Singh v Minister for Immigration
[2015] FCCA 2531
•18 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2531 |
| Catchwords: MIGRATION – Judicial review – applicant did not receive invitation to appear by fax transmission – legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.362B, 360 Migration Regulations 1994 (Cth) |
| SZIPL v Minister for Immigration and Anor [2008] FMCA 1501 Minister for Immigration and Border Protection and Singh (2014) 139 ALD 50 Kaur and Minister for Immigration and Border Protection [2014] FCA 915 Minister for Immigration and Li [2013] 249 CLR 332 |
| Applicant: | JAGMEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1118 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 July 2015 |
| Date of Last Submission: | 16 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tehan |
| Solicitors for the Applicant: | Maganty Lawyers |
| Counsel for the Respondents: | Mr Evans |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the decision of the Administrative Appeals Tribunal made on 2 May 2014 be quashed.
The Administrative Appeals Tribunal is directed to determine the applicant’s application according to law.
The First Respondent to pay the Applicant’s costs in the sum of $6,825 or such lesser sum as agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1118 of 2014
| JAGMEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application for judicial review of the Tribunal’s decision made on 2 May 2014 on 6 June 2014. In that application the only ground he set out was that he met the requirements for the visa. The applicant did not comply with the directions for filing made by Registrar Caporale on 3 September 2014. The applicant briefed counsel at the last minute who turned up at the hearing with an affidavit and submissions which had not been filed or served. As a result, although the hearing proceeded, it was not possible to proceed to judgment because the applicant sought leave to file an amended application by the end of the day. The respondent reasonably sought to file further written submissions.
The applicant applied for a skilled visa, subclass 1. His nominated occupation was as a cook. The Delegate found that the applicant did not meet the requirements of cl 485.213 of Schedule 2 of the Migration Regulations 1994 (Cth). The Australian study requirement must be satisfied in the 6 months immediately before the application is made. The study must be closely related to the applicant’s nominated occupation.
The applicant pleads two grounds of review in his amended application.
Amended Grounds for Review
Ground 1 complains that the Tribunal failed to invite the applicant to appear before it because it did not properly transmit a fax on 19 March 2014 breaching s.360 (1) of the Migration Act 1958 (Cth).
Ground 2 complains that given the history of communication between the Applicant and the Delegate and the Tribunal, the Tribunal did not act reasonably in exercising its discretion under s.362B of the Migration Act.
The Delegate sent the applicant a request for further information on
11 December 2012. The applicant replied to the Delegate’s request for further information. The Delegate refused the application because the applicant’s course of study being a Diploma of Hospitality was completed on 22 May 2011, more than 6 months before his visa application. The applicant’s Diploma of Management was completed on 12 August 2012, 2 days after he made his application.
The applicant applied for a review of the Delegate’s decision on
18 January 2013.
The Tribunal faxed an invitation to the applicant’s migration agent inviting the applicant to attend a hearing on 19 March 2014. This was over a year after he lodged his review application.
The applicant filed an affidavit in Court from his migration agent Ketan Juvekar dated 15 July 2015. He says he has acted as the applicant’s migration agent since 3 July 2012. He deposes to the following:
a)
The Department asked him for further information on
11 December 2012;
b)He sent material by email answering that request on 29 December 2012;
c)He received notification on 4 January 2013 that the visa had been refused;
d)He lodged an application for review on 18 January 2013;
e)
He received a fax from the Tribunal acknowledging receipt on
23 January 2013;
f)He received a fax from the Tribunal rejecting the applicant’s application for a 50% reduction in the filing fee on 8 March 2013;
g)He paid the other half of the fee on 20 March 2013;
h)
He received a fax from the Tribunal acknowledging receipt on
21 March 2013;
i)He contacted the Tribunal to advise them of a change to his contact details on 1 July 2013, and wrote the next day correcting those details; and
j)He received a fax from the Tribunal on 5 May 2014 advising that the Tribunal had confirmed the Delegate’s decision.
Mr Juvekar deposes that he did not receive an invitation to the hearing and wrote to the Tribunal on 8 May 2014 advising them of that.
Mr Juvekar says that if he had received notice of the hearing he would have filed further documents which he annexes to his affidavit. The first is a letter from the applicant’s course provider stating that the applicant successfully completed the course requirements on
4 August 2012. The timetable (which he also annexed) shows the course finishing on 12 August 2012 which was to allow for
re-assessment and catch up work for those students who needed it. That letter is dated 11 January 2013. This is well before the hearing before the Tribunal. That is relevant because the applicant would have argued that he completed the course on 4 August 2012 and therefore complied with the legislative requirements.
