Dial a Doctor Pty Ltd v Minister for Home Affairs
[2019] FCCA 903
•26 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIAL A DOCTOR PTY LTD v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 903 |
| Catchwords: MIGRATION – Applicant sponsor applied for visa for general medical practitioner position – failure to file application for review within time – tribunal lacked jurisdiction to determine review of delegate’s decision to refuse visa – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), rr.4.10, 5.19 Migration Act 1958 (Cth), ss.66, 347, 494A, 494B, 494C |
| Cases cited: WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 |
| Applicant: | DIAL A DOCTOR PTY LTD |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 224 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 26 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Burrow |
| Solicitors for the Applicant: | Chand Lawyers |
| Solicitors for the Respondent: | Mr. Kyranis of Sparke Helmore |
IT IS ORDERED THAT:
The application for review filed on 5 March 2018 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 224 of 2018
| DIAL A DOCTOR PTY LTD |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a company which sought to nominate an overseas doctor for the position of “general medical practitioner”. It filed an application for a nomination on 6 June 2017. The application listed Chand Lawyers as the applicant’s representative and authorised correspondence recipient, the email address provided for that purpose being “[email protected]”.
On 15 November 2017 the delegate to the Minister refused the nomination on the basis that the applicant did not meet the relevant Regulation 5.19(3) of the Migration Regulations 1994 (Cth) (‘the Regulations’) criteria. The delegate was not satisfied that the applicant had provided enough evidence that it had met the training requirements throughout the term of its sponsorship. Regulation 5.19(3) provides as follows:
Approval of nomination
(3) The Minister must, in writing:
(a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.
On 15 November 2017 the delegate’s decision was sent to the applicant’s representative via email. Reference, in that regard, is made to Annexure A to the affidavit of Cody Allen filed on 24 May 2018. That Annexure is a true copy of a screenshot of the department’s email system which indicated that the relevant letter dated 15 November 2017 was sent on that day by the department to the applicant at its representative’s nominated email address.[1]
[1] See letter from the Delegate to Dial a Doctor Pty Ltd dated 15 November 2017at CB [34].
On 8 January 2018 the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the delegate’s decision. Attached to the application for review was a letter from the applicant’s representative, also dated 8 January 2018, which outlined the following matters:
a)The applicant’s representative had received an email notifying the nominee on 19 December 2017 that his visa had been refused, the decision for such refusal having been made on 15 November 2017.
b)The applicant’s representative had not been notified of the refusal of the nomination application.
c)The applicant’s representative had conducted an extensive search and review of its computer records, including deleted items, spam folders and by checking with the applicant.
d)The applicant’s representative was not aware of any circumstances that could have prevented the system from receiving the notification letter.
e)The applicant’s representative submitted that it should be deemed to have received the refusal notification on the same day that it received the refusal notification from the nominee, namely, 19 November 2017.
It was common ground between the parties that the time for the filing of an application for review to the Tribunal was 21 days after the sending of an email by the delegate. On 9 January 2018, the Tribunal wrote to the applicant’s representative inviting comment as to the validity of the application for review (see CB [51]-[53] inclusive of tribunal reasons). In that letter the Tribunal:
a)Noted that the time limit within which to file an application for review was 21 days from the date on which the applicant was taken to have been notified of the primary decision;
b)The primary decision was emailed to the authorised recipient on 15 November 2017;
c)The applicant was taken to have been notified of the decision on 15 November 2017;
d)The last day for lodging an application for review was, accordingly, 6 December 2017.
e)Because the application for review was not received until 8 January 2018 (more than one month later) it was out of time.
The applicant’s representative provided a further response to the invitation on 23 January 2018, wherein it was claimed that:
a)Although a failure to notify an applicant of a decision did not invalidate the decision itself, it had the effect that the period in which to apply for review did not start to run until the applicant had been correctly notified.
b)The words “is taken to have been notified” was an implied assumption that the department (and Tribunal) was assuming that the communication had been received by the intended receipt.
c)Technical glitches were a possibility, and the applicant’s application should be validated.
