Chowdhury v Minister for Immigration
[2015] FCCA 2981
•6 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOWDHURY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2981 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal – application to Tribunal made out of time – whether applicant properly notified of delegate’s decision – no legal error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 360, 362B, 347, 424B, 476, 494B, 494C, 494D Migration Regulations 1994 (Cth), reg.4.10, Schedule 2 |
| Tay v Minister for Immigration & Citizenship [2010] FCAFC 23 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 Kaur v Minister for Immigration and Border Protection [2014] FCA 915 Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559 Rana v Minister for Immigration and Border Protection [2014] FCA 1233 |
| First Applicant: | TAHMINA CHOWDHURY |
| Second Applicant: | MD RAKIBUZZAMAN |
| Third Applicant: | TAHRIMA ZAMAN |
| Fourth Applicant: | TASMIA ZAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1122 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 23 July 2015 |
| Date of Last Submission: | 23 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2015 |
REPRESENTATION
| Solicitor for the Applicants: | Mr C Guan of Paul Guan & Associates |
| Solicitor for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
The second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 24 April 2014 and amended on 3 July 2015 and further amended on 8 July 2015 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1122 of 2014
| TAHMINA CHOWDHURY |
First Applicant
| MD RAKIBUZZAMAN |
Second Applicant
| TAHRIMA ZAMAN |
Third Applicant
| TASMIA ZAMAN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 April 2014 and amended on 3 July 2015 and further amended on 8 July 2015 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), now the Administrative Appeals Tribunal, which found on 26 March 2014 that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse Skilled (Provisional) (Class VC) visas (“the visas”) to the applicants.
Background
The evidence before the Court is as follows:
1)The bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).
2)The affidavit of Chaofeng Guan, solicitor, made on 3 July 2015. I upheld the Minister’s objections as follows:
i)[8] – [9] of the affidavit was not read on the basis of relevance and the lack of relevant particularity.
ii)[10] – [12] of the affidavit was not read on the basis that they are opinion and submissions.
3)The affidavit of Michael van Bockxmeer, “Gateway Engineer”, of 13 August 2014, with annexure, read with no objection.
The background relevant to this matter is as follows. On 21 December 2009, Ms Tahmina Chowdhury (“the applicant”), a citizen of Bangladesh, applied for a “Skilled Regional Sponsored” visa. Her husband, the second applicant, and her two children, the third and fourth applicants, applied as her partner and dependent children respectively (CB 1 to CB 21).
In her application for the sponsored visa the applicant stated that she was nominated for the visa by “SA ‑ Immigration South Australia” (CB 3.4).
The applicants were represented by a registered migration agent in their application (he continues to represent them as a legal practitioner before the Court). They provided contact details of the agent to the department for the purpose of the Minister’s department communicating with them through the agent. Included in these contact details was the agent’s email address (CB 10).
The Minister’s department directed correspondence to this email address during the processing of the visa application. For example, the department sent a letter dated 5 April 2013 to this email address (CB 46 to CB 49, see in particular CB 46.4 for the email address to which the letter was sent, which was the same address as notified in the application). The letter invited the applicants’ comments on information obtained by the department that there was no evidence that the applicant had been sponsored by “SA – Immigration South Australia” as had been claimed in the application for the visas (CB 47.3). There is no evidence before the Court now that the applicant, or her agent, replied to this letter.
The Minister’s delegate made her decision to refuse the grant of the visa on 2 January 2014 (CB 52 to CB 61). The reason for the refusal of the visa was that there was no evidence before the delegate that the applicant had been nominated for the visa as she had claimed. Such nomination was an essential criterion for the grant of the visa at the relevant time (see in particular cl.487.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
In the decision record, the delegate recorded that (CB 60.4):
“On 5 April 2013 you were requested, through your authorised email address, to provide comment to this information. The department has received no response to this request.
To date we have no evidence on file to show that you have been nominated by a State or Territory government agency, I therefore find that you do not meet cl.487.2013.”
The evidence before the Court indicates that the delegate’s letter notifying the applicants of the decision was sent by email on 2 January 2014 at 10.29am (CB 50.5), to the email address provided by the applicant in the application for the visa. That is, the agent’s email address (CB 50.4).
The evidence of Mr Bockxmeer provides further explanation. An investigation and analysis of the department’s electronic “outgoing mail logs” by Mr Bockxmeer, who relies on his relevant experience and expertise, is that on 2 January 2014 an email was transmitted to the migration agent’s email address and that the transmission was subsequently completed at 10.30am (see [7] – [9] and annexure
“MB-1” of Mr Bockxmeer’s affidavit).
