Chidbundid v Minister for Immigration
[2012] FMCA 59
•7 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHIDBUNDID v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 59 |
| MIGRATION – Application to review decision of Migration Review Tribunal – jurisdiction of Migration Review Tribunal – notice of decision of Minister for Immigration and Citizenship cancelling visa by email – whether deemed receipt – whether Electronic Transactions Act 1996 (Cth) applicable – whether application to Tribunal outside applicable time limit. |
| Migration Act 1958 (Cth), ss.116, 127, 347, 494A Migration Regulations 1994 (Cth), regs.2.34, 2.45, 2.55, 4.10 Electronic Transactions Act 1996 (Cth) |
| Maroun v Minister for Immigration and Citizenship and Another (2009) 112 ALD 424; [2009] FCA 1284 Reed Constructions Pty Ltd v Eire Contractors Pty Ltd [2009] NSWSC 678 Sainju v Minister for Immigration & Anor [2009] FMCA 1206 Sainju v Minister for Immigration and Citizenship and Another (2010) 185 FCR 86; [2010] FCA 461 Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163; [2010] FCAFC 23 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | CHANAWEE CHIDBUNDID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2711 of 2010 |
| Judgment of: | Barnes FM |
| Hearing dates: | 3 November 2011 and 29 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Quy Lawyers |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2711 of 2010
| CHANAWEE CHIDBUNDID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 11 November 2010. The Tribunal decided that it did not have jurisdiction to consider the applicant’s application for review of a decision to cancel his Subclass 573 Higher Education Sector student visa under s.116 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Thailand, was notified that a delegate of the Minister was considering cancelling his Subclass 573 visa on 25 January 2010 in circumstances where his education provider, Curtin University of Technology, had certified him as not achieving satisfactory course progress in relation to a Diploma of Commerce course. In a decision dated 12 February 2010 the delegate determined that Mr Chidbundid had not complied with visa condition 8202 and that the non-compliance was not due to exceptional circumstances beyond his control and hence that his visa must be cancelled in accordance with s.116(1)(c) of the Migration Act and reg.2.34(2)(b)(ii) of the Migration Regulations 1994 (Cth). The Courtbook includes a copy of an email from the decision maker to the applicant said to attach notification of the cancellation, a record of the decision and a brochure (presumably about his review rights). The email message states that it was “sent” on “12/02/2011 at 1.47 PM” to the hotmail email address provided by him to the Department.
The applicant sought review by the Tribunal on 15 June 2010. On 12 July 2010 the Tribunal wrote to the applicant inviting him to comment on whether his application was a valid application, as it had not been lodged within the relevant time limit of seven working days from the day on which he was taken to have been notified of the primary decision. The applicant responded to the invitation to comment on 26 July 2010 through his adviser.
The Tribunal Decision
In its statement of reasons the Tribunal set out the law in relation to its jurisdiction. It referred in particular to the provisions in the Migration Act 1958 (Cth) (the Act) and the Migration Regulations relevant to notification of a delegate’s decision to cancel a visa under s.116 of the Act (see ss.127, 494A and regs.2.45 and 2.55). The Tribunal found that the provisions requiring the Minister to give a person written notice of a decision made under s.116 did not state that the notice must be given to the person by a method specified in s.494B of the Act and that in those circumstances the Minister may give the document to the person by any method he or she thought was appropriate (see s.494A of the Act). The Tribunal stated that s.494A should be read with reg.2.55, which specifies methods for giving documents relating to cancellation of a visa under the Act. One such method consists of the Minister transmitting the documents by email to the last email address known to the Minister (reg.2.55(3)(d)). The Tribunal referred to reg.2.55(8) which provides that if a document is given to a person by email the person is taken to have received the document at the end of the day of which the document is transmitted. The Tribunal concluded that if a notice of a decision to cancel a visa under s.116 was sent in accordance with reg.2.55(3)(d), the prescribed period within which a review application must be lodged would commence at the end of the day on which the document was transmitted.
In its findings and reasons the Tribunal found that the applicable prescribed period for review was seven working days from when the applicant was validly notified of the decision in accordance with the Act (s.347(1)(b)(1) of the Act and reg.4.10(1)(b)) and that “the Department’s records show that the decision notification was emailed on 12 February 2010 in accordance with s.494B(4) and r.2.55(3)(d)(ii)”.
