NGAOSRI (Migration) [2020] AATA 1956 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Roongtiwa NGAOSRI
CASE NUMBER: 1915971
HOME AFFAIRS REFERENCE(S): BCC2017/2922153
MEMBER:Mireya Hyland
DATE:12 February 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·PIC 4007(1) for the purposes of cl.820.223 of Schedule 2 to the Regulations.
Statement made on 12 February 2020 at 5:08pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – notification period – public health criteria – lodgement of application – defective notification – withdrawal of representative – DOHA received no request for withdrawal – no re-notification sent to new agent – application lodged within prescribed time – applicant is de facto – health cleared – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 66(1), 347, 494B, 494C, 494D
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.221,820.223, rr 1.09A, 2.03A, 2.16, 4.10, Schedule 4 Public Interest Criterion (PIC) 4007CASES
Bajwa v MIAC [2008] FMCA 915
BMY18 v MHA [2019] FCAFC 189
DFQ17 v MIBP [2019] FCAFC 64
Guan v MIAC [2010] FMCA 802
He v MIBP [2017] FCAFC 206
Le v MIAC (2007) 157 FCR 321
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant, Roongtiwa Ngaosri, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Ms Ngaosri applied for the visa on 15 August 2017 on the basis of her relationship with her sponsor, Robert Sam Bevinetto. At that time, Class UK contained one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on 19 September 2018 on the basis that cl.820.223 was not met because Ms Ngaosri did not satisfy the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations. Ms Ngaosri was represented in relation to the review by her registered migration agent, Ali Taoubi.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the Tribunal has jurisdiction to consider Ms Ngaosri’s review application, whether Ms Ngaosri is Mr Bevinetto’s de facto partner, and whether Ms Ngaosri meets PIC4007(1) of Schedule 4 to the Regulations.
Background
The Tribunal has pieced together the following background from the entries it has been able to obtain from Department of Home Affairs’ (DOHA) case management system (ICSE).
On 15 August 2017, Ms Ngaosri lodged a provisional and permanent partner visa application with the assistance of a migration agent (the former agent). Written notice was given to DOHA by Ms Ngaosri that the former agent was to be her authorised recipient for correspondence. The former agent’s business address and email address were included in the application form for the purposes of receiving correspondence. Ms Ngaosri’s residential address in [Suburb 1], New South Wales (the [Suburb 1] address) was also included in the application form. Ms Ngaosri did not include any email address other than the former agent’s email address in the partner visa application. There is no persuasive evidence that Ms Ngaosri or anyone else provide any email address other than the former agent’s email address to DOHA at any time between the time of application on15 August 2017 and the delegate’s decision on 19 September 2018 for the purposes of receiving documents or at all.
On 9 February 2018, there is a DOHA file note stating that on the evidence available the delegate was satisfied that Ms Ngaosri’s and Mr Bevinetto’s relationship was genuine and continuing, the couple had a mutual commitment to a shared life to the exclusion of all others, and they were living together. On 13 February 2018, a requested that Ms Ngaosri undergo the mandatory health examinations was sent to the former agent’s email address.
On 21 May 2018, the former agent lodged an ‘Appointment or withdrawal of an authorised recipient (including migration agent)’ form with DOHA online with transaction reference number (TRN) EGOFHFHSFF, being the TRN for Ms Ngaosri’s partner visa application. The purpose of the form was listed as ‘Ending an appointment’. The form states that it is to notify DOHA of a change in the recipient of correspondence for the application or migration agent representing the application. On the form, the former agent notified DOHA that she was being withdrawn. In these circumstances the form states ‘All correspondence will be sent directly to the applicant.’ Also on 21 May 2018, the former agent lodged another identical form online which has the TRN EGOFHUKDXC. There is no explanation as to why the former agent lodged two online forms withdrawing as Ms Ngaosri’s authorised recipient and informing DOHA future correspondence for the application should be sent to Ms Ngaosri’s address. It may be that EGOFHUKDXC is the TRN for Ms Ngaosri’s student visa application, although that was granted in 2015 and ceased on 15 August 2017.
On 30 May 2018, DOHA again sent Ms Ngaosri a request that she complete a health examination to the former agent’s email address. The former agent contacted DOHA by email on 31 May 2018 to reiterate that as at 21 May 2018 she was no longer Ms Ngaosri’s authorised recipient and correspondence should be sent to Ms Ngaosri’s address. A case note dated 9 August 2018 stating that the 30 May 2018 letter was sent to the former agent includes the notation ‘(Withdrawn as of today)’. According to the 9 August 2018 case note a copy of the 30 May 2018 letter was sent to ‘[Email address deleted] (Applicant)’. There is no record of this being done in the ICSE Events log. (For reasons explained later, the email address [Email address deleted] will hereinafter be referred to as ‘the Student email’.)
On 19 September 2018, a case note was entered into ICSE that the former agent ‘still continues to be an authorised recipient’. The note refers to the former agent’s withdrawal on 21 May 2018 and states that she remains the authorised recipient because there was no confirmation from Ms Ngaosri. There is no record that DOHA contacted Ms Ngaosri and requested confirmation or contacted the former agent and requested Ms Ngaosri provide confirmation. Nothing in the online form indicates that Ms Ngaosri was required to provide confirmation. The case note cites as authority s.494D of the Act. It states correspondence should go to both the former agent ‘as the A/R’ with a copy sent to Ms Ngaosri.
On 19 September 2018, the delegate made a decision to refuse to grant Ms Ngaosri the visa and DOHA sent the notification of the delegate’s decision to the former agent’s email address. The Events log in ICSE shows four entries associated with the refusal. Two read: ‘Event – Refused; Qualifier – Criteria not met’. The information provided for those entries is ‘Letter sent via Email/Fax, 19/9/2018’ with one marked ‘820’ and the other marked ‘801’, being the subclasses for the provisional and permanent partner visas. The other two entries read: ‘Event – Correspondence Sent (Portal); Qualifier – Notification’. The information for the first entry is ‘SENT_PENDING_STORAGE, 19/09/2018’. The information for the second entry is ‘SENT, 19/09/2018, 17:22:06’. These are records of the notification letter being first sent from the delegate to DOHA’s system where it was stored and then at 5:22pm, after normal business hours, being sent out by the system to the former agent’s email address.
On 20 September 2018, the former agent again contacted DOHA by email and informed them that she ceased being Ms Ngaosri’s authorised recipient on 21 May 2018. This is the first correspondence from the former agent that is identified as an ‘Event’ in ICSE. It states ‘Event – Reversal-Agent; Qualifier – Advised by ceasing migration agent’. No other information is provided for this entry in the Events log.
On 23 October 2018, Mr Taoubi emailed DOHA providing additional information in the application and attaching written notice that he represented Ms Ngaosri and was her authorised recipient. In response DOHA sent Mr Taoubi an email advising him that the application had been finalised on 19 September 2018 and email notification had been sent to the former agent with a copy sent to the Student email. The 23 October 2018 email refers to ‘attached files’, but there is no indication on the DOHA file or in the ICSE records what files were attached. All the Tribunal knows, from Mr Taoubi, is that there was a copy of the notification letter and the decision attached to the email. Since there is no copy of the transmitting email on the DOHA file, and other than the 19 September 2018 Events log entries there are no ICSE record mentioning the email sent to the former agent, it does not appear that a copy of the transmitting email dated 19 September 2018 sent to the former agent was attached to DOHA’s email to Mr Taoubi on 23 October 2018.
On 24 October 2018, a case note appears in ICSE that reads: ‘Email to Family Programme Policy for advice; It appears that there could be notification error.’
On 24 October 2018, Ms Ngaosri lodged an application for review of the decision to refuse to grant her a provisional partner visa (the first review application). The Tribunal made a preliminary assessment that Ms Ngaosri had not applied to the Tribunal within the prescribed period. The Tribunal was of the opinion that Ms Ngaosri was required to lodge her application no later than 10 October 2018, being 21 days after notification of the delegate’s decision on 19 September 2018. In a submission dated 7 November 2018, Mr Taoubi argued that Ms Ngaosri had not been properly notified because the notification letter had gone to the former agent and not to Ms Ngaosri. He claimed the former agent was not Ms Ngaosri’s authorised recipient and that the Student email was not, and never had been, Ms Ngaosri’s email address for the purposes of the partner visa application.
