BYW18 v Minister for Home Affairs

[2024] FedCFamC2G 1406

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BYW18 v Minister for Home Affairs [2024] FedCFamC2G 1406

File number:

SYG 1090 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

18 December 2024

Catchwords:

 MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise Visa (class XE) (subclass 790) visa refusal - whether e-mail was given to the Authority within the meaning of s 473HF(1)(a) of the Migration Act 1958(Cth) – no jurisdictional error – application dismissed.  

Legislation:

Electronic Transactions Act 1999 (Cth) ss 14(1)(a), 14A(1)(a), 14A(1)(b), 14A(1)(b)(ii), 14A(2).

Evidence Act 1995 (Cth) s 161(1).

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 91W(1), 473CB, 473FB(5), 473HF(1)(a) and Part 7AA.

Cases cited:

Bauen Constructions Pty Ltd v Sky General Services Pty Ltd and Anor [2012] NSWSC 1123

BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44

Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9

Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494

Russell v Minister for Home Affairs [2018] FCA 2102

Russell v Minister for Home Affairs (2019) 275 FCR 334

Division:

Division 2 General Federal Law

Number of paragraphs:

64

Date of hearing:

9 December 2024

Place:

Parramatta

Counsel for the Applicant:

Mr Honnery

Solicitor for the Applicant:

Ms Sweeney (Playfair Legal Pty Ltd)

Counsel for the First Respondent:

Mr Harvey

Solicitor for the First Respondent:

Ms Chiu (Clayton Utz)

Solicitor for the Second Respondent:

Submitting appearances, save as to costs.

ORDERS

SYG 1090 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BYW18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 20 March 2018. The Authority affirmed the decision on 20 July 2017 of a delegate of the then Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) visa (“SHEV”).

2. For the reasons outlined below, the application must be dismissed.             

   BACKGROUND

3. The applicant is a male citizen of Sri Lanka. He first arrived in Australia on 5 November 2012 as an unauthorised maritime arrival.

4. The applicant lodged the SHEV application on 11 July 2016.   

5. In a letter dated 20 July 2016 a delegate requested further information regarding documentary evidence of the applicant’s identity, nationality or citizenship. The request was made under subsection 91W(1) of the Migration Act 1958 (Cth) (“the Act”).

6. In a letter dated 16 May 2017, a delegate sent a request for the applicant to attend an interview to discuss his visa application and claims scheduled on 29 May 2017. The applicant attended the interview and provided submissions through his representatives following the interview on 3 June 2017.

7. A delegate refused to grant the SHEV on 20 July 2017 for the purposes of s 65 of the Act. The refusal decision was referred to the Authority on 24 July 2017.

8. The Authority affirmed the decision not to grant the applicant a protection visa on 20 March 2018.

   IMMIGRATION ASSESSMENT AUTHORITY DECISION

9. The Authority had regard to the material provided by the Secretary under s 473CB of the Act. Whilst the applicant made two requests for an extension of time to provide new information and submissions, no further information had been received or obtained by the Authority.

10. The applicant’s claims were summarised at [3] as follows:

    •His uncle owned a fish transporting business. He was a worker at that business in Jaffna. Some of his uncle’s regular clients included members of the Liberation Tigers of Tamil Eelam (LTTE).

    •He assisted his uncle with transporting weapons and other goods to the LTTE.

    •Due to the fighting, he was displaced to the Vanni in 1995 and lived there until 2009.

    •His son and father-in-law were killed in shelling. Other members of his family (wife and daughter) were injured. The authorities tried changing the date on his son’s death certificate to make it look like he wasn’t killed during the skirmish.

    •At the end of the war he was injured in heavy shelling and spent time in hospital in Vavuniya. The Criminal Investigation Department (CID) came every two or three days to question him; they were suspicious of his and his uncle’s involvement with the LTTE. His uncle at that time was missing.

    •A Tamil doctor at the hospital told him the CID had asked to be informed of the applicant’s release. He advised the applicant to leave the country and assisted him to get a medical treatment visa to India.

    •He remained in India illegally, fearing to return to Sri Lanka.

    •After he left Sri Lanka for India the CID made enquiries of him to his wife. They harassed her. She told them he disappeared from the hospital and didn’t know where he was.

    •The CID were in India and made enquiries about people trying to find out who had links to the LTTE.