The Tribunal was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.127 of the Act, that the applicant had not given the Minister written notice of the name and address of an authorised recipient and that the decision notice was transmitted to the applicant’s last email address known to the Minister.
In particular, the Tribunal concluded that the decision notice was emailed on the day it was dated (12 February 2010) to the correct email address in accordance with s.127(1) and reg.2.55(3)(d)(ii) and that therefore the applicant was taken to have received the notice on 12 February 2010, that being the day when the notice was transmitted.
The Tribunal had regard to the applicant’s submissions in relation to the question of jurisdiction. Relevantly, the applicant had instructed his adviser that he did not receive any email from the Departmental case officer on 12 February 2010 at 1.47 pm. This was said by the adviser to be contrary to a Trace Report on the Departmental file which stated that the email was “sent from the Department’s server” on 12 February 2010 at 1.47 pm. It was submitted that the Trace Report showed only that the email “has been sent”, but that it was not evidence or confirmation that the email had been successfully received by the applicant.
The Tribunal found that these submissions afforded no basis for accepting the review application lodged on 15 June 2010. It found that the applicant was taken to have received the decision notice on 12 February 2010 in accordance with reg.2.55(3)(d)(ii), despite the Department’s transmission record not indicating confirmation of receipt by him.
The Tribunal concluded that the applicant was properly notified of the delegate’s decision on 12 February 2010 and that the prescribed period of seven working days within which to make an application for review had ended on 23 February 2010. The application was not received until 15 June 2010 which was after the prescribed period had expired. The Tribunal stated that it had no power to extend the time for lodgement of the review application, even if compassionate or extenuating circumstances might exist. It concluded that the application for review was not valid and that it had no jurisdiction in this matter.
The proceedings
The applicant sought review of the Tribunal decision by application filed in this court on 16 December 2010. He filed an amended application on 26 May 2011. He now relies on a further amended application filed on 10 November 2011 with leave of the court after the matter was adjourned part-heard.
There are three grounds in the further amended application, although it is apparent from the applicant’s submissions that these grounds are interrelated. First it is contended that the applicant did not receive the cancellation notice dated 12 February 2010. The particulars to this grounds are:
The cancellation notice was sent by email addressed to the applicant’s Hotmail account. That email was never received on the Hotmail server.
The second ground in the further amended application is that:
Section 14(1) of the Electronic Transaction Act, 1999 (Cth) applies to the dispatch of the cancellation notice for the purposes of Migration Regulations 2.55(3)(d)(ii) and 2.55(8).
The third ground is that:
Section 14(3) of the Electronic Transaction Act, 1999 (Cth) applies to the receipt of the cancellation notice for the purpose of regulation 4.10(1)(b).
I note that, as confirmed in written submissions, an earlier contention based on the meaning of the word “notify” in s.127 of the Migration Act was abandoned by the applicant.
Relevant legislation
Under s.348(1) of the Act if an application is properly made under s.347 for review of a MRT-reviewable decision the Migration Review Tribunal must review the decision. MRT-reviewable decisions are identified in s.338 of the Act (and also see reg.4.02).
Relevantly, a decision made under s.116 of the Act to cancel a student visa (including a Subclass 573 Higher Education Sector visa) is an MRT-reviewable decision by virtue of s.338(3) of the Act. Under s.347(1)(b) an application to the Tribunal for review of such a decision must be made within the prescribed period, which in the present case by virtue of reg.4.10(1)(b) “starts when the applicant receives notice of the decision and ends at the end of seven working days after the day on which the notice is received”.
Section 127(1) of the Act provides that “when the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way” which by virtue of reg. 2.45 is “in writing”. A note to reg.2.45 states that reg.2.55 applies to the giving of a document relating to cancellation of a visa under the Act (a matter not disputed by the applicant in these proceedings).
Regulation 2.55 is headed “Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation”. It relevantly provides in reg.2.55(3) that for a document given to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act…
…the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person's last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
Regulation 2.55(8) provides:
If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
Section 494A(1) of the Migration Act provides:
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
While not directly in point in this case it is also relevant to have regard to s.494B which applies for the purposes of provisions of the Act or the Regulations that require or permit the Minister to give a document to a person which “state that the Minister must do so by one of the methods specified in [that] section”. Subsection 494B(5) provides that:
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
…
Section 494C(1) applies “if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)”. Relevantly, ss.49C(5) and (6) are as follows:
Transmission by fax, e-mail or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999 .
