Kim v Minister for Immigration - [2006] FMCA 1591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1591

MIGRATION – Review of decision by Migration Review Tribunal – whether applicant should be granted leave to rely on a further ground in reply (practice and procedure) – whether authorised recipient provided his fax number to Migration Review Tribunal – whether Electronic Transactions Act 1999 (Cth) affected whether Migration Review Tribunal complied with s.359 of Migration Act 1958 (Cth) in sending a request for further information by facsimile to applicant’s authorised recipient pursuant to s.379A(5) of Migration Act 1958 (Cth).

Electronic Transactions Act 1999 (Cth), ss.9; 13(4); pt.2 div.2
Migration Act 1958 (Cth), ss.312B; 357A; 359; 359C; 379A; 379A(5); 379G

Applicant:

EUN HEE KIM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG1301 of 2006

Judgment of:

Emmett FM

Hearing date:

11 October 2006

Date of last submission:

11 October 2006

Delivered at:

Sydney

Delivered on:

11 October 2006

REPRESENTATION

Solicitors for the Applicant:

Mr D. Prince, Christopher Levingston & Associates

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms Z. McDonald, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1301 of 2006

KIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

It is now 3.15pm, this matter having commenced at 10.15am this morning. At the outset of the hearing, leave was granted to the applicant to rely on an amended application which it had provided to the respondent prior to today's hearing, although no copy had been filed with the Court.
At the heart of the amended application is a contention that the Electronic Transactions Act 1999 (Cth) affected whether or not the Migration Review Tribunal (“the Tribunal”) was entitled to send to the applicant a request for information, purportedly in accordance with s.359 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, through her solicitor, Mr Prince, has now formulated a further particular upon which she seeks to rely, namely, that, in purporting to require the applicant to provide additional information pursuant to the exercise of powers under s.359 of the Act and by electing to communicate the relevant notice by facsimile pursuant to s.379A(5) of the Act, the Tribunal purported to communicate with the authorised recipient in circumstances where the recipient had not given his facsimile number to the Tribunal. That failure is alleged by the applicant to render the attempted communication invalid. In these circumstances, the applicant alleges that there has been no compliance with s.359C of the Act and therefore the Tribunal’s decision is affected by jurisdictional error.
The first respondent opposes leave being granted to the applicant to rely on such ground on the basis that, to allow such an amendment without such amendment being accompanied by an application for an adjournment to lead further evidence in support, would be futile, given the inferences that could be drawn in respect of the lack of evidence.
An opportunity was offered to the applicant to seek an adjournment for that purpose and was declined. I should note that the applicant has been represented throughout this hearing by solicitor, Mr Prince.
As I understand it, at the heart of the applicant's contention in relation to her draft amendment, is a contention that s.379A of the Act provides that a method of giving a document to an applicant including a document under s.359 of the Act, may be faxed to the last fax number provided to the Tribunal by the recipient in connection with the review.
On 23 August 2005, the applicant lodged an application for review of a decision of a delegate of the first respondent (“the Delegate”) refusing her a permanent spouse visa. In that document, Section E provides for the appointment of a representative and Section F provides an opportunity for such representative to be nominated as an authorised recipient. That nomination is affirmatively ticked in the review application such that the representative is the applicant's authorised recipient.
Section E contains details of the representative, being his title, his family name, his given name, his organisation name, his postal address, his phone number, his fax number, his mobile number, his email address and his registered migration agent number. The document purports to be signed by the agent and dated 22 August 2005.
At the bottom of Section E are the words:
“Where the information in this section refers to a migration agent, the details and signature of the representative will be taken as notification under section 312B of the Act that the representative is providing immigration assistance to the applicant(s) in relation to this review and DIMIA will be notified of relevant details as required by the Act.”
Mr Prince has advanced a contention on behalf of the applicant that the only details purportedly provided by the authorised recipient are those required by s.312B of the Act, relevantly being, notification dated and signed by the agent, including the name of the review application and the agent's migration agent's registration number.
Mr Prince contends that the form is otherwise a form completed by the applicant and that the details, including the fax number of the agent, are information provided by the applicant and not by the authorised recipient. Therefore, it was not the last known fax address provided by the recipient in connection with the review, as required by s.379A(5) of the Act.
Where the applicant has chosen to call no evidence to the contrary, the Court is entitled to draw the inference that such evidence would not have assisted the applicant. The applicant's contention is that the Court could not be satisfied that the representative was not aware and did not consent to the details of his fax number being provided to the Tribunal for the purpose of communication by the Tribunal with the authorised recipient.
In the absence of that evidence, to my mind, the only reasonable, inference to be drawn is that the authorised recipient was indeed aware of the details and was impliedly providing that fax number to the Tribunal for the purposes of communication in accordance with s.379A(5) of the Act. In other words, the agent must, in the circumstances, be taken to have been aware of the details in the form relating to himself.
