BVS19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 252
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVS19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 252
File number(s): ADG 165 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 25 February 2025 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – whether Secretary of Minister’s department failed to comply with obligation to provide Immigration Assessment Authority with last email address provided by the applicant for the purposes of receiving documents – whether last email address provided by the applicant provided for the purposes of receiving documents - whether material jurisdictional error
PRACTICE AND PROCEDURE – Application for an extension of time in which to file a judicial review application and an amended judicial review application – factors for consideration – extension of time not opposed by the Minister
WORDS AND PHRASES – “for the purposes of receiving documents”
Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 52, 56, 91X, 379A, 441A, 473CB, 473HG, 476, 477, 494B, 494D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.05
Cases cited: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 18 AAR 9; (1993) 115 ALR 1
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492; (2019) 78 AAR 373
DNU20 v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCAFC 148; (2022) 294 FCR 1
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
IXT24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1283
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1258; (2022) 181 ALD 97
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536
Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219
SZVRO v Minister for Immigration and Border Protection [2017] FCA 421
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 30 July 2024 Date of hearing: 30 July 2024 Place: Perth Counsel for the Applicant: Mr O Morris Solicitor for the Applicant: Estrin Saul Laweyrs Counsel for the First Respondent: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 165 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVS19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
25 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the time for filing of the originating application be extended to 2 May 2019.
2.Pursuant to r 3.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the time for the filing of an amended originating application pursuant to order 2(a) of the Court’s Orders of 30 March 2023 be extended to 3 July 2024.
3.The originating application filed 2 May 2019, as amended by an amended originating application filed 3 July 2024, 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
EXTENSION OF TIME APPLICATION AND LEAVE TO FILE AMENDED JUDICIAL REVIEW APPLICATION
Before the Court is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act. BVS19 also requires an extension of time under r 3.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) in which to file a proposed amended Judicial Review Application outside of the time limits ordered by the Court on 30 March 2023.
The principles that apply in relation to the grant of an extension of time in migration proceedings are not in dispute and are well-known: 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”), FCR at 348-349 per Wilcox J; Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The applicant, BVS19, requires an extension of time of nine days for the filing of the Judicial Review Application. He provides some (albeit vague) explanation for the delay in commencing these proceedings in his affidavit made on 2 July 2024 (“BVS19 July 2024 Affidavit”). The explanation appears to be that he was unaware of the Authority Decision when it was made, and relied on the assistance of others to make enquiries about the progress of his SHE Visa application. That is some explanation, if not a necessarily satisfactory explanation, because it was BVS19’s obligation to ensure that the Department had his appropriate contact details before the Delegate refused his Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”).
As to the question of merit BVS19 seeks to rely on the proposed amended Judicial Review Application that he requires leave to file. There is no prejudice to the Minister, subject to the Minister being permitted leave to file any necessary evidence to address the contentions BVS19 now seeks to raise. The proposed amended Judicial Review Application raises an arguable ground.
In the circumstances, the Minister does not oppose the extension of time, or BVS19 being granted leave to file his Amended Judicial Review Application (subject to being permitted leave to file any necessary evidence in response to it).
In the circumstances, the Court is satisfied that it is appropriate to extend time on both counts. There will therefore be orders that:
(a)pursuant to s 477(2) of the Migration Act time be extended for filing the Judicial Review Application to 2 May 2019; and
(b)pursuant to r 3.05(1) of the GFL Rules time be extended for the filing of the proposed amended Judicial Review Application (“Amended Judicial Review Application”) pursuant to order 2(a) of the Court’s Orders of 30 March 2023, to 3 July 2024.
THE AMENDED JUDICIAL REVIEW APPLICATION
In the Amended Judicial Review Application BVS19 seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) to refuse to grant BVS19 a SHE Visa.
At hearing the Court Book (“CB”) was marked as Exhibit 1. The Authority Decision appears at CB 118-132.
In order to avoid any possible identification of BVS19 (compare s 91X of the Migration Act) the Court will refer to the last email address allegedly provided by BVS19 to the Minister for the purposes of receiving documents as the “LC Email Address”. An earlier email address provided to the Minister as part of the SHE Visa application will be referred to as the “SHE Visa Application Email Address”.