The applicant contended that both subsections (1) and (3) of s.14 of the Electronic Transactions Act 1999 (Cth) (the ETA) as it stood at the relevant time (that is, prior to its amendment by Act No.33 of 2011) were applicable. At that time s.14 of the ETA was as follows:
Time and place of dispatch and receipt of electronic communications
Time of dispatch
(1) For the purposes of a law of the Commonwealth, if an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system.
(2) For the purposes of a law of the Commonwealth, if an electronic communication enters successively 2 or more information systems outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters the first of those information systems.
Time of receipt
(3) For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.
Under s.5(1) of the ETA an information system means “a system for generating, sending, receiving, storing or otherwise processing electronic communications” (s.5(1) ETA).
The Evidence
For the purposes of these proceedings the applicant does not dispute that he received a notice of intention to consider cancellation of his student visa, that he made submissions in response and also that he authorised the Minister to communicate with him by electronic (email) means to the email address “[email protected]”.
However the applicant’s unchallenged evidence is that he did not receive the cancellation notice dated 12 February 2010 in his hotmail email account. He was subsequently advised by his education provider that his visa had been cancelled. He lodged an application for review to the MRT on 15 June 2010.
The applicant relied on affidavit evidence of Krzysztof (Krystof) Leszka, an IT Consultant. The first respondent relied on affidavit evidence of Mark Suter, a Senior Gateway Engineer with Unisys Australia. Neither Mr Leszka nor Mr Suter was required for cross-examination.
In preparing his report Mr Leszka had regard to a DVD provided by Microsoft USA “with the emails that were on” the Hotmail email account “[email protected]”. He was provided with login details and logged into the applicant’s Hotmail account and did undisclosed “further searches”. He was provided with the details of the lengthy and unique email “Message-ID” commencing “OF47IA3880…” created and assigned to the email dated 12 February 2010 from the Departmental officer addressed to the applicant (the cancellation email).
Mr Leszka explained in general terms what an email is and how it works. Mr Leszka’s evidence is that he did not find any emails from the Department of Immigration on the applicant’s Hotmail account when he checked it on 27 May 2011 (although there was evidence that the Hotmail account was in working order in that other emails were received by the Hotmail account prior to and after 12 February 2010) and that he was unable to locate an email with the relevant unique Message-ID in the “DVD contents”. He explained that the DVD showed the emails that were “on” the Hotmail account at the time the DVD was created. However it is not in dispute that this means “on” the account at the time of preparation of the DVD and that the Microsoft DVD did not include previously deleted emails (or those automatically deleted after a period of inactivity) or a complete record of all user activity.
Counsel for the applicant acknowledged that Microsoft USA, which maintains the Hotmail server and produced the DVD, did not keep historical information and that it was not possible to tell from the DVD (which was not in evidence before the court) whether the cancellation email had arrived on the Hotmail server or in Mr Chidbundid’s Hotmail account.
Mr Leszka addressed the Trace Report obtained by the Department “apparently” in relation to the cancellation email. The delegate had expressed the view in correspondence with the applicant’s then migration agent that this report confirmed that the cancellation email had reached the applicant’s email address on 12 February 2010 at 01:47:57 PM.
The Trace Report in question stated that the cancellation email had reached IMMCBRSMTPOL/SERVERS/IMMI/AU at 12/02/2010 at 01:47:57 PM. It continued under the heading “Trace Information”:
IMMSYDN2/SERVERS/IMMI/AU 01:47:51 PM Today – 01:47:57 PM Today
IMMSYDN2/SERVERS/IMMI/AU 01:47:57 PM Today – 01:47:57 PM Today
Mr Leszka’s opinion was that the Trace Report did not specify to which email it related but that in any event it only showed that the internal mail servers of the Department of Immigration had received an email and not that the email had left those servers or that it had reached the applicant’s Hotmail account.
