-mail be both addressed to, and sent to, the appropriate person for the transmission to be in compliance with the Act.
Further, it was submitted that s.494B of the Act operated in terms of the “intended recipient” and, in the current case, the fact that the e-mail had been sent to the correct e-mail address (that is, Mr Barua’s e-mail address) did not cure the error in the delegate’s intention (which was said to be that the e-mail be sent to Mr Singh).
It was the applicant’s position that the “intended recipient” had to be subjectively determined and that, in the current case, the Minister’s delegate’s intention was revealed by the salutation in the covering
e-mail (CB 39) and the reference to Mr Singh as the “Authorised Recipient” in the screenshot of the Department’s computer system (CB 54). That is, that the “person” the Minister “purported” to give the documents to was Mr Singh and, regardless of the fact that the e-mail had been transmitted to the correct e-mail address, the Minister’s delegate had breached s.494B(5) of the Act as Mr Singh was not, at the relevant time, the applicant’s authorised recipient (s.494D).Finally, it was submitted that, since the applicant had suffered a clear detriment as a result of the Minister’s failure to comply with s.494B(5) of the Act, the relief sought should be granted (Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 at [35]). Namely that the failure by the Minister’s delegate to address the e-mail to the applicant’s authorised recipient had meant that the applicant’s migration agent had not been notified of the delegate’s decision and that the subsequent application for review had been found by the Tribunal to be lodged out of time. The detriment being that the applicant had been denied the opportunity to have the delegate’s decision reviewed by the Tribunal
The Respondent’s Submissions on the Ground: s.494B
The respondent submitted that s.494B(5) of the Act simply required that the e-mail be sent to the e-mail address provided by the appropriate person. In the current case that “person” was the applicant’s authorised recipient for the purposes of such correspondence (s.494D). That is, Mr Barua. Since the e-mail had been sent to the e-mail address provided by Mr Barua for the purpose of such correspondence, the Minister’s delegate had complied with the requirements of s.494B(5) of the Act.
Mr Kaplan submitted that it was immaterial that the covering e-mail was addressed to Mr Singh as s.494B(5) was not prescriptive of the form of salutation required in a covering e-mail. Nor did s.66(2) of the Act even require a covering e-mail message to be sent. The obligation on the Minister that arose from s.494B(5) was simply to transmit the document to the relevant e-mail address. That had been done in the current case.
In response to the applicant’s submission that there was no difference between postal notification and e-mail transmission of notification, Mr Kaplan argued that there was an inherent difference as s.494B(4) implied that the envelope be addressed to an individual, while s.494B(5) did not expressly, or implicitly, require the Minister to send a stand alone message, let alone that that message be addressed to the relevant person.
Further, s.494B(4) of the Act had been found not to be prescriptive of the precise address to be placed on an envelope and, by analogy, s.494B(5) was not prescriptive of any salutation to be contained in any covering e-mail. In support of that submission the Court was taken to SZKPQ at [18] - [19] and at [22] per Emmett J (with whom Branson and Bennett J agreed).
With reference to those paragraphs, Mr Kaplan sought to draw the analogy that, in relation to e-mail transmission of documents, all that was required was that the documents (in this case, the notification of the delegate’s decision) were transmitted to the appropriate e-mail address. It was immaterial that the salutation contained in the covering e-mail message was addressed to the “wrong” individual.
It was the respondent’s position that the subjective intentions of the Minister and the Minister’s delegate are, in relation to s.494B of the Act, irrelevant. All that was required by s.494B(5) (and s.494D) of the Act was that, “based on objective circumstances”, the e-mail was sent to the e-mail address provided by the applicant’s authorised representative for the purpose of receiving such correspondence. In the current case, that was Mr Barua.
The Respondent’s Submissions on the Alternative Argument: s.494C(7)
(in the event that the applicant was successful on limb one)
The Minister also submitted that, even if the Court could conclude that the notification of the delegate’s decision was defective, s.494C(7) of the Act operated to render that “error” of no consequence.
The respondent’s oral submissions to the Court in this regard focused on the ETA Act and the Evidence Act. These submissions were subsequently withdrawn (see above at [19]). The Minister sought to rely on his written submissions (at [16]), which made clear that the Minister’s position was that:
“… since those documents were received by the authorised recipient, s 494C(7) deems the authorised recipient (and, by reason of the operation of s 494D(2), the Applicant) to have received them at the end of the day on which they were transmitted … unless the Applicant can demonstrate otherwise.”
The respondent submitted that there was no evidence before the Court to suggest that Mr Barua had received the notification documents at a later time.
