Enam v Minister for Immigration & Border Protection

[2014] FCCA 230

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENAM v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 230

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal has jurisdiction to review a decision filed in excess of the prescribed period – whether emailing decision requires evidence of receipt by the applicant – whether decision was sent in prescribed manner – whether non-receipt of email affects application of time limits – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.347, 474, 494B, 494C
Migration Regulations 1994 (Cth), reg.4.10

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86

Applicant: KHONDOKER FAISAL ENAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 66 of 2013

Judgment of: Judge Emmett

Hearing date: 13 February 2014

Date of Last Submission: 13 February 2014

Delivered at: Sydney

Delivered on: 13 February 2014

REPRESENTATION

Solicitor for the Applicant: Paul Guan
(Paul Guan & Associates)

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 66 of 2013

KHONDOKER FAISAL ENAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 17 December 2012.

2. The applicant claims to be a citizen of the People's Republic of Bangladesh.

3. The applicant arrived in Australia on 1 July 2005 having departed legally from Dhaka, Bangladesh on a passport issued in his own name.

4. On 28 December 2010, the applicant lodged an application for a Skilled Graduate (Class VC) (subclass 485) visa with the Department of Immigration and Citizenship (“the Department”).

5. On 11 April 2012, the Delegate refused the applicant’s application for a Skilled Graduate visa.

6. On 12 July 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

7. On 17 December 2012, the MRT determined that it had no jurisdiction to review the Delegate’s decision because the review application was lodge outside the prescribed period of 21 days from date of notification of the Delegate’s decision. The MRT found that the applicant was properly notified of the Delegate’s decision and was taken to be notified on 11 April 2012.

8. On 16 January 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

9. Pursuant to s.347(1) of the Act and reg.4.10(1)(a) of the Regulations, the Applicant was required to lodge any application for review of the Delegate’s decision with the MRT no later than 21 days after the day on which notification of the Delegate’s decision is received.

10. Pursuant to s.494B(5)(b) of the Act, notification to an applicant may be transmitted by email to, relevantly, to the last email address provided by the applicant for the purposes of receiving documents.

11. Pursuant 494C(5) of the Act, a person is taken to have received a document given to him by the method in s.494B(5)(b) to have received the document by the end of the day that the document was transmitted.

12. On 19 November 2012, the MRT wrote to the applicant indicating its view that his review application was not a valid application because it was not lodged within the relevant time limit. The letter invited the applicant to comment.

13. On 23 November 2012, the applicant’s migration agent responded to the MRT’s letter stating that the applicant never received the email, dated 11 April 2012. The migration agent’s letter raised the issues of whether the correct email address had been used, whether the email had bounced back, or whether in fact the notification had been sent by email. By letter dated 22 November 2012, the applicant also wrote to the Department asserting that he was not properly notified and had never received the email dated 11 April 2012.

14. In its decision record, the MRT referred in full to those letters dated 23 November 2012 and 22 November 2012. The MRT stated that it had regard to the submissions in those letters. However, the MRT found that the applicant was correctly notified of the MRT’s decision and was taken to have been notified on 11 April 2012 in accordance with the statutory regime referred to above.

1. The applicant was represented before this Court by his solicitor Mr Paul Guan.

2. Mr Guan confirmed that the applicant relied on the two grounds identified in the application filed on 16 January 2013. Those two grounds are as follows:

   1.      The Tribunal member has made a judicial [sic] error by failure to give consideration to the arguments and evidence provided by the applicant in determining whether the first respondent’s delegate has notified him of their decision in accordance with s.66(1) and s494B(5) and therefore failure to find that the applicant had made a proper review application under Migration Act 1956 (Cth) Section 338.