The sole ground of the Amended Judicial Review Application is as follows:
1.The IAA was disabled from performing its review because of the failure of the Secretary of the First Respondent to comply with their obligation under s 473CB(1)(d)(iii) to provide the IAA with the last email address provided by the Applicant for the purposes of receiving documents.
Particulars:
1.1.On 14 January 2019, the Applicant telephoned the First Respondent and provided the email address … [the LC Email Address] to which the Applicant wished correspondence from the First Respondent to be sent.
1.2.The First Respondent subsequently emailed the Applicant at that email address providing a copy of correspondence.
1.3.The … [the LC Email Address] was the last email address provided by the Applicant to the First Respondent for the purposes of receiving documents.
1.4.Pursuant to s473CB(1)(d)(iii), the Secretary must give the IAA the last email address provided by the Applicant for the purposes of receiving documents.
1.5.The Secretary of the First Respondent’s department failed to comply with this obligation as the… [the LC Email Address] was not provided to the IAA.
1.6.This failure was material as the error meant the Applicant was not aware of the referral of the application to the IAA, and therefore was not able to engage with the review process prior to the IAA affirming the refusal decision.
BVS19’S SUBMISSIONS
BVS19’s submissions in relation to the Amended Judicial Review Application are as follows:
(a)where a delegate’s decision is referred to the Authority for review, the Secretary of the Minister’s Department (“Secretary”) is required to provide certain categories of information in order to enable the Authority to undertake its review functions: Migration Act, s 473CB(1). The Secretary is required to provide the Authority with certain contact information in respect of the referred applicant, including the last address for service provided to the Minister by the referred applicant, the last residential or business address provided to the Minister for the purposes of receiving documents, and, critically, by s 473CB(l)(d)(iii) of the Migration Act:
the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents
(b)the provision of this information by the Secretary to the Authority is a “necessary precondition” to the exercise of the Authority’s jurisdiction. A failure to do so is a breach capable of giving rise to jurisdictional error: DNU20 v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCAFC 148; (2022) 294 FCR 1 (“DNU20”) at [42] per Bromberg, Moshinsky and Hespe JJ;
(c)with the above principles in mind, BVS19 submits that:
(i)first, BVS19 provided the LC Email Address to an officer of the Department on 14 January 2019, requesting the provision of certain documents to the LC Email Address in respect of the SHE Visa application. Applying s 473CB(l)(d)(iii) of the Migration Act literally, BVS19’s provision of an email address for the purpose of receiving documentation in relation to his application triggered the Secretary’s obligation under s 473CB(l)(d)(iii) of the Migration Act. Indeed, it is notable (but not determinative) that the LC Email Address was the only email address ever provided by BVS19 for the purposes of receiving documents: otherwise, BVS19 had expressly stated that he did not wish to receive documents to the SHE Visa Application Email Address;
(ii)second, no email address was provided to the Department by BVS19 for the purpose of receiving documents after the provision of the LC Email Address on 14 January 2019. The LC Email Address was accordingly the last email address provided by BVS19 for the purposes of receiving documents; and
(iii)third, the Secretary never provided the LC Email Address to the Authority. The Secretary accordingly failed to comply with the requirements of s 473CB(l)(d)(iii) of the Migration Act;
(d)in respect of the first step above, it is acknowledged that a person other than the referred applicant (designated as “LC” for the purposes of these Reasons for Judgment), also appeared to use the LC Email Address to communicate with the Department on 11 March 2019: CB 107. From this, it may be deduced that the LC Email Address did not belong exclusively to BVS19 (indeed, it is apparent that it did not belong to him at all). BVS19 accepts that he never formally nominated LC as an “authorised recipient” of documents in respect of the SHE Visa application, and neither did he provide a written consent for the Department to communicate with LC in respect of the SHE Visa application. These matters, although superficially distracting, do nothing to detract from the analysis set out above:
(i)first, nothing in s 473CB(l)(d)(iii) of the Migration Act suggests that an email address needs to be exclusive to, or even to be the email address of, a referred applicant in order to trigger the statutory requirement that that email address be provided to the Authority. To the contrary, the Migration Act requires only that the email address be provided by the referred applicant as a means by which documents may be sent to that applicant. Here, it is clear that BVS19 did provide the LC Email Address and that it was provided for the purposes of receiving documents relevant to the SHE Visa application: CB 86;
(ii)second, insofar as it may be accepted that BVS19 never formally nominated LC as his authorised recipient using the process articulated by s 473HG of the Migration Act, that is simply not relevant to the analysis set out above, having regard to the plain language of s 473CB(l)(d)(iii) of the Migration Act. As the Full Court of the Federal Court has explained previously, the requirements of s 473CB(l)(d) of the Migration Act operate independently of the “authorised recipient” scheme provided by s 473HG of the Migration Act: DNU20 at [39]-[41] per Bromberg, Moshinsky and Hespe JJ. Whether or not BVS19 nominated LC to act as his “authorised recipient” (it is accepted that he did not) had no bearing on the Secretary’s obligation under s 473CB(l)(d)(iii) of the Migration Act to provide the LC Email Address to the Authority; and
