Kassem v Minister for Immigration
[2018] FCCA 250
•8 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KASSEM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 250 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant 457 visa – whether invitation pursuant to s.359 of the Migration Act 1958 (Cth) (Act) to provide information was transmitted by email to authorised representative of applicants – whether by so transmitting the invitation to the agent the agent is taken to have been given the invitation – whether if the agent is taken to have been given the invitation the applicants are taken to have been given the invitation – whether in circumstances where there was no response to the invitation the Tribunal acted unreasonably by deciding pursuant to s.359C(1) of the Act to make a decision on the review without taking any further action to obtain information – whether there is any reasonable basis for alleging fraud against agent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359C, 360(3), 379G(2) Migration Regulations 1994 (Cth), Sch.2, cl.457.223(2), cl.457.223(4), Evidence Act 1995 (Cth), ss.144, 161(1), 162 |
| Cases cited: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 |
| First Applicant: | TANJA KASSEM |
| Second Applicant: | MAHMOUD KASSEM |
| Third Applicant: | AMRO KASSEM |
| Fourth Applicant: | YASMINE KASSEM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3344 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 February 2017 |
| Date of Last Submission: | 10 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| First and Second Applicants in person and on behalf of the Third and Fourth Applicants. |
| Solicitor for the First Respondent: | Ms M Wells of Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3344 of 2015
| TANJA KASSEM |
First Applicant
| MAHMOUD KASSEM |
Second Applicant
| AMRO KASSEM |
Third Applicant
| YASMINE KASSEM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the first applicant (applicant) a Temporary Business Entry (Class UC) (subclass 457) visa (457 visa). The second applicant is the spouse of the applicant, and the third and fourth applicants are their dependent children. They applied for the 457 visa as members of the applicant’s family unit.
Background
To have been entitled to a 457 visa, the applicant had to satisfy, at the time of the decision, a number of criteria. These included either the criteria specified in cl.457.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), or the criteria specified in cl.457.223(4) of Schedule 2 to the Regulations. The applicant elected to satisfy the criteria specified in cl.457.223(4).
What was in issue before the Tribunal was whether the applicant satisfied the criterion specified in cl.457.223(4)(da) to Schedule 2 to the Regulations which required the applicant to have the skills, qualifications, and employment background that the Minister considers necessary to perform the tasks of the nominated occupation. The nominated occupation was “Accountant (General) 221111”.
In a letter dated 7 October 2015 purportedly sent by email to the applicants’ migration agent as the applicants’ authorised representative (359 letter), the Tribunal informed the applicant there was “no information before the Tribunal regarding your skills and qualifications apart from some information about your previous employment on the visa application”.[1] The Tribunal invited the applicants to provide, by 21 October 2015, information to show the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nomination occupation of accountant. The Tribunal further advised the applicants that if it does not “receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments”. The applicants did not respond to the 359 letter.
[1] CB118
Tribunal’s decision
The Tribunal referred to the 359 letter and to the applicants’ failure to provide a response to that letter. The Tribunal found s.359C of the Migration Act 1958 (Cth) (Act) applied and noted that, pursuant to s.360(3) of the Act, the applicants were not entitled to appear before the Tribunal. Accordingly, the Tribunal elected to proceed with making a decision without taking further steps to obtain the information it sought in the 359 letter.
The Tribunal noted the applicant’s visa application form indicated the applicant worked as a bank manager and as a loans processing officer between 1999 and 2008. The Tribunal, however, found there was little information before it regarding the applicant’s skills, employment background, and qualifications to perform the nominated occupation of accountant. The Tribunal said that registration or licensing might be required for the performance of some tasks, and that it would be necessary for the applicant to at least hold a relevant qualification. The Tribunal found there was no evidence before it of the applicant’s qualifications or skills necessary to perform the nominated position.
The Tribunal accepted that the applicant’s employment background in banking might be relevant employment experience but, in the absence of detail about the work she performed, the Tribunal concluded on the basis of the available information that it was not satisfied the applicant has the qualifications, skills, and employment background necessary to perform the tasks of the nominated occupation of Accountant, and therefore did not satisfy the requirements of cl.457.223(4)(da) of the Regulations.