   Particulars

   a)          Migration Act 1956 (Cth) Section 494B(5) provides that one of the prescribed ways to give a document to a person consists of the Minister transmitting documents by e-mail to the e-mail address or other electronic address, as the case may be, provided to the Minister for the purpose of receiving documents.

   b)          The Tribunal member relied on the Department’s file records that the first respondent’s delegate has transmitted the document by this method

   c)          The applicant has argued that:

   i) The delegate may not [have] used a correct e-mail, though it has been recorded that a correct e-mail address has been used.

   ii) The e-mail [used] to transmit the documents might have bounced back for its size or otherwise should have been considered as having not been sent.

   iii)     The file record might be a mistake of record.

   iv)         The Tribunal has not considered these arguments and evidence.

   Alternatively

   2.     The Tribunal member has made a judicial [sic] error in giving no evidence and making a decision unreasonably.

   Particulars

   a) The applicant has argued that:

   i) The delegate may not [have] used a correct e-mail, though it has been recorded that a correct e-mail address has been used.

   ii) The e-mail [used] to transmit the documents might have bounced back for its size or otherwise should have been considered as having not been sent.

   iii)     The file record might be a mistake of record.

   b) A reasonable person should provide more evidence to support the delegate’s claim that the document has been transmitted by the e-mail method.

   c) The Delegate’s file record only was not sufficient evidence to support the claim when faced with questioning by the Applicant.”

3. Mr Guan submitted that because the applicant had not received the email, dated 11 April 2012, it was for the respondent to prove that it was received by the applicant because the proper definition of ‘transmit’ in the Macquarie Dictionary means to “to send over or along” to a recipient.

4. In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86, Jacobson J stated at [57] that “‘by transmitting’ means by sending and the person is taken to have received the document on the end of the day on which it was sent.”

5. In considering the effect of deeming provisions similar to the effect of ss.494B and 494C of the Act, Jacobson J at [58]:

   “The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.”

6. In the circumstances, I do not accept Mr Guan’s submission that the first respondent is obliged to prove that the email was received by the applicant on a proper construction of the deeming effect of s.494C(5) of the Act. In any event, I note that there is no evidence from the applicant that he did not receive the email, other than the copy his letter to the MRT dated 22 November 2012.

7. In relation to the applicant’s migration agent’s submissions, dated 23 November 2012, there is no evidence before this Court that the email bounced back. Further, the email was plainly addressed to the last email address provided by the applicant for communication to him from the Department.

8. In relation to the possibility of error in error raised by the applicant’s migration agent, counsel for the first respondent, Mr Tim Reilly, read the affidavit of Paisley Nugent, affirmed 25 June 2013. Mr Nugent deposed as to the practice and method by which the email dated 11 April 2012 was sent to the applicant. The proper inference to be drawn from this evidence is that the email was properly transmitted. As stated above, there is no evidence that the email bounced back.

9. In the circumstances, the proper inference to be drawn, and the inference that I do draw, is that the applicant is taken to have received the email at the end of the day on 11 April 2012.

10. Accordingly, the MRT’s findings that the applicant was properly notified of the Delegate’s decision, and that the applicant is taken to have been notified on 11 April 2012, was open to the MRT on the evidence and material before it and for the reasons it gave. The applicant did not lodge his review application until 12 July 2012, well in excess of the prescribed period of 21 days which the MRT found to have expired on 2 May 2012.

11. In the circumstances, the MRT’s determination that the application for review filed 12 July 2012 was not valid and that the MRT had no jurisdiction to review the Delegate’s decision is without error.

12. To the extent that the applicant complains in Ground 1 that the MRT failed to consider the applicant’s arguments and evidence, such a complaint is not made out. As stated above, the MRT informed the applicant on 19 November 2012 in writing that it was of the view that the application was not a valid application as it was lodged out of time and invited the applicant to comment.

13. As stated above, both the applicant and his migration agent responded to that letter in separate submissions. A fair reading of the MRT’s decision record makes clear that it considered those submissions but was not persuaded by them.

14. The complaint in Ground 2, that the MRT acted unreasonably, is not made out for the reasons referred to above.

15. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

16. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision.

17. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

18. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  13 February 2014