    •His wife told him the CID made enquiries about him to her brother.

    •He continues to suffer from the injuries he sustained in shelling in 2009. He fears the CID may suspect that he received his scars because he was fighting with the LTTE.

11. The Authority instructed itself from [4]– [5] as to the meaning of a refugee in s 5H(1) and components of a ‘well-founded fear of persecution’ under s 5J of the Act.

12. It accepted at [6] that the applicant was a national of Sri Lanka, a Hindu Tamil from a village in the North Western Province and that Sri Lanka is the relevant receiving country.

13. The applicant’s details about his address, education, work and family history as set out in his SHEV application were also accepted at [7].

14. At [11] the Authority accepted that arrival interviews are not conducted to assess an applicant’s claims for protection. It also accepted that the applicant may have had a genuine fear and/or mistrust of officials which may have contributed to his reluctance to disclose the claim that he has also been involved in transporting weapons, in addition to distributing fish and other items for the Liberation Tigers of Tamil Eelam (LTTE).

15. However, the Authority did not otherwise find the applicants explanation for not disclosing the claim earlier persuasive and did not accept at [12] that he transported weapons for the LTTE. The Authority provided four reasons to support its finding.

16. A further significant consideration at [13] related to the applicant’s claim that the Criminal Investigation Department (CID) visited him in hospital to enquire about his transportation of weapons and told him to report to them upon his discharge which he did not do. The Authority did not find it plausible that the CID, after questioning the applicant every two to three days for transporting weapons for the LTTE, would not pursue the applicant after he failed to attend their office when discharged.

17. The Authority stated there was a period of at least seven months between the applicant’s questioning in hospital and his departure for India. During this period, he remained living and working in Sri Lanka which included time in the same district as the hospital he stayed, and was purportedly questioned, at. The applicant did not claim that he was questioned, detained, arrested or otherwise subject to interest from the CID during those seven months. It was, in the Authority’s view, implausible the applicant could remain living and working in the same area for seven months without having been further questioned or detained by the authorities if he was a person of ongoing suspicion in connection to transporting weapons.

18. The Authority was not satisfied at [15] that the applicant was involved in transporting weapons, or other such goods for the LTTE in the period leading up to the end of the war or that he was questioned every two or three days in hospital about his links to the LTTE and the transporting of weapons.

19. At [16] the Authority was willing to accept the applicant was questioned in hospital once or twice about having distributed fish and some other foodstuffs to the LTTE through his uncle’s business.

20. The Authority was satisfied that at the time he left Sri Lanka, the applicant was not a person of interest to the authorities.

21. On this finding, the Authority did not accept that a Tamil doctor, who assisted the applicant to get a medical treatment visa to India, told him the CID had asked to be informed of the applicant’s release. It considered at [17] the claim, that this formed the basis of the doctor’s assistance and advice to leave the country, to be an embellishment.

22. The Authority considered at [20] the claims that the applicant’s wife was questioned about him until November 2016 and that his mother-in-law was pushed by authorities to be exaggerations designed to bolster his claims for protection.

23. The Authority did not accept at [21] that the applicant was a person of adverse interest to authorities in Sri Lanka. It was not satisfied the authorities questioned his brother-in-law about him at any time. It was satisfied at [22] the applicant was not at risk of harm on the basis of his dealings with the LTTE.

24. It accepted at [23] that the applicant spent time in the Northern Province of Sri Lanka being an area formerly held by the LTTE and at [24] accepted that historically, Tamils have been subject to systematic, state-sponsored discrimination. 

25. The Authority accepted the Sirisena government’s progress in a number of reconciliation and reform areas is not without criticism at [27]. Greater weight was placed at [29] on a 2017 report by the Department of Foreign Affairs as compared to the incidents outlined by the applicant in his submissions pertaining to the risk and general political and security situation in Sri Lannka.

26. The Authority was prepared to accept at [30] that the applicant has family land which they cannot access due to occupation by the “SLA” and that he has ‘kept quiet’ for fear of repercussions. However, it was not satisfied that if he returns to Sri Lanka he will be at risk of harm if he asks for his land to be returned or that the ongoing impact from the occupation of his land will be to such an extent that it threatens his capacity to subsist or otherwise constitutes serious harm.