Course of judicial review hearing
The application filed with this Court contains the following four grounds of review.
1.The decision was affected by jurisdictional error in that the Tribunal restricted the scope of assessment by relying alone on the documents provided and that a hearing was not proceeded with.
2.The decision was affected by jurisdictional error in that the Tribunal did seek [sic] acknowledgement of a document sent which was considered utmost crucial to the matter so much that it conclusive consequences to the applicant.
3.The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.
4.The decision was affected by jurisdictional error in that it was unreasonable.
In an affidavit sworn on 8 December 2015 the applicant stated she read the “Statement of Decision and Reasons” provided by the Tribunal and, referring to paragraph 5 of that decision, said that she never received the 359 letter, and was informed by her migration agent that he did not receive it either. The applicant further stated that the Tribunal did not “require an acknowledgement either by me or by my migration agent”.[2]
[2] Affidavit of T Kassem, 8.12.2015 [2b]
The applicant annexed to her affidavit three documents. One was the Tribunal’s decision. The second was an email from the applicant’s migration agent to the Tribunal member dated 5 November 2015 stating that he, as the applicant’s authorised representative, did not receive the 359 letter and requesting “the principles of natural justice [be] applied in this case and given a chance to respond with more information”.[3] Third, there is a letter from the Tribunal dated 9 November 2015 to the applicant’s migration agent informing the agent the Tribunal member considered the request and decided not to reopen the case.
[3] Affidavit of T Kassem, 8.12.2015 [2c], Annexure B
The applicants were not legally represented at the hearing before me. They relied on written submissions (AWS) which the applicant handed up in Court. In the AWS the applicants refer to the Tribunal’s refusing their application without a hearing as a result of not responding to a letter under s.359 of the Act; to their agent’s writing to the Tribunal denying he received the 359 letter and requesting that the applicant be given a chance to respond with further information; and the Tribunal’s reply that its decision could not be reopened. In the AWS the applicant stated “I am a victim and I hope that this Honourable Court can verify whether information and request were made by my lawyer/representative or not”. The AWS then identifies and annexes documents the applicant says she gave to the agent “when my application was lodged”.
The applicant, and to a much lesser extent the second applicant, made submissions and provided information in response to questions I asked. The applicant’s oral submissions addressed two subjects. The first related to their migration agent’s assertion that he did not receive the 359 letter. The second subject related to the agent’s conduct. And here the applicant referred to two matters. One was that the applicant’s agent did not provide to the Tribunal or did not appear to have provided to the Tribunal the documents that were attached to the AWS.[4] The other is that the agent did not keep the applicants informed of the progress of their visa application.
[4] I admitted these documents as exhibit A subject to relevance
After I heard submissions from the parties I explained to the first and second applicants that the fact their agent may not have received the 359 letter does not necessarily mean the Tribunal made any error. I explained that in their application for review to the Tribunal the applicants nominated their agent as their authorised recipient and the agent provided his email address. I continued as follows:
Now, there is on file, on the court book an email sent by the tribunal. On the face of the documents it is sent to the email address given by your agent. So, so far as the tribunal is concerned, that’s the person they should give it to. Now, your agent says he didn’t receive it. You say you didn’t receive it. For the purpose of this hearing I’m going to accept that. It’s not contested that you did not receive it. Now, when one goes and looks at the law, and the Migration Act, things get very difficult for you . . . and they get difficult in this way; there are provisions in the Act which deal in very precise terms about how the tribunal can communicate, to whom and when a communication is taken to have occurred.
One of the means by which the tribunal can communicate is by email. And there’s a particular provision which says if an email is sent on a particular day then it is deemed, that is to say, it is taken to have been received at the end of that day. So . . . what that means is if it is sent, whether or not it was actually received does not matter. That’s what the law says. So if it is sent, and if there is evidence that it has been sent, and the submission is there is some evidence here [that the email was sent], then whether or not your agent has received it, doesn’t matter. Now, if it can be shown or if the Minister can’t show it was sent, that’s a different issue. So the difficulty you have legally is that if I am satisfied from this evidence that the email has been sent, then whether or not your agent received it, it doesn’t matter. Now, that can operate harshly, and I dare say it operates harshly for you. Although whether or not your agent did, in fact receive it, well, at the moment I’m not going to decide that because there’s no evidence in front of me. But assuming your agent has truthfully said it has not been received, and at the moment probably that’s what I’m going to accept. The question is was it sent anyway. So that’s a difficulty for you.