In those circumstances, to allow an amendment in the terms sought by the applicant has so little prospect of success that, in my view, the interests of justice would demand that the application be refused.
Accordingly, the application for further amendment is refused.
RECORDED : NOT TRANSCRIBED
The ground of the applicant’s amended application filed in Court this morning is as follows:
“1. The Tribunal fell into an error of law in that it failed to correctly apply Section 359C of the Migration Act 1958.
Particulars
1.1 The Tribunal in purporting to require the Applicant to provide additional information pursuant to the exercise of powers under Section 359 and by electing to communicate the relevant notice by facsimile pursuant to Section 379A(5); purported to communicate with the ‘authorised recipient’ in circumstances where the recipient had not authorised an electronic communication as required by the (sic) Section 9(2)(d) Electronic Transactions Act 1999 (C’Wealth). The failure to obtain consent from the authorised recipient rendered the attempted communication invalid with the consequential resort to Section 359C also being invalid.”
The essence of the applicant's amended application involves a consideration of whether or not the Electronic Transactions Act 1999 (Cth) requirements, as reflected in s.9 of the Electronic Transactions Act 1999 (Cth) and in Division 2 of Part 2 of Electronic Transactions Act 1999 (Cth) generally, apply to the facts of this case where the Tribunal purported to give to the applicant an invitation pursuant to s.359 of the Migration Act 1958 (Cth), inviting further information in respect of his application for review.
Section 379A of the Migration Act 1958 (Cth) provides that a document such as a document sent under s.359 of the Act, may be sent by way of fax to the last fax number provided to the Tribunal by the recipient in connection with the review.
It is common ground between the parties that an authorised recipient was nominated by the applicant in his application for review. Accordingly, in accordance with s.379G of the Migration Act 1958 (Cth), communication from the Tribunal must be to the authorised recipient in such circumstances.
The applicant sought to rely on s.9 of the Electronic Transactions Act 1999 (Cth) in support of a contention that the person to whom the information was either permitted to be given or required to be given, consented to that information being given by way of electronic communication. It was the applicant's contention that the person referred to in that context was the authorised recipient and not the applicant.
However s.13(4) of the Electronic Transactions Act 1999 (Cth), being a section in the same division as s.9 of the Act, states, relevantly, that:
“This division does not apply to the practice and procedure of a court or tribunal. For this purpose, practice and procedure includes all matters in relation to which rules of court may be made.”
The applicant contends that the practice and procedure referred to in that section refers only to practice and procedure over which the Tribunal has control and, whilst it may include statutory practice and procedure requirements, it only applies to those requirements where there is a discretion or control by the Tribunal in respect of their implementation.
The applicant refers to the second sentence of s.13(4) of the Electronic Transactions Act 1999 (Cth) as supportive of that contention where practice and procedure is expressed to include rules of Court, over which a Court would have control.
RECORDED : NOT TRANSCRIBED
The solicitor for the applicant concedes that the decision by the Tribunal to exercise its discretion under s.359 of the Act is a decision to which s.13(4) of the Electronic Transactions Act 1999 (Cth) would apply. However, the applicant contends that the requirements imposed by the Act for the giving of the invitation to provide more material are mandatory requirements and demand compliance in accordance with s.359 of the Act. The applicant contends that whilst the Tribunal can elect which method it adopts for the giving of the invitation, it is required to provide the invitation in accordance with the statutory regime and that as such, that is not the type of practice and procedure contemplated by s.13(4) of the Electronic Transactions Act 1999 (Cth) because it is not discretionary.
Section 359 of the Act is in Division 5 of the Migration Act 1958 (Cth) which is expressed, under s.357A of the Act, to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters with which they deal. I do not understand the applicant to contend that s.359 of the Act is not a matter that goes to the practice and procedure. Rather, that s.13(4) of the Electronic Transactions Act 1999 (Cth) does not apply to s.359 of the Act because the practice and procedure is not a practice and procedure over which the Tribunal retains control.
A plain reading of the words in s.13(4) of the Electronic Transactions Act 1999 (Cth) simply does not allow for the contrived narrowness contended for by the applicant. Had the legislators intended that the practice and procedure apply only to practice and procedure over which the Tribunal had control, as opposed to being inclusive of any statutory or mandatory requirements relating to practice and procedure, it would have been a very easy matter to do so.
The very fact that practice and procedure is expressed in the section to include those matters over which a Court may have control, to my mind, only reinforces the plain construction of the section that it applies to all matters of practice and procedure of a Court or tribunal, provided they are related to the practice and procedure, whether they are mandatory or discretionary.
The applicant concedes that, if this Court construes the section as above, the applicant could not succeed on the ground identified by her in her amended application.
The first respondent submitted that s.13(4) of the Electronic Transactions Act 1999 (Cth) is a complete answer to the applicant's amended application and agreed that whilst there may be other arguments that the first respondent may have sought to advance in answer to the amended application, if I was to determine the construction of s.13(4) of the Electronic Transactions Act 1999 (Cth) as I have, it would not be necessary for me to make a determination on those other arguments.
In the circumstances, the Tribunal’s decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 237 October 2006