Elnoor v Minister for Immigration

[2017] FCCA 868

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELNOOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 868

Catchwords:
MIGRATION – Application for Other Family (Class BO) Carer visa – review of decision of Administrative Appeals Tribunal – whether the Delegate erred by using the incorrect email address when providing its notification of decision –whether the Tribunal had jurisdiction to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.14, 66(2), 347(1), 494B, 494C

Migration Regulations 1994 (Cth), regs.1.15AA(1), 2.16(3), 4.10
Electronic Transactions Act 1999 (Cth), ss.14, 14A

Cases cited:

Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37

Applicant: HATASO ABD ELNOOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1201 of 2016

Judgment of: Judge Smith

Hearing dates: 17 and 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Sydney

Delivered on: 5 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms B. Griffin, Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1201 of 2016

HATASO ABD ELNOOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Australia and for present purposes shall be identified as “the sponsor”.  On 20 May 2014, an application for an Other Family (Class BO) Carer visa was lodged by the sponsor’s niece (“the visa applicant”) for her to come to Australia as the sponsor’s carer. This application also included the visa applicant’s husband and two children. On 10 March 2015, a delegate of the Minister made a decision to refuse the grant of the visa.  The sponsor applied to the Administrative Appeals Tribunal for review of that decision on 9 December 2015.  On 8 April 2016, the Tribunal made a decision affirming the decision of the delegate. 

Background

1. The visa application form contained the following question: “Do you agree to the department communicating with you by fax, e-mail, or other electronic means?”  The visa applicant responded “Yes” to this question and supplied the email address [email protected].

2. On 28 May 2014, the Department of Immigration sent to the email address given by the applicant a letter acknowledging receipt of the visa application.  At the bottom of that letter, the Department provided various methods of contacting the Department including the following email address: [email protected].

3. On 1 July 2014, the Department sent the visa applicant a further email to her nominated email address inviting her to attend an interview at the Australian Embassy Cairo (the Post) on 5 August 2014.  The visa applicant did not attend that interview.  On 16 October 2014, a further email was sent to the applicant at the same address inviting her to attend an interview on 23 October 2014. Again, the visa applicant failed to attend the interview.

4. On 25 November 2014, an officer at the Post telephoned the visa applicant and informed her of the time and date of a rescheduled interview.  The visa applicant attended this interview at the Post on 1 December 2014.

5. The delegate made a decision to refuse the application on 10 March 2015. The delegate was not satisfied that the assistance required by the sponsor could not reasonably be obtained through community services in Australia or from another relative of the sponsor already living in Australia. For that reason, the delegate found that the visa applicant was not a carer within the meaning of reg.1.15AA(1) of the Migration Regulations 1994 (Cth) (Regulations) and did not meet sub-regs.1.15AA(1)(e)(i) and (ii). As a result, the visa applicant did not satisfy the criteria for the granting of the visa.

6. On 12 March 2015, notice of this decision was sent to the visa applicant by email at her nominated email address, namely [email protected]. 

7. On 30 October 2015, the Post was notified by email from Mr Laba Sarkis, who described himself as an “interpreter and community volunteer,” that the sponsor’s husband had died and requested an update on her niece’s application.  By return email, the Post advised Mr Laba Sarkis that a decision had been made on 12 March 2015 refusing the visa.

8. On 17 November 2015, Mr Laba Sarkis wrote to the Post stating that the visa applicant had “notified the Embassy about her new email address during the interview” and was told “that the decision of March 2015 was posted to her”.  The email went further and stated that until “now she [had] not received any notification”.  The Post responded to this email advising that they would contact the visa applicant directly.  A Department file note dated 23 November 2015, reads “PA came to counter and received originals upon show of ID”.

9. The sponsor lodged an application for review on 9 December 2015.

10. On 22 December 2015, the Tribunal sent the sponsor an invitation to comment on the validity of the application for review.  It was noted in this correspondence that the time limit within which to lodge an application for review was 70 days from the day on which the visa applicant was taken to have been notified of the primary decision and that the last day for lodgement in this case was 21 May 2015.

11. On 5 January 2016, the sponsor’s authorised recipient responded by email to the Tribunal’s invitation. The Tribunal did not respond to this email.

12. On 8 April 2016, the Tribunal found that it had no jurisdiction to review the delegate’s decision and notified the sponsor on 11 April 2016 of its decision.

Tribunal’s decision

1. In its reasons, the Tribunal noted that the visa applicant provided an email address for correspondence in her visa application, namely [email protected]. It also noted that the Department wrote to the visa applicant at that address, by email on 16 October 2014 inviting her to attend an interview on 23 October 2014.