(iii)third, it is irrelevant that BVS19 never provided “written consent” for the Department to liaise with LC. Largely this is because, as set out above, the statute asks only whether an email address was provided by a referred applicant for the purpose of providing documents to a referred applicant (as it was here). In any event, as was adverted to by the Department's officer: CB 86, by the Delegate’s Decision: CB 92, and by the Authority Decision: CB 111 at [9], as a matter of fact, it was accepted by the Department that this was an email address to which documents could be provided (and, indeed, had been provided);
(e)nothing about the involvement of LC should distract the Court from the analysis required by s 473CB(l)(d)(iii) of the Migration Act itself. In BVS19’s submission, a plain reading of the text of s 473CB(l)(d)(iii) of the Migration Act, particularly as explained by the Full Court of the Federal Court in DNU20, conforms with the analysis set out above. Accordingly, BVS19 submits that the Secretary did fall into error by failing to provide the Authority with the LC Email Address and that the Authority’s jurisdiction was accordingly disabled by the Secretary’s error;
(f)the concept of materiality has developed over time, with different modes of emphasis and expression adopted by individual Justices of the High Court. To that end, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”), the High Court set out the following relevant principles:
(i)the requirements of materiality will depend on the nature of the statutory framework and the nature of the error identified in the decision subject to review: LPDT at [5]-[7] per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ:
(A)some errors are so fundamental to the nature of the decision-making task that it will be unnecessary to establish their materiality in order to properly characterise those errors as jurisdictional;
(B)some errors are such that their materiality will be inherent within their very nature. For instance, legal unreasonableness with respect to a decision will, by definition, be material to the ultimate outcome; and
(C)other errors are such that it will be necessary for an applicant for judicial review to establish (on balance of probabilities) that, but for the error, a different ultimate outcome could (not would) have been reached had that error not been made (classic materiality); and
(ii)where an applicant is erroneously denied an opportunity to make a submission or provide evidence, it is not necessary for that applicant to establish how, if they had that opportunity, they may have used it. It suffices for that applicant to show that there might have been matters the applicant might have advanced using that opportunity that might have assisted their case in a manner that might have led to a different result. This is not an onerous task: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 (“Nathanson”) at [127] per Edelman J, as cited by the plurality in LPDT at [15] and fn 24 per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ;
(g)BVS19’s primary position on materiality is that the error in this case is of the first type, as identified in (f)(i)(A) above. That is, because the error of the Secretary was such as to deprive the Authority of its jurisdiction in the first place, or, to use the language of the Full Court of the Federal Court, the “necessary precondition to the Authority's exercise of jurisdiction”: DNU20 at [42] per Bromberg, Moshinsky and Hespe JJ, any exercise of that jurisdiction was invalid, regardless of materiality. To be clear, BVS19’s primary position is inconsistent with the reasoning of multiple judgments of the Full Court of the Federal Court: DNU20 at [43]-[44] per Bromberg, Moshinsky and Hespe JJ, EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422 (“EVS17”) at [36]-[37] per Allsop CJ, Markovic and Steward JJ; BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [62] per Allsop CJ, Kerr and Mortimer JJ (“BRH18”). The analysis in those cases, while arguably consistent with earlier understandings of materiality: see generally Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464, is now inconsistent with LPDT, which post-dates all of those decisions. However, BVS19 acknowledges that this Court is bound by the decisions in DNU20, EVS17, and BRH18 until the Full Court rules otherwise. Accordingly, for present purposes, it suffices to advance the submission formally with no further analysis;
(h)BVS19’s secondary position (which, for reasons of precedent set out above, assumes particular significance in this Court) is that the error identified in this case was, in any case, material. As was the case in DNU20, the Authority in this case did attempt to contact BVS19 by email but was unable to do so (because the Secretary had failed to provide the LC Email Address): CB 103 and 114. Had that correspondence been sent to the last email address provided by BVS19 (the LC Email Address), BVS19 might have had some further information or submission about his protection claims that he might have sought to make to the Authority pursuant to Subdivision C, Division 3, Part 7AA of the Migration Act, which might have advanced his case in a manner that might have led to a different result: Nathanson at [127] per Edelman J. Insofar as the Secretary’s error deprived BVS19 of the opportunity to advance any such case, consistently with authority, that error was material; and
(i)accordingly, even if the Court rejects BVS19’s primary position (as is required by authority) to the effect that BVS19 is not required to establish materiality in this case, the outcome is no different: the error in this case was material. It follows, in BVS19’s submission, that the Authority fell into jurisdictional error.