On 16 November 2018, the Tribunal (differently constituted) found it did not have jurisdiction to review the first review application because Ms Ngaosri did not lodge the application within the prescribed period. Ms Ngaosri did not seek judicial review of that decision in the Federal Circuit Court.
On 19 June 2019, Ms Ngaosri lodged a further application to review the decision to refuse to grant her a partner visa made on 19 September 2018 with the Tribunal (this application). Mr Taoubi put forward that the Tribunal now has jurisdiction to review that decision because of the Full Federal Court’s findings in DFQ17 v MIBP [2019] FCAFC 64. He submitted that the notification letter was not valid because it did not clearly state the time in which the application for review may be made.
Jurisdiction
The first question for the Tribunal is whether it has jurisdiction to consider Ms Ngaosri’s review application.
The question of jurisdiction in this case centres around the DOHA’s notification of its decision to Ms Ngaosri. Because the law in this area has continued to evolve and the facts are complicated, the issues here are challenging. But in essence, prima facie, Ms Ngaosri did not apply to the Tribunal within the prescribed period after receiving notification of the delegate’s decision. The notification letter was sent by email on 19 September 2018 and was taken to be received by Ms Ngaosri on that date. Section 347 and r.4.10 imposed strict time limits for lodging an application for merits review.[1] The prescribed period for applying to the Tribunal in this case is 21 days from the date on which the applicant is deemed to have received the notification. Therefore, at first glance, the last day to apply for review was 10 October 2018. Ms Ngaosri lodged this application on 19 June 2019. On these facts, as the application for review was not received by the Tribunal within the prescribed period, it follows that the application was not made in accordance with the relevant legislation. In this case the Tribunal would not have jurisdiction in this matter.
[1] Bajwa v MIAC [2008] FMCA 915 (Lloyd-Jones FM, 4 July 2008) at [47].
However, the Act and Regulations specify a number of requirements for the notification of primary decisions. A failure to properly notify an applicant is relevant to the determination of whether a valid review application has been made because time limits for applying for review only commence to run once a person has been validly notified of the primary decision.[2] Defective notification may result from non-compliance with either the requirements as to the content of the notice or the method of the notification, although non-compliance with the required method of notification will not necessarily result in defective notification if the notice was, in fact, received. If the 19 September 2018 notification was not validly made the time in which Ms Ngaosri had to apply for review would not have started to run. In that case, the Tribunal would have jurisdiction to consider the review application.
For the reasons set out below, in light of the case law surrounding DFQ17 v MIBP [2019] FCAFC 64 (DFQ17), the Tribunal finds that DOHA’s notification letter did not comply with the statutory requirements. Therefore, on 19 June 2019 the prescribed period for lodging a review application had not started to run. Ms Ngaosri made a valid review application.
Legislation
Section 66(1) of the Act sets out the method of the notification. It states that:
When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(emphasis added)
Regulation 2.16 sets out the prescribed way of notifying a person of a decision to grant or refuse to grant a visa for the purposes of s.66(1) of the Act.[3] For a refusal to grant a visa the Minister must notify an applicant of the decision by one of the methods specified in s.494B of the Act. If the Minister gives a person a document by a method specified in s.494B, the person is taken to have received the document at the time specified in s.494C of the Act. The prescribed period in which the applicant must apply to the Tribunal starts at the end of that deemed date of receipt.
[3] r.2.16(1).
Section 66(2)(d) sets out the requirements as to the content of the notice. Relevantly, it requires that if the applicant has a right to have a decision reviewed under Part 5 of the Act, the notification of the decision must state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(emphasis added)
As noted above, to determine whether the Tribunal has jurisdiction, it is necessary to determine both whether the notification ‘states’ all the necessary information and whether it was given in ‘the prescribed way’. For the purposes of this case, it is particularly necessary to consider whether the content of the notice states ‘the time in which the application for review may be made’ as required by s.66(2)(d)(ii) of the Act.
A Partner (Temporary) (Class UK) Subclass 820 (Partner) visa is reviewable under Part 5 of the Act.[4] If the applicant was not in detention at the time of the primary decision the prescribed period to apply to the Tribunal ends 21 days after notification is deemed to have been received by the applicant.[5] Only the visa applicant can make an application for review and he or she must be physically in the migration zone.[6] An application can be ‘made’ by giving it to the Tribunal, that is, it is ‘given to’ the Tribunal when the application is physically delivered to a registry of the Tribunal.[7]
[4] s.338(2) of the Act.
[5] s.347(1)(b)(i) of the Act; r.4.10(1)(a) of the Regulations.
[6] s.347(2)(a) and (3) of the Act.
[7] r.4.11 sets out the ways in which an application can be made; In Chen v MIAC [2013] FCAFC 133 (Katzmann, Griffiths and Wigney JJ, 20 November 2013), BRG15 v MIBP [2016] FCCA 2586 (Judge McNab, 14 October 2016), and Liu v MIBP [2013] FCCA 2208 (Cameron J, 9 December 2013) the Court considered when an application is said to have been given to a registry of the Tribunal. See also Gajjar v MIBP [2013] FCCA 1859 (Judge Barnett, 14 November 2013). Although the Court in Liu was considering the time when an application was ‘made’ for the purposes of s.347, the Court’s reasoning is also relevant to when a review application has been made for the purposes of r.4.11.
Whether the notification was given in the prescribed way is dependent on which of the methods specified in s.494B of the Act DOHA used to notify the applicant and whether there has been compliance with that subsection. One of the methods in s.494B consists of DOHA transmitting the document by email to ‘the last email address provided to the Minister for the purposes of receiving documents’: s.494B(5) of the Act. If DOHA gives a document to a person by the method in s.494B(5), pursuant to s.494C(5) the person is taken to have received the document at the end of the day on which the document is transmitted. Relevantly, DOHA can also dispatch the notification by pre-paid post to the last residential address provided to the Minister by the recipient for the purposes of receiving documents.[8] As long as the notification is sent within three days of the date of the letter it is deemed to be received seven working days after the date of the letter.[9]
[8] s.494B(4) of the Act.
[9] s.494C(4) of the Act.
If DOHA intends to give notification to a person in accordance with s.494B, being the prescribed way, but makes an error in doing so and, therefore, does not give the notification to the applicant in the prescribed way, but the applicant nonetheless receives the notification or a copy of it, then he or she is taken to have received the notification at the deemed time as if it had been given in the prescribed way. However, if the person can show that it was received at a later time, the applicant is taken to have received the notification at that time.[10]
[10] s.494C(7) of the Act.
Section 494D states that if an applicant gives the Minister written notice of the name and address of another person and authorises him or her to receive documents in connection with an application (the authorised recipient), the Minister must give that authorised recipient any documents in connection with that application. By giving a document to the authorised recipient, DOHA is taken to have given the document to the applicant, although this does not prevent DOHA also giving the applicant a copy of the document (a courtesy copy). The applicant, but not the authorised recipient, may vary or withdraw the written notice at any time.[11] The authorised recipient can only vary the address to receive documents.[12]
[11] s.494D(3) of the Act.
[12] s.494D(3A) of the Act.
Does the Content of the 19 September 2018 Notification Letter Comply with s.66(d)(ii)
Section 66(2)(d)(ii) requires that the notification state the time in which the application for review may be made to the Tribunal. The question for the Tribunal is whether the notification sent by DOHA on 19 September 2018 meets this requirement. The Tribunal finds that DOHA’s notification letter contains a defect similar to that identified in DFQ17 and the other case law that flowed from that case, in particular Ali v MHA [2019] FCA 1102 (Ali), BMY18 v MIBP [2019] FCCA 1381 (BMY18) and ALN19 v MHA [2019] FCCA 3726 (ALN19).
DFQ17 v MIBP [2019] FCAFC 64
On 18 April 2019, the Full Federal Court handed down the judgment in DFQ17, which found that a DOHA notification letter for a Part 7 (Protection) reviewable decision sent by post did not comply with the requirement to state the time in which the application for review may be made as required by s.66(2)(d)(ii). Perram J[13] said of the notice:[14]
I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete … but clear ...
[13] With Rares J at [1] and Farrell J at [67] agreeing.
[14] DFQ17 v MIBP [2019] FCAFC 64 (DFQ17) per Perram J at [58].