27. It accepted at [31] it is plausible, given the number of Tamils that fled to Tamil Nadu to escape the war that the CID may have made enquiries in India about people trying to detect persons of interest who have links to the LTTE. The applicant was not, however, among them and the Authority was not satisfied he is not at risk of harm on the basis that the CID made enquiries in India in 2012 about people who had links to the LTTE.

28. The Authority accepted at [32] that the applicant suffered tremendous hardship and loss in Sri Lanka, not least of which was the death of his young son and that he and other members of his family were injured in a shelling in May 2009. However, it was not satisfied on the evidence that the applicant was suffering at the time from mental health issues that affected his day-to-day functioning or that he was vulnerable.

29. It accepted at [34] that he paid an agent to assist him in obtaining a passport and visa and that he paid extra for that service. However, the extra payment was an administrative process available to anyone who wanted to obtain their passport more quickly. It did not consider at [35] the applicant was at risk of prosecution under Sri Lanka’s Immigrant and Emigrants Act 1949 for illegal departure. However, it accepted the fact that because he will be returning using a temporary travel document, Sri Lankan authorities are likely to identify him during routine arrival processing as a person who has made a claim for asylum in Australia.

30. The Authority was not satisfied at [36], on the country information, that the mere fact of having claimed asylum or having spent time abroad would lead to adverse interest on return or a real chance of harm. The applicant was not ex-LTTE and the Authority was satisfied at [37] he was not a person of interest at the time he left Sri Lanka. It was not satisfied the applicant faced a real chance of harm on return to Sri Lanka on the basis of the scarring he suffered as a consequence of the shelling incident in 2009.

31. The Authority found the applicant was not a person who committed a criminal act by leaving the country using a forged identity. It stated at [38] that there was no indication in the country information before it that simply being a Tamil asylum seeker would lead to an imputation of a pro-LTTE or anti-government opinion, or otherwise lead to harm on return.

32. The Authority was not satisfied at [39] the applicant was at risk of serious harm on the basis that he would be a returning asylum seeker from a western country. It was not satisfied at [41] that there was a real chance of the applicant being seriously harmed by the Sri Lankan authorities at the time or in the reasonably foreseeable future.

33. The applicant did not meet s 36(2)(a) nor the alternative complementary assessment under s 36(2)(aa).

    APPLICATION FOR AN ADJOURNMENT

34. At the commencement of the hearing, the applicant sought to adjourn the hearing to allow discovery of various documents relating to the arrangements between the Authority and Macquarie Telecoms Secure Intellicentre (“Macquarie”) in respect of email filtering and email management. That included whether emails can be received by the Authority, including email server settings and how they are controlled. Also sought, were notification requirements if Macquarie notifies a sender if an email is not transmitted to the intended recipient. In a separate oral judgement that application was refused.

    GROUNDS OF JUDICIAL REVIEW

35. The ground for judicial review is contained in a draft amended application. The sole ground pressed is that the Authority failed to consider a submission made by the applicant and given to the Authority electronically. The ground is as follows:

    The Tribunal [sic] failed to consider submissions of substance, being the entirety of the submission dated 14 August 2017 and additional documents which were believed to have been submitted to the IAA by electronic means on the 21 August 2017.

    EVIDENCE BEFORE THE COURT

36. Without objection, the applicant tendered to the Court an affidavit of Chuong Mai-Viet, the Managing Director of Bluesource Pty Ltd, and a senior consultant in the ‘IT&T’ industry. Bluesource is an IT provider to the representative for the applicant, Playfair Visa and Migration Services (“Playfair”).

37. Having undertaken a search of Playfair’s server, Mr Mai-Viet, states that on 21 August 2017 an email was sent from Playfair to the following email address, [email protected] in relation to the applicant. That email was received by the Macquarie at 5:17 PM on 21 August 2017.

38. That email was rejected by ‘Secure Intellicentre’ an email filtering system used by the Authority. Mr Mai-Viet attaches, at annexure CM3 to his affidavit, an email he deposes he retrieved from the Playfair server logged at 5.19pm on 21 August 2017 that states as follows: “Undeliverable: IAA Submissions and New Information for IAA17/03197” and then the applicant’s name.

