Bui v Minister for Immigration - [2016] FCCA 3347

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3347

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) – where delegate had notified primary decision to email address in application for visa – where applicant alleged that subsequently email address varied – where tribunal held it had no jurisdiction because review application not lodged within time – where Court not satisfied that tribunal was properly seized of jurisdiction to review.

Legislation:

Migration Act 1958 (Cth), s.494(C)(7)

Migration Regulations 1994, cl.457.223(4)(a)

Applicant:

THI THANH TUYEN BUI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 178 of 2016

Judgment of:

Judge Jarrett

Hearing date:

15 July 2016

Date of Last Submission:

15 July 2016

Delivered at:

Brisbane

Delivered on:

21 December 2016

REPRESENTATION

Solicitors for the Applicant:

Essen Lawyers Pty Ltd

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent enters a submitting appearance.

THE COURT ORDERS THAT:

The application for review filed on 25 February, 2016 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 178 of 2016

THI THANH TUYEN BUI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of the Administrative Appeals Tribunal made on 12 February, 2016 whereby the tribunal decided that it did not have jurisdiction in the application for review that the applicant had made to it. The tribunal determined that it lacked jurisdiction because the applicant had not commenced the application for review within the period limited for that purpose by the Migration Act 1958 and the Migration Regulations 1994.
Both parties have filed written submissions. The first respondent opposes the application. The second respondent enters a submitting appearance.