Therefore, any inquiry into whether a notice is valid ‘necessarily devolves to an inquiry into whether that information was clearly conveyed’.[15] The Court held that the information about the time period in the notification was obscure and incomprehensible because the necessary information to determine the time period was in three different places. The applicant had to note the date of the notification letter, the prescribed period to apply for review, and the date on which he or she was taken to have received the notification letter, then calculate the relevant date from the date the applicant was taken to have received the letter. Perram J concluded that the letter in that case did not meet the necessary standard because it was ‘piecemeal, entirely obscure and essentially incomprehensible’.[16] The consequence of this finding was that s.66(2)(d)(ii) had not been complied with, the notice was invalid, the time in which to apply for review had not started to run, and the Tribunal erred when it found that the review application was lodged out of time so it did not have jurisdiction.
[15] DFQ17 at [59].
[16] DFQ17 at [62].
On 12 July 2019, the Federal Court distinguished DFQ17 in Ali v MHA [2019] FCA 1102. It found that a notification for a Part 5 (Migration) reviewable decision which was sent by email and included information to determine the time period to lodge a review application in three different places in the notification complied with s.66(2)(d)(ii) and was valid. The Court held that the notification contained sufficient information to determine the time to lodge the review application and that given the notification was sent by email none of the complexities in calculating the date on which the applicant was deemed to have received the notification in DFQ17 were present. The Tribunal was correct in finding that, as the application had been lodged outside of the prescribed period, it did not have jurisdiction.
After Ali a number of subsequent Federal Circuit Court judgments appeared to approach the question on the basis that if the notification was sent by email the problem did not arise as the calculation to determine the time in which the application for review may be made is less complex.[17] This line of reasoning was rejected by the Full Federal Court in BMY18.[18]
BMY18 v MHA [2019] FCAFC 189
[17] BMY18 v MHA [2019] FCAFC 189 (BMY18) per Reeves, Perram and Charlesworth JJ at [41].
[18] BMY18 at [36].
On 23 May 2019, in BMY18 v MIBP [2019] FCCA 1381, the applicant submitted that the notification he received ‘did not “state … the time in which the application for review may be made” as was required by s.66(2)(d)(ii)’.[19] The Federal Circuit Court distinguished DFQ17 because the notification was sent by email even though the relevant information was under separate headings. On 31 October 2019, on appeal in BMY18 v MHA [2019] FCAFC 189, Reeves, Perram and Charlesworth JJ considered the validity of a number of types of notification letters issued by DOHA in light of the problems identified in DFQ17.
[19] BMY18 at [25].
Like Nicholas J in Ali at [25], the Full Federal Court in BMY18 reiterated the principle in DFQ17, confirming Perram J at [58], that in order to have ‘stated’ within the meaning of s.66(2)(d)(ii) the time within which an application for review could be made, the notification had to set out the information in each of the subsections in a way which is not only complete,[20] but clear as well. Their Honours confirmed that where the information required to determine the time period to make a review application is contained under an appropriately titled heading such as ‘Review Rights’, the notification will be valid. The Court also confirmed that a notification letter will be valid if the information about when the notification is taken to have been received is under the heading ‘Lodging an Application for Review’, even where it is separated from the prescribed period information (identified in BMY18 as the circumstances in Ali).[21]
[21] BMY18 at [36].
However, BMY18 held that notifications where the information about when the applicant is taken to have received the notification is separated from the information about the prescribed period and is under an ‘incorrect’ heading, including ‘Financial or case worker assistance’ or ‘Receiving this letter’, do not comply with s.66(2)(d)(ii) of the Act. BMY18 applied the judgment in DFQ17 that only if a notification is not ‘piecemeal, entirely obscure or essentially incomprehensible’ is the standard in s 66(2)(d)(ii) satisfied.[22] The Court found that the placing of the information as to when the notification is taken to have been received on page 3 under the incorrect heading ‘Financial or case worker assistance’ and away from the pertinent section on page 2 headed ‘Review Rights’ meant that the letter was confusing and misleading.[23]
[22] BMY18 at [30].
[23] BMY18 at [35].
The Court made two further points relevant to this decision. Their Honours emphasised that clarity is not demonstrated just because the applicant can put all the pieces together and arrive at the correct answer:[24]
the standard of clarity is not achieved merely because the letter is formally correct: a document may be correct without being clear. … if a notification informs its recipient of the time within which a review application must be made by means of integers of correct information scattered in a disconnected manner over several pages but which can be assembled into the correct answer, then the notification will be clear in the way that a jig-saw puzzle is. So too, where the correct information is included under a heading which is apt to suggest that the information following it has nothing to do with review rights then this will be confusing.
(emphasis added)
[24] BMY18 at [37].
The Court further found that Ali does not stand for the broader proposition that simply because the notification was sent by email DFQ17 does not apply.[25] The fact that a notification is sent by email is not in itself sufficient to distinguish the case from DFQ17.[26] No doubt, the calculations are less complex:[27]
but the question still remains: is the notification clear? In general, where the information as to when the notification is taken to have been received is located in the notification away from the section dealing with review rights and under an incorrect heading, there is likely to be a problem and that problem is not solved merely because it was sent by email.’
Reeves, Perram and Charlesworth JJ held that the letter set out in Ali was a case where a notification sent by email could be distinguished from DFQ17 because ‘the statement that it was taken to have been received on the day it was transmitted was correctly located under the heading “Lodging an Application for Review” where it was sensibly located.’[28]
[25] BMY18 at [36].
[26] BMY18 at [36] and [41].
[27] BMY18 at [36].
[28] BMY18 at [36].
On 6 December 2019, ALN19 v MHA [2019] FCCA 3726 distinguished DFQ17 and BMY18, finding that there was ‘nothing “piecemeal, entirely obscure and essentially incomprehensible” about the notification’ set out in that judgment at [16].[29] Judge Dowdy held that the required information was not placed under an inapt or inappropriate subject heading, but rather was ‘under the meaningful, sensibly located and appropriate headings of “Review Rights” and “Lodging an application for merits review”.’ In that case, the information was ‘not “scattered” in a disconnected manner over several pages,’ but set out in ‘a unified and coherent manner, although extending over three pages.’[30]
The Notification Letter Dated 19 September 2018
[29] ALN19 at [18].
[30] ALN19 at [19].
The question for the Tribunal is whether, in this case, DOHA’s notification of the primary decision clearly sets out what is required by s.66(2)(d)(ii) of the Act. This means the letter dated 19 September 2018 must not be piecemeal, entirely obscure and essentially incomprehensible. The information about the prescribed period for applying for review and when the notification is taken to have been received should appear under meaningful, sensibly located and appropriate headings like ‘Review Rights’ and ‘Lodging an application for merits review’. The information about when the notification is taken to have been received should not be located away from the section dealing with review rights and under an incorrect heading like ‘Receiving this letter’. The notification will still be valid if the information about when the notification is taken to have been received is under a heading like ‘Lodging an Application for Review’, even where it is separated from the prescribed period information or extends over more than one page.
On the first page of the 19 September 2018 notification letter under the heading ‘Review rights’ it states that the decision is reviewable[31] and Ms Ngaosri is the person capable of seeking review if she is physically in the migration zone when the review application is made.[32] It also states under that heading that the application for review must be given to the Tribunal within 21 calendar days after the day on which Ms Ngaosri is taken to have received the letter.[33] It does not say when the letter is taken to have been received.
[31] s.66(2)(d)(i) of the Act.
[32] s.66(2)(d)(iii) of the Act.
[33] For the purposes of s.66(2)(d)(ii) of the Act.
On page 2 of the 19 September 2018 notification letter is information not relevant to Ms Ngaosri’s review rights under the headings ‘Your immigration status’, ‘Leaving Australia’, and ‘Lodging another application’. At the bottom of the second page is the heading ‘Lodging an application for review’. When the letter is deemed to be received does not appear under this heading either.
Page 3 of the 19 September 2018 notification letter contains the heading ‘Registries of the Administrative Appeals Tribunal’. It lists all the registries and their addresses. It then sets out the alternative ways of lodging an application by email or fax which is followed by a paragraph about where Ms Ngaosri can get further information. The final paragraph under the heading ‘Registries of the Administrative Appeals Tribunal’ states ‘As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted,’ The critical date of ‘the day [the email] was transmitted’ is, of course, only found in the transmitting email, not in the notification letter itself.
