Raibulu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 261
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raibulu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 261
File number(s): SYG 1231 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 14 April 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to review an application for review of decision refusing to grant the applicant a Partner visa because the applicant did not apply for review within the prescribed time after the applicant was notified of the delegate’s decision – whether delegate’s record of decision sent to email address applicant had notified to the delegate – whether the email address was the last address the applicant provided for the purpose of receiving documents – Tribunal had no jurisdiction to review delegate’s decision. Legislation: Migration Act 1958 (Cth) ss 338(2), 347, 476, 494B, 494C
Migration Regulations 1994 (Cth) reg 4.10(1)(a)
Cases cited: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Plaintiff M70/2011 v Minister for Immigration and Border Protection [2011] HCA 32
SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871
Division: General Number of paragraphs: 33 Date of hearing: 7 April 2022 The Applicant: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Mr J Pinder of Minter Ellison, by telephone ORDERS
SYG 1231 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SEREIMA VIRISOVA RAIBULU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises in this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal) was correct in deciding it did not have jurisdiction to review a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Partner (Migrant) (subclass 100) visa (Partner visa).
BACKGROUND
On about 3 November 2010 the applicant, a citizen of Fiji, applied for a Partner (Provisional) (subclass 309) visa (Provisional Partner visa) and a Partner visa. In her application the applicant provided a post office box as her current address for correspondence; and she provided a street address for correspondence for processing the second stage of her application for a Partner visa.
On 26 November 2012 a delegate of the Minister granted the applicant a Provisional Partner visa.
According to a file note prepared by an officer of the Department of Immigration and Border Protection (being the former name of the Department of Home Affairs) (Department),[1] on 6 February 2015 the applicant’s sponsor contacted the Department about the Partner visa. The Departmental officer who took the call informed the sponsor that the applicant had to apply for the Partner visa either online or on paper. The officer recorded that she sent the “partner permanent calculator hotlink” to the sponsor’s email address.
[1] CB151
On 9 October 2015 the applicant provided to the Department an email address (Email Address).[2] She also provided to the Department a street address.[3]
[2] Affidavit of J D Pinder, annexure JDP01
[3] Affidavit of J D Pinder, annexure JDP02
The Department sent communications to the Email Address on 14 July 2016, 21 July 2016, and 18 August 2016, but the Department received no response. On 25 August 2016, however, the applicant sent to the Department an email from the Email Address requesting the Department to send the applicant her reference number.[4] The Department did so by email sent to the Email Address on 31 August 2016.[5]
[4] CB114
[5] CB113
There is in evidence a file note created by an officer of the Department which is as follows:[6]
23/11/2016
Note type: Event: Note – Case
Note details:
phone PA 0296 …. SP answered
SP advised PA was at work, SP will leave a message. SP advised PA has been waiting for her passport before she can apply for PR. I advised we may not need it and PA could apply now. SP said he would advise her of this and ask her to call me. SP said today he has to pick his wife up and then take their daughter to the docotor [sic] after school so PA may not be able to call today. Added tomorrow is her day off and she could call me back then.
[6] CB144
I infer, and find, that “SP” is a reference to the sponsor, and “PA” is a reference to the “principal applicant”, that is, the applicant. I find this note arose out of a telephone call the Departmental officer intended to make to the applicant but which was answered by the sponsor; and it records the substance of a conversation between the officer and the sponsor.
On 23 November 2016 the Department sent to the applicant another email to the Email Address.[7]
[7] CB115-123
On 12 January 2017 a delegate of the Minister refused to grant the applicant a Partner visa.[8] The Department sent the delegate’s decision to the Email Address on 12 January 2017.[9]
[8] CB124-143
[9] CB125
There is no issue that the delegate’s decision is a “Part 5-reviewable decision” within the meaning of s 338(2) of the Act. That means the applicant was entitled to apply under s 347 of the Act to the Tribunal for review of the delegate’s decision. The applicant’s entitlement, however, was subject to a number of conditions, one of which is in s 347(1)(b) of the Act. That paragraph provides that an application for review covered by s 338(2) of the Act must be given to the Tribunal within the prescribed period, being a period no later than 28 days “after the notification of the decision”. The period for making an application for review is prescribed by reg 4.10(1)(a) of the Migration Regulations 1994 (Cth). It is a period that “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.
Section 494B of the Act specifies a number of methods by which an applicant may be notified of a Minister’s decision. One of those methods is that specified by s 494B(5) of the Act, which relevantly consists of a Minister transmitting the document by: (a) fax; or (b) email; or (c) other electronic means to (d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents. Section 494C of the Act specifies the time at which the person to whom notification of the decision refusing to grant a visa has been given using the methods prescribed by s 494B of the Act is to be taken to have received the notification. Where notification has been given by the methods prescribed by s 494B(5) of the Act then, under s 494C(5), the person is taken to have received the document at the end of the day on which the document is transmitted.