Also during the hearing I sought in a non-leading way to obtain information from the applicants about their dealings with their agent. The effect of what the applicant and second applicant said was that they were aware the agent had lodged on their behalf an application for review with the Tribunal but they had no further communication with their agent until after he informed them that the Tribunal had refused their application.
After hearing submissions from the Minister on the grounds stated in the application, I made the following directions:
THE COURT NOTES THAT:
1. The Court proposes, pursuant to s.144(1) of the Evidence Act 1995 (Cth) (Evidence Act), to acquire and take into account knowledge of the means by which email communications are transmitted via the Internet (Relevant Knowledge) by consulting the following material (Relevant Material):
a) Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503;
b) Collins, M., The Law of Defamation and the Internet 3rd ed., Oxford University Press 2010, chapter 2; and
c) Sanberg, B., Networking 3rd ed., McGraw Hill Education. 2015, pages 332-341
THE COURT ORDERS THAT:
2.Pursuant to s.144(4) of the Evidence Act, by 3 March 2017 each of the applicants and the first respondent file and serve, to the extent they so wish, a document containing submissions, and referring to information, relating to the Court acquiring by use of the Relevant Material the Relevant Knowledge, and the Court’s taking into account the Relevant Knowledge, for the purpose of determining whether the email referred to in CB116 was sent to the applicants’ migration agent.
Pursuant to these orders I received written submissions from the Minister but no further submissions from the applicants.
In these reasons, therefore, I will first consider whether the Tribunal invited the applicants in writing to provide information in the manner required by s.359 of the Act. That turns on whether the 359 letter was given to the applicants. I then consider the grounds stated in the application and submissions made in the AWS. Last, I consider whether, assuming what the applicants said to me about their dealings with their migration agent is true, that discloses any arguable case of fraud by the agent such as to give rise to an arguable case that the Tribunal’s discretion remained “constructively unexercised”[5].
[5] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [51]
Did the Tribunal invite applicants to provide information?
The starting point is s.359 of the Act which provides as follows:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
It is apparent from s.359 of the Act that, in the case of a person who is not in immigration detention, a written invitation to such person must be given by one of the methods specified in s.379A of the Act. One of those methods is that provided for by s.379A(5)(b), namely, by transmitting the document by email. Also of importance is s.379G of the Act, which relevantly provides:
(1)If:
(a)a person (the applicant) applies for review of a Part 5-reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
Subsection 379C(5) of the Act provides that if the Tribunal gives a document by the method in s.379A(5), which includes transmitting the document by email, “the person is taken to have received the document at the end of the day on which the document is transmitted”. This deeming provision is not a rebuttable presumption.[6]
[6] Xie v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 172, [14]
I have described in Tsimperlenios v Minister for Immigration and Border Protection [2018] FCA 229 the means by which an email is transmitted. As I there set out, and as submitted by the Minister in his written submissions,[7] there is a distinction between the act of sending an email and the act of receiving an email and, consequently, evidence that an email was not received is not evidence that the email was not sent. The question, therefore, is whether the 359 letter was transmitted by email.
[7] Supplementary Submissions of the First Respondent, [10], [11]
Before I consider that question, there are two preliminary matters I should note. The first concerns the burden of proof. In my explanation to the applicants I assumed, and said as much to the applicants, that the burden was on the Minister to prove that the Tribunal transmitted the 359 letter by email. Having considered that question in Tsimperlenios, I am of the opinion that that assumption was incorrect. Given, however, that I in effect represented to the applicant that the burden was on the Minister to prove the 359 letter was transmitted by letter, and, given the findings I make below, the question whether the 359 letter was transmitted by email does not turn on the burden of proof, I will consider the question of whether the 359 letter was transmitted by email on the assumption that the Minister bears the burden of proving that it was transmitted.