In conclusion BVS19 submitted that the failure of the Secretary to provide the Authority with the last email address provided by BVS19 for the purposes of receiving documents deprived the Authority of a necessary precondition to the exercise of its jurisdiction, and that the purported exercise of that jurisdiction by the making of the Authority Decision therefore necessarily involved the commission of jurisdictional error on the part of the Authority. Insofar as materiality is required in respect of this kind of error, it is, in BVS19’s submission, established by reference to the nature of the error and the facts of this case.
MINISTER’S SUBMISSIONS
The Minister submitted that there are two issues that arise on the Amended Judicial Review Application:
(a)the first is whether the Secretary breached s 473CB(1) of the Migration Act in not providing to the Authority the LC Email Address as the “the last … email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents”; and
(b)the second is whether, if there was such a breach, it resulted in a jurisdictional error by the Authority in making a decision on the review.
In relation to whether the Secretary breached s 473CB of the Migration Act the Minister submitted that:
(a)the answer to this question is no;
(b)it is accepted that the Secretary did not provide to the Authority the LC Email Address when the matter was referred to the Authority, or subsequently when the Authority enquired with the Department about any other contact details it possessed: CB 109-110. In the Minister’s submission, that email address was not the last email address or other electronic address that BVS19 provided to the Minister for the purposes of receiving documents;
(c)there is limited authority on what is meant, and how one determines in what cases, a person has provided to the Minister an email address for the purposes of receiving documents. The terms of s 473CB(1)(d)(iii) of the Migration Act are analogous to other provisions in the Migration Act, for instance, see s 494B(5) of the Migration Act which provides the methods by which the Minister may give documents to persons;
(d)some assistance in interpreting s 473CB(1)(d)(iii) of the Migration Act may be gained from cases where courts have examined the “authorised recipient” provisions such as in s 494D of the Migration Act: Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1258; (2022) 181 ALD 97 (“Lyu”). In the Minister’s submission, a similar approach ought to be taken to interpreting provisions such as s 473CB(1)(d)(iii) of the Migration Act. Whether BVS19 provided to the Department an email address for the purposes of receiving documents is an objective question to be determined on the basis of the evidence before the Court: Lyu at [44] per Beach J (by reference to s 494D of the Migration Act). In ascertaining whether on the evidence it can be demonstrated that a particular email address was provided for the purposes of receiving documents, it is important to examine the nature of the communication from BVS19 and for what purpose BVS19 instructed that the Department use the given email address;
(e)BVS19 relies upon his affidavit, and documents in the CB, to submit that he provided the LC Email Address to the Department “for the purposes of receiving documents”. However, BVS19 has not given any evidence of the conversation he says he had with an officer of the Department in 2019 during which he says that he provided the LC Email Address;
(f)in the Minister’s submission BVS19 provided the LC Email Address to the Department so that a letter for the purposes of s 56 of the Migration Act (seeking to obtain further information from an applicant) could be re-sent to BVS19 (“Section 56 Letter”). That is, BVS19 provided the email address for a limited and specific purpose, rather than for the purpose (thereafter) of receiving documents. The evidence supports this;
(g)despite being invited by the Department to provide an updated address, phone number and email address, there is no evidence that BVS19 provided any further updated address to the Department. It was not for the Department to assume that the LC Email Address was the address BVS19 wished from that point onwards to receive all written communications from the Department. Indeed, on his original SHE Visa application form BVS19 had requested that he not be sent correspondence by email. That intention was repeated in a Form 929 that BVS19 provided to the Department dated 29 October 2018;
