Nguyen v Minister for Immigration

[2016] FCCA 480

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 480

Catchwords:
MIGRATION – Visa – medical treatment visa – no treatment plan or concluded arrangements for costs of treatment – failed attempt to electronically provide post-hearing information to Tribunal.

Legislation:

Electronic Transactions Act 1999 (Cth), s.14A

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch. 2, pt. 602, cl.602.212

Applicant: XUYEN VU NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 158 of 2015

Judgment of: Judge Heffernan

Hearing date: 4 March 2016

Date of Last Submission: 4 March 2016

Delivered at: Adelaide

Delivered on: 10 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 4 May 2015 is dismissed.

2. The name of the second respondent is amended to read ‘The Administrative Appeals Tribunal’.

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 158 of 2015

XUYEN VU NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) against a decision of the Migration Review Tribunal (as it then was) to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse the applicant a Medical Treatment (Visitor) (Class UB) visa (‘the visa’). That decision was made on 7 April 2015. The applicant applied to this Court for review of that decision on 4 May 2015. The applicant is self-represented. He has raised one ground in support of his application, as follows:

   “1.The Tribunal did not announce 28 days to provide document.

   2.‘The Tribunal did not received [sic] further submission on 2 April 2015’ was a wrong statement.  The applicant has evidence that he sent documents to Ms Carlton on 2 April 2015.”

2. The hearing of this matter before me proceeded over three separate days being: 18 February 2016; 19 February 2016; and 4 March 2016.  The applicant was not properly prepared to present his case on 18 February 2016.  I heard submissions as to whether the applicant should be given an opportunity to obtain a copy of the transcript and provide further material to the Court.  On 19 February 2016, I adjourned the matter to enable him to provide further materials to the Court.  The procedural background to this matter is of some relevance and I set that out below.

Procedural matters

1. Procedural orders were made by Registrar Bochner on 5 June 2015, and amended by her on 9 June 2015.  Those orders included, that the applicant file and serve any Amended Application and such further material on which he sought to rely, including transcript, by 9 October 2015.  When this matter proceeded before me for final hearing on 18 February 2016, the applicant had not filed an Amended Application, or any further material on which he sought to rely. 

2. During submissions on 18 February, the applicant told the Court in effect, that he had provided relevant and probative documents to the Tribunal during the evening of 2 April 2015, and that the Tribunal had not taken those materials into account.  At the conclusion of the Tribunal hearing, the applicant had been given leave until the close of business on 2 April 2015, to provide any further materials to the Tribunal.  This was an important matter for the applicant because he had been put on notice by the Tribunal that he had not provided a treatment plan, or any evidence that the costs and payment arrangements for his treatment had been finalised.

3. When making submissions before me on 18 February 2016, the applicant claimed that the Tribunal had not, contrary to what is clearly stated in the decision record,[1] told him that the further material had to be provided by ‘close of business’ on 2 April 2015.  He states that he was left with the impression that any further materials had to be provided to the Tribunal by the end of the day on 2 April 2015.  In effect, he took this to be that he could provide those documents to the Tribunal at any time up to 11.59pm on 2 April 2015.  He submitted to me that the materials he had sent by email were capable of satisfying the concerns that the Tribunal had raised with him, and had they been considered, should have resulted in the visa being granted.  The applicant wanted an opportunity to provide those materials to the Court.  He provided no satisfactory explanation for not having already filed and served these documents pursuant to the orders made by the Registrar in June 2015.

   [1]     Court Book (‘CB’) p 53 at [15].

4. Given that, the Tribunal’s failure to consider his post hearing written submissions, was exactly the issue the applicant had raised in his ground of application, and that orders had been made giving him until 9 October 2015 in which to file further materials.  It is difficult to see why the applicant had not filed and served these, apparently relevant, materials prior to the date for final hearing.  The matter was adjourned to 19 February 2016 for me to consider the application for an adjournment.

5. On 19 February 2016, I adjourned the matter to 4 March 2016 for further submissions.  I made orders giving the applicant leave to file and serve further affidavit evidence on which he sought to rely, limited to an affidavit annexing those materials he claims had been sent to the Tribunal by email on or about 2 April 2015.  He was given until the close of business on 2 March 2016 in which to do this and it was explained to him that close of business meant 5.00pm.  I made an order that the first respondent file and serve by close of business on 25 February 2016, a recording of the Tribunal hearing, and gave the first respondent leave to file and serve an affidavit indicating whether or not the second respondent had actually received any further materials from the applicant on or about 2 April 2015.

6. On 2 March 2016, the applicant filed a further affidavit annexing the materials he says had been submitted to the Tribunal on 2 April 2015.  An email printout annexed to that affidavit purports to show that those material were sent to the Tribunal on 2 April 2015 at 11.15pm.

7. On 4 March 2016, the first respondent tendered an affidavit of Grant Herbert Nicholas, an Operations Manager in the Technical Services Section of the Administrative Appeals Tribunal, as to the non-receipt of the applicant’s email of 2 April 2015.