There is a discrepancy between Mr Bockxmeer’s evidence in relation to the time of successful transmission, as that evidence arose from his investigation of the department’s electronic logs, and what is recorded as the date and time of transmission and the copy of the relevant “extract” of that log reproduced at “MB-1” (“Jan 1 23:29:15”).
That discrepancy is explained at [10] of Mr Bockxmeer’s affidavit and arises from the department’s computer system’s reliance on “Coordinated Universal Time” which does not recognise changes to local times as affected by “Daylight Savings Time”:
“All devices that log in the Secure Gateway are set to use the time Coordinated Universal Time (UTC). This is so Daylight Saving Time (DST) switches will have no effect as UTC is based on the time on the Prime Meridian and does not observe DST. Accordingly the Log Extracts shows that the Email was sent on 1 January 2014 at 23:29pm UTC.”
The applicants applied to the Tribunal for review of the delegate’s decision on 20 February 2014 (CB 66.4). The applicants nominated the same registered migration agent to represent them (CB 68).
A Tribunal officer wrote to the applicants by letter sent to their representative on 10 March 2014 (CB 71 to CB 72). The letter advised that the Tribunal officer considered that the application for the review of the visa decision was not valid as it was not “lodged” within the prescribed period of 21 days from the day on which the applicants were taken to have been notified of the delegate’s decision.
The letter explained (at CB 72):
“…The primary decisions were emailed to your authorised recipient on 2 January 2014 and, on the basis that 2 January 2014 was the date on was the date on which you are taken to have been notified, the last day for lodging the applications for review was 23 January 2014. As the applications were not received until 20 February 2014, they appear to be out of time. However, this is a matter which must be determined by a Tribunal Member.”
The letter invited their comments on whether valid applications had been made. The applicants’ migration agent replied on 20 March 2014 (CB 73 to CB 74). The response asserted that the relevant statutory and regulatory scheme (s.347(1)(b) of the Act and reg.4.10 of the Regulations) provided that the application for review must be made within 21 days “…after the day on which the notice is received…”.
The representative stated that his office had no record of having received the delegate’s email notifying the delegate’s decision on the visa applications. He stated that his office was “closed for Christmas” on 2 January 2014 and he “believed that the notification supposedly sent to us that day must have been bounced back to the case officer’s mail box” (CB 74).
The Tribunal found that it did not have jurisdiction to review the delegate’s decision. The Tribunal referred to s.347(1)(b) of the Act and reg.4.10 of the Regulations and found that an application for review of the delegate’s decision had to have been made “…within 21 days after the applicant was notified of the decision in accordance with the statutory requirements” ([3] at CB 78).
The Tribunal had regard to the material before it and found that the applicant was notified of the decision by letter dated 2 January 2014 and sent by email to the “authorised recipient” on that day. It was satisfied that the applicant was notified of the decision in accordance with the statutory requirements ([4] at CB 78).
The Tribunal had regard to the representative’s submissions and his assertion that there had not been “a valid notification” of the delegate’s decision ([5] at CB 78).
The Tribunal considered these submissions ([6] at CB 78):
“The Tribunal has considered this submission but the agent has not explained why he believed the mere fact of his office being closed would result in an email not reaching its destination. There is nothing in the Department’s file to suggest that the notification email ‘bounced back’ as the agent speculates it may have done. The Tribunal is satisfied that the letter of notification was transmitted to the correct address on 2 January 2014. The agent, who is the applicant’s authorised recipient is taken to have received it at the end of that day.”
The Tribunal concluded ([7] at CB 78):
“The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 2 January 2014. Therefore the prescribed period within which the review application could be made ended on 23 January 2014. As the application for review was not received by the Tribunal until 20 February 2014 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.”
Before the Court
At the final hearing before the Court, the applicants were represented by a solicitor who had also been their migration agent before the Tribunal and the delegate. Leave was sought, and granted, to proceed on an amended application.
The grounds of the further amended application are in the following terms:
“1. The second respondent has made a judicial error by failure to find that the applicants had not received the first respondent's delegate's Decision to refuse their application for a Class VC subclass 485 visa and Notice of this Decision on 2 January 2014, and then the applicants should not be deemed as having been notified at the end of 2 January 2014.