On 1 February 2018, the Tribunal found that it had no jurisdiction to review the delegate’s decision. On 7 March 2018, the applicant filed an application for judicial review of the decision of the Tribunal handed down on 1 February 2018.
Pursuant to the provisions of section 347(1)(b) of the Migration Act 1958 (Cth) (‘the Act’), and regulation 4.10 of the Regulations, an application for review of a delegate’s decision had to be made within 21 days after the applicant was notified of the decision in accordance with statutory requirements. Pursuant to the provisions of section 494A of the Act, the Minister is entitled to give notification to the applicant by any method that is considered appropriate, which may include by email. If that is done, then by section 494C(5) of the Act, the email is taken to have been received by the person to whom it is addressed at the end of the day on which the document is transmitted.
Section 494C of the Act provides as follows:
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, email 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, email 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.
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.
At [9] of the reasons of the Tribunal, the Tribunal noted that the applicant’s representative suggested that there had been an applied assumption by the department (and the Tribunal) that the email communication had been received by the applicant. The Tribunal went on to find that there was no suggestion on behalf of the applicant that the delegate’s email of 15 November 2017 had not been received. At [6] of the Tribunal reasons, it was recorded that the delegate’s decision in the matter was emailed to the applicant’s representative at “[email protected]” on 15 November 2017.
At [10] of its reasons, the Tribunal found that it was satisfied that the delegate’s decision notice had been dispatched by email on 15 November 2017 to the correct email address provided by the applicant to the department for the purpose of receiving documents and notices. In accordance with the provisions of s. 66(1) and s. 494B(5) of the Act, the Tribunal, accordingly, found that, pursuant to the provisions of s. 494C(5), the applicant was taken to have received the notice at the end of the day on 15 November 2017, that being the day on which the email was transmitted.
The Court was referred to an affidavit of one Mr Khan filed on behalf of the applicant on 5 March 2018. Paragraph 5 of that affidavit adverts to a notice having been put up on the department’s website indicating that there had been some technical difficulties with the department’s email system. The affidavit, however, nowhere descends with particularity as to the date on which any such technical difficulties occurred, nor does it suggest that there was such a problem on 15 November 2017.
The applicant’s counsel further referred to a letter from the applicant’s lawyers sent to the registrar of the Tribunal on 8 January 2018 as constituting “evidence” of problems with the second respondent’s email system. Again, however, such letter does not constitute evidence of any such difficulty with the second respondent’s email system on 15 November 2017. It merely constitutes submissions to that effect.
It was also asserted that jurisdictional error had been established because the Tribunal had failed to make reference to, and therefore had implicitly failed to have regard to, the contents of the letter from the applicant’s lawyers to the Tribunal dated 8 January 2018. In that regard, a Tribunal is not obliged to set out in its reasons each and every factor which it took into account before arriving at its decision. It is not necessary for the Tribunal to refer to every piece of evidence or every submission made to it by an applicant in its written reasons. [2]
[2] See WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46]
Further, even if the Tribunal acted irrationally or illogically in failing to make specific reference to the contents of the said letter from the applicant’s lawyers to the Tribunal dated 8 January 2018, it could not be said that such failure so infected the final decision with error so as to constitute jurisdictional error. In that respect, the court respectfully adopts what Wigney J said in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [55].
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137[148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138[151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599[83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291[66]; SZWCO at [64]-[67].
At [10] of its reasons, the Tribunal found that it was satisfied that the delegate’s decision notice had been dispatched on 15 November 2017. At [11] of its reasons, the Tribunal found that the prescribed period in which the review application could be made ended on 6 December 2017. It found that the application for review was not made in accordance with the relevant legislation and that the Tribunal had no jurisdiction in the matter.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan & Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
...
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification
No jurisdictional error has been established on the part of the tribunal. The application for review is without merit and is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 5 April 2019
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