Sainju v Minister for Immigration & Anor
[2009] FMCA 1206
•17 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAINJU v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1206 |
| MIGRATION – MRT jurisdiction – time limit running from receipt of email notification – deeming provision in relation to time of receipt – ‘transmitting the document’ does not require actual receipt – receipt at email – provider’s server or at addressee’s terminal not necessarily required – applicant failed to apply to Tribunal within 7 days after deemed receipt of emailed notification – application for mandamus refused. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) |
| Le v Minister for Immigration & Citizenship (2007) 157 FCR 321 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485 SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49 WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50, (2004) 79 ALJR 94 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | JEENU SAINJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1665 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 1 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1665 of 2009
| JEENU SAINJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In 2008 Ms Sainju was enrolled in a course at the Holmes Institute under a subclass 572 student visa. According to the Institute’s certificate in a notice sent to her under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) on 4 September 2008, she did not achieve satisfactory course progress, and was in breach of visa condition 8202(3)(a). She did not respond to the s.20 notice, and on 3 October 2008 her visa was cancelled by operation of law pursuant to s.137J of the Migration Act 1958 (Cth). She applied for revocation of the cancellation on 16 October 2008, claiming that she was currently enrolled in a course at another college. Her application was refused by a delegate on 9 January 2009 on the ground that her non‑compliance was not due to exceptional circumstances beyond her control. On 4 March 2009, Ms Sainju, through a solicitor, lodged an application for review by the Tribunal.
Her present application to the Court concerns whether that application was within the Tribunal’s jurisdiction, or was incompetent due to the expiry of a mandatory 7 day time limit. The Tribunal took the latter view, in a decision made on 9 April 2009. At issue, was whether she was deemed to have received notice of the delegate’s decision on 13 January 2009, when a copy was sent by email to her Hotmail address.
Ms Sainju’s application for judicial review and her amended application challenge the Tribunal’s decision upon various contentions of procedural and legal errors, which are characterised as ‘jurisdictional errors’. However, both counsel accepted during their submissions that, essentially, her application sought a writ of mandamus to compel the Tribunal to exercise a jurisdiction whose existence in fact and law is a matter for the Court itself to decide. This is an opinion which I and other judges have applied in numerous cases concerning the time limits governing applications to the immigration tribunals. It has the consequence that the Court’s own conclusions on the jurisdictional issues must govern the issue of a writ, and it is irrelevant whether or not the procedures and reasoning of the Tribunal separately reveal any error when addressing its own jurisdiction.
The legislation
The Tribunal has jurisdiction to review a s.137L decision pursuant to s.338(3A), but an application for review must be given to the Tribunal within the period prescribed under s.347(1)(b)(i). Under Migration Regulation 4.10(1)(b), this period “starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received”.
Notice of a s.137L decision must be given by the Minister to the applicant in accordance with s.137M(1). No particular manner of ‘giving’ the notice is specified in the Act, but both counsel accepted that this was provided for in the Migration Regulations, reg.2.55. This regulation applies to “the giving of a document to a holder or former holder of a visa relating to the … cancellation of a visa under the Act” (see reg.2.55(1)(a)). Relevant to the present case, regs.2.55(3) and (8) provide:
2.55Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
…
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i)is at the person’s last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii)by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i)fax; or
(ii)e‑mail; or
(iii)other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
Note Subregulation (3A) deals with giving documents mentioned in paragraphs (1) (a) and (c) to minors.
…
(8)If the Minister gives a document to a person by transmitting it by fax, e‑mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
There is no contention that the added requirements of sub‑regs (3A), (4A), (4B) and (4C) in relation to service on a minor are relevant, and Ms Sainju appears to have turned 18 before the relevant date. Nor did the more demanding provisions of sub‑reg (4) apply, since these concern only cancellation decisions on character grounds.