39. Based on the information provided by Mr Mai-Viet, the Court is satisfied as a fact that Playfair transmitted submissions and material to the Authority on 21 August 2017, but that material was rejected by the Authority, most likely due to it being in excess of the file size limit imposed by the Authority for emails.

40. The Court is further satisfied as a fact that, notwithstanding the assertions by Playfair that they did not receive any notification that the email had been rejected, that Playfair did receive a message that the transmission to the IAA had failed and/or should have been aware that the email had been rejected as a result of the ‘Undeliverable’ message that was retrieved from Playfair server by Mr Mai-Viet. The Court accepts that there is no evidence before it as to where that message was retrieved from within the various folders within Playfair’s system, however the Court is satisfied that such a message was received and appears to have been overlooked by Playfair staff.

    THE APPLICANT’S SUBMISSIONS

41. The only submissions before the Court were dated 14 June 2019 and prepared by a different Counsel to Mr Honnery who appeared at the final hearing.

42. These submissions were short and argued that applying s 14A of the Electronic Transactions Act 1999 (Cth) (“ET Act”), the email was received by the Authority when it was “capable of being retrieved”. Had the email filtering software applied different settings, the email would have arrived in the inbox and was “capable” of being retrieved from that moment.

43. In oral submissions, Counsel for the applicant noted that under s 473HF that the applicant is simply required to ‘give’ a document to the Authority by a method set out in either directions under s 473FB or by a method set out in the regulations.

44. In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44, Gordon A-CJ, Edelman and Steward JJ at [56] quoted with approval Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 125 [23] the following:

    The verbs ‘give’ and ‘invite’ connote only the performance of an act rather than the consequences of that performance such as the recipient’s capacity to comprehend the consequence of the English notice given or the English invitation made.

45. In that case the Court went on to ultimately find the giving of a Notice by the Minister to a person who lacked legal capacity to make decisions about it, due to mental illness, wholly miscarried.

46. In this case it was submitted the applicant had ‘given’ material to the Authority as it was transmitted to the correct email address and was received by the Authority’s agent, Macquarie. Thus, the material had been ‘given’, and the applicant was not required to do anything more.

47. Reliance was also placed on Bauen Constructions Pty Ltd v Sky General Services Pty Ltd and Anor [2012] NSWSC 1123 at [77] – [78] (“Bauen”):

    [77] … Clearly the email was received, albeit was caught by the spam filter. The words “capable of being retrieved” are ample in their reach. They certainly do not require an email to be opened, let alone read. Again the Oxford dictionary defines “retrieve” in its primary sense as to “to get or bring back from somewhere”. In a secondary sense it is said to mean “to find or extract (information stored in a computer)”. According to the evidence when an email is caught by the Adjudicate Today spam filter, it is nonetheless archived and accessible by Adjudicate Today via its external IT consultant.

    [78] In my opinion this Act enables Bauen to contend that if an email is sent, but not opened or read, but it is capable of being retrieved, it has been received by Adjudicate Today. Once received in my view it has been “lodged” on any view of that word.

1. It was submitted that if the Authority’s server had different file size settings, the email would have been capable of being retrieved. The email was rejected due to undisclosed and arbitrary file size limitations that were entirely in the control of the Authority, with Macquarie acting as its agent. The email should be deemed as received under s 14A of the ET Act.

   THE FIRST RESPONDENT’S SUBMISSIONS

2. The first respondent submitted the e-mail sent at 5:16pm on 21 August 2017 was not given to the Authority within the meaning of s 473HF(1)(a) of the Act for several reasons.

3. First, the Authority did not actually receive the document; (see: Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494, [21] (Lindgren J), Russell v Minister for Home Affairs [2018] FCA 2102 at [15] (“Russell 1”) (upheld on appeal: Russell v Minister for Home Affairs (2019) 275 FCR 334).

4. Second, the first respondent’s interpretation of the word “give” per s 473HF(1)(a) is consistent with s 14A of the ET Act. In applying the Court’s reasoning in Russell 1, the email was not ‘given’ to the Authority because it did not ‘actually’ arrive at the Authority’s designated email address.

5. Thirdly, the applicant is not assisted by the presumption in s 14A(2) of the ET Act as the email never ‘reached’ the Authority’s designated email address.