The Applicant’s Submissions on the Alternate Argument: s.494C(7)
The second limb of the applicant’s submissions addressed the Minister’s position in relation to s.494C(7) of the Act. Mr Jones asserted that that section only operated in circumstances where the documents were intended to be transmitted to the correct person. In the current case it therefore did not operate to cure the error that had occurred as it was the intention of the Minister’s delegate (as set out above at [24] – [25]) that the documents be transmitted to Mr Singh.
Alternatively, if the Court was minded to find that the delegate had purported to send the documents to Mr Barua, then s.494C(7) still did not cure the error as Mr Barua had never received the notification. Both Mr Barua and Mr Singh attested to that in their respective affidavits.
As set out above (at [19]), the Minister had subsequently advised Chambers that his position was that s.14A of the ETA and s.161(1)(e) of the Evidence Act did not apply to s.494C(7) of the Act. In response to this, the applicant confirmed (by way of e-mail to Chambers, dated 24 April 2012) that his position in relation to s.494C(7) was that:
“It is a factual requirement of subsection 494C(7), in para (b), that the intended recipient must have actually received the document or a copy of it. In our view, it is a matter of evidence whether such receipt occurred, not a presumption for the Applicant to rebut.”
Consideration
The starting point for the resolution of this matter must be the relevant legislative provision. Here, s.494B sets out the methods by which the Minister gives documents to a person.
Before the Court the dispute centred, in part, on s.494B(5) of the Act. In essence, the Minister’s position appeared to be that the language of s.494B(5) is directed to the Minister transmitting a document, here an e-mail, to the last e-mail address provided to the Minister for the purpose of receiving such documents.
The Minister says that the delegate sent the notification documents to the “correct” e-mail address provided for that purpose. That is, the
e-mail address of Mr Barua. Therefore the delegate complied with the relevant notification requirements, and the Tribunal was correct to so find. That is, that it was addressed to the “correct” e-mail address in accordance with s.66(1), s.494B(5) and s.494D of the Act.
At first blush, and from the applicant’s perspective, there are two difficulties with the Minister’s submissions as put here. First, s.494B(5) cannot be read in isolation from the section in which it appears. In this regard, it may be argued that s.494B as a whole is concerned with essentially two matters. These are set out at s.494B(1)(a) and (b) of the Act. That is, that s.494B is concerned with the methods (s.494B(1)(b)) by which a document is given to a person (s.494B(1)(a)) by the Minister.
The applicant’s position is that, while the bulk of the section is concerned with the various methods of giving a document, what cannot be ignored is that the legislation clearly contemplates that these are the methods that the Minister may use in giving the document to a person.
In this context the applicant’s argument has strength. While the document was transmitted by e-mail it was not addressed to the person authorised as the recipient. That is, his argument is that s.494B(1)(a) of the Act was not satisfied because the “person” to whom the e-mail was sent was not the “recipient” of the relevant transmission.
The second perceived difficulty for the Minister’s submissions as put is that it is unclear in light of those submissions how the authorities on which he relied are of assistance to him.
The Minister referred the Court to SZKPQ at [22]. The argument was that, while that case was concerned with s.494B(4) (“Dispatch by prepaid post”), there was effectively no difference between sending of the notification by post and transmission of the notification by e-mail as in the current case. Therefore, what was said in SZKPQ applied equally to the current case.
It is the case that SZKPQ was concerned with the giving of documents to an applicant for a visa by the Minister, which then determined the time within which an application for review to the Tribunal could be made (at [2]). While broadly similar to the current circumstances, it is important to note however that in SZKPQ the relevant documents were sent by post. In the current case, as set out above, they were transmitted by e-mail.
A number of points need to be relevantly noted. First, while in SZKPQ the Minister relied on s.494B(4), the Court (per Emmett J with whom Branson and Bennett JJ agreed (see [1])) stated (at [23]) that the language used in, amongst others, s.494B(5) may inform the meaning of s.494B(4). (See further at [56] below.) It follows therefore that the language used in s.494B(4) may also inform the meaning of s.494B(5). The direction provided by the Full Court in relation to s.494B(4) may apply here (to the extent that it may help to inform).
Second, as in this case, the applicant in SZKPQ had authorised another person to act on his behalf. This included appointing this other person as the “authorised recipient” for correspondence (at [19]). However, unlike the current circumstances, there was no complication of a further, or subsequent, person having been authorised for that purpose.
Third, to enable any analogy to be drawn between SZKPQ and the current circumstances, it is important to note the actual circumstances in SZKPQ. There the notification documents consisted of a letter notifying of the refusal of the application and the delegate’s decision record.
That letter had at its head the name of the applicant and his address. It also contained a “cc” at its foot with the authorised recipient’s name and his address. There were two “packages”, or envelopes, containing those notification documents. One envelope was addressed to the applicant at his address. The other was addressed to the applicant’s authorised recipient at his address for service.