Particulars
a) The first delegate's officer claimed that he/she transmitted to the applicants a Notice and Decision Record for their application for a Class VC subclass 485 visa on 2 January 2014. The documents were transmitted to their migration agent as their authorised recipient by email on 2 January 2014, and the email they used to communicate is [email protected].
b) The migration agent checked their mailbox when asked, replying that they had not received these documents on that day, and the documents would be in their mailbox if they received them.
c) The migration agent said that his mailbox was quite reliable, and he had used this email to communicate with the first respondent's officers for all the applications represented by him over many years, and the communication had been successful all the time.
2. The second respondent has made a judicial error by failure to find that the applicants had made their review application in accordance with the statutory time limits and it has jurisdiction to the matter.
Particulars
a) The combined effect of s.347(1)(b) of the Migration Act and r.4.10 of the Migration Regulations requires that the review application to the Second Respondent must be made within 21 days after the applicant was notified of the decision.
b) The applicants got to know that their application for the visa had been refused on 7 February 2015 until her employer advised that her visa had expired and she went about enquring about it.
c) In transmitting the documents to their migration agent, the delegate officer failed to consider that the agent office might still be closed for Christmas on that day.
d) Further, the email might have bounced back, because the agent's mail box was full. No evidence was to show that the delegate had taken extra care to avoid any errors in discharging his/her duty for the special periods.
e) So, the delegate had made an error in transmitting the documents.
f) Pursuant to 497C(7), the applicants were taken to have received the documents on 7 February 2015 taking into account the circumstances.
g) The applicant made their review application to the second respondent on 20 February 2014, and it was still within 21 days after the applicant was notified of the decision.
h) So, the review application was made within the statutory time limits and the second respondent has jurisdiction to the matter.”
[Errors in the original.]
The following parts of the statutory and regulatory scheme are relevant to the disposition of the application to the Court:
1)Section 347(1)(b) of the Act:
“(1) An application for review of an MRT‑reviewable decision must:
…
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; …”
2)Regulation 4.10 of the Regulations:
“4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) if the MRT‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
(b) if the MRT‑reviewable decision is mentioned in subsection 338 (3) r (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or
(c) if the MRT‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or
(d) if the MRT‑reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
(2) However, the period in which an application by a detainee for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act—starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or
(aa) in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies—starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or
(b) in any other case—starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.
(2A) For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of an MRT‑reviewable decision prescribed under subsection 338(9) of the Act is 28 days.
Note: For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.”
3)Sections 494B, 494C, 494D of the Act:
“494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
494C When a person is taken to have received a document from the Minister
(1) This section 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).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
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.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
494D Authorised recipient
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).”
Consideration
Two preliminary matters require note. First, there was no issue raised in this case that the delegate’s notification did not comply with the provisions of s.66 of the Act. Nor is any such failure apparent on the material before the Court. Second, the notification of the delegate’s decision was sent to the applicants’ authorised recipient in compliance with s.494D of the Act.
Ground one of the application, as best as it was explained before the Court, asserts that the Tribunal fell into legal error because it failed to find that the applicants had not received the delegate’s notification on 2 January 2014. Further, that the Tribunal should not have found that the applicants were deemed to have received the notification in circumstances where they did not actually receive the notification. There are a number of matters relevant to the answer to this ground.
First, the applicants emphasised and relied upon the matter of actual receipt of the notification of the delegate’s decision. It is important to note, contrary to the applicants’ submissions, that the relevant statutory scheme does not rely on actual receipt of the notification of the decision. Rather as long as the Minister, or his delegate, as in this case, follows the various statutory and regulatory requirements “the person is taken to have received the document at the end of the day on which the document is transmitted” (Tay v Minister for Immigration & Citizenship [2010] FCAFC 23, Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 and Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64).
To the extent therefore that the applicants’ arguments rely on actual, rather than deemed receipt, that aspect of the applicants’ ground must be rejected.
Second, before the Court the applicants failed to understand at least one important part of Mr Bockxmeer’s evidence. The applicants’ argument was that the representative’s office was closed on the day of transmission and the email must have “bounced back” to the delegate because of that reason.
I can take judicial note of the fact that emails are not sent to an office, or even a computer terminal in an office. Rather, emails are “sent” to a “mail server” of the relevant internet service provider. Email communications can then be downloaded and accessed by a computer terminal in an office. The transmission of the document is successful if it is transmitted to that mail server.
Mr Bockxmeer’s evidence is that such a successful transmission of the delegate’s letter of notification of the decision occurred on 2 January 2014, when the email was successfully transmitted to “the host… Internet Protocol (IP) address…” (at [8](c) of Mr Bockxmeer’s affidavit).