Thus, assuming the Email Address is the last address the applicant provided to the Department and, therefore, to the Minister, the applicant is taken to have been notified on 12 January 2017 of the delegate’s decision refusing to grant her a Partner visa. That means that the applicant could have applied to the Tribunal for a review of the delegate’s decision only if she had given such application to the Tribunal 21 days after 12 January 2017. The applicant did not give to the Tribunal an application for review 21 days after the Department sent the record of the delegate’s decision to the Email Address. The applicant purported to do so, however, almost one year later, on 11 January 2018.
BEFORE THE TRIBUNAL
At the time the applicant gave to the Tribunal her purported application for review, the applicant also provided to the Tribunal submissions prepared by her lawyer.[10] In those submissions the applicant’s lawyer said she was instructed the applicant did not receive the delegate’s record of decision by email; the sponsor advised the Department in November 2016 that he and the applicant had moved to a new residential address, and all correspondence should be sent to this address; the sponsor informed the case officer to “communicate with them” by post, not by email “as the applicant’s email address “plays up” and is not reliable”; the applicant received the request for further information sent on 23 November 2016 from her neighbour because it was posted to the applicant’s neighbour’s letterbox.
[10] CB167-168
On 22 March 2018 the applicant, by her lawyer, provided a submission in response to the Tribunal’s invitation sent on 21 February 2018 that the applicant comment on the validity of the applicant’s application for review.[11] The applicant also provided a statutory declaration in which she stated that she believes her husband, the sponsor, “told the immigration officer over the telephone in November 2018 [sic], not to use the email address as it was not reliable”; the sponsor “gave the immigration officer our home address”; and the applicant did not receive the decision by post. The applicant also stated that she has been a victim of domestic violence at the hands of the sponsor who had total control of the applicant’s day to day life; and that, from 2010 to February 2018, when the applicant had been living with the sponsor, the sponsor “had access and control” of the Email Address and any correspondence sent to their home.
[11] CB179-181; CB186-187
TRIBUNAL’S DECISION
The Tribunal concluded the applicant was notified of the delegate’s decision on 12 January 2017 by email. The Tribunal found it was “not in a position to make any supposition in relation to the applicant’s evidence that she believed that her husband had told the assessing officer certain information on 23 November 2016”.[12] The Tribunal was also not prepared to determine whether a third party had unlawfully obtained the applicant’s correspondence.
[12] CB212, [13]
GROUNDS OF APPLICATION
The applicant, who is not legally represented, relies on the two grounds of review contained in the application for review that was filed on her behalf by her lawyer. The grounds of application are as follows (emphasis and errors in original):
1.The Tribunal failed to give proper, genuine and realistic consideration to, or otherwise was legally unreasonable with respect, to a material fact.
a.The Tribunal did not make a find as to whether or not the Applicant's account if the sponsor's notification to the Department was truthful;
b.The Tribunal did not take oral evidence from the Applicant or her sponsor;
c.The Tribunal relied on an absence of evidence from the Departmental files notwithstanding that it recognised that the Departmental notes of the sponsor's conversation with the Department were incomplete.
2.The Tribunal made a finding of fact with no evidence or otherwise was legally unreasonable with respect to a material fact.
a.The Tribunal found that the Delegate's decision had been 'sent to the Applicant's postal address;
b.There was no evidence to support such a finding;
c.The finding was otherwise not reasonably available to the Tribunal.
Whether the applicant is in a position to make good these grounds is not relevant to whether the Tribunal was correct in deciding it did not have jurisdiction to review the delegate’s decision; and that is because whether an application to the Tribunal is given within the time prescribed pursuant to s 347(1)(b) of the Act is a jurisdictional fact;[13] and whether a jurisdictional fact exists is one which a court with jurisdiction must determine for itself.[14] The questions I must determine, therefore, are: (a) whether the applicant provided to the Department, and, therefore, the Minister, particulars of the Email Address as her address for the purpose of receiving documents; (b) if so, whether the applicant informed the Department in November 2016, or at any other time before 12 January 2017, that the Email Address is not an address for the purpose of receiving documents; and (c) if not, whether the Minister sent the delegate’s decision to the Email Address on 12 January 2017.
[13] SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871, at [55] (Greenwood J)
[14] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, at [66] (Gageler J); Plaintiff M70/2011 v Minister for Immigration and Border Protection [2011] HCA 32, at [57] (French CJ), and [107]-[109] (Gummow, Hayne, Crennan, and Bell JJ); Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, at [64] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10, at [10]–[15] (Dawson, Gaudron, McHugh, Gummow and Kirby JJ)
Did applicant inform the Department of the Email Address for the purpose of receiving documents?
There are three items of evidence relevant to determining that question. The first is a screenshot from an information system the Department maintains called “Integrated Client Service Environment”. [15] The screenshot records that on 9 October 2015 the applicant advised the Department that her contact was the Email Address. The second item of evidence is the emails the Department sent to the Email Address, and the applicant, on 25 August 2016, sending an email to the Department from the Email Address. The third item of evidence is the statutory declaration the applicant made, and the submissions her lawyer made. The statutory declaration and the submissions assume that the Email Address was an address the applicant had given to the Department for the purpose of receiving documents.