(h)the Court should be cautious in acceding to BVS19’s submission that it should draw assumptions, not supported by BVS19, about the purpose for which BVS19 intended the LC Email Address be used. That BVS19 accepts that the LC Email Address was not even his email address (or an email address of which he had exclusive use) heightens the need for caution;
(i)in the Minister’s submission BVS19 – taking the evidence at its highest – failed to make clear with sufficient specificity that the LC Email Address was to be used for the purposes of the Department sending all future correspondence: Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 (“Somjich”) at [57] per Rangiah J (by reference to s 379A of the Migration Act). That was especially so in circumstances where BVS19 had stated in the SHE Visa application, and then again in a Form 929 dated 29 October 2018, that he did not wish to receive communications by email;
(j)that BVS19 provided to the Department the LC Email Address for the purpose of being re-sent the Section 56 Letter did not constitute provision of an email address for the purposes of receiving documents (for the purposes either of s 441A(5) or s 473CB(1)(d)(iii) of the Migration Act). It was therefore unnecessary for the Secretary to have provided the LC Email Address to the Authority;
(k)what the Secretary did provide to the Authority was BVS19’s residential address which was confirmed as recently as 29 October 2018 in the Form 929. Whether BVS19 was in fact living at that address or not is irrelevant to the Secretary’s duty under s 473CB(1)(d) of the Migration Act. It was BVS19’s duty to keep the Department informed of his residential address, which he appears to have failed to do: see s 52(3A) and (3B) of the Migration Act;
(l)BVS19 submits in the first instance that an error of the kind asserted in this case (that is, a failure by the Secretary to comply with s 473CB(1)(d)(iii) of the Migration Act) is an error of a kind that is so fundamental, it is unnecessary for BVS19 to establish the materiality of that error in order for the Court to conclude that the Authority Decision is affected by jurisdictional error. That appears to be a formal submission only, as BVS19 (properly) concedes that authority of the Full Court of the Federal Court is against his primary argument. It is therefore unnecessary for the Minister to say anything further on the subject. However, for the avoidance of any doubt, there is no inconsistency between the High Court’s latest statement on the effects and requirements of materiality in respect of discerning jurisdictional error, and earlier statements of the Full Court of the Federal Court in cases such as DNU20 and EVS17; and
(m)the Minister accepts that if the Court were to conclude that the Secretary was required in this case but failed to provide to the Authority the LC Email Address, the error had a material effect on the Authority Decision and would result in jurisdictional error.
LEGISLATION
Section s 473CB(1)(d)(iii) of the Migration Act provides that:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
…
(d) the following details:
…
(iii)the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
Although not the operative legislative provision in this case it is relevant to observe that s 494B(4) and (5) of the Migration Act provides that:
494B Methods by which Minister gives documents to a person
…
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, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email 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, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
FACTUAL MATTERS
Relevant factual matrix
The relevant background to the matter is as follows:
(a)on 13 November 2013 BVS19 arrived in Australia as an irregular maritime arrival. In his entrance interview he did not provide an email address: CB at [8];
(b)on 14 November 2016 the Refugee Advocacy Service of South Australia (“RASSA”) wrote to the Minister in respect of BVS19’s foreshadowed application for a SHE Visa advising (“RASSA Advice”), at CB 21, that:
Any future correspondences need to be directed to the applicant at the postal address provided by them. No correspondence is to be conducted with the applicant using email or electronic media.