In these circumstances, whether the agent’s office was closed, or not, on 2 January 2014 is of no consequence. The applicants are taken to have received the notification.
Importantly, the applicants have not provided any evidence to indicate that there was any difficulty at the agent’s host internet provider’s point of receipt of transmissions, such that an inference may be drawn that the email “bounced back” to the delegate. In the circumstances, Mr Bockxmeer’s evidence in this regard remains unchallenged. In the circumstances, I accept Mr Bockxmeer’s evidence.
An analogy may be drawn here with another method available to the Minister for the giving of documents to a person as set out in s.424B of the Act. The Minister may elect to send the document by post to a residential or business address provided for that purpose. If the Minister had elected to send the notification by post to the agent’s business address, which, in this case, was a post office box address (see CB 10.5), then a successful despatch of the document to that post office box address would be sufficient to say that the applicant would be taken to have received the document in that circumstance (see ss.494B(4)(c)(ii) and 494C(4) of the Act).
If the agent were to leave the letter in the post office box and not collect (“receive”) the document until some time later, the applicants would still be taken to have received the document 7 days after the date of the despatch of the letter, irrespective of the date when the letter is collected.
This is analogous to the current circumstances. The notification was “successfully transmitted” to the electronic equivalent of a post office box. Given the provisions of s.494C(5) of the Act, the applicants were taken to have received the document, electronically, at the end of the day it was transmitted. This is irrespective of when that electronic communication (email) is downloaded.
The applicant referred the Court to Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (“Kaur”). The applicants’ legal representative’s oral submissions before the Court need to be considered in light of the applicants’ written submissions to ascertain meaning.
At best, I understood the applicants’ attempt to rely on Kaur to be as follows. In Kaur, the Court found that the Tribunal acted unreasonably. In Kaur, the Tribunal sent a letter to the applicant in that case inviting her to a hearing. The letter was not received by the applicant, yet the Tribunal proceeded to make a decision when the applicant did not appear at the hearing. The Court found that the Tribunal acted unreasonably and therefore fell into jurisdictional error.
From this the applicants asserted that in the current case the Minister’s delegate acted unreasonably. It was not made clear by the applicants what specific conduct was said to be unreasonable. At best the “unreasonableness” appears to arise from the delegate’s alleged failure to “follow up” with the applicants’ representative to ascertain if the notification letter had been received.
The Tribunal’s legal error was said to be that the Tribunal should not have “relied” on the “deemed receipt” of the notification letter on 2 January 2014. What was said by the applicants to be “unreasonable” was the Tribunal’s failure to accept the submissions made to it that the migration agent had not “received” the email. Further, that it failed to consider that as it was “Christmas time” the office “might be closed” thereby requiring “extra care” by the delegate and that the “documents” (the letter of notification and the decision record) had “never reached the applicants’ mail box on the balance of probabilities” (see the applicants’ written submissions at [23]).
The extent of the applicants’ submissions in relation to Kaur were that that case also dealt with the non-receipt of a letter by an applicant, no inquiry was made to see if the applicant had received the letter, and the Court found that this was unreasonable. This conclusion, therefore, should also be reached in the current case.
The Court attempted to focus the applicants’ attention to the entirety of the circumstances and reasoning in Kaur. In particular, to extract from the applicants some meaningful submission on how Kaur, when respectfully read in its totality, could assist the applicants in light of the specific circumstances in the current case. This resulted in references by the applicants’ representative before the Court to the Court’s rejection in Kaur of the Minister’s submissions in relation to the matter of “a legal factor”.
Although in oral submissions the applicants did not take the Court to any specific part of Kaur, the written submissions do reproduce Kaur at [120] – [123] (see the applicant’s written submissions at [18]). I, therefore, understood the oral submissions to seek to rely on what Justice Mortimer said in Kaur at [122] (“…the term legal fact…”).
The answer to the applicants’ ground, and their reliance on Kaur, is that Kaur was concerned with the Tribunal’s exercise of a statutory discretion (s.362B of the Act, at the relevant time) to proceed to the making of a decision on review. The applicant had been invited to a hearing pursuant to s.360 of the Act. She did not appear at the hearing. The Tribunal proceeded to make a decision. The Court found, in the circumstances of that case, that the Tribunal’s exercise of the power found in s.362B of the Act was unreasonable.
I respectfully understood that it was in that context that the Court found that the Minister’s submissions as to the term “legal fact” (Kaur at [122]) were unhelpful. That is because the “deemed receipt” provisions operate to allow the discretion in s.362B of the Act to arise for consideration by the Tribunal after a defined period of time (Kaur at [122]).