2. The Tribunal noted that an officer of the Department rang the visa applicant on 25 November 2014 and made the following file note:

   … she did not receive or she might [have] missed this email. Reviewed the email address with applicant ([email protected]) she confirmed that is her email address. …

   (Errors in original)

3. The Tribunal considered the Department file note of 25 November 2014 and the interview conducted with the visa applicant on 1 December 2014: see [7] of the Tribunal’s reasons.  There was no evidence on the Department’s file that the visa applicant had provided the Post with a new contact email address during the interview.  The Tribunal accepted that the visa applicant had confirmed with the Post that the email provided by her on 25 November 2014 was correct: see [8] of the Tribunal’s reasons. The Tribunal acknowledged the email of the visa applicant’s authorised recipient, that the visa applicant did not receive an email notifying her of the delegate’s decision. 

4. At [11] of its reasons, the Tribunal noted that there had been “some confusion caused by the applicant apparently being advised in November 2015 that the decision had been posted to her in March 2015”. However, the Tribunal did not accept that the decision had been posted.  It was satisfied, based on the available evidence, that a copy of the decision under cover of letter dated 12 March 2015 had been sent to the visa applicant’s correct email address, namely [email protected]: see [11].

5. The Tribunal noted at [12] that the notification letter provided two separate time frames for review of the decision.  The first paragraph concerning review rights for the review applicant (sponsor) was correct: that an application for review is to be made within 70 calendar days.  The second paragraph, incorrectly, provided that the visa applicant was entitled to apply for review within 21 days.

6. The Tribunal went on to consider whether there had been any “practical injustice” to the visa and review applicants due to the conflicting information.  At [14] of its reasons, the Tribunal noted that the notification letter correctly stated that the review applicant (sponsor) had 70 calendar days in which to apply for review.  Given that neither the visa applicant, nor the review applicant had contact with the Department until 30 October 2015, which was well outside both dates given in the letter and having regard to sub-s.66(2)(d)(ii) of the Migration Act 1958 (Cth) (Act), the Tribunal found there was no “practical injustice” caused to the sponsor or visa applicant by the provision of the conflicting information.

7. Accordingly, the Tribunal was satisfied that the visa applicant was notified of the delegate’s decision in accordance with the statutory requirements. The Tribunal also found that the application for review was made outside the prescribed time and that it had no jurisdiction to review the delegate’s decision.

Consideration

1. The applicant seeks judicial review of the Tribunal’s decision and raises three grounds :

   1.The Tribunal decision committed an error of law by stating that it does not have jurisdiction in this matter contrary to the decision record the Australian Embassy in Cairo was notified of the new email on Sunday 26 October 2014 as per attached email. Such was ignored by the Embassy.

   2.The Tribunal’s statement of decision and reasons is affected by an error contrary to the evidence submitted a copy of which is now attached.

   3.I will provide copy of particulars when I receive copy of the whole file.

2. The sponsor argues that the delegate’s decision was not received by the visa applicant at her nominated email address and that the time for review should have commenced from 23 November 2015 when she was handed the decision. 

3. The application for review of the delegate’s decision was required to be lodged within 70 days after the visa applicant had been notified of the decision: see sub-s.347(1)(b)(ii) of the Act and reg.4.10 of the Regulations.  There is no provision for the granting of an extension of time if the application is lodged outside the prescribed period of time.

4. Regulation 2.16(3) provides that the “Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. Section 494B provides:

   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:

   …

   (b)state that the Minister must do so by one of the methods specified in this section;

   the methods are as follows.

   …

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

   (a)fax; or

   (b)email; or

   (c)other electronic means;

   to:

   (d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

   …

   (Emphasis added)

5. Section 494C of the Act provides for when a person is taken to have received a document or documents from the Minister:

   …

   (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.

6. Sections 14 and 14A of the Electronic Transactions Act 1999 (Cth) provides:

   14Time of dispatch

   (1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is:

   (a)the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or

   …

   14A  Time of receipt

   (1)For the purpose of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:

   (a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or

   …

   (Emphasis added)

7. In light of these provisions, it is necessary to determine, as at 12 March 2015, the last email address provided by the visa applicant to the Minister for the purposes of receiving documents.  If that address was [email protected], the visa applicant was taken to have been notified of the delegate’s decision on 12 March 2015, the date on which it was sent by email to that address.

Correct nominated email address

1. As already noted, the email address given by the applicant in her visa application was [email protected].    

2. However, the sponsor argues that the visa applicant later gave another email address to the Department for the purposes of receiving documents.  Attached to the sponsor’s affidavit of 8 May 2016 was a document purporting to be an email from “Mercurious Mourad” of the same date addressed to [email protected] (the email address of Mr Laba Sarkis). This document purported to forward an email message dated 26 October 2014 from [email protected] addressed to [email protected] with the subject title “Siham Abd ELNour new email”. The body of this email contained the following message:

   e-mail [email protected] has been blocked & my new e-mail is [email protected] & its preferable that you contact us at our phone number which is 26233544.  thank you

   (Emphasis in original)

3. There is no other evidence of that email. Although I doubt that it is authentic, I do not need to come to any firm view about that because I am not satisfied that it was ever received by the Minister or anyone else at the Department.