(c)on 21 November 2016 BVS19 applied for a SHE Visa. As part of the SHE Visa application BVS19 was required to provide an email address. BVS19 provided an email address: the SHE Visa Application Email Address. The very next question on the form enquired as to whether BVS19 agreed to “the department communicating with [him] by fax, email or other electronic means”. To that question BVS19 answered “No”: CB 38;
(d)on 23 January 2017, 12 October 2018 and 7 November 2018, the Department wrote to BVS19 in respect of the SHE Visa application. All of this correspondence was sent by post only to BVS19’s last-known residential address: CB 68, 76 and 78;
(e)on 14 January 2019 BVS19 telephoned the Department. In the course of this telephone call BVS19 provided the Department with an updated email address, that being the LC Email Address, and the Department responded by re-sending the Section 56 Letter to, and requesting updated contact details from, BVS19 (the precise nature and terms of the provision of the LC Email Address to the Department and subsequent correspondence between the Department and are discussed in more detail at [19]-[24] below);
(f)on 20 February 2019 the Delegate decided to refuse BVS19’s application for a SHE Visa. For present purposes, the reasons for the Delegate’s Decision are of little import, save for one observation by the Delegate: CB 92:
On 14 January 2019 the applicant contacted the Department requesting information about the progress of his case. The applicant gave an email address for the purpose of receiving the s56 notice which was subsequently sent to him on 14 January 2019.
(g)on 25 February 2019 the Authority wrote to BVS19 to acknowledge that the Delegate’s Decision would be subject to review. This correspondence was sent to the SHE Visa Application Email Address, without copy to the LC Email Address: CB 101-105. This correspondence was also sent to BVS19’s last-known postal address but was returned to sender, with the letter being marked, “DOES NOT LIVE AT THIS ADDRESS”: CB 106;
(h)on 8 March 2019 a person (“LC”) wrote to the Minister from the LC Email Address. LC explained that she was writing on behalf of BVS19 to notify the Department of “late reply to Request for more information for protection visa”: CB 107;
(i)on 12 March 2019 an officer of the Department responded to LC as follows: CB 108:
If you would like to act as an authorised recipient, the applicant will need to complete the following form.
Due to privacy restrictions we cannot discuss any matters with you without the applicant’s consent.
(j)on 19 March 2019 the Authority wrote to the Department seeking clarification of BVS19’s contact details. The Authority records its concern that documents posted to BVS19’s last known residential address had been returned. The Authority also stated as follows: CB 109:
The mobile number that has been provided is [.. number deleted] and the email address is listed as … [SHE Visa Application Email Address].
If the Department has updated contact details can that be provided?
(k)the Department responded to the Authority on 19 March 2019 stating as follows: CB 112:
The client address, email and the phone number listed in our system is the same as you mentioned in your email below.
However, we also have another phone number which is still active within our system and that is: [… number deleted]. You could try that number and see if it helps.
(l)on 19 March 2019 the Authority wrote to the SHE Visa Application Email Address, stating that the Authority had been unable to contact BVS19 and requesting that BVS19 contact the Authority by telephone or email as soon as possible: CB 114; and
(m)on 21 March 2019 the Authority wrote to the SHE Visa Application Email Address, attaching the Authority Decision to affirm the Delegate’s Decision: CB 116.
In relation to the Authority Decision the Minister observed that:
(a)the Authority Decision, dated 19 March 2019, affirmed the Delegate’s Decision. As with the Delegate’s Decision, the reasons of the Authority Decision itself are of little import, save for one observation (at CB 121 at [9]) replicating verbatim an earlier observation from the Delegate’s Decision at CB 92 (and which is set out at [17(f)] above):
On 14 January 2019, the applicant contacted the Department requesting information about the progress of his case. The applicant gave an email address for the purpose of receiving the s.56 notice which was subsequently sent to him on 14 January 2019.
(b)there is no evidence that the Secretary ever provided the Authority with the LC Email Address.
The provision of the LC Email Address
As set out at [17(e)] above, on 14 January 2019 BVS19 telephoned the Department. In the course of this telephone call BVS19 provided the Department with an email address, that being the LC Email Address.
In BVS19’s July 2024 Affidavit at [11] he says that:
My partner was trying to help me with my visa application as it had been several years and I did not know what was going on. She helped me to contact the Department. I remember telephoning the Department of Immigration early in 2019 and providing them with my partners email address - … [LC Email Address]. I remember receiving a response, and my partner then helped me to email the Department to help find out what was going on.
BVS19 has not provided any other evidence in relation to the 14 January 2019 telephone call to the Department.
