Dzhakhanirova v Minister for Immigration

[2019] FCCA 3032

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZHAKHANIROVA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3032

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Other Family (Residence) (Class BU) visa – whether the Tribunal misapplied the law to the facts as found in determining the jurisdiction – whether the Tribunal had jurisdiction to hear the matter – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 494B, 494C

Migration Regulations 1994 (Cth), r.4.10

Cases cited:

Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494

Applicant: LIENNARA DZHAKHANIROVA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2393 of 2018

Judgment of: Judge Humphreys

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Parramatta

Delivered on: 23 October 2019

REPRESENTATION

Solicitors for the Applicant: Mr Turner, Turner Coulson Immigration Lawyers

Solicitors for the Respondents: Mr Gao, Australian Government Solicitors

ORDERS

1. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2393 of 2018

LIENNARA DZHAKHANIROVA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction  

1. On 22 January 2018, a delegate of the Minister for Immigration and Border Protection refused to grant an Other Family (Residence) (Class BU) visa to the applicant. An application for review to the Administrative Appeals Tribunal (“the Tribunal”) was lodged on 17 July 2018. The Tribunal, in its decision, found it had no jurisdiction to deal with the matter as the application was lodged outside the 21 day timeframe prescribed by s 347(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and r 4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations”). The applicant now seeks judicial review of the Tribunal decision to find it had no jurisdiction to deal with the matter.

Administrative Appeals Tribunal Decision

1. At paragraph 5 of its decision, the Tribunal notes the information provided before it that at the time of the application, the applicant provided at question 23 on her form 47, her residential address, which is located in New South Wales. At question 24 on form 47, in response to the question ‘address for correspondence’, the applicant wrote “as above”. However, at question 26, in response to a question ‘do you agree to the department communicating with you by fax, email or other electronic means?’ the applicant ticked the box “yes” and then provided her email address.

2. At paragraph 9 of its decision, the Tribunal notes that the applicant was notified of the decision to refuse her application by email, which was dispatched or transmitted on 22 January 2018. The Tribunal concluded that the applicant was notified of the decision and the period to apply for a review to the Tribunal expired on 12 February 2018.

3. Accordingly, the Tribunal found it had no jurisdiction to deal with the matter.

Grounds of Appeal

1. Two grounds of appeal were initially filed in this matter with the Court. The second ground was not pressed. The first ground is as follows:

   The Tribunal misapplied the law to the facts as found in determining the jurisdiction

   Particulars

   a)The applicant advised that her “Address for Correspondence” was a named place in New South Wales.

   b)The decision was sent to the email address that she provided.

   c)As the decision was not sent to her “Address for Correspondence” it was not received by her until it was handed to her by an officer of the Department of Home Affairs on 6 July 2018.

   d)As the application was lodged on 17 July 2018, it was lodged in time and the Tribunal has jurisdiction to hear the application.

Submissions

1. It was submitted on behalf of the applicant, that the transmission of the refusal letter by email was not valid and she specifically stated her address for correspondence was her given residential address. It was argued that there was a difference between correspondence and communication. It was submitted by the applicant that the refusal letter should have been sent by post, rather than email, as it was correspondence. Reliance was placed on Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494 (“Kim”) at paragraph [28] per Buchanan J, where the following was said:

   The question which is central to the resolution of the present appeal is whether the Minister retained an effective discretion to choose any of the methods prescribed by s 494B (including delivery by hand) to communicate a visa refusal to the first respondent. I have concluded that I am bound to decide that the Minister did retain that discretion, notwithstanding the matters to which I have referred and notwithstanding any belief the first respondent may have had to the contrary.

2. At paragraph 18 of the same decision, Buchanan J said:

   Assuming the first respondent had nominated her residential address as the method for communications (a question which I address below), the Minister would be obliged by s 494B(4)(c) of the Migration Act to send documents to the last residential address nominated. That would clearly be the address in Australia where the first respondent was living when she made her visa application, not that in South Korea.

3. It was put to the Court that it should prefer the comments in paragraph 18 as compared to paragraph 28 in Kim and find that it was an obligation of the Minister to send any refusal letter, as it was correspondence not a communication, by letter rather than by email.

Consideration

1. It is not disputed that the refusal letter was sent by email to the applicant’s nominated email address on 22 January 2018. Looking at the relevant statutory provisions, s 494B of the Act begins with the heading ‘Methods by which Minister gives documents to a person’. It then goes through to give a number of options, including s 494B(4) of the Act:

   Dispatch by prepaid post or other means

   And it uses the words:

   4) Another method consists of the Minister dating the document, and then dispatching it:

   ….

   Followed by:

   b)by prepaid post or by other prepaid means; and

   c)to:

   …

   ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents;

2. Section 494B(5) of the Act then goes on to say:

   Transmission by fax, email or other electronic means.

   5) Another method consists of the Minister transmitting the document by:

   ….

   b)email

3. Section 494C(5) of the Act is headed, ‘When a person is taken to have received a document from the Minister’. Under the following heading ‘Transmission by fax, email or other electronic means’, s 494C(5) states:

   5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting a 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.

4. I have considered the matters that have been put before the Court but I am satisfied that once the email communication box is ticked, it is well-established that the Minister then has a discretion as to the method to be used to forward any refusal notification. I am satisfied that at paragraph [28] of Kim, which has been outlined above, provides clear superior Court support, that where the applicant supplies both a residential and an email address, the Minister is entitled to choose either method to notify the applicant of the decision to refuse the visa (see paragraphs [46] and [47] of Kim).

5. I am of the view that Kim is binding on this Court and I cannot accept the submission that has been put forward by the legal representative for the applicant. In the circumstances, the grounds cannot succeed. I am satisfied that the applicant was duly notified by email and that the time period expired prior to the review being lodged with the Tribunal.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 20 November 2019