First, the Tribunal does not believe that ‘Registries of the Administrative Appeals Tribunal’ is a meaningful or appropriate heading to contain the information about when the notification is taken to have been received. As noted in BMY18, Ali, and ALN19, the appropriate and logical headings would have been either ‘Review rights’ or ‘Lodging an application for review’, this latter being the heading that BMY18 cites with approval as being the one in the email notification set out in Ali.
In Ali, at [26] and [27], the heading ‘Registries of the Administrative Appeals Tribunal’ and the contents of that section were a subsection under the heading ‘Lodging an application for merits review’. The information about when the email was taken to have been received appeared after the information set out under that subheading. In both Ali and BMY18 the Court determined that when the email was taken to have been received came directly under the heading ‘Lodging an application for merits review’ and therefore not under the subheading ‘Registries of the Administrative Appeals Tribunal’. That is not the case in the 19 September 2018 letter. In ALN19, set out at [16], it may appear that the information about when the notice is received comes under the heading ‘Registries of the Administrative Appeals Tribunal’. But it is clear from [18] that, in fact, the Court has viewed it as coming at the end of a series of headings about the applicant’s review rights (the ‘meaningful, sensibly located and appropriate headings of “Review Rights” and “Lodging an application for merits review”.’) rather than directly under the heading ‘Registries of the Administrative Appeals Tribunal’ itself. This is not the case in the 19 September 2018 letter either.
In the 19 September 2018 notification ‘Registries of the Administrative Appeals Tribunal’ is a separate heading to the section headed ‘Lodging an application for merits review’, not a subheading within that more appropriate section, and the information about when the notice is received inexplicably comes directly under that heading. Further, the headings relating to merits review are not grouped together. Each piece of necessary information appears alone separated by other irrelevant information across four pages and two documents. The way the letter reads, the information about when the letter is received comes under the heading ‘Registries of the Administrative Appeals Tribunal’ only and not at the end of a series of headings that make up a ‘section’ on the applicant’s review rights as in ALN19. Clearly the 19 September 2018 letter is inconsistent in key ways with the notices cited with approval in Ali, BMY18 and ALN19.
If, as stated in BMY18, ‘Receiving this letter’ is not an appropriate heading to contain when the notice is deemed to be received, then it is difficult to see how ‘Registries of the Administrative Appeals Tribunal’ can be a meaningful, appropriate, or logical heading. While the heading ‘Registries of the Administrative Appeals Tribunal’ may relate to Ms Ngaosri’s review rights, it and all the other information under that heading goes to the question in s.66(2)(d)(iv), being where the application for review can be made. Including when the letter is taken to be received in that section is neither appropriate nor logical when the other half of the equation for calculating s.66(2)(d)(ii) is under the appropriate heading ‘Review rights’. This is, the Tribunal believes, the very definition of ‘piecemeal’. As noted in BMY18 at [37], the fact that all the information is in the letter for Ms Ngaosri to be able to calculate the prescribed period to apply for review does not mean that where that information appears is not obscure and does not make making that calculation difficult or confusing, particularly since the final piece of the jig-saw puzzle is in an entirely different document (the email).
Second, although there is authority that the information can extend over the three pages of the letter and the prescribed period does not need to be under the same heading as the time the notice is received, still it must not be ‘scattered in a disconnected manner over several pages’. It must be set out in a ‘unified and coherent manner’. The fact that there are three unrelated headings comprising almost all of page 2 between the prescribed period and when the letter is taken to be received is not (particularly when combined with the anomalous heading) a unified and coherent manner in which to present the two pieces of information necessary to meet s.66(2)(d)(ii). The information is not sensibly located.
In both Ali and ALN19 all the headings and information relating to the applicant’s review rights appear together. There is no other information scattered throughout that information breaking it up. This is not the case in the 19 September 2018 letter where the three unrelated headings ‘Your immigration status’, ‘Leaving Australia’, and ‘Lodging another application’ with their irrelevant information separate the prescribed period from when the notice is taken to be received. That notice is more analogous to the letter in BMY18 where there was unrelated information separating the three pieces of information necessary to calculate the time for review. The Court found that that irrelevant information together with the anomalous heading meant the information was scattered in a disconnected manner over several pages. The Tribunal finds that the way the notice in this case is set out is piecemeal, obscure and incomprehensible brings it within DFQ17 and BMY18.
The Tribunal finds that where the necessary information for calculating the time in which to apply to the Tribunal appears in the letter together with the heading under which it appears makes it piecemeal, scattered and illogical. It finds, unlike in Ali and ALN19, that it comes under the heading ‘Registries of the Administrative Appeals Tribunal’, which is not an appropriate heading, rather than being sensibly located under the heading ‘Lodging an application for merits review’ after information in a subheading ‘Registries of the Administrative Appeals Tribunal’ or at the end of a series of review-related headings starting with ‘Review rights’. In this case the information for calculating s.66(2)(d)(ii) is not only separated and under separate headings, and spread across multiple pages, which might on its own be acceptable, but it is also confusingly divided up by large amounts of irrelevant information and when the notice is taken to be received is illogically located under an inappropriate heading.
The Tribunal finds that DOHA’s notification of the primary decision does not clearly state the time in which the application for review may be made as required by s.66(2)(d)(ii) of the Act. The letter contains a similar error to that found in DFQ17 and BMY18 and for the reasons above can be distinguished from Ali and ALN19. As such, there has been no valid notification of the decision to Ms Ngaosri and on 19 June 2018 when she lodge this application the prescribed period in which to apply for review had not started to run.
Ms Ngaosri lodged this application within the prescribed period and the Tribunal has jurisdiction to consider the application for review.
Was the Notification Sent to the Correct Address
The Tribunal has viewed the notification letter in AAT1711161, being the Tribunal decision under judicial review in Ali, and the notification letter in AAT1834244, being the Tribunal decision under judicial review in ALN19. Both letters have the information about when the notice is deemed to have been received after a heading ‘Registries of the Administrative Appeals Tribunal’. In the case of Ali, ‘Registries of the Administrative Appeals Tribunal’ is a subheading under ‘Lodging an application for merits review’ and, therefore, the Court found that the information actually comes under the heading ‘Lodging an application for merits review’ and not under the subheading ‘Registries of the Administrative Appeals Tribunal’. In ALN19 ‘Registries of the Administrative Appeals Tribunal’ is its own heading not a subheading under ‘Lodging an application for merits review’. In that case the three headings related to review rights, ‘Review rights’, ‘Lodging an application for merits review’, and ‘Registries of the Administrative Appeals Tribunal’, are grouped together one after the other. Since, unlike the first two, the last heading, ‘Registries of the Administrative Appeals Tribunal’, is not referred to by the Court in its reasoning, it clearly viewed the information about when the notice is received as coming after all those sections together and not within ‘Registries of the Administrative Appeals Tribunal’ itself.
The Tribunal believes that the standards set out in the reasoning in BMY18 are clear and just because the notification in this case is similar to those in Ali and ALN19 does not mean that the cumulative differences in the notices do not distinguish those cases. However, in the event that the Tribunal is wrong, and the contents of the 19 September 2018 letter is not affected by DFQ17, it has considered whether the notification would then be valid. In determining whether the notification was given to Ms Ngaosri in the prescribed way as required by s.66(2) and r.2.16, the Tribunal has considered whether DOHA complied with s.494B, and in particular whether the notification letter was sent to the correct address.
Notification Sent to The Former Agent’s Email
Section 494B(5) is one of the prescribed ways in which DOHA can give Ms Ngaosri notification of its decision to refuse to grant her a partner visa. Relevantly, it consists of DOHA transmitting the notification by email to ‘the last email address provided to the Minister for the purposes of receiving documents’. By email dated 19 September 2018, DOHA sent the notification letter and decision to the former agent’s email address. But is that the last email address provided to the Minister for the purposes of receiving documents?
On 21 May 2018, the former agent was withdrawn as Ms Ngaosri’s authorised recipient and notice was given to DOHA that the address for correspondence was changed from the former agent’s address to Ms Ngaosri’s address. In a case note in ICSE dated 19 September 2018 it states that although the former agent withdrew as the authorised recipient on 21 May 2018 she remained the authorised recipient because Ms Ngaosri had not confirmed the withdrawal. The note identifies that the requirement that Ms Ngaosri confirm the withdrawal before it was effective was based on the terms of s.494D of the Act. Section 494D(3) states that:
Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(emphasis added)
Subsection (3A) states:
In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(emphasis added)
While it is not entirely clear from the ICSE note, the Tribunal assumes that the opinion that Ms Ngaosri had to confirm the former agent’s withdrawal as her authorised recipient is based in the provision in s.494D(3) that the authorised recipient may not vary or withdraw the written notice and the judgment in Le v MIAC (2007) 157 FCR 321 (Le).