The critical issues of construction which were debated before me were whether the words “transmitting the document by … e‑mail” in reg.2.55(3)(d) encompassed the sending and actual receipt of the document, or only its due dispatch by one of the electronic means, and whether the deeming effect of reg.2.55(8) extended to the receipt of the document even if not actually received, or only to the timing of an actually received communication. There was also controversy whether, if time expired only after an actual receiving of an email, this occurred when the email reached the account provider’s mail server, or when it was accessed or able to be accessed by the addressee on a computer terminal.
The Act itself in ss.494B(5) and 494C(5) contains provisions similar to reg.2.55(3)(d) and (8), which generally govern electronic communications by the Minister. These sections define methods of service and deemed receipt, which other sections of the Act may expressly ‘require or permit’ the Minister to follow or which he is otherwise given a discretion to follow (see ss.494A(1) and 494B(1)). Neither counsel submitted that these provisions governed the giving of the notice of a decision under ss.137L and 137M in the present case, and I accept their assumption that reg.2.55 provided the specific and only legislative regime governing notification of such a decision.
Counsel for the Minister did, however, take me to the legislative history of ss.494B(5) and 494C(5) in support of his submissions on the construction of reg.2.55, on the ground that the regulation was made ‘shortly after’ these 2001 amendments to the Act, and appears to duplicate their language. He referred me to the explanatory memorandum, which suggested that s.494C(5) was intended to provide ‘more certainty’ as to the time of receipt of an electronic communication than would be provided by the Electronic Transactions Act 1999 (Cth). Section 14(3) of that Act applies “for the purposes of a law of the Commonwealth”, and provides that “the time of receipt of the electronic communication is the time when the electronic communication enters” an “information system” designated by an addressee, which is a “system for generating, sending, receiving, storing or otherwise processing electronic communications” (see s.5). When applied to emailed communications, it appears to define receipt as occurring when the emailed message reaches the recipient’s ‘mailbox’ at his or her email service provider’s internet server, or, perhaps alternatively, when it reaches a computer on which the recipient can access the message in the mailbox. The explanatory memorandum for s.494C(5) referred to this provision, and said:
This might never be known by the originator of the communication. There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application begins to run. Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the ET Act.
The 2001 amendments made this objective clear by inserting s.494C(6), which provides that “subsection (5) applies despite section 14 of the Electronic Transactions Act 1999”.Curiously, no similar provision overriding s.14 was included in reg.2.55, to confirm that a similar deeming effect as to the receipt of an email was intended to be given by reg.2.55(8). However, ultimately, I have decided that the language and legislative context of reg.2.55(8) sufficiently reveal its intended operation, and that an excursion into the history of similar provisions of the Act is of little assistance.
The immediate context of reg.2.55(8) is a series of sub‑regulations which define the time of receipt of documents given by the various methods listed in reg.2.55(3). In relation to giving by hand, sub‑regulations (5) and (6) define this as occurring when “it is handed to the other person”. This might reflect the ordinary language of ‘receive’, but it also dispels an argument that a document is not received until it is opened, read, and comprehended by the addressee.
In relation to posted documents, sub‑regulation (7) is in terms which have a long history of judicial consideration. It provides that a person “is taken to have received the document … 7 working days … after the date of the document” if it was posted for delivery in Australia. There are many cases which have noted that such a receipt is conclusively deemed to have occurred, even if actual receipt is proved not to have occurred for whatever reason (for example, see Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 citing Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]‑[14], and SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485). Such provisions have the evident general purpose “to eliminate uncertainty as to whether a document has been given to an applicant” (cf. Le v Minister for Immigration & Citizenship (2007) 157 FCR 321 at [25]).
In this context, I am unable to accept the submission of Ms Sainju’s counsel that reg.2.55(8) should be construed as only defining the time at which an actual communication is taken to have occurred. In my opinion, the ‘deeming’ verb “is taken to have” clearly relates grammatically to the receiving of the document as well as the timing of the deemed receipt. Such a reading is also supported by the context and purpose of the provision, which is to provide certainty for the measurement of mandatory appeal limits, albeit at the risk of occasional unfairness. It endeavours to fix a precise point in time when receipt has occurred (see SZFKD v Minister for Immigration [2006] FMCA 49 at [10]‑[19]), even if this were not found to be true if the facts were investigated. Necessarily, in my opinion, this objective encompasses deeming the fact of receipt as well as the time of that deemed receipt.