4. First, when an officer of the Post in Cairo called the visa applicant on 25 November 2014 (two weeks after the purported email set out above) to advise her of a rescheduled interview on 1 December 2014, she confirmed that her correct email address was [email protected].  That is inconsistent with the facts asserted in the email.

5. In her evidence, the sponsor stated that the visa applicant advised the delegate of her correct nominated email address during the course of interview.  That evidence is not supported by the record of interview of 1 December 2014 and I do not accept it.

6. Secondly, there is no evidence that links the email address to which this email was purportedly sent ([email protected]) with the Department or the Minister. Indeed, all the evidence suggests that there was another email address used by the Department in connection with visa applications made in Egypt. All of the correspondence sent by the Department to the visa applicant used the address [email protected] and that was the address used (on two occasions) by Mr Laba Sarkis, the sponsor’s authorised recipient. 

7. The sponsor was unable to provide a satisfactory reason as to why a different email address was used in order to give the Minister a new email address.

8. Thirdly, the following evidence was given in respect of the email by an officer of the Post in Egypt:

   We have no record of having received this email.  The address it was sent to was the general Embassy mailbox (DFAT’s). We note there is no hint in the email that it relates to an immigration matter.

9. The Post then provided the following further advice from the Litigation Branch of the Department:

   Access to the general Australian Embassy Cairo email ([email protected]) is limited to those local and Australian staff who work directly for DFAT[1] – none of the local or Australian staff who work directly to DIBP[2] have access to this mailbox. DFAT have confirmed this fact today.

   A DFAT staff member (usually a locally engaged staff member) would make an assessment if the email and take appropriate action. If this person determines that matter is one that clearly belongs to DIBP, they will then forward the email to the appropriate email address, which is [email protected].

   (Error and emphasis in original)

   [1] Department of Foreign Affairs and Trade.

   [2] Department of Immigration and Border Protection.

10. For those reasons, I conclude that the email dated 26 October 2014 was not given to the Minister, or to anybody at the Department. Accordingly, the last email address given by the visa applicant to the Minister, for the purposes of receiving documents, was [email protected].

11. As I have observed, this means that the visa applicant was notified of the delegate’s decision on 12 May 2015. The sponsor’s application to the Tribunal for review of that decision was out of time and the Tribunal was correct to find that it had no jurisdiction to review that decision.

12. However, there is another potential issue that arises from the fact that there were two different dates for the review application given to the applicant. The Tribunal addressed this issue in the following:

    [12]The Tribunal notes that the decision notification letter provides two separate time frames for seeking review of the decision. The first paragraph about further review rights is correct and refers to the sponsor being entitled to apply for review of the decision within 70 calendar days. The subsequent paragraph is incorrect and states that the applicant is entitled to apply for review within 21 calendar days. The Tribunal has considered whether there has been any ‘practical injustice’ to the applicant due to the conflicting information provided.

    [13]In SZOFE v MIAC (2010) 185 FCR 129, Justices Buchanan and Nicholas held that there cannot be adequate assessment of whether the requirements of s.66 of the Act have been breached without some examination of the consequences of the alleged non-compliance, which need to be assessed in each particular case. The principle of ‘practical injustice’ has been directly applied to the requirement in s.66(2)(d)(ii) to specify the time in which the review application may be made. In Benissa v MIAC the decision notice calculated the last day for making a review application to be one day more than what the prescribed period should have been, but the applicant nonetheless applied within time. The Court applied the reasoning in SZOFE and found that nothing turned on any possible error of one day in calculation of the period specified in the notification.

    [14]In the circumstances of this case, the Tribunal does not accept that there has been any practical injustice caused to the applicant by the conflicting information regarding the applicable further review rights. The first paragraph in the notification letter provided the correct information and it was open to the applicant to query the conflicting dates. The applicant’s first contact with the Department was not until 30 October·2015, which was well after both of the dates provided in the notification letter regarding the further review rights.

13. It appears that the Tribunal may have been concerned that the notice did not comply with sub-s.66(2)(d)(ii) of the Act, which requires the notice to state “the time in which the application for review may be made”. There may be an argument that that obligation did not arise[3]. However, assuming for present purposes that it did, I can see no error in either the approach or the conclusion of the Tribunal.

    [3] Section 66(2)(d) of the Act applies if the “applicant has a right to have the decision reviewed”; however, the sponsor was the only one entitled to apply for the review: s.347(2)(b).

14. The decision of the Full Court was supported by the following passage in the judgment of the High Court in Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37:

    [35]While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being “rather absurd”.  The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing.  In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures.  No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.

    (Citations omitted)

1. There was no suggestion here that either the visa applicant or the sponsor suffered from any injustice because of the reference to the two different dates. There was no evidence that either of them was misled. Indeed, any suggestion to that effect would have been inconsistent with the email from Mr Laba Sarkis in late October 2015 inquiring about the progress of the visa application. By that time, the sponsor was already well outside the time for lodging an application for review.  For those reasons, the reference to the two dates did not affect the validity of the notice given to the applicant under s.66 of the Act.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         5 May 2017