In Le the Full Federal Court held that there is nothing to suggest that the requirement to send documents to the authorised recipient comes to an end until the applicant varies or withdraws a notice given under d.494D(1). Accordingly, even where an agent no longer appears to be acting for an applicant DOHA is still required to send all correspondence to that agent, as authorised recipient, until the applicant notifies it otherwise. In Guan v MIAC [2010] FMCA 802 (Guan), the Court confirmed that the Tribunal[34] must continue to send correspondence to an authorised recipient even where that authorised recipient has notified the Tribunal that he or she no longer wishes to receive documents for the applicant.[35] An authorised recipient cannot unilaterally withdraw authorisation to receive documents.
[34] Guan v MIAC [2010] FMCA 802 (Guan) related to s.379G(1), a section set out in the same terms as s.494D(1) that relates to authorised recipients and the Tribunal in Part 5 of the Act.
[35] Guan at [24]–[27].
But s.494D, and ‘authorised recipients’ generally, only relate to the giving of documents. While a migration agent may be an applicant’s authorised recipient (although not necessarily), this is not where his or her role or powers end. A migration agent will usually be in a relationship of agency with the applicant under the common law. In a relationship of agency, the agent is given authority to act on behalf of the principal (Ms Ngaosri) in relation to a third party (DOHA), in a way that binds the principal. An agent’s authority may be express or implied from the conduct or relationship of the parties. Many of the common law principles of agency, like seeking instruction and informing the applicant, are found in the migration agents’ code of conduct set out in the Act and Regulations.
Applying the common law principles of agency, where a migration agent notifies DOHA that he or she is acting on behalf of an applicant, the actions of the agent should be taken to be the actions of the applicant. Third parties, like DOHA, are expected to assume that a migration agent has the requisite authority to do things on behalf of an applicant in the ordinary conduct of an application, like making submissions or getting information about progress, unless the third party knows that the agent does not have authority.[36] Withdrawing as authorised recipient and varying the address for correspondence would seem to be things that are done in the ordinary conduct of a visa application. Without evidence to the contrary it was not reasonable for DOHA to assume that the former agent did not have the authority to submit the online form withdrawing as authorised recipient.
[36] See for example, MIAC v Le (2007) 242 ALR 455, which relates to a migration agent before the Tribunal, where the Tribunal advised the applicants’ agent that since the interpreter was required to leave he could request a further hearing. The agent responded that he did not feel a further hearing would be necessary. The Federal Court overturned the reasoning of the Federal Magistrates Court at first instance, which had held that the Tribunal had inappropriately sought to transfer its fair hearing obligations to the applicant’s agent. Kenny J was not satisfied that the applicant’s agent did not convey the offer of a hearing to the applicant or that he had acted negligently.
In the case of Le the agent no longer worked at the address that had been provided in the notice given under s.494D(1) and the email address was no longer valid. There was no express withdrawal or any contact with the agent. DOHA merely assumed the agent was no longer the applicant’s authorised recipient because they could no longer reach the agent. The Court held a letter to the applicant in these circumstances did not comply with DOHA’s obligations because the applicant had not withdrawn the notice given under s.494D(1). Likewise, in Guan the agent made clear in his correspondence to the Tribunal that he had not been in touch with the applicant. In that case, in response to a letter sent by the Tribunal to the agent as the applicant’s authorised recipient, the agent said he had tried to contact Mr Guan many times, but had received no reply. Therefore, he had to withdraw his representation. The Court found that there was no evidence that the applicant had withdrawn the notice that the agent was his authorised recipient and the notification should have been sent to the agent.
The focus of the court in both these cases is that only the applicant, and not an authorised recipient, can withdraw the s.494D(1) notice; due to the circumstances in those cases clearly neither agent was acting on the instructions and with the knowledge of the applicant. If the migration agents in Le or Guan had been acting with their clients’ knowledge and consent, or it could be inferred from the circumstances of the case that they had implied agency to withdraw, their withdrawals would have bound those applicants.
The 19 September 2018 ICSE case note records that on 21 May 2018 the former agent informed DOHA that she wished to end her appointment ‘without the applicant’s consent’. The only contact between the former agent and DOHA on 21 May 2018 appears to be the online form. The Tribunal could find no record of the former agent informing DOHA that she was withdrawing without Ms Ngaosri’s consent, for instance a case note of a telephone call or email. As far as the Tribunal can see the only contact that the former agent had with DOHA regarding the withdrawal other than the online form was by email on 31 May 2018 and 20 September 2018. The Tribunal has seen copies of those emails and they do not include that the former agent was withdrawing without Ms Ngaosri’s consent.
Further, despite various notes in ICSE about not accepting the former agent’s withdrawal without confirmation from Ms Ngaosri, there is no evidence that this was passed on to the former agent or Ms Ngaosri as a requirement, and after receiving the 20 September 2018 email DOHA did accept the withdrawal without confirmation. The ICSE Events log registers the agent’s withdrawal and states it was ‘advised by the ceasing migration agent’.
Looking at the ICSE records as a whole, the Tribunal sees considerable confusion about when DOHA was aware that the former agent was no longer Ms Ngaosri’s authorised recipient and what addresses were recorded as the correct addresses for correspondence. There is no record in ICSE of the online form submitted on 21 May 2018, although there are copies on DOHA’s file. Nor is there any clear record in the Events log of the former agent’s email dated 31 May 2018, although case notes containing the email were provided to Mr Taoubi under a Freedom of Information request. According to the case note made on 9 August 2018 the former agent was marked as withdrawing ‘today’, being 9 August 2018, although the case note dated 19 September 2018 states she withdrew on 21 May 2018 and it was entered into the Events log on 20 September 2018. The 9 August note also states that the 30 May 2018 letter was sent to Ms Ngaosri at the Student email, but there is no indication whether this means it was sent on 9 August 2018 or 30 May 2018. Nor is there any record in the Events log in ICSE, or on DOHA’s file, of a copy of the 30 May 2018 letter being sent to the Student email, although a copy of the letter in a case note dated 31 May 2018 (after the former agent’s email) provided under Freedom of Information includes a ‘Cc:’ to the Student email. On 19 September 2018, the case note states that the former agent was still Ms Ngaosri’s authorised recipient at that date because Ms Ngaosri did not make the withdrawal, but, as noted, on 20 September 2018 DOHA logs an Event removing the former agent as Ms Ngaosri’s authorised recipient. Accordingly, on 24 October 2018, ICSE identifies that there may have been a notification error.
As well as the Events log, the Tribunal has before it the ICSE client contact list. It lists the former agents’ email address as being the correct address from 15 August 2017 until 31 May 2018, being the date of the former agent’s first email (not 21 May or 20 September 2018). It then lists the Student email as the correct email address from 31 May 2018 to 13 February 2019 when Mr Taoubi’s email address is listed as the correct email address. This is despite the fact that according to Mr Taoubi’s email dated 23 October 2018 he provided the necessary s.494D(1) notice signed by Ms Ngaosri on that date. Interestingly, the [Suburb 1] address is listed as a correct address from 15 August 2017 until 31 May 2018. In a later entry on the client contact list, the [Suburb 1] address was input as the correct postal address from 30 October 2018 to 7 March 2019. A further entry was then made listing the [Suburb 1] address as correct from 31 May 2018 to 29 July 2019 when Ms Ngaosri notified DOHA that she had moved to [a new home address]. It is unclear when this entry was made, but it had to have been after 31 October 2018.
Given the convoluted nature of, gaps in, and clearly wrong information in the ICSE notes the Tribunal does not believe that they are reliable records of the correspondence or contact between DOHA, the former agent, and Ms Ngaosri. It does not accept that the former agent told DOHA that she was withdrawing without Ms Ngaosri’s knowledge or consent. That is a line in a case note made on the date of the notification and is information that does not appear anywhere else in ICSE or any correspondence the Tribunal has been able to locate. It does not believe that she had any contact with DOHA except the contact identified below. There is nothing in that correspondence to indicate that the former agent was not acting on Ms Ngaosri’s instructions and with her knowledge when she withdrew or that the former agent was not in a position to infer from Ms Ngaosri’s behaviour and their relationship that, as her agent, she had the power to make the withdrawal on Ms Ngaosri’s behalf.