The second preliminary matter to note is s.161(1) of the Evidence Act 1995 (Cth) (Evidence Act) which provides as follows:
If a document purports to contain a record of an electronic communication other than one referred to in section 162 [which refers to lettergrams and telegrams], it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
There are three documents to consider. The first is the email sent on 2 October 2015 to the email address of the applicants’ migration agent nominated in the applicants’ application for review.[8] It has the following header:
[8] CB116
From:“Administrative Appeals Tribunal” <[email protected]>
Sent:Wednesday October 2015 15:09
To:[Applicants’ agent’s email address]
Subject1508181 – [applicant’s name] - NSW
Attachments: 1508181-2542827.pdf
The email stated that the sender was “writing in relation to an application for review” by the Tribunal and requested that the recipient “read attached correspondence carefully, noting that we may require a response from you before a certain date”.
The second document is a letter dated 7 October 2016 addressed to the agent and his email address (First Letter).[9] It states, among other things:
[9] CB117
The enclosed documents are given to you as the authorised recipient of the documents.
The third document is a letter dated 7 October 2015 addressed to the applicant (Second Letter). [10] That is the 359 letter.
[10] CB118
Relying on s.161(1) of the Evidence Act, I am satisfied the message recorded in the email was sent to the agent’s email address specified in the email at the time and date stated in the header to the email. I am also satisfied the email was sent with “attachments”, and the attachments related to the applicant’s application for review. The email, however, does not describe the attachments other than by the numbers and letters “1508181-2542827.pdf”. Further, although the First Letter contains the email address of the applicants’ agent, it contains no representation to the effect it is an attachment to the email; and although the First Letter refers to enclosed documents, it does not describe what those documents are. Notwithstanding these matters I am satisfied the First and Second Letters were attached to the email and, therefore, were transmitted by email together with the email.
First, there is nothing that could give rise to the suggestion that the First and Second Letters are not genuine. Second, the First and Second Letters were prepared for the purpose of the applicants’ application for review; and, given that the applicants had appointed the agent to whom and to whose email address the email and the First Letter are addressed, it is open to infer that the First and Second Letters were intended to be sent to the agent at the agent’s email address. Third, given, as I have found, that the email was sent to the agent, it is reasonably open to infer that the author of the First and Second Letters intended that the First and Second Letters be sent to the agent by email, and that the author fulfilled that intention. In those circumstances, I am satisfied the First and Second Letters were attached to the email and, for that reason, the 359 letter was transmitted to the applicants’ agent on 7 October 2015.
The consequence of this finding is that the applicants’ authorised representative is taken to have received the 359 letter on 7 October 2015 and, because of s.379G(2) of the Act, the applicants are also taken to have received the 359 letter on that day. The applicants did not respond to the 359 letter within the time specified in that letter. In those circumstances, s.359C(1) of the Act was engaged which meant that the Tribunal could make a decision on the applicants’ review without taking any further action to obtain the information. And that is what the Tribunal did.
I now turn to the grounds stated in the application.
Grounds stated in application
The first ground claims the Tribunal should have invited the applicant to a hearing before it rather than rely only on the documents provided. That ground cannot succeed in the face of s.360(3) of the Act. The effect of the subsection is that if s.359C(1) applies the applicant is not entitled to appear before the Tribunal. I have already concluded that s.359C(1) of the Act was engaged, which means the applicants were not entitled to appear before the Tribunal.
The second ground in the application appears to be intended to claim that the Tribunal failed to seek an acknowledgement of receipt of the 359 letter. That does not disclose any jurisdictional error. The Tribunal was not obliged to seek any acknowledgement of receipt by the agent of the email. What Middleton J said of the Tribunal and appellant in SZHVM v Minister for Immigration and Citizenship applies to the Tribunal and applicants in the case before me:[11]
The Tribunal was certainly entitled to assume the appellant had received the letter inviting her to attend – the fact that the appellant had not corresponded with the Tribunal since the original application for review was lodged does not mean that the Tribunal was aware of any irregularities or had an obligation to further chase up the appellant to attend the hearing.