In my respectful view, the Court made clear that the “deemed receipt” provisions “do not… govern or determine the outcome of the consideration by the Tribunal of how to exercise that discretion” (Kaur at [123]).
In the current case, the delegate was not exercising any discretion in sending the letter of notification of the decision. The delegate had no discretion. Section 66(1) of the Act makes clear that in circumstances where the Minister, or his delegate, refuses to grant a visa he is to notify the applicants in the prescribed way. That “prescription” as relevant to this case is set out above (at [25]). As set out above, the delegate followed the relevant statutory and regulatory requirements.
In any event, I cannot see that the key elements arising from the circumstances in Kaur, and on which the finding of legal unreasonableness was made, are present in the current case.
For example, one of the elements was the delay occasioned by the Tribunal’s unexplained inaction in the conduct of the review. The delay was a period of nearly two years between the application for review and the first substantial communication from the Tribunal to the applicant (see Kaur at [87]). Another element was the use of different methods of communication by the Tribunal to the applicant during the process of the review (see Kaur at [90]).
In the current case, the delegate wrote to the applicants on 5 April 2013 inviting comment on information that the applicant had not been sponsored as she claimed (CB 46). That letter was sent by email to the agent’s (same) email address.
The applicants made no response to this invitation. There is no evidence before the Court, nor was there any before the Tribunal, that the agent did not receive this letter at the same email address to which the notification of the decision was subsequently sent. Nor was any such claim made before the Court now.
Further, there is nothing before the Court to indicate that the delegate would have had any reason to believe that the email had “bounced back”. By contrast, in Kaur, the letter of invitation to the hearing was returned to the Tribunal marked “RTS” (presumably “Return to Sender”) (see Kaur at [93]).
I also note, as set out above, that the date of transmission of the email by the delegate to the agent’s email address was 2 January 2014. This was a weekday (Thursday). It was not a public holiday in NSW (the agents were located in NSW – CB 45).
The Tribunal’s decision was that in circumstances where the delegate’s notification complied with all of the relevant statutory and regulatory requirements, it did not have jurisdiction, with reference to s.347(1) of the Act, to review the delegate’s decision because the relevant application was not made within the prescribed time.
There is no dispute from the applicants now that an application received outside the prescribed time is not a valid application and an application in respect of which the Tribunal does not have jurisdiction (see Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559 (“Cheng”)). The Tribunal’s finding that it lacked jurisdiction in the current circumstances, because of s.347(1) of the Act, cannot, as the Minister correctly submitted, be “legally unreasonable”, given that s.347 of the Act does not confer a discretion, or even a power, on the Tribunal. For the applicants’ benefit, it must be stressed this is of obvious distinction with the situation in Kaur.
There was nothing before the Tribunal to support the applicants’ representative’s speculation that the delegate’s email “bounced back” or that the delegate should have “followed up” with the applicants’ representative. In all, ground one is not made out.
Ground two asserts the Tribunal made “judicial error” (I understood this to mean legal error as the Tribunal is not a Court), because it failed to find that the application for review was made within the “statutory time limits”.
To the extent that the particulars to ground two ((a) and (b), and to a large extent (c) and (e)), repeat the complaint made in ground one, they are of no assistance to the applicants for the reasons given above. The remainder of (c) and (e) can only be understood as submissions by the applicants and not assertions of legal error.
Particular (f) to ground two directs attention to “s.497C(7)” of the Act. This was repeated in written submissions. No such subsection existed in the Act at the relevant time. Ultimately, the applicants legal representative before the Court was directed to s.494C(7) and he agreed that was the subsection relevant to ground two:
“(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
Although not entirely clear, the argument before the Court appeared to be that s.494C(7) of the Act refers to an “error” in the giving of a document by the Minister to a person, and in this case, the delegate made an error.
The applicants have misconceived the operation of s.494C(7) of the Act. Plainly, that section seeks to cure the situation where an “error” has occurred in the giving of a document by the Minister, but the person in any event receives the letter. In essence, the subsection operates, in favour of the Minister, to preserve the situation of a successful giving of the document by the Minister to a person, even though there has been some “error” in the giving (see Cheng and Rana v Minister for Immigration and Border Protection [2014] FCA 1233).
In any event, for the reasons already set out above, there was no error in the delegate’s giving of the notification letter to the applicants. In that circumstance, I agree with the Minister that s.494C(7) of the Act is of no assistance to the applicants. Ground two is not made out.
Conclusion
No legal error is revealed in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 November 2015
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