An applicant, or an agent of the applicant acting on instructions, may withdraw or vary the notice of an authorised recipient. Unlike the appointment of an authorised recipient which must be in writing, the Act is silent on how this may take place. In these circumstances, the Courts have accepted that an applicant, or an agent of the applicant, may withdraw or vary the notice of an authorised recipient orally[37] or implicitly through their conduct.[38] An express or written statement is not required. The former agent lodged two online forms on 21 May 2018 and sent emails on 31 May 2018 and 20 September 2018, the last of which DOHA accepted as a withdrawal of the authorised recipient. The Tribunal finds that the former agent ceased to be Ms Ngaosri’s authorised recipient on 21 May 2018. Even if DOHA were being overly cautious, Ms Ngaosri provided written notice that Mr Taoubi was her authorised recipient on 23 October 2018 and it is obvious from his email that they were of the belief that her application had not yet been decided. At that stage it was clear to DOHA (from the 24 October 2018 case note), or should have been clear, that the former agent had been acting under the common law principles of agency when she withdrew the s.494D(1) notice on Ms Ngaosri’s behalf. At that point the decision should have been renotified to Mr Taoubi. It was not. A courtesy copy of the letter and decision were sent on 23 October 2018, but it is clear from that email that no renotification occurred despite DOHA identifying the problem.
[37] In MZZDJ v MIBP (2013) 216 FCR 153 the Full Federal Court found that the applicant’s notice of an authorised recipient to the Department could be varied orally. See also SZLWE v MIAC [2008] FCA 1343 at [28].
[38] In SZLWE v MIAC [2008] FCA 1343 the applicant told the Tribunal at a hearing that he would like correspondence to be sent to him directly following the suspension of his migration agent. The Federal Court found that an authority given to an authorised recipient may be varied or withdrawn at any time: at [26]. See also SZJDS v MIAC (2012) 201 FCR 1 which illustrates that the courts will closely scrutinise the documentary evidence to determine whether an applicant has withdrawn or varied an authorised recipient.
Even if the Tribunal is wrong, which it is not, and the former agent did not have the power to withdraw the s.494D(1) notice, an authorised recipient does have the power under s.494D(3A) to vary the address of the authorised recipient. The former agent made clear on at least four occasions that the correct address for correspondence was Ms Ngaosri’s address. At the very least, the notification should have been sent to the former agent as authorised recipient at Ms Ngaosri’s address.
Ms Ngaosri’s Address
The Tribunal has considered whether the notification was sent to Ms Ngaosri’s address. DOHA told Mr Taoubi in its 23 October 2018 email that the decision notification was sent to Ms Ngaosri at the Student email. There is no record in ICSE indicating that a courtesy copy, let alone the actual notification, was sent to Ms Ngaosri’s address. ICSE only shows one entry each for the Subclass 820 and 801, and only one entry for one email being sent out by DOHA’s system. There is no indication on DOHA’s file that the notification was sent anywhere other than to the former agent’s email address. The actual email transmitting the notification is not on the file. The notification letter itself only refers to the former agent’s email address and states at the end where there might usually be reference to any address where a copy was sent: ‘The original of this letter including any attachments was sent to: [the former agent] [the former agent’s email address]’. Therefore, other than the assertion in the 23 October 2018 email to Mr Taoubi there is no evidence that DOHA sent the notification to Ms Ngaosri by email or otherwise.
That said, according to a case note in ICSE dated 31 May 2018, a copy of the 30 May 2018 letter was sent to Ms Ngaosri at the Student email. Although there is no record of an email being sent to that address, or at all, in the ICSE Events log the copy of the 30 May 2018 letter contained in the 31May 2018 case note includes a ‘Cc:’ to the Student email. Also, the client contact list in ICSE records the Student email being added to the contact list as a correct address on 31 May 2018. It shows the former agent’s email address ceasing to be a correct address on that date. The Student email remained on the contact list as Ms Ngaosri’s correct home email address until 13 February 2019. This could be seen as evidence that all correspondence from 31 May 2018 did, in fact, go to both the former agent’s email address and the Student email. But even if, on this basis, the Tribunal accepts that DOHA sent the notification to Ms Ngaosri at the Student email, that does not mean that the Student email was the correct address for the purposes of s.494B of the Act.
The client contact list identifies the source of the Student email as a correct address as ‘client advised’. But according to its records the only person who contacted DOHA on 31 May 2018 was the former agent. The Tribunal has viewed that correspondence and it does not include the Student email or any email address for Ms Ngaosri. It merely says that all correspondence should go to the applicant’s address. In any event, the former agent informed DOHA on 21 May 2018 (as well as on 31 May and 20 September 2018) that as of 21 May 2018 she no longer represented Ms Ngaosri. On 31 May 2018, the former agent was no longer acting for Ms Ngaosri under the common law principles of agency and did not have authority to give DOHA ‘the last email address provided to the Minister for the purposes of receiving documents’, being the correct email address for notifying Ms Ngaosri of the decision under s.494B(5).
According to Mr Taoubi, the Student email was created by the former agent during the course of Ms Ngaosri’s student visa application in 2014 or 2015 to manage Ms Ngaosri’s correspondence with DOHA relating to her student visa. That application was finalised in mid-2015 and, in fact, Ms Ngaosri has not held a student visa or been engaged in any student visa process since 16 August 2017. Mr Taoubi submits that the Student email was never Ms Ngaosri’s email address, she never had access to the email address, and neither she nor anyone else ever provided that email address to DOHA for the purpose of receiving correspondence in relation to her partner visa application. The Student email was never the last email address provided to the Minister for the purposes of receiving documents in the partner visa application. In fact, it was only attached to a different DOHA file that had been defunct for a number of years when DOHA retrieved it from its system and added it to the ICSE contact list for the partner visa application. The evidence would appear to back this up.
Since there is nothing in ICSE recording any contact with Ms Ngaosri on 31 May 2018, the Tribunal accepts Mr Taoubi’s submission as it has been given no cause to question his or Ms Ngaosri’s credibility, whereas it has considerable reason to doubt the accuracy of ICSE, and specifically the client contact list. For instance, the Tribunal finds the entries regarding the [Suburb 1] address to be of significant concern, particularly since this would have been the correct address for service of the notification. On 31 May 2018, when the Student email was added and the former agent’s email was removed as a current address, the [Suburb 1] address was also removed as a current address. It was then re-entered as a current address on 30 October 2018. Sometime after 30 October 2018 the [Suburb 1] address was entered again only this time the date from when it was a correct address for correspondence was changed from 30 October to 31 May 2018. The Tribunal suspects that this amended entry was made on 7 March 2019 because that is when the entry listing the address as correct from 30 October 2018 ends. What is clear is that there is evidence that from 31 May 2018 until 30 October 2018, the [Suburb 1] address was wrongly not listed in ICSE as a current address for sending Ms Ngaosri correspondence. During that period it was, in fact, the only correct address for sending correspondence in relation to the application. The date of the notification, 19 September 2018, falls within that period.
Given all the evidence before it, the Tribunal finds that the correct address for notification was the [Suburb 1] address. The notification would only have been sent to Ms Ngaosri in the prescribed way if DOHA had sent it by pre-paid post as provided for in s.494B(4) of the Act to that address within three days of the date of the letter. This was not done so the notification was not given in the prescribed way and was not valid.
However, since DOHA purports to have given the notification to Ms Ngaosri in accordance with s.494B(5), but sent it to the wrong address, if Ms Ngaosri nonetheless received the courtesy copy sent to the Student email she is taken to have received the notification on 19 September 2018, being the end of the day on which the email to the former agent was transmitted.[39] In that regard, the Tribunal finds that DOHA acquired the Student email from Ms Ngaosri’s student visa file and that Ms Ngaosri did not have access to that email because it was set up by her former agent to facilitate her former agent’s communications with DOHA about the student visa on Ms Ngaosri’s behalf. Therefore, even if DOHA did send notification of the decision to the Student email, Ms Ngaosri did not actually receive that notification.
[39] s.494C(7) of the Act.