Mark Suter is the Senior Gateway Engineer for UNISYS Australia which provides services to the Department of Immigration and Citizenship including secure management of all emails sent. In his affidavit Mr Suter explained that:
MailGate (a commercial email product) uses a PolicyEngine and postfix (an email server) that both write a log entry each and every time they act upon an email. Actions logged include starting work, any interactions with other email servers and stopping work.
Mr Suter searched all log entries for the period 12 February 2010 to 17 February 2010 for any emails to the email address [email protected].
A copy of the cancellation email, including the attached notification of cancellation and decision record, is annexed to Mr Suter’s affidavit. Like the Departmental Trace Report it refers to the subject “CID: - 88380051782 – Notification of Cancellation Under Section 116 of the Migration Act 1958” and states that it was “Sent: 12/02/2010 at 1.47 PM” addressed to the applicant’s hotmail address from a specified Departmental officer’s email address.
Mr Suter’s unchallenged affidavit evidence is that he found log entries relating to only one email sent from the Departmental email address in question to the applicant’s hotmail address. Copies of the log entries relating to this email are annexed to his affidavit. According to Mr Suter, having analysed these log entries, and based on his experience, skills and qualifications (including his role administering email services continuously since 1988 and position of Senior Gateway Engineer with Unisys since 1 July 2008) he was able to say that these log entries disclosed the following information in relation to the cancellation email:
(a) the email was transmitted from the Respondent’s Notes server
“IMMCBRSMTP02/SERVER/IMMI/AU” to the Respondent’s MailGate server “mailgw1” on 16 February 2010 at approximately 10.38 am Canberra Time (UTC + 10.00);
(b) the “Message-ID” was “OF471A3880.4A036ABD-ONCA2576C8.000E3FF1-CA2576C8.000F5DB1@imm.gov.au”;
(c) the “From” email address was “[email protected]”;
(d) the “To” email address was “[email protected]”;
(e) the email was transmitted from the Respondents MailGate server to the Hotmail server “mx4.hotmail.com” on 16 February 2010 at approximately 10.38 am Canberra Time (UTC + 10:00); and
(f) when the Hotmail server accepted the email for delivery, it reported the Message-ID as “OF47IA3880.4A036ABD-ONCA2576C8.000E3FF1-CA2576C8.000F5DB1@immi.gov.au”.
In addition, Mr Suter addressed the Trace Report which was said to relate to the cancellation email. Notwithstanding that the email was said to have been “sent” at approximately 1.47 pm on 12 February 2010, having regard to the log entries Mr Suter expressed the opinion that the cancellation email “was held by the Respondent’s Notes server until 16 February 2010, at which time it was transmitted to the Respondent’s MailGate server and from there transmitted to the Hotmail server on 16 February 2010 at approximately 10.38 am”.
The applicant’s submissions
Counsel for the applicant contended that the only evidence before the court about receipt of the cancellation email was the applicant’s evidence that he never received the email in his hotmail account, even though he checked it regularly. It was acknowledged that the enquiries made with Microsoft were not conclusive, as the DVD did not contain an historical record which would show whether or not the cancellation email had ever arrived on the Hotmail server. Mr Leszka, an expert IT consultant, expressed the opinion that the Trace Report showed that the email had been received by the local mail servers of the Department in Sydney but that it did not show that the email had left those servers, nor that it had reached the Hotmail account of [email protected]. It was also suggested that the Trace Report did not specify to which email it related, as it made reference only to the subject of the potential email in question.
The applicant accepted that reg.2.55(8) of the Migration Regulations was a deeming provision and that for such deeming provision to operate the Minister must give the document (the notice of cancellation) to the applicant by “transmitting it” and that deemed receipt by the applicant would then occur at the end of the day at which the document was “transmitted”. However, it was submitted that a document sent by email was only “transmitted” within reg.2.55(8) when it was both dispatched within the meaning of s.14(1) of the ETA and also received in accordance with s.14(3) of the ETA.
It was submitted that s.14(1) of the ETA as it stood at the relevant time made it clear that for “dispatch” to occur the communication must “enter a single information system outside the control of the originator”. Hence it was contended that the Minister must established that the email notifying the applicant of the cancellation had left the Department’s information system. In addition, it was submitted that under s.14(3) of the ETA, it had to be established that the email, an electronic communication, entered an information system designated by the applicant given that there was an issue as to whether the document relating to cancellation of a visa to which reg.2.55 applied had been transmitted to the applicant within reg.2.55(8).