The Full Court’s reasoning in SZKPQ proceeded on the basis that to dispatch a document pursuant to s.494B(4) “it is a practical requirement that there be an envelope addressed to some person”. That is that:
“[18] In order to dispatch a document by prepaid post, as contemplated by s.494B(4), it is a practical requirement that there be an envelope addressed to some person. However, that requirement says nothing about the content or form of the document that is being despatched. Section 66(2) is the only provision that specifies the content or form of a document that is to constitute notification under s 66(1).
[19] Section 494B is not prescriptive of the precise form of the address on the envelope. So long as a document is dispatched by prepaid post to, for example, the last business address provided to the Minister by the recipient for the purposes of receiving documents, the requirement will be satisfied. The fact that the delegate’s letter of 2 March 2004 was, in its terms, addressed to the Visa Applicant, at his residential address, which had been provided to the Minister in the form 956, is irrelevant to the question of whether s 494B(4) has been satisfied.”
The Court proceeded on the basis that (at [21]):
“… Having accepted that a version of the Notification Documents was sent to Mr Deng, a finding should be made, on the balance of probabilities, that it was sent in an envelope addressed in the manner specified at the foot of the letter. The Notification Documents were therefore sent to Mr Deng, the Visa Applicant’s authorise recipient, at the last business address of Mr Deng provided to the Minister. The Notification Documents were dispatched by prepaid post to the last business address provided to the Minister by the Visa Applicant for the purposes of receiving documents. That is to say, they were dispatched to Mr Deng at his business address specified in the form 956.”
The part of SZKPQ relied on by the Tribunal in the current case ([21] at CB 86 to CB 87) is at [22] of that case:
“Section 494B(4) specifies a method for giving a document to a person, namely, by dispatching it to a particular address. The address for dispatch is that contained on the prepaid envelope. So long as the document is posted to the authorised recipient at the authorised recipient’s address, s 494B(4) is satisfied, whatever address might be contained in the document enclose in the envelope. There is no basis for importing a requirement that documents given for the purposes of s 66 must contain a particular address. The language of s 494B and the language of
s 494D both support the Minister’s contention that there is no reason why a particular address must be included in notification documents given in order to satisfy s 66 of the Act. The language of those provisions also supports the conclusion that it is irrelevant that an address other than the address of an applicant’s authorised recipient is included in notification documents.”
In my respectful view, it is clear that a distinction was drawn between the notification letters, that is the delegate’s decision record, and the “covering” letter notifying the applicant of the decision and, in the case of s.494B(4), the envelope and what is contained on the face of the envelope in which this bundle is posted. That distinction mirrors what is required by s.66(2) of the Act (what the notification must contain) and s.66(1) of the Act which is the Minister’s obligation “to notify the applicant in the prescribed way”. That “prescription” is found in s.494B.
In my respectful view, that is made clear in SZKPQ at [23]. It is important for current purposes to note here the relationship between s.494B(4) and s.494B(5) of the Act:
“Thus, s 494B provides for methods by which the Minister gives a document to a person. Under s 494B(2), one method is by handing the document to the recipient. Under s 494B(3), another method consists of the Minister handing the document to another person within the categories specified in that section. Other methods are by dating the document and dispatching it as provided in s 494B(4) or by transmitting the document by electronic means as provided in s494B(5). There is nothing in those provisions to suggest that the manner in which the document itself is addressed has any bearing on whether the document has been given.”
In short, and as set out above, the applicant’s argument is that there is effectively no difference between sending a document by e-mail and sending it to a person by post. In one sense SZKPQ may support the thrust of that proposition in that the Court stated that the language of s.494B(5) may inform the meaning of s.494B(4) of the Act. Clearly, the reverse also applies.
However, notwithstanding this, and with respect, and it is not inconsistent with the application of the reasoning in SZKPQ to say so, there is at least one difference. This flows from the obvious different physical circumstances of the methods of giving documents contemplated as between s.494B(4) and (5) of the Act. That difference obviously results in, for example as was before the Court in SZKPQ, the inference being drawn that the notification documents were sent in an envelope to the authorised recipient at his address, as opposed to the current circumstances where no such inference can be drawn.
Further, it is important to note the distinction with the current case. In SZKPQ the error was said to be that the covering letter (to the decision record) in the notification documents was addressed, at its top, to the applicant at his residential address, not to the authorised recipient as his address for service. However, as set out above, the Court found the Minister had complied with s.494B(4) because one set of the notification documents was posted to the authorised recipient at his address for service.
The distinction here was the act of posting (as represented by the use of an envelope and when seen in light of what was on the envelope), and the dispatch by post to the authorised recipient at his address for service. Thus, notwithstanding what “error” may have existed in the letter of notification itself, the Minister satisfied s.494B(4) of the Act.