A Departmental officer made a contemporaneous note of the discussion as follows: Affidavit of Georgina Ellis, affirmed 24 July 2024, at [3] and Annexure GE-1:
Applicant called to enquire progress of cases and interview date. Advised we have been unable to contact him and an interview was previously scheduled.
Applicant provided an email address to send correspondence to temporarily as emails and mobile and not working: … [LC Email Address].
Follow up email and s56 request resent – CLD2019/2654858.
The subsequent “follow up email and s56 request” provides as follows: at CB 86:
Thank you for your call today and for providing this email to re-send correspondence to.
As discussed, you previously had an interview scheduled for 6 November and we subsequently sent the attached letter. Grateful if you could please provide us with a response as soon as possible.
We would also appreciate if you could please provide us with an updated address, phone number and email address so we can contact you easily in future.
It is not in dispute that no “updated” contact details were provided by BVS19. The reference in BVS19’s Affidavit at [11] to his “response” can only be a reference to LC’s email to the Department on 8 March 2019 on behalf of BVS19 to notify the Department of “late reply to Request for more information for protection visa”: CB 107 (and see [17(h)] above), as the 8 March 2019 email is the only subsequent contact with the Department on behalf of BVS19.
CONSIDERATION
A mandatory requirement
The use of the words “must give” in s 473CB(1) of the Migration Act imposes upon the Secretary a mandatory requirement to provide the details referred to in sub-para(d)(iii) thereof to the Authority: DNU20 at [36] per Bromberg, Moshinsky and Hespe JJ; EVS17 at [32] per Allsop CJ, Markovic and Steward JJ. A breach of s 473CB(1)(d)(iii) of the Migration Act by the Secretary in not giving to the Authority the details is an error, but whether the error is jurisdictional depends upon whether the error was material: DNU20 at [43] per Bromberg, Moshinsky and Hespe JJ; EVS17 at [41]-[42] per Allsop CJ, Markovic and Steward JJ.
For the purposes of receiving documents
In this case whether there was an error depends upon the answer to the question whether the email providing the LC Email Address to the Department was provided by BVS19 “for the purposes of receiving documents”. In this regard the Court was referred to Lyu and Somjich.
Lyu is a case in which the facts are so particular that the case is ultimately unhelpful in the present context.
Somjich is of marginally more assistance. In Somjich the applicant had sent at least four emails from a Hotmail address to the Tribunal in circumstances where there was a nominated Gmail email address as his contact address: Somjich at [8], [26], [54] and [58] per Rangiah J. In Somjich the relevant legislative provision, s 379A(5)(d) of the Migration Act, referred to documents “provided … in connection with the review” by the Administrative Appeals Tribunal: Somjich at [25] and [53] per Rangiah J. The Federal Court, adopting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 18 AAR 9; (1993) 115 ALR 1, FCR at 288 per Neaves, French and Cooper JJ where a Full Court of the Federal Court said the phrase “in connection with” is “capable of describing a spectrum of relationships from the direct and immediate to the tenuous and remote”, observed that “meaning must depend upon the statutory context”: Somjich at [57] per Rangiah J. Critically, the Federal Court went on in Somjich to observe that “the expression “provided to the Tribunal … in connection with the review” is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that the applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents”: at [57] per Rangiah J. The Federal Court found that the “mere sending of emails from the Hotmail address gave no indication that the Hotmail address was the address to be used for the provision of documents instead of the Gmail Address” and, therefore, the Hotmail address was not one provided to the Tribunal in connection with the review: Somjich at [59] per Rangiah J. Notably, that finding was made notwithstanding the obviously broad reach of the phrase “in connection with” in s 379A(5)(d) of the Migration Act.
Although not the operative legislative provision in this case, cases dealing with s 494B(4) and (5) of the Migration Act, which contain the phrase “for the purposes of receiving documents”, are of some assistance.
In Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 (“Maroun”) at [32] per Jagot J the Federal Court observed:
The words “for the purposes of receiving documents” [in s 494B(5)] are words of limitation. They can be contrasted with the more general description in ss 379A(4)(c) [and also (5)(d)] and 441A(4)(c) (which refer to the address “provided…in connection with the review”).