The applicant submitted that Mr Leszka’s evidence, which was said to be consistent with Mr Chidbundid’s evidence that he did not received the cancellation notice in his email mail box, should be accepted in preference to what was said to be the contrary affidavit evidence of Mr Suter relied on by the Minister. On this basis it was contended that the court could not be satisfied that dispatch and receipt within the ETA and hence transmission of the cancellation email within reg.2.55(8) had not occurred. Hence it was submitted that time had not commenced to run for the purposes of s.347 of the Migration Act or reg.4.10 so that the Tribunal had erred in finding that it did not have jurisdiction to determine the review application.
In essence, the applicant’s argument was that the deeming provision in reg.2.55(8) would not operate unless a document which had been sent by email had been both dispatched within s.14(1) of the ETA and received in accordance with s.14(3) of the ETA. It was submitted that having regard to the fact that there is no provision equivalent to s.494C(6) in the Regulations excluding the operation of the ETA it could not be said that s.14 of the ETA did not apply where reg.2.55 was in issue. It was also said that the Trace Report obtained by the Department of Immigration did not establish that s.14(1) and (3) of the ETA had been met, because it merely attested to the email addressed to the applicant’s email address having been received by an internal Departmental mail server.
Counsel for the applicant acknowledged that Mr Suter’s evidence was that the cancellation email left the Departmental system on 16 February 2010 and that on this basis, if s.14 of the ETA did not apply, the email had been transmitted for the purposes of reg.2.55(8). However it was submitted that s.14 of the ETA did apply and hence that there was an additional requirement in relation to the time of dispatch and the time of receipt. It was contended that dispatch did not occur until the email entered a single information system outside the control of the originator and that this meant external to the Minister’s system. It was submitted that Mr Suter’s affidavit evidence did not go so far as to state whether the cancellation email ever entered the information system comprised of the Hotmail server maintained by Microsoft (although it was also conceded that Mr Leszka’s affidavit did not determine this issue).
Insofar as Mr Suter’s evidence was that the email was transmitted from the Department’s server to the Hotmail server and that when the Hotmail server accepted the email for delivery it reported the Message-ID, Mr Cutler for the applicant suggested first that there were no facts in Mr Suter’s affidavit that would ground his opinion, apart from the fact that it relied on his own expertise. It was submitted that Mr Suter did not really say what it was he had looked at that told him that Hotmail had ever accepted the email and that it was not clear that the email had ever arrived on Hotmail because it was not clear what it was that Mr Suter relied on to make that assertion. It was suggested that the rest of Mr Suter’s evidence related to the issue of transmission rather than arrival of the email, and contended that if s.14 of the ETA did apply there was no evidence, or little evidence, that the cancellation email entered the Hotmail system, consistent with the applicant’s evidence that he never received the email. In the alternative, it was submitted that Mr Suter’s evidence, if accepted, merely showed that the cancellation email was transmitted from the respondent’s server but that it could not be said that it established that the email had entered the Hotmail information system.
Counsel for the applicant pointed out that in Sainju v Minister for Immigration and Citizenship and Another (2010) 185 FCR 86; [2010] FCA 461 Jacobson J had stated that there was a live issue as to whether or not s.14 of the ETA was applicable in circumstances such as the present case having regard to the absence of a provision in the Migration Regulations like s.494C(6) of the Act notwithstanding that the otherwise almost identical provisions in the Regulations came into effect at around the same time and related to similar issues.
It was also submitted that the Minister had the onus of establishing that the email had entered the Hotmail information system and had not met this onus. This is in contrast to Sainju, in which it had been found that there was not sufficient evidence that non-receipt had not occurred, it was said in this case the applicant unequivocally said that he checked his email regularly and that he never received that email consistent with the contention that even if the email had been transmitted from the Minister’s computer system, it had never arrived on the Hotmail system.