6. Fourthly, there is no evidence that s 14A(1)(b) of the ET Act has any work to do. The applicant had produced no evidence that his email became capable of being retrieved by the Authority. Nor had he produced evidence that the Authority “[became] aware that the electronic communication has been sent to that address” (s 14A(1)(b)(ii)).

7. Fifthly, the applicant’s representative was expressly put on notice on 8 August 2017 of the possibility that the Authority’s designated email address was subject to file “size” limitation.

8. For completeness, the then s 473FB(5) of the Act does not arise for consideration as the material was never given to the Authority at its designated e-mail address. Therefore, there was nothing to “accept”. The first respondent relied on Russell v Minister for Home Affairs [2018] FCA 2102(“Russell 1”) to establish the applicant’s underlying duty to ensure that the materials on which they sought to rely were provided. There is no obligation, express or implied, imposed on the Authority by Part 7AA of the Act or by the Practice Direction.

   CONSIDERATION

9. In my view the complete answer to the applicant’s arguments may be found in “Russell 1” per Farrell J and upheld on appeal in Russell v Minister for Home Affairs [2019] FCAFC 110 (“Russell 2”). The Court notes these cases postdate Bauen and its view, Bauen is not good law for the purposes of this matter.

10. Russell 1 concerned a matter where the facts are very similar to this case. At [3] the following facts are set out. Ms Russell attempted to lodge with the Tribunal by email application for a review of a delegate’s decision on 31 August 2018 at 5:14 PM. She then shut down her email. She did not log on to her email until 6 September 2018. She then received a notification dated at 5:25 PM on 31 August 2018 that her email to the Tribunal sent on 31 August 2018 was undeliverable with error messages of “unknown address error” and “message size exceeds fixed limit”. She then lodged a further application which was received by the Tribunal but was one day outside the time limit she had to lodge her application.

11. Ms Russell submitted that she was not told by the Department or the Tribunal that the Tribunal server had file size limits. She argued that due to the applications file size, the Tribunal’s server “refused to accept” her application on 31 August 2018.

12. At [15] and [16] of Russell 1 Farrell J had the following to say:

    [15] An application is not made until it is received by the Tribunal: see Pomare v Minister for Immigration and Citizenship (2008) 167 FLR 494 at [21] per Lindgren J. Having regard to that decision, despite submissions made by Ms Russell, as a matter of law, the Tribunal did not receive her application on 31 August 2018.

    [16] As acknowledged by Ms Russell, the cause of the delivery failure of her email sent on 31 August 2018 was the size of the file. While it is true that the “How to Apply for Merits Review by the Administrative Appeals Tribunal” form which accompanied the notification of the delegate’s decision on 24 August 2018 did not contain advice about possible file size limits which might affect the Tribunal’s capacity to receive an application by email. In my view it did not need to. Ms Russell sent a notification of the delivery failure shortly after she sent her email on 31 August 2018. The fact that she does not commonly use a computer does not negate the fact that it was open to her to find out about the delivery failure shortly after she sent her email. It was her responsibility to ensure that the email was received by the Tribunal.

13. At [22] of Russell 2 the Full Court rejected the submission that s 14A(1)(a) of the ET Act was of any assistance to the applicant. It stated that “…we would not conclude that s 14(1)(a) extends the concept of receipt to receipt within an information system”. Nor was s 161(1) of the Evidence Act 1995 (Cth) of any assistance.

14. In the Court’s view, the findings in Russell 1 and 2 are directly applicable in this matter. The Court accepts that an email was sent to the Authority. That email was rejected, and an “Undeliverable” message was received shortly thereafter by Playfair. The reason for the rejection is irrelevant.

15. Whilst Playfair claim had to have not read the message, it was retrieved from somewhere within their IT system. The Court is reasonably satisfied that a diligent and competent representative should have been alerted by the receipt of the “Undeliverable” message that the email sent to the Authority, on behalf the applicant, had not in fact made its way to the Authority. It matters not where the message was found within Playfair’s IT system.

16. The Court rejects the submission by Counsel appearing for the applicant that Russell 1 and 2 can be distinguished from this case. The facts are almost identical. The Court also rejects the submission that Russell 1 and 2 are wrongly decided. They have not been overturned and are still good law. The Court is bound by those decisions. Accordingly, the sole ground of judicial review has no merit.

    DETERMINATION

17. In these circumstances, the application must be dismissed with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       18 December 2024