In Maroun the appellant had provided his residential address in Australia in a form which asked for an address for correspondence but which the appellant had chosen not to provide. Rather, the appellant agreed to receive documents by email on a form which said that if his visa application was refused notice of that refusal would be given by mail. The Federal Court found that could only be understood as the Minister advising the appellant that despite his provision of an email address any notice of refusal would be to a postal address as provided and not to an email address, and in the context of the form as a whole the appellant must be taken to have provided his residential address as his address for the purpose of, at the least, receiving any notice of refusal of the appellant’s visa application: Maroun at [33] per Jagot J. In Maroun the then Federal Magistrates Court had found that the question of purpose in s 494B(5) of the Migration Act was to be determined objectively and that judgment was upheld in Maroun at [31] and [37] per Jagot J.
In SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 at [48]-[49] per Beach J the Federal Court concluded that the question of whether an address had been provided to the Minister by the recipient for the purpose of receiving documents involves an objective assessment of the circumstances in which the Minister received the information. SZVRO was referred to with approval in the majority judgment in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492; (2019) 78 AAR 373 at [28] per Perram J (with whom Farrell J agreed at [67]), but where the issue was put slightly differently: for what purpose or purposes would a reasonable person in the circumstances of the Minister have understood the person to be providing the address? More recently, and after this judgment was reserved, this Court, in IXT24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1283 at [34] per Judge Gostencnik observed that “[a]scertaining the purpose for which the email address … was provided is to be determined objectively”.
Was the LC Email Address provided for the purpose of receiving documents?
The language of s 494B(5) of the Migration Act is straight-forward: if a visa applicant provides an email address to the Minister for the purposes of receiving documents the last email address so provided must be provided to the Authority by the Secretary. Ascertaining the purpose for which the email address was provided is to be determined objectively.
By way of:
(a)the RASSA Advice; and
(b)the SHE Visa application,
in November 2016 BVS19 adopted and maintained a position that he was not to be, and did not want to be, contacted by the Department by electronic means, notwithstanding that he had to provide the SHE Visa Application Email Address to conform with the requirement in the SHE Visa application form to provide an email address.
The provision of the LC Email Address to the Department on 14 January 2019 occurred in a particular context. The evidence shows that the LC Email Address was given for the purpose of the Department resending to BVS19 the correspondence in question, namely the Section 56 Letter, and nothing else, and was a temporary arrangement for this purpose as BVS19’s emails and mobile phone were not working. On the evidence that was the limited (and limited by BVS19) purpose of the provision of the LC Email Address, and it was also how it was understood by the Departmental officer who spoke to BVS19 at the time.
Three other matters are of significance:
(a)first, having been requested by the Department on 14 January 2019 to provide updated email and other details following the provision of the LC Email Address, BVS19 provided nothing, a position consistent with that adopted by him in November 2016 of not providing an email address for the purpose of receiving documents;
(b)second, the further contact with the Department by LC in March 2019 was not contact by BVS19, and in any event there was no request for the LC Email Address to be used as the email address for the purpose of receiving documents, either at the time of the further contact (which was by LC) or in response to the Department’s invitation to LC to have BVS19 nominate an authorised recipient; and
(c)third, BVS19 filed BVS19’s July 2024 Affidavit, and despite referring at [11] to the 14 January 2019 contact with the Department BVS19 does not, there or elsewhere in that affidavit, claim that the LC Email Address was provided to the Department for the purpose of receiving documents. Viewed objectively the lack of any expressed subjective intention on the part of BVS19 supports an inference that the purpose of providing the LC Email Address was not for the purpose of receiving documents, but rather for the singular one-off purpose of re-sending the Section 56 Letter.
In all the above circumstances, the Court has concluded that a reasonable person in the Minister’s position would have concluded that the LC Email Address was not provided to the Department for the purpose of receiving documents but as a part of a request for the Department to re-send the Section 56 Letter. That is, it was provided for a singular one-off purpose and not for the purpose generally of receiving documents. It follows that there was no breach of s 473CB(1)(d)(iii) of the Migration Act by reason of a failure to provide documents – and specifically the referral to the Authority – to the LC Email Address. It further follows that there was no error, jurisdictional or otherwise, which arose in the circumstances.
CONCLUSION AND ORDERS
The Court has concluded that BVS19 has failed to make out the sole ground of the Amended Judicial Review Application, and it follows that the Amended Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 25 February 2025
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