Background

The applicant applied for a Temporary Business (Class UC) visa on 2 November, 2013. In her application for the visa she nominated her representative as her agent for the purposes of the Department’s communication with her. The nominated email address was “[email protected]”.
On 27 June, 2014 a delegate of the first respondent refused to grant the applicant’s visa for which she applied on the basis that the applicant’s business activity was not the subject of an approved business nomination and therefore it did not satisfy the requirements of cl.457.223(4)(a) of the Regulations.
The applicant was notified of the delegate’s decision by email which was successfully transmitted on 27 June, 2014 to the applicant’s representative at “[email protected]”.
On 26 August, 2014 the applicant lodged an application for review to the tribunal. The tribunal determined that the application had not been validly commenced because it had not been made within the required period of 21 days following notification of the decision to the applicant. However, the applicant contended that on 18 June, 2014 her representative had notified the tribunal that the email address to which the tribunal had sent the notification was “defunct” and her representative had given notice to the tribunal of a different email address to which notifications were to be sent.
However, on 24 November, 2014 the tribunal determined that it did not have jurisdiction because there was no evidence to support the applicant’s claim that her migration agent’s email was “defunct” on 27 June, 2014 or that her agent had informed the delegate of a different email address before the delegate made the decision under review.
The applicant applied to this Court for a review of that decision and on 17 July, 2015 I determined that the tribunal’s decision was affected by jurisdictional error and that it should be quashed and the application returned to it for determination according to law.
That occurred and by its most recent decision on 12 February, 2016 the tribunal again found that it did not have jurisdiction to determine the application. The tribunal specifically found that it was not able to be satisfied that the applicant’s migration agent had notified the delegate of a change to his email address prior to 27 June, 2014. The tribunal specifically considered certain material that it had not considered in its earlier decision. I had considered that its failure to consider that material was a reason for which the tribunal’s first decision should be set aside. In its second decision, the tribunal considered the relevant material that was not considered in the first decision. However, notwithstanding its consideration of that material, the tribunal determined that no evidence had been provided to show that the applicant’s migration agent had notified the Department of a new email address. There was evidence before the tribunal from the Department that it had not received any such notification from the applicant.
The tribunal concluded its second decision by observing that by sending the decision to the email address initially notified by the applicant when she applied for her visa, the delegate lawfully notified the applicant of the decision and the application was commenced after the expiry of the relevant time limitation. The tribunal therefore did not have jurisdiction to determine the application for review.
In the present application, the applicant argues that the tribunal has made an error of law by deciding that it lacked jurisdiction to review the decision. The applicant’s argument is that the tribunal was wrong to conclude that the delegate had not received notification of the migration agent’s new email address because the applicant’s agent had notified his change of email address to the first respondent on 18 June, 2014.
However, the tribunal’s decision depended upon the tribunal’s inability to be satisfied of that fact. In the absence of a finding that the applicant’s agent had notified the first respondent’s delegate of the new email address, the tribunal could only have acted on the basis that notification of the delegate’s decision had been made to the applicant by its email to [email protected] on 27 June, 2014.
The applicant develops her argument by suggesting that the delegate, by not sending the notification email to the applicant’s migration agents new email address, had committed a notification error. In those circumstances the applicant sought to engage s.494C(7) of the Act which provides:
494C When a person is taken to have received a document from the Minister
…
(7) 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;
then 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
The applicant argues that notification of the decision to her should be taken to be when she actually received it and the relevant time limitation should commence to run from then. If that approach is adopted, her application to review was within time. However, the applicant’s written submissions in support of this ground are predicated on the basis that there was a notification error by the tribunal. The tribunal was not satisfied that there was such a notification error.
However as the first respondent properly points out, whether the tribunal had jurisdiction to review the delegate’s decision is ultimately a question for this Court to determine and whether the tribunal itself has made an error in determining that question of fact is not determinative of this application.
There seems to be no contention from the applicant that absent the alleged notification of a new email address by her agent to the delegate, she was not notified correctly of the delegate’s decision. To put it another way, her case seems to proceed on the basis that but for the claimed notification of a new email address, her application was plainly out of time and could not be entertained by the tribunal.
Central to the success of the applicant’s argument must be a finding that her agent sent notification of a new email address to the first respondent’s delegate on 18 June, 2014. But I can make no such finding. I accept the first respondent’s submissions that there is no objective evidence to support the assertion that the correspondence dated 18 June, 2014 claimed to have been sent by the applicant’s agent was actually sent either by post or email. There is an assertion by the applicant’s representative that the relevant letter was sent by email and post but as the first respondent points out, there is no evidence to support that contention. There is no copy of the relevant email which was purportedly sent on 8 June, 2014 in evidence or any confirmation of a letter having been sent through the post. There is no evidence from the applicant’s agent about the systems within his office for the posting of correspondence. Indeed there is no evidence at all from the applicant’s representative, the same representative that represents her in these proceedings. At best, there is a deposition by the applicant to the effect that: “My agent provided the details of his new email address to the Department on 18 June 2014”. As the first respondent points out, there is no deposition by the applicant as to how she knows of those matters.
In this Court the applicant bears the onus to prove on the balance of probabilities the facts upon which she relies to demonstrate the “notification error” upon which she relies. I accept the first respondent’s submission that she has not discharged that onus. I am not satisfied on the balance of probabilities that the applicant or her migration agent notified the first respondent’s delegate of any new email address as she alleges.
The second ground of review pressed by the applicant seems to suggest that the tribunal ought to have considered the merits of the applicant’s application for review, rather than simply reconsidering the question of whether it had jurisdiction to determine the applicant’s review. The applicant contends that in my earlier decision given on 17 July, 2015 I accepted that the applicant’s agent had sent a notification of a change of address before the decision and that the evidence was on the Department’s file. The applicant argues that I also accepted that there was a clear assertion on the Department’s file that a notification of a new email address had been made prior to the delivery of the delegate’s decision. In those circumstances the applicant suggests that the tribunal was obliged to re-determine the applicant’s review application according to law, not merely to determine again whether it had jurisdiction to consider it.
However, I accept the first respondent’s submissions that I did not accept that the applicant’s migration agent had sent a notification of change of address before the delegate’s decision. What I did determine was that it was the tribunal’s view that there was no evidence that the authorised recipient had informed the delegate of a different email address before the delegate made the decision under review was factually incorrect. I reached no opinion about whether the correspondence had actually been sent and received by the first respondent, but rather only that the applicant made that assertion to the tribunal which it had failed to consider in its decision of 24 November, 2014.
The applicant’s approach to this ground is misconceived. In my view, the tribunal undertook the task that was remitted to it. Whether the tribunal’s jurisdiction to review has been properly invoked is always the first step in the consideration of any application to review. This case was no different. The tribunal undertook that first step and answered it against the applicant. In those circumstances, it was not required to fully consider the applicant’s application for review.

Conclusion

In those circumstances, the application for review filed on 25 February, 2016 must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 December, 2016.

Date: 21 December, 2016