The Minister’s Submissions
The first respondent’s primary contention was that the ETA was not applicable to circumstances to which reg.2.55 applied and that as the cancellation notification had been transmitted by email to the applicant at the last email address for him known to the Minister in accordance with reg.2.55(3)(d)(ii), then under reg.2.55(8) he was taken to have received it at the end of the day on which the document was transmitted, whether or not he actually received it. An analogy was drawn with the approach taken in relation to s.494C of the Act in circumstances in which documents had been given in accordance with s.494B (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 and Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163; [2010] FCAFC 23). In Xie the Full Court of the Federal Court rejected the suggestion that s.494C(4) merely created a rebuttable presumption as to the time of receipt of documents (see Xie at [14]). In Tay the Full Court took the same approach to s.494C(5) (which applies to documents transmitted by email) (Tay at [25]) suggesting that the detailed statutory provisions concerning the methods by which the Minister may give documents to a person in various circumstances “evidence concern that there should be certainty in the transfer of documents from the Minister as to the method and as to the time of delivery” (at [25] and see Sainju per Jacobson J at [56] – [58]).
The first respondent contended that for present purposes it was not necessary to determine whether the email was transmitted on 12 February 2011 or on 16 February 2010 when it left the Department, as on either basis it would have been deemed to have been received on a date which would mean that the application to the Tribunal was outside the time limit.
The Minister adopted the reasoning of Smith FM in Sainju to the effect that, notwithstanding the absence of a provision such as s.494C(6) in the Migration Regulations, the language and legislative context of reg.2.55(8) sufficiently revealed its intended operation and that it deemed receipt of an email to have occurred at the end of the day of its transmission, regardless of whether this could be proved to have actually occurred or whether it was proved not to have occurred (at [15]).
While the first respondent did not concede that s.14 of the ETA applied, it was submitted that if it did, the Minister’s actions in sending the electronic communication satisfied the requirements of that section.
Insofar as the applicant appeared to submit that the onus was on the Minister in some respect, attention was drawn to the decision of Smith FM at first instance in Sainju v Minister for Immigration & Anor [2009] FMCA 1206 in which his Honour had accepted that if a finding of non-receipt was necessary before deciding whether or not the Tribunal had jurisdiction the evidentiary proof of non-receipt would fall on the applicant in accordance with the view of Jagot J in Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15].
It was said that if there was scope for the applicant to prove that the provisions of s.14 of the ETA were not satisfied, he had not met such an onus. The first respondent submitted that Mr Suter’s evidence established that the cancellation email had entered an information system (the Hotmail server) outside the control of the originator designated by the applicant for the purpose of receiving electronic communications within both s.14(1) and s.14(3) of the ETA.
In any event the first respondent submitted that if s.14 of the ETA did apply, the court could be satisfied on the evidence before it, in particular the affidavit of Mr Suter, that the requirements of s.14(1) and 14(3) were satisfied, consistent with the reasoning of Jacobson J (on appeal from Smith FM) in Sainju v Minister for Immigration and Citizenship and Another (2010) 185 FCR 86; [2010] FCA 461 at [73] – [77]). It was contended that, consistent with the approach taken in Reed Constructions Pty Ltd v Eire Contractors Pty Ltd [2009] NSWSC 678 referred to by Jacobson J, the “transmission” of the cancellation email to the applicant’s Hotmail address was sufficient to satisfy s.14(3) of the ETA “[w]hen the email was sent” (at [73]).
Resolution
As set out above, s.347(1)(b) of the Migration Act requires an application for review by the Tribunal to be lodged within the prescribed period which, by virtue of reg.4.10, “starts when the applicant receives notice of the decision and ends at the end of seven working days after the day on which the notice is received”. In this case the application for review of a cancellation decision made on 12 February 2010 and notified to the applicant by email of that date was lodged on 15 June 2010.
It is not in dispute that reg.2.55 is applicable in the circumstances of this case, in particular reg.2.55(3)(d)(ii) and reg.2.55(8). Regulation 2.55(1)(a) states that reg.2.55 applies to the giving of a document to the holder of a visa relating to the cancellation of a visa under the Act.
As in Sainju (at [60] – [62]), there was no submission that either s.494B or s.494C was engaged in the circumstances of this case (although see s.494A of the Act). Nor did the applicant submit that the deeming provision in reg.2.55(8) created only a rebuttable presumption of fact. As Jacobson J observed in Sainju, after referring with approval to the approach taken by Smith FM, each of the deeming provisions in reg.2.55(4B) – (8) in relation to the time of receipt of documents given by the methods prescribed in reg.2.55(3) – (4)), reg.2.55 “focuses upon the physical act of the Minister in giving the document to the person, rather than upon whether the document is actually received’ (at [51]). His Honour saw this as “decisive” and as reflecting an “underlying assumption…that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred” (at [52]).