Giving full effect to the deeming provision eliminates all ambiguity and uncertainty about ‘transmitting’ a document by email to an email address. Ambiguity otherwise arises because ‘transmit’ can mean ‘send out’ as well as ‘communicate to’. I am inclined to accept Ms Sainju’s submission that, in isolation, the ordinary language of reg.2.55(3)(d) would suggest the latter meaning, since it identifies the recipient of a single communication rather than a process of broadcasting. However, this meaning would then give rise to considerable uncertainties in relation to emails, concerning whether a transmission would be completed when the email reached the email service provider’s mail server, or only when it was perused by the addressee when first accessing his or her mailbox. Obviously, satisfaction by a Tribunal or Court as to these matters would also be very difficult, particularly if it required reference to the computer logs of internet service providers.
On the construction of reg.2.55(8) which I prefer, all these uncertainties have been eliminated by deeming receipt of the email to have occurred at the end of the day of its dispatch, regardless of whether this can be proved to have actually occurred, and also regardless of whether it is proved not to have occurred. The effect of reg.2.55(8) can therefore be seen to assist proof that there has been a ‘transmitting’ of an emailed document to its recipient, by conclusively deeming the communication to have been completed by all relevant electronic means. Its presence therefore confirms that the words “by transmitting the document” in reg.2.55(3)(d) and in the opening words of reg.2.55(8) have the meaning only of ‘by sending’ and do not imply that any actual communication must have occurred.
The evidence of notification
My conclusion that receipt of an email is conclusively deemed by force of law, means that it is necessary for me to make only limited findings as to the facts in relation to the sending to Ms Sainju of notice of the delegate’s decision made on 9 January 2009.
Ms Sainju’s request for revocation of the cancellation of her student visa gave an email address ‘…@hotmail.com’. It is not challenged that this then provided a “last … e‑mail address … known to the Minister” for the purposes of reg.2.55(3)(d). Nor does Ms Sainju seriously challenge the evidence of Ms Clifford, who was the relevant case officer in the NSW Student Compliance section of the Department of Immigration. She identified a hard‑copy confirmation of the sending of an email message, marked in her handwriting as ‘emailed 13/1/09’, which she placed on Ms Sainju’s file. It records the sending on Lotus Notes email software of a message to Ms Sainju’s Hotmail address. It said:
Please find attached in relation to your request for revocation of the automatic student visa cancellation the following:
Notification of decision not to revoke
MRT brochure
Also on the file were hard‑copies of the enclosures, showing that they were a notification letter dated 13 January 2009, and a 6‑page information package explaining the procedures, times and locations for appealing to the Tribunal. No contention is now made by Ms Sainju that these documents were not electronically attached to the email message when it was sent, nor that they did not comply with the requirements of s.137M, nor that Ms Clifford’s actions when sending the email and attachments did not satisfy the provisions of reg.2.55(3)(d) in so far as they were capable of being satisfied by an agent of the Minister.
Ms Clifford also gave evidence that it was her practice to print out and place on the file any ‘undeliverable email notification’, and to record this in the Department’s electronic database known as the Integrated Client Service Environment (ICSE). Her evidence, and that of Mr Khoury, a computer expert called by Ms Sainju, was that such notifications would normally be received within a short time after an unsuccessful attempt to send an email. Upon such an event, her practice would have been to check the email address and send a notification by post. There is evidence that no such notification was placed on Ms Sainju’s file, nor recorded in the ICSE.
I accept all of Ms Clifford’s evidence, and find confidently that the elements of a ‘transmitting’ of the emailed documents, in so far as they are not deemed to have been established by reg.2.55(8), did occur in fact on 13 January 2009, and that the document was therefore taken to have been received ‘at the end’ of 13 January 2009. That is, on the same date but at the end of that day (see SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49 at [19]). If so, it is common ground that Ms Sainju’s application to the Tribunal made on 4 March 2009 was well beyond the 7 day time limit, and was therefore incompetent. Her application for a writ of mandamus should therefore be refused.