If Ms Ngaosri can show that she received the notification at a later time than 19 September 2018, she is taken to have received it at that time. The Tribunal accepts Mr Taoubi’s submission that Ms Ngaosri did not actually receive the notification letter and the decision until they were sent to him on 23 October 2018. Since Mr Taoubi was, on that date, Ms Ngaosri’s authorised recipient, she is taken to have received the decision and notice on that day. This was not a renotification of the decision. It was merely a courtesy copy of the notification letter and the decision attached to DOHA’s response to Mr Taoubi’s email informing him notification had gone to the former agent with a copy to the Student email.
The Tribunal finds that Ms Ngaosri purportedly received notification of the delegate’s decision on 23 October 2018. In this case, pursuant to s.494C(7), prima facie, the prescribed period in which to apply to the Tribunal ended on 13 November 2018.
Actual Notification and Whether the Notification Letter was Valid
As a final consideration in determining whether it has jurisdiction in this matter, the Tribunal has looked at whether the notification received by Ms Ngaosri on 23 October 2018 was a valid notification or whether it was invalid because it did not comply with s.66(2) of the Act. This is relevant because if the notification was valid the last day to lodge an application with the Tribunal was 13 November 2018. However, although Ms Ngaosri lodged the first review application within time, that application is not before the Tribunal as currently constituted and this application was not lodged until 19 June 2019.
Relevant to this matter, s.494C(7) of the Act states:
If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B … but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then … the person is taken to have received it at that time.
(emphasis added)
In this case DOHA purported to give ‘a document’ to Ms Ngaosri in accordance with the method specified in s.494B(5), but made an error in doing so because they sent it to the wrong address. A courtesy copy of the notification letter and the decision were then sent to Mr Taoubi, so she received a copy of a ‘document’. But does that mean that Ms Ngaosri received ‘the document or a copy of it’, that is, did she receive the document DOHA purported to send in accordance with s.494B(5)?
It is first worth noting that s.494C(7) is a deeming provision, that is, it deals only with when the notification is taken to have been received. It does not related to s.66 and the validity of either the notification or the notice: s.66(2) and r.2.16; s.66(2)(d). The only relevant question in s.494C(7) is whether the document that DOHA purported to give in accordance with s.494B (the s.494C(7)(a) document) was the same as the document that was received (the s.494C(7)(b) document). Section 66(2) and r.2.16 are relevant to whether notification was purported to be given in the prescribed way (in this case by email under s.494B(5)) and s.66(2)(d) is relevant to whether the s.494C(7)(a) document was a valid notice (which it was in this case). But the notice will never have complied with s.66(2) and r.2.16 since s.494C(7) only applies if the notice was not given in the prescribed way and it is not relevant for the purposes of s.494C(7) whether the document given complied with s.66(2)(d) of the Act.
The issue here is only whether the s.494C(7)(a) document, or a copy of that document, was received by Mr Taoubi on 23 October 2018 such that the deeming provision in s.404C(7) is enlivened and notification can be taken to have been received on that date. That requires the Tribunal to determine what made up the s.494C(7)(a) document. What did DOHA purport to send to Ms Ngaosri under s.494B(5) on 19 September 2018?
On this question, BMY18 states at [32]:
Was the notification in this case ‘clear’? … As in DFQ17 the calendar date of sending or transmission was located on a different page to either the section [with the prescribed period] or the section [with when the letter is taken to have been received]. In DFQ17 the critical date was the date on the letter (since it was sent by post) which was located on p 1. In this case, the critical date was the date of the email (since the notification was transmitted as an attachment to an email). The date of the email was necessarily located outside the letter which it attached and hence even further from the section [with the prescribed period]. In this case, there was no difference between the date of the email and the date of the letter (which would generate it owns [sic] problems were it to occur).
(emphasis added)
It can be assumed that the document DOHA purported to send in accordance with s.494B(5) was a valid notification of the delegate’s decision. In that case it had to comply with s.66(2)(d)(ii) and state the time in which the application for review may be made. Because it was sent by email three pieces of information were required to make that calculation: reference to the 21-day prescribed period starting from when the letter was deemed to be received which appears in the letter, reference to the letter being deemed to be received from the date of transmission which appears in the letter, and the date of transmission which appears in the email that transmitted the letter and decision as an attachment.
According to BMY18, without the 19 September 2018 transmitting email, which is the only place where ‘the critical date’ of transmission is to be found, one of the three necessary pieces of information for determining the time in which the application for review may be made would be missing. That would not be a valid notification and the question of whether it was given in the prescribed way would not arise. Therefore, the document (the valid notification) that DOHA purported to give to Ms Ngaosri on 19 September 2018 in accordance with s.494B(5), that is, the s.494C(7)(a) document, had to consist of the decision, the letter, and the 19 September 2018 email transmitting the decision and the letter as attachments to the former agents email address.
There is no indication that the 19 September 2018 email transmitting the decision and letter was sent to Mr Taoubi on 23 October 2018. There is no evidence on the file, in ICSE, or in the email about what documents were attached to the 23 October 2018 email. Mr Taoubi has provided evidence that the decision and letter were attached. On the evidence before it the Tribunal can find no more than that the 23 October 2018 email had the delegate’s decision and the notification letter attached and that is the s.494C(7)(b) document received by Ms Ngaosri on 23 October 2018. It cannot find that the transmitting email with the critical date of ‘the day on which the letter was transmitted’ was received and, therefore, it does not make up part of the s.494C(7)(b) document.
Since the s.494C(7)(a) document DOHA purported to send in accordance with s.494B(5) had to include the 19 September 2018 email and the s.494C(7)(b) document did not include the 19 September 2018 email, the Tribunal has no choice but to find that the s.494C(7)(b) document is not the s.494C(7)(a) document or a copy of that document. The document DOHA purported to give to Ms Ngaosri in accordance with s.494B(5), but sent to the wrong address, was not nonetheless received, nor was a copy of that document received, on 23 October 2018. There was never actual receipt of the notification and the deeming provision in s.494C(7) was not activated. The prescribed period in s.347(1)(b)(i) of the Act and r.4.10(1)(a) of the Regulations never started to run.
The Tribunal finds that on 19 June 2019, Ms Ngaosri lodged a valid application for review within the prescribed period and the Tribunal has jurisdiction to consider this matter.
Whether the Parties are in a De Facto Relationship
The second question for the Tribunal is whether Ms Ngaosri is Mr Bevinetto’s de facto partner.
At the time of the application Ms Ngaosri was not the holder of a Subclass 771 (Transit) visa and, for the reasons below, she met the requirements of cl.820.211(2) at the time of the application. Therefore, Ms Ngaosri satisfies cl.820.211(1) of the Regulations.
Clause 820.211(2)(a) requires that at the time when the visa application was made the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case Ms Ngaosri claims to be the de facto partner of Mr Bevinetto who is an Australian citizen: cl.820.211(2)(a)(i). Also, the sponsor must not be prohibited by cl.820.211(2B) of the Regulations from being a sponsoring partner: cl.820.211(2)(a)(ii). Since he is not a woman who was granted a Subclass 204 (Woman at Risk) visa within the five years immediately preceding the application, Mr Bvinetto is not prohibited from being a sponsoring partner: cl.820.211(2B)(a).
‘De facto partner’ is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together or do not live separately and apart on a permanent basis, and the couple are not related by family.[40] In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3)(a), (b), (c) and (d) are effectively questions which must be answered[41] and the Tribunal has considered and satisfied itself about each.
[40] s.5CB(2) of the Act.
The Tribunal accepts that Ms Ngaosri and Mr Bevinetto are not in a married relationship for the purposes of s.5F of the Act. It has viewed their birth certificates and also finds that they are not related by family as defined in s.5CB(4) of the Act.
The Tribunal has considered the evidence provided by Ms Ngaosri and Mr Bevinetto, including the birth certificates for their two children,[Names and dates of birth deleted]. It has also considered their relationship statement, the large number of statutory declarations from friends and family, bank and other financial documentation, photographs, immigration and travel history including evidence of joint travel, and evidence that at the time of the application they both resided at the [Suburb 1] address. It finds that evidence of the nature of their current household appears to consist only of statements that they have moved in with Mr Bevinetto’s mother in [Queensland]. This is inadequate and that is of concern. However, the evidence strongly supports that the financial aspects of the relationship, social aspects of their relationship, nature of their commitment to each other, and all the other circumstances of the relationship demonstrate that they have a genuine and continuing mutual commitment to each other: r.1.09A(3).