In the current case there is no physical envelope in which the notification documents were sent. The “error” is said to be contained in the e-mail, or covering e-mail, sent by the delegate to the e-mail address of the authorised recipient, but which contained what the Tribunal described as a “salutation” to another person (the former authorised recipient) (see CB 39 and [22] at CB 87).
The question therefore is: in these circumstances can the reasoning in SZKPQ, with respect, be of assistance? In my respectful view it can. That assistance derives from the setting out of the legislative framework in SZKPQ at [6] to [9], and in particular at [7].
It is important to note that the applicant invited the Court to read s.494B(1)(a) and s.494B(1)(b) as requiring two separate steps on the part of the Minister. First, the notification must be given to a “person”. Here that is Mr Barua, who was authorised by the applicant for the purposes of receiving such correspondence. He argues it was not. It was given to a person other than the authorised recipient. It was given to Mr Singh, who was not authorised for that purpose.
The second step is that it must be given by one of the methods specified in s.494B. Notwithdstanding that one of those methods was utilised, that is that it was transmitted by e-mail to the correct address by one of the methods referred to in s.494B (see s.494B(1)(b) and s.494B(5)), that does not detract from the fact that it was not given to the “recipient” as contemplated in s.494B(1)(a).
It is here that I understood, or more correctly extrapolated from the applicant’s submissions, that there is no difference, essentially, in sending the document by e-mail or by post. Given that the difference between the circumstances in SZKPQ and the current case is that the “error” there was on the notification letter and not the envelope, here there was no “error” in the notification letter, the “error” was in the “equivalent” of the envelope, namely the covering e-mail.
But the direction provided in SZKPQ as to the relevant legislative scheme argues against the applicant’s position.
As in SZKPQ, and contrary to the applicant’s “starting point” as being s.494B(1), the relevant starting point in this analysis (once it is accepted by the applicant that the decision is an MRT reviewable decision) is s.66 of the Act.
Section 66(1) compels the Minister to notify an applicant of a decision on a visa application in the prescribed way. It is important to note therefore that s.66(1) creates an obligation with which the Minister must comply. That obligation is not created in s.494B of the Act. That section flows from the prescription referred to in s.66(1). The language of s.494B(1) makes that clear: “For the purposes of the provisions of this Act”. Section 494B(1)(a) and (b) describe, or identify, those provisions that clearly include s.66.
In this light, s.494B(1)(a) and (b) both refer to the obligation, relevantly, in s.66(1) and set out, in the following subsections, the methods by which the Minister may discharge the mandatory obligation in s.66(1). In this sense I agree with Mr Kaplan that both s.494B(1)(a) and (b) must be read together, and not as granting any separate and sequential obligations to give documents to a person, and to do it by one of the “following” methods.
When understood in this way, I agree with the Minister’s submission that Emmett J’s finding that “Section 494B(4) is not prescriptive of the precise form of the address on the envelope” (at [19] of SZKPQ) applies equally to the current circumstances involving s.494B(5).
So too s.494B(5) is not prescriptive of the precise form of the address or even the addressee of the “covering e-mail” in the current case. What is required to comply with the giving of the notice of the visa decision to a recipient pursuant to s.66(1) of the Act is to relevantly transmit it by e-mail (s.494B(5)(b)) to the last e-mail address provided to the Minister for the purposes of receiving documents. That is what happened in the current case.
The Tribunal was correct therefore to see the reference to “Mr Sukhwinder Singh” as a mere salutation which did “not have any bearing on the effective delivery of the decision notice …” ([22] at CB 87).
The applicant also sought to argue that the appearance of the name “Mr Sukhwinder Singh” in the covering e-mail infers that the delegate’s “subjective intention” was to send the e-mail, and the notification documents, to him and not Mr Barua, the relevant authorised recipient at that time.
The difficulty with this submission is that the relevant legislative scheme does not allow for any such subjective intention to ensure legislative compliance.
The Minister is obliged to send the notification documents to a person (s.66(1) of the Act). This is done by one of the methods set out in s.494B of the Act. This posits an objective test. There is nothing here, for example as found in other parts of the Act, to suggest that subjective intention is required to comply (for example, s.359A of the Act – “The Minister considers would be …”), although even there such consideration is to be tested on an objective basis.
The Minister’s, or delegate’s, intention is not relevant as to whether the conduct postulated under s.66(1) and s.494B was in fact complied with. Were this to be the case then it could have the result, for example, that the delegate, in circumstances where he or she intended to send such a document to the “wrong” person in fact again in error sent it to the “right” person in the manner prescribed yet would be held not have properly given the document due to his or her intention.
Conclusion
In any event, in light of the finding above, it is not necessary to consider what is described above as “limb two”. There is no error in the Tribunal’s finding that the delegate’s notice of the visa refusal was effective. On this basis the application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 2 August 2012
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