8. It is against that background, that submissions in this matter resumed on 4 March 2016.

Tribunal hearing and decision

1. The criteria for the grant of the visa at the relevant time, were set out in Part 602 of the Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Having heard the submissions of the applicant, as noted above, the Tribunal provided the applicant until close of business on 2 April 2015 to provide further evidence post hearing. The Tribunal noted in its decision record that no further submissions were received.[2]

   [2] CB p 52 [7].

2. The Tribunal noted that the applicant had been involved in a motor vehicle accident on October of 2012.  This accident had apparently left him with both physical and mental health issues.  The applicant was seeking ongoing treatment for those issues and accordingly sought a visa so that he could stay in the country to finalise his treatment.  A medical report that the applicant provided to the Tribunal noted that he had restriction of movement in his right shoulder and anxiety about driving.  The Tribunal found that the report did not outline a treatment program for the shoulder injury but that it simply observed that the applicant required further treatment.  The applicant also provided evidence of an appointment with a psychiatrist that had been scheduled for 10 February 2015.[3]

   [3] CB p 53 [13].

3. The Tribunal put the applicant on notice that it was concerned that he had not provided any evidence of an ongoing treatment plan; any evidence of which treatment providers would be consulted; any evidence of appointments scheduled under that plan; or, any evidence as to how the costs would be met.[4]  It was for that reason, that the Tribunal gave him time to provide it with further information.

   [4] CB p 53 [15].

4. The Tribunal records that it did not receive any post-hearing evidence from the applicant. On the basis of the information before it, the Tribunal concluded that the requirements of cl.602.212 of the Regulations had not been met. For a person in the position of the applicant, cl.602.212(2) required, that the arrangements for his treatment were concluded; that arrangements for payments of all costs and expenses associated with his treatment and his stay had been concluded; and, that payment of such costs would not be a charge on a government or public authority in Australia, or if it were, that he provide evidence that such a relevant government authority had approved payment.

5. On the materials before it, the Tribunal concluded that no evidence had been provided that the arrangements for treatment had been made or concluded.  It also found that there was no evidence before the Tribunal that arrangements for payments of all costs and expenses associated with the treatment and the stay had been concluded.  For that reason, the Tribunal could not be satisfied that the medical treatment requirements were met.[5]  In those circumstances, the Tribunal determined to affirm the decision of the delegate. 

   [5] CB p 53 [18].

Submissions of the applicant

1. The applicant submitted that his affidavit dated 2 March 2016 shows that he provided the Tribunal with documents that satisfied the relevant requirements of the Regulations.  He submitted that the Tribunal did not inform him that close of business meant 5.00pm and he reasonably assumed that it meant up and until the last minute of 2 April 2015.  For this reason, he submitted in effect that he was not excluded from relying on materials which he says he provided to the Tribunal, and that on the basis of the annexures to his affidavit, there was probative evidence amounting to a relevant consideration that the Tribunal had failed to take into account.  For this reason, he submitted that his application for judicial review should be successful and the matter should be returned to the Tribunal for determination according to law.

2. The affidavit of 2 March 2016, filed and served by the applicant, asserts that the email was sent to the Tribunal on 2 April 2015, and that a physiotherapy treatment plan with an estimated cost had been provided.  It noted that he had an appointment with a psychologist and that he was providing a bank statement which he says shows he was in a position to meet the costs of any future treatment.  He submits that the documents annexed to his affidavit were all relevant and provided to the Tribunal on time as requested.  He also submitted that beyond his own financial capacity, the documents showed that the costs of any treatment would be paid by “the insurer” because this was treatment to be provided as a result of a compensable motor vehicle accident.

3. The documents annexed to the affidavit are as follows:

   a)An email dated 2 April 2015 at 11.15pm with five attachments;

   b)A letter from a physiotherapist, Mr Phung Tran, dated 2 April 2015, indicating that the applicant required approximately 30 treatments over the next 6–9 months, with an approximate total cost of $1,872;

   c)A screen shot from a mobile phone which the applicant says is from Dr Dung, Psychologist, dated 1 April 2015, which simply indicates that he is on leave and will return on 10 April;

   d)A medico-legal report from Dr Creston Magasdi, dated 4 April 2013, addressed to the applicant’s solicitor in relation to his motor vehicle accident;

   e)A copy of a Statement from the Commonwealth Bank, dated 2 April 2015, which the applicant says indicates that he had a bank balance of approximately $21,000;

   f)A Notice requiring the applicant to attend a psychiatric appointment with Dr David Kutlaca on 10 February 2015 for medico-legal purposes;

   g)A medico-legal report from Ms Dung Nguyen, Psychologist, dated 23 November 2013, addressed to the applicant’s solicitors;

   h)A medico-legal report from Dr Danh D Tran, dated 6 November 2013, addressed to the applicant’s solicitors;

   i)A medico-legal report, dated 29 March 2013, from Dr Therese Phan, addressed to the applicant’s solicitors; and

   j)A medico-legal report from Mr Robin Jackson, Orthopaedic Surgeon, dated 3 November 2014, and addressed to the solicitors for the compulsory third party insurer.