[11] [2008] FCA 600 at [59]
The third ground claims the Tribunal failed to have regard to relevant material or considerations. This ground is not supported by any particulars; and the applicants made no submission about it. It therefore discloses no jurisdictional error.
The final ground claims the Tribunal acted unreasonably. The applicants made no submission in relation to that ground.
The Tribunal was under a duty to exercise reasonably the power under s.359C of the Act. In considering the content of that duty it is relevant to bear in mind what I have already noted, namely, that the Tribunal was under no obligation to seek any acknowledgment by the agent that he had received the 359 letter; and that where, as I have found is the case, s.359C(1) of the Act applies, the applicant is not entitled to appear before the Tribunal. It is also relevant to bear in mind what Greenwood J said in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs:[12]
Although I accept that the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power.
[12] [2006] FCA 1045, [21]
In these circumstances there is nothing in the material before me that could suggest the Tribunal acted unreasonably in deciding to exercise the power conferred by s.359C(1) of the Act to make a decision on the review without taking any further action to obtain the information it requested in the 359 letter. Ground 4, therefore, also fails.
The AWS
In the AWS the applicants submit the applicant “complied with all requirements requested and it is a matter [for this Court] to examine the Tribunal and the lawyer failed to accord me natural justice and failed to treat my application in a fair way”. I take this to be a claim that the Tribunal owed the applicant a duty to accord her procedural fairness.
I do not accept this submission. Section 359 of the Act prescribes steps the Tribunal was required to take if it wished to invite the applicants to provide information, and s.359C conferred powers on the Tribunal if the applicants did not provide the information requested. Apart from being required to exercise reasonably the power conferred by s.359C of the Act, the Tribunal had no additional duty to accord the applicants procedural fairness in connection with its inviting the applicant to provide information and in connection with its deciding whether to proceed to a decision without seeking further information.
Conduct of agent
As I have already noted, there is attached to the AWS documents the applicants submit they had provided to their migration agent but which the migration agent did not provide to the Tribunal. There is no evidence before me to suggest the documents were provided to the Tribunal; and Ms Wells, who appeared for the Minister, suggested the documents may have been provided in connection with an application for review made to the Tribunal by the sponsoring employer. Whether that is so or not is not a question I need consider. As I also noted earlier in these reasons, the applicants said to me they were aware the migration agent had lodged an application for review with the Tribunal on their behalf, but they had no further communication with their migration agent until after he informed them that the Tribunal had refused their application. Assuming what the applicants stated is correct – namely, that they provided the documents to the agent for the purpose of the agent submitting the documents to the Tribunal, and they had no further communication with their agent until after he informed them that the Tribunal had refused their application - the question is whether the Tribunal’s exercise of jurisdiction in some way miscarried.
In certain circumstances the conduct of an applicant’s agent may result in the Tribunal’s jurisdiction remaining “constructively unexercised”.[13] That will occur, however, only if the conduct of the agent can be characterised as having worked a fraud on the Tribunal. In the context of public law “fraud” is used in a broad sense to encompass “bad faith”.[14] That the applicants’ migration agent may not have provided documents to the Tribunal, or that the migration agent did not communicate with the applicants until after the Tribunal made its decision, are not, without more, matters on the basis of which it could reasonably be suggested the agent acted in bad faith. Thus, there is nothing in the material before me that could reasonably suggest the acts or omissions of the applicants’ migration agents were done or omitted to be done in bad faith such as to result in the Tribunal’s jurisdiction remaining constructively unexercised.
[13] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [51]
[14] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [17]
Conclusion
That the Tribunal decided the applicants’ review without obtaining information it had requested and which the applicants may well have been able to provide is most unfortunate. That, however, is the consequence of the statutory provisions I have examined which deal with the appointment by applicants of persons to act as their authorised representative, and the statutory provisions that deal with the manner in which the Tribunal may communicate with applicants and persons whom applicants appoint as their authorised representatives.
I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 8 February 2018
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