[15] Affidavit of J D Pinder, annexure JDP01
I therefore find that the Email Address was an address the applicant provided to the Department on 9 October 2015 for the purpose of her receiving documents from the Minister.
Was the Department informed the Email Address is no longer the applicant’s address for the purpose of receiving documents?
The only evidentiary material on which the applicant relies for claiming that the Department had been informed the Email Address should no longer be used for the purpose of the applicant receiving documents is the applicant’s stating in her statutory declaration that she believes the sponsor “told the immigration officer over the telephone in November 2018 [sic], not to use the email address as it was not reliable”.[16]
[16] CB188
The difficulty with this evidence is that it does not identify the source of the applicant’s belief. The applicant does not say she was present in any conversation in which the sponsor said words to the effect the Email Address should not be used because it is unreliable; and the applicant does not even say that the sponsor had told her he had said words to that effect to any person in the Department.
Further, the applicant did not provide to the Tribunal, or to this Court, any evidence that it is reasonable to infer she was in a position to provide in relation to her email address at the time the Department sent the email attaching the delegate’s decision. The applicant has given no evidence about whether the Email Address remains her current email address; or about whether she has had access to the Email Address after she commenced this proceeding to go through her inbox to determine whether she did receive the email the Department sent on 12 January 2017.[17]
[17] In the notice of intention to withdraw as lawyer filed on 5 April 2022, the applicant’s lawyer provided an email address for the applicant that is different from the Email Address. It cannot reasonably be inferred, however, that the email address stated in the notice of intention to withdraw as lawyer was the applicant’s email address at the time the Department sent the email attaching the delegate’s decision on 12 January 2017; nor can it be in inferred that the applicant no longer has access to the Email Address.
For these reasons, there is no evidence on the basis of which it is open to find that in November 2016, or at any other time, the sponsor told any person within the Department not to use the Email Address.
I have not overlooked there is in evidence a note recording the effect of a conversation between the sponsor and a Departmental officer on 23 November 2016; but that note does not record the sponsor saying anything about any email address. And there is nothing on the face of the note that could reasonably suggest it does not entirely record the substance of what the sponsor conveyed to the Departmental officer during the conversation.
Was the delegate’s decision sent to the Email Address?
There is in evidence a screenshot from an information system the Department maintains called “Enterprise Correspondence System” (ECS).[18] That records that an email was sent to the Email Address at 11:13:13 on 12 January 2017, and describes a number of attachments, including “[Name of applicant] bc100 refusal decision record”.[19] There is also in evidence a screenshot from the ECS that records a “[n]otification” was sent to the applicant on 12 January 2017 at 11:11:13.
[18] Affidavit of J D Pinder, annexure JDP03
[19] Affidavit of J D Pinder, annexure JDP03
I am satisfied, and therefore find, that the delegate’s decision record was sent to the Email Address on 12 January 2017 and, for that reason, under s 494C(5) of the Act, the applicant is taken to have been notified of the delegate’s decision on 12 January 2017.
Conclusion
Given my findings, it follows the Tribunal was correct to conclude it did not have jurisdiction to review the application for review the applicant purported to give to it on 11 January 2018 because the applicant gave it more than 21 days after the applicant was notified of the delegate’s decision. For this reason the application must be dismissed.
OTHER MATTERS
There are three matters it would be convenient to record. First, the applicant, who was not legally represented but appeared with the assistance of an interpreter, although invited to do so, made no submissions in chief. In reply to the submissions Mr Pinder made on behalf of the Minister, however, the applicant said she agreed with Mr Pinder. I do not rely on what the applicant said, but only refer to what the applicant said to record the extent of the submissions she made.
Second, that the applicant may have been the victim of domestic violence, and this may have been a reason the applicant did not access the email that was sent to the Email Address on 12 January 2017, is not a ground for finding the Tribunal had the power to extend the time by which the applicant could apply for review of the delegate’s decision. The Tribunal does not have power to extend the time period for the giving of a valid application for review to it, no matter how small the delay or compelling the circumstances, or whatever the reason for the default.[20]
[20] Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, at [83]
Third, in his written submissions the Minister said as follows:[21]
For completeness, the Minister observes that the letter enclosing the delegate’s decision (CB 125–127) is distinguishable from the format and wording impugned by the Full Court of the Federal Court of Australia in BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189 and DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 (DFQ17). Specifically, the letter is in the same format as that found to be free from error (and distinguishable from DFQ17) in Ali v Minister for Home Affairs [2019] FCA 1102.
[21] First Respondent’s Written Outline of Submissions, [46]
COSTS
The Minister applied for an order for costs, and an order that his costs be set in the amount of $5,600. The applicant submitted that she would not be in a position to pay such costs. That is not a reason for not ordering that the applicant, as the unsuccessful party, be ordered to pay the Minister’s costs. I am satisfied it is appropriate to apply the usual order as to costs, and order that the applicant pay the Minister’s costs. I am also satisfied that $5,600 represents a fair indemnity of the costs the Minister incurred in successfully resisting the application.
DISPOSITION
I will order that the application be dismissed, and that the applicant pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 April 2022
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