Jacobson J continued at [54] – [57]:
The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.
It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ.
The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8). There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view. That is to say “by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent.
I am satisfied on the evidence before the court that the requirements of reg.2.55(3)(d)(ii) were met in relation to the email notification of the cancellation decision made by the delegate. First, insofar as there is any assertion that there was some uncertainty as to what was emailed to the applicant, I am satisfied on the basis of the evidence before the court, including the annexure to the affidavit of Mr Suter, that the cancellation email dated 12 February 2011 was identified by reference to a client ID (CID 888005782). It was addressed to the applicant at the last email address known to the Minister: [email protected]. It attached a notification of cancellation under s.116 of the Migration Act and the record of the decision to cancel the applicant’s student visa. I am satisfied on the evidence before the court, including the evidence of Mr Leszka and Mr Suter, that the cancellation email was transmitted to the last email address for the applicant known to the Minister.
On the approach taken by Jacobson J in Sainju at [57], “transmitted” simply means “sending”, although I note that his Honour was not faced with a situation in which there was, as in this case, evidence to suggest that the cancellation email did not actually leave the Department’s internal mail servers on the date it bore. I accept the evidence of Mr Leszka that the Trace Report does not show that the cancellation email left the Departmental servers (or indeed that it reached the Hotmail account). However I also accept the evidence of Mr Suter. There was a basis for his opinion consisting of his professional qualifications and experience and his analysis of the log entries annexed to his affidavit (material not considered by Mr Leszka). Mr Suter’s evidence is to the effect that the email was held by the Department’s Notes server until 16 February 2010 at which time it was transmitted from the Department’s Notes server to the MailGate server and from there transmitted to the Hotmail server “mx4.hotmail.com” on 16 February 2010 at approximately 10.38 am Canberra time. Hence, it is not necessary to determine whether “transmitting” in reg.2.55 simply means sending from the initial email address within the Department of Immigration or means leaving the information systems under the control of the Department (at least in circumstances where there is evidence that the email did not actually leaving the Department’s server until a different date).
In this case the cancellation email was transmitted by email within the language of reg.2.55(8). It is not necessary for the purposes of this case to determine whether the email was transmitted on 12 February 2010 or 16 February 2010. In either case, if the ETA is not applicable, under the deeming provision in reg.2.55(8) the applicant is taken to have received the email at the end of the day on which it was transmitted so that his application to the Tribunal lodged on 15 June 2010 was outside the prescribed period of seven working days after the day on which notice was received (s.347(1)(b) and reg.4.10(1)(b)).
I do not need to decide whether the operation of s.14 of the ETA is excluded by reg.2.55(8) because, for the reasons that follow, I am satisfied that if it does apply it was met, although in fact I agree with the view of Smith FM in Sainju at first instance that, notwithstanding the absence of a provision akin to s.494C(6) in reg.2.55, the language and legislative context of reg.2.55(8) “sufficiently reveal its intended operation” (at [10]) and with his Honour’s view about the effect of that provision. I note, however the view of Jacobson J that there is a “live question” as to whether reg.2.55(8) excludes the operation of s.14 of the ETA (see Sainju at [71]).
Even if s.14 of the ETA is applicable, on the view of the construction of that section taken by Jacobson J in Sainju, the transmission of the cancellation email to the applicant’s Hotmail address would be sufficient to satisfy s.14(3) of the ETA “when the email was sent”, that is, transmitted to the applicant’s email address (at [73]). This view was reached on the basis that an email address is “an active information system which performs a function within the meaning of the Electronic Transactions Act”, not simply a direction to an information server (Reed Constructions Pty Ltd v Eire Contractors Pty Ltd at [30] and Sainju per Jacobson J at [73] – [77]) and that the ETA “requires” that electronic communications are “more or less instantaneous so that the relevant question is when the email was sent, not when it came to the attention of the addressee” (Sainju at [77] referring to Reed at [31] – [32]).