Submissions of the first respondent

1. The primary submission of the first respondent was that on the material before it, the Tribunal was correct to conclude that the requirements of cl.602.212(2)(b) and (e) had not been met, and for that reason, there was no jurisdictional error demonstrated in the decision of the Tribunal to affirm the decision of the delegate.

2. Both the first respondent and the applicant sought to rely on the recording of the Tribunal hearing which was provided to the Court prior to 4 March 2016.  The first respondent provided the Court with a transcript of the hearing for use as an aide memoire, when considering the recordings.

3. The recording shows that the Tribunal member stated at the hearing that the applicant had until the close of business on 2 April 2015 to provide any further materials on which he sought to rely.

4. The first respondent submitted that there was no ambiguity in the form of words used and that the Tribunal had given the applicant until the close of business on 2 April 2015 in which to provide further materials to it.  However, it submitted that it did not take issue with the ‘close of business’ argument.  Instead, it relied upon the affidavit of Mr Nicholas, which it said demonstrated that the Tribunal did not receive the email and attachments.  The first respondent does not dispute that the applicant did try to send through an email with the attachments.  That email was simply not received by the Tribunal.  The affidavit establishes that the email was not delivered successfully to the Tribunal’s Outlook Mailbox, as the file size of the email exceeded the permitted size limit of 10mb and was subsequently rejected by the Tribunal gateway server.  Mr Nicholas says that an examination of the Tribunal’s email server shows that a non-delivery report was sent from the Tribunal’s email system to the email address of the applicant.

5. In these circumstances, the first respondent submits that no materials were provided to the Tribunal, and for that reason, it could not be said to have proceeded by way of jurisdictional error due to a failure to consider relevant material.  The Tribunal did not have any further relevant materials before it and despite the attempt of the applicant to provide those materials, they had never made it into the Outlook inbox of the Tribunal.

6. The first respondent says that any presumption of law as to receipt of the applicant’s emailed attachments is rebutted. It points to s.14A of the Electronic Transactions Act 1999 (Cth), which relates to the time of receipt of electronic communications for the purposes of the law of the Commonwealth. Section 14A sets out as follows:

   “14A Time of receipt

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

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

   (b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:

   (i)     the electronic communication has become capable of being retrieved by the addressee at that address; and

   (ii)     the addressee has become aware that the electronic communication has been sent to that address.

   (2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

   (3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.”

7. The first respondent says that there was no actual receipt, or deemed receipt. 

8. I raised with the first respondent whether in circumstances such as these, the Tribunal could be said to have had a duty to enquire.  In other words, if it was apparent to the Tribunal that an attempt had been made, but that for whatever reason, the communication had not been perfected, was it incumbent upon the Tribunal to contact the applicant and invite him to send the material again, or in a different form.  The submission of the first respondent is that when the affidavit of Mr Nicholas is properly understood, there was no information before the Tribunal that could have enlivened any duty to enquire or put the applicant on notice that his attempted communication had not been successful.  It submits that it was ultimately for the applicant to provide the material.  In this matter, the first respondent said that these circumstances were not similar to, for example, a facsimile transmission in which only half of the material was electronically conveyed to the Tribunal.  In this case, neither the email, nor the attachments, were received at all.  To use the colloquial expression, the email ‘bounced’.

9. For this reason, the first respondent says the Tribunal could not possibly be regarded to have failed to take into account relevant material.  It submits that the situation was exactly as described by the Tribunal in the decision record, namely, no further materials had been provided to it and because the email did not make it into the Tribunal’s ‘inbox’ it could not have been aware that an attempt had been made to send it.

10. The secondary submission of the first respondent, was that the documents provided could not in any event have satisfied subparagraphs (a) and (e) of cl.602.212. These were, the first respondent submitted, the only criteria that were relevant.

11. The first respondent notes that subparagraph (e) requires something more than an indication as to what the costs might be.  It submits that the letter from the physiotherapist simply does not satisfy the requirements and cannot reasonably be said to be a treatment plan as envisaged by the Regulations.  In addition, none of the material established that arrangements had been concluded for payments of any future treatment.

Conclusion

1. I am satisfied that the Tribunal did not receive the further material which the applicant attempted to send to it. I am satisfied that s.14A of the Electronic Transactions Act assists the first respondent in its submissions. The time of receipt of an electronic communication, would have been the time that communication became capable of being retrieved by the Tribunal, and when the Tribunal became aware that the electronic communication had been sent to it. The email was never capable of being retrieved by the Tribunal and it did not become aware that the email had been sent. Pursuant to s.14A(2), that unless otherwise agreed between the parties, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

1. For this reason, I am satisfied that the Tribunal did not receive the applicant’s email and attachments, and that there was no jurisdictional error committed by the Tribunal when it proceeded to make its decision on the basis of the materials provided to it at the hearing, and the submissions made by the applicant at the hearing. Having said that, I am in agreement with the submission of the first respondent that even if those materials had been effectively transmitted to the Tribunal, they would not have been sufficient to satisfy the relevant criteria in cl.602.212.

2. For those reasons, I dismiss the application and make the orders at the beginning of these reasons.

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

Date: 10 March 2016