The Tribunal finds that at the time of the application Ms Ngaosri and Mr Bevinetto had a mutual commitment to a shared life to the exclusion of all others, their relationship was genuine and continuing, and they lived together at the [Suburb 1] address. At the time of this decision they continue to live together at Mr Bevinetto’s mother’s residence in [Queensland]. Given these findings the Tribunal is satisfied that the requirements of s.5CB(2) of the Act were met at the time of application. Although some of the matters on which it has relied occurred after that date, it finds they are nonetheless indicative of the couple’s relationship on 15 August 2017. Therefore, Ms Ngaosri was the de facto partner of Mr Bevinetto and meets cl.820.211(2)(a) of the Regulations.
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, Ms Ngaosri, who was born on 2 December 1995, was 21 years of age. At the time of application, Mr Bevinetto, who was born on 30 July 1982, was 35 years of age. The couple must also have been in the de facto relationship for at least 12 months ending immediately before the date of the application: r.2.03A(3). Regulation 2.03A(3) does not apply if the de facto relationship is a relationship that is registered under a State or Territory law prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Ms Ngaosri has provided evidence that the relationship was registered on 25 November 2017 under the New South Wales Births, Deaths, and Marriages Registration Act 1995. Accordingly, the 12 month requirement does not apply and the Tribunal is satisfied that Ms Ngaosri meets the additional criteria prescribed in r.2.03A of the Regulations.
The Tribunal is satisfied that Ms Ngaosri was sponsored by Mr Bevinetto, who had turned 18 years of age, and so satisfies cl.820.211(2)(c). On 31 July 2015, Ms Ngaosri was granted a Student (Temporary) (Class TU) Subclass 572 (Vocational Education and Training Sector) visa that ceased on 16 August 2017. Ms Ngaosri was the holder of a substantive visa on 15 July 2017 and cl.820.211(2)(d) is not engaged.
The Tribunal finds that at the time of application Ms Ngaosri met the requirements in cl.820.211(2) of the Regulations. Since Ms Ngaosri was the holder of a substantive visa at the time of application and that visa was not a Subclass 300 (Prospective Marriage) visa, cl.820.211(5)-(9) are not relevant to this matter. Likewise, Ms Ngaosri is not one of the class of persons to whom cl.820.211(2A) applies. Ms Ngaosri meets cl.820.211 of the Regulations.
100. The Tribunal also finds that at the time of this decision Ms Ngaosri is the de facto partner of her sponsoring partner, Mr Bevinetto, who is an Australian citizen over the age of 18 and so continues to meet the requirements of cl.820.211(2)(a) and (c) of the Regulations. She, therefore, meets cl.820.221(1) of the Regulations.
Public Interest Criterion 4007
101. The third question for the Tribunal is whether the applicant meets PIC4007(1) of Schedule 4 to the Regulations.
102. Among other things, cl.820.223(1) requires that an applicant satisfy the health criteria in PIC4007. Public Interest Criterion 4007 requires an applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.
103. Clause 4007(1)(aa) requires that if an applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant classes of persons and assessments are specified in IMMI 15/144. The classes of persons are persons who are citizens of a country or who has spent three or more consecutive months during the last five years in a country or countries either listed in or not listed in Schedule 1 to that Instrument. Ms Ngaosri is a citizen of Thailand. Thailand is not listed in Schedule 1 to the Instrument.
104. Schedule 2 to the Instrument lists the medical assessments to be undertaken by citizens of countries that are not listed in Schedule 1 to the Instrument. For a permanent and provisional visa applicant aged 15 years or older, Schedule 2 requires that the applicant undergo a medical examination, chest x-ray, and HIV test as well as certain other tests if the applicant falls into particular specified categories (e.g. is pregnant and intending to have the baby in Australia; likely to enter a health care or hospital environment; etc.) Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner.
105. Clauses 4007(1)(ab) and (d) require that an applicant comply with any request by a MOC to undertake a medical assessment or sign an undertaking to present himself or herself to a health authority for a follow-up medical assessment.
106. Clauses 4007(1)(a) and (b) require an applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community. Clause 4007(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services that may result in a significant cost to the Australian community in those areas, or prejudice access of an Australian citizen or permanent resident to them.
107. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements, or the application is for a permanent visa made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3). The relevant countries are specified in IMMI 13/161. Thailand is a specified country.
108. On 13 February 2018, DOHA requested Ms Ngaosri undergo a complete health examination. On 30 May 2018, DOHA sent a further request for Ms Ngaosri to provide the requested health examination. Ms Ngaosri had not provided the necessary medical assessment at the time of the delegate’s decision on 19 September 2018.
109. On 6 December 2019, the Tribunal invited Ms Ngaosri to undertake a health examination. On 9 December 2019, Ms Ngaosri sent the Tribunal confirmation that she had an appointment with Bupa Medical Visa Services on 11 December 2019. On 11 December 2019, Ms Ngaosri informed the Tribunal that her appointment with Bupa Medical Visa Services had been rescheduled and on 18 December 2019 she forwarded evidence that the health examination had been paid for and scheduled for 19 December 2019. On 20 December 2019, Ms Ngaosri informed the Tribunal that she had completed her health examination on 19 December 2019.
110. The Tribunal finds that DOHA’s records show that on 20 December 2019 Roongtiwa Ngaosri finalised the health requirement and was ‘Auto Cleared’. On 31 January 2020, the Tribunal received an email from DOHA confirming that ‘Ms Ngaosri’s health was cleared to a permanent standard on 20/12/2019. However, as the case was Auto-Cleared in eMedical, there was no MOC involvement or assessment and therefore no form 884 is available.’
111. Based on DOHA’s undertaking that Ms Ngaosri meets all the health requirements in the legislation and has been cleared to the standard of an application for a permanent visa made where the specified class of persons is a citizen of Thailand, the Tribunal finds that she also meets all the health requirements for a temporary visa. The Tribunal finds that Ms Ngaosri satisfies all the criteria set out above and so meets PIC4007(1).
Conclusion
112. The Tribunal has found that Ms Ngaosri is the de facto partner of Mr Bevinetto and meets cls.820.211 and 820.221(1) of the Regulations. It has also found that Ms Ngaosri meets PIC4007(1) for the purposes of cl.820.223 of the Regulations.
113. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
114. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·PIC 4007(1) for the purposes of cl.820.223 of Schedule 2 to the Regulations.
Mireya Hyland
MemberATTACHMENT - Extract from Migration Regulations 1994
1.09A De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Schedule 4
4007(1) The applicant:
(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i)must undertake any medical assessment specified in the instrument; and
(ii)must be assessed by the person specified in the instrument;
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and
(a) is free from tuberculosis; and
(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c) subject to subclause (2) — is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (1A); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.
(1A)For subparagraph (1)(c)(i), the period is:
(a) for an application for a permanent visa — the period commencing when the application is made; or
(b) for an application for a temporary visa:
(i)the period for which the Minister intends to grant the visa; or
(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.
(1B)If:
(a) the applicant applies for a temporary visa; and
(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);
the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.
(2)The Minister may waive the requirements of paragraph (1)(c) if.
(a) the applicant satisfies all other criteria for the grant of the visa applied for; and
(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:
(i)undue cost to the Australian community; or
(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
- AGLC
- NGAOSRI (Migration) [2020] AATA 1956
- Case
- [2020] AATA 1956
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were the jurisdiction to hear the review, the applicant's status as a de facto partner, and her compliance with public health requirements. The Tribunal considered the lodgement of the visa application on 15 August 2017, with a migration agent designated as the authorised recipient for correspondence. A request for health examinations was sent to the agent's email address on 13 February 2018. Crucially, on 21 May 2018, the former agent lodged a form with DOHA indicating her withdrawal as the authorised recipient, stating that all correspondence should be sent directly to the applicant.
The Tribunal reasoned that the lodgement of the withdrawal form by the former agent, which explicitly stated that correspondence should be sent directly to the applicant, was a critical event. Despite the applicant not providing an alternative email address, the form indicated a change in how correspondence should be handled. The Tribunal noted that no re-notification was sent to a new agent or directly to the applicant's personal email address, which was not provided in the initial application. Given these circumstances, the Tribunal concluded that the matter should be remitted for reconsideration.
Orders
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Background
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Evidence Before The Court
Decision
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