According to Jacobson J, the proper construction of s.14(3) of the ETA was correctly explained by Macready AsJ in Reed (albeit his Honour was dealing with the equivalent provision in the Electronic Transactions Act 2000 (NSW) (s.13(3)).
I note that in Reed what was in issue was service by email. In that context Macready AsJ observed at [31] that if s.13(3) f the NSW ETA applied:
evidence must be adduced of when the email entered the information system, not when the email came to the attention of the addressee, meaning that the read receipt is not relevant. Evidence of the time an email entered a mail server would presumably be adduced through some kind of email exchange log generated by that server. The evidence does not indicate whether this is data that is regularly logged by mail servers and if so, whether there may be a question as to the length of time this information is stored.
It was in that context that his Honour observed that s.13(3) of the ETA did away with the requirement of notice of the documents in readable form being given to the person to be served and that this suggested that the ETA took the view that electronic communications were “more or less instantaneous”. In the context of s.13(3) Macready AsJ suggested at [34] that what was in question was “the point at which the communication reaches a mail server from which the recipient can access it.” In Reed the technical evidence did not go beyond showing that the email left the sender’s computer at a particular time. His Honour stated at [35]:
If a destination mail server is very busy or if an email has been incorrectly addressed, a ‘bounced’ message is usually returned to sender with details of the problem. However, if a sending mail server can locate a domain it is trying to contact but cannot for some reason dispatch the communication to the designated user account, it may hold onto the communication for some time in order to try again. Alternatively a destination mail server may be off-line for some reason. Therefore, in the absence of evidence to assist me, I would be reluctant to infer that the recipient server received the email on the same day that it was sent.
In Reed however there was evidence of a “read receipt” which was said to demonstrate that the material in question was received in the recipient’s computer. In this case the applicant’s evidence is that he did not actually receive the email. His evidence does not address the specific requirements of s.14(1) and (3) of the ETA (Sainju at first instance at [25] and Maroun v Minister for Immigration and Citizenship and Another (2009) 112 ALD 424; [2009] FCA 1284 at [15]).
However, even if a prerequisite to the operation of the deeming provision in reg.2.55(8) is that there is evidence that the cancellation email entered an information system “outside the control of the originator” (s.14(1) ETA) and an information system “designated” by the addressee (s.14(3) ETA) as the applicant contended, I am satisfied on the evidence before the court that both requirements were met.
Mr Suter’s evidence about the Trace Report does not conflict with that of Mr Leszka. Insofar as the applicant contended that there was no basis for Mr Suter’s opinion in his affidavit, that is not the case. Not only did Mr Suter attach the log entries on which his opinion was based and explain the basis for that decision, he also expressed his opinion based on his experience, skills and qualifications set out in his affidavit, including his university qualification, his employment administering email services since 1998 and his employment at Unisys as Senior Gateway Engineer since July 2008.
Mr Suter was not required for cross-examination and I am satisfied that there is a basis for the expert opinion which he expressed in his affidavit and that this establishes that the cancellation email left the Department’s Notes server, that it left the Department’s MailGate server, and that it was transmitted to, and accepted for delivery by, the Hotmail server. This process resulted in the electronic communication entering a single information system ((the Hotmail system) outside the control of the originator (the Department) which was also the information system designated by the applicant for the purpose of receiving electronic communications. I accept that, as Mr Suter indicated, the Hotmail server accepted the email for delivery. In such circumstances, if s.14 ETA is applicable the requirements of both subsections (1) and (3) were met, albeit on 16 February 2010 rather than 12 February 2010.
Notwithstanding the applicant’s unchallenged affidavit evidence that he did not receive the cancellation notice in his Hotmail mail box, the absence of proof of actual receipt is not relevant, either because reg.2.55(8) deemed receipt of the email to have occurred at the end of the day of transmission (regardless of whether it was in fact received by the applicant) or because it was both “dispatched and received” under s.14(3) of the ETA, at the latest when the Hotmail server accepted it for delivery at 10.38.12 on 16 February 2010.
The applicant has not established that his review application to the Tribunal was lodged within the applicable time limit such that the Tribunal had jurisdiction which it ought to be compelled to exercise (see Sainju per Smith FM at [3]) or that the Tribunal fell into jurisdictional error in determining that it had no jurisdiction.
Accordingly the application must be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 7 February 2012
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