My above reasoning leaves it unnecessary for me to make findings on whether the email transmission ever reached the Microsoft Hotmail server containing Ms Sainju’s electronic mailbox, so as to be accessible for her to read on 13 January 2009 or on a later date, by using either her own computer or any other computer having an internet browser connection. However, I shall briefly explain my opinions about these issues.
Ms Sainju did not attempt to present any Microsoft logging or other contemporaneous records of messages reaching her mailbox or computer. She relied upon her own assertion that at no time did she notice Ms Clifford’s message in her ‘inbox’, although she was reading her emails daily. She also presented a ‘Windows Live’ screen print‑out made on 22 April 2009 showing, as at that date, that five other messages dated 13 January 2009 had been received and remained in her Hotmail ‘inbox’. However, as Mr Khoury explained, it was possible that other messages had previously been deleted or sent to the ‘junk’ folder, whether intentionally or accidentally by someone accessing the mailbox. It was possible that they had been otherwise lost by some electronic mishap when someone attempted to access her mailbox. He explained that there were other possible electronic mishaps preventing the email message ever reaching the Hotmail servers or entering Ms Sainju’s mailbox there.
Mr Khoury accepted that prima facie Ms Clifford’s Lotus Notes email confirmation showed a completed communication of an email message, and he did not give opinions which quantified the probability of the message being lost either before or after reaching the Hotmail mailbox. He gave the written opinion:
During normal operation between the sender and the receiver, if an email appears in the Sent folder, yes, it means that the email has been delivered to the receiver. However, as pointed out in the answer to question (a) above, there are several technical factors that may prevent an email getting delivered. In this case, the technical issues are on the receiver’s side such as malware interference, internet browser high security setting, HTTP 1.1 setting and Hotmail technical problems.
I found Mr Khoury’s evidence to be helpful, but it did not persuade me that this particular email message did not reach and become accessible at Ms Sainju’s Hotmail mailbox. Particularly, where all the evidence concerning the sending of the email from the Department’s Lotus Notes into the internet points to a trouble‑free dispatch and transmission. Ms Sainju’s own evidence was not necessarily conclusive nor compellingly presented. I did not find her to be a fully convincing witness generally, nor in her assertion that she did not recall seeing the Department’s message in her ‘inbox’ at any time. I think it quite possible that it was deleted either deliberately or accidentally at some time prior to 22 April 2009. I was not persuaded by the submissions of her counsel that her later conduct, when approaching the Department in late February, long after the expiry of the appeal time, provided corroboration that the email was never received nor read by her or someone else with access to her computer. The possible explanations for her later conduct were poorly explored in her evidence in chief or in cross‑examination.
After considering all the evidence, I was not able to arrive at a conclusion on the balance of probabilities that Ms Clifford’s email in fact never reached Ms Sainju’s Hotmail mailbox. If such a finding were necessary before deciding that the Tribunal had jurisdiction, then Ms Sainju’s present application would therefore fail. This accepts the Minister’s contention that the evidentiary onus of proof of non‑receipt fell on Ms Sainju, since I am bound by this opinion of Jagot J in Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15]:
15As a general proposition, the characterisation of a matter as a jurisdictional fact does not alter the appellant’s onus of proof. The legal onus to prove jurisdictional error by the Tribunal lies with the appellant. The legal onus may be discharged by reference to any and all parts of the evidence, but it does not shift from the appellant merely because the fact in issue may be described as a jurisdictional fact (and thus is a matter a court must decide for itself).
I note that a converse onus of proof applies in relation to a controversy about satisfaction of a time limit on judicial review applications (see WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50, (2004) 79 ALJR 94 at [9]).
For all the above reasons, I must dismiss the application.
It is agreed that an order for costs as agreed or taxed should follow the event.
I note that Ms Sainju’s application for judicial review of the Tribunal’s decision on jurisdiction was made outside the time limit provided under s.477(1) of the Migration Act, but that time was extended by consent order of Emmett FM made on 21 August 2009.
I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 December 2009
4
8
0