Counsel for the applicant referred to the wording in s.379A which deals with the methods by which the Tribunal give documents to a person. Subs-s.5 refers to transmitting the document by fax. Counsel for the applicant placed some significance on the fact that it refers to transmission and not dispatch which is the word used in subs-s.4 when referring to prepaid post. The issue here is the meaning of the word transmission and whether or not the word transmission means not only sent but received. Counsel for the applicant submitted that there is very little case law on this issue and relied on a decision of Judge Driver in SZIPL v Minister for Immigration and Anor [2008] FMCA 1501[1]. In that decision he analysed the wording of s.441A which has the same references to transmission by fax. He noted that there is no statutory definition of “transmitting”. He goes on to say at paragraphs 28 and 29:
[1] This decision was successfully appealed due to a lack of procedural fairness. The appeal did not address the issue of transmission by fax. See Minister for Immigration and Citizenship and SZIPL [2009] FCA 143.
“In the absence of any statutory (or judicial) interpretation of the word “transmitting” in the context of s.441A(5) the word carries its ordinary and natural meaning. The Macquarie Dictionary (3rd edition) defines “transmit” (together with “transmitted” and “transmitting”) as:
to send over or along, as to a recipient or destination; forward, dispatch, or convey
or secondly,
to communicate, as information, news et cetera.
“The definition in the Australian Concise Oxford Dictionary (3rd edition) is similar. While there is, in the ordinary or natural meaning of the word “transmit” a concept of communication implying both dispatch and receipt, it is not inherent in the meaning of the word in the context of s.441A(5) that a facsimile, e-mail or other electronic communication must be seen and read by the intended recipient in order to be transmitted. It is, in my view, inherent in the use of the word in the subsection that the electronic transmission must be successful in that it must be received by a device providing the opportunity for the communication to be seen and read by the intended recipient. There is evidence that the relevant facsimile transmissions were received at the number identified for Mr Turner, the authorised recipient. In other words, a facsimile machine was operating successfully at the receiving end. In my view, that is all that is required to establish compliance with s.441A(5) of the Migration Act. While it is unfortunate that the hearing invitation and that the invitation to comment were not in fact seen by Mr Turner and that the applicant thereby lost important opportunities, by virtue of the operation of s.441C of the Migration Act, the applicant is taken to have received those invitations and the Tribunal was entitled to proceed in the manner it did. That said, it is surprising that the Tribunal did not take the trouble to telephone Mr Turner. If it had done so, the problem would most likely have been overcome.
No assistance is found in either the Acts Interpretation Act 1901 (Cth) nor does the Electronic Transactions Act 1999 (Cth). It appears to me that there must have been a legislative intention to draw a distinction between ‘dispatch’ and ‘transmit’. The terms are not used interchangeably and do not have the same meaning. The issue then comes down to whether or not the concept of to receive is that the machine has received it or a person has. Driver J refers to receipt by a device. The facsimile transmission report appears at page 125 of the Court Book. It shows the facsimile being successfully transmitted. The decision of Judge Driver supports this as he refers to receipt by the device not a person.
The evidence of Mr Juvekar is that he did not receive the fax. He gave evidence about his attempts to confirm with Telstra as whether or not data was transmitted between the two machines. Telstra was unable to confirm this. In these circumstances, I cannot be satisfied that the fax was received by a device.
The Court and the Minister have the sworn evidence of Mr Juvekar stating that he did not receive the fax. He was not required for cross-examination. It is also the case that in the particular circumstances of this case it cannot be said that the outcome would not have been different because the applicant had further evidence to submit which may satisfy the Tribunal that he meets the visa requirements. This is not a case where the applicant, through his authorised recipient had not been following up on his case.
Ground 1 succeeds.
The second ground turns on whether or not the Tribunal was legally unreasonable by not making any enquiry as to the nonappearance of the applicant at the hearing.
In order to determine whether or not the Tribunal has been legally unreasonable it is necessary to consider the particular facts of the case, see Minister for Immigration and Border Protection and Singh (2014) 139 ALD 50. The applicant relied on Kaur and Minister for Immigration and Border Protection [2014] FCA 915. The Minister seeks to distinguish that case. Whilst the pattern of contact between the applicant and the Tribunal in this case is not as frequent as in the case of Kaur, there nevertheless was a pattern of contact. The Tribunal then did not make any contact for several months until it sent a single fax, being the invitation to attend the hearing. It would have been prudent to have made some sort of follow-up enquiry or at least to have sent the notice by post as well as fax. It is somewhat trite for Counsel for the Minister to say that the Tribunal was entitled to determine the matter on the basis of information before it. That is clearly correct but this is also a case where he applicant is clearly saying he would have put further evidence before the Tribunal. What the Tribunal makes of that evidence is a matter for it as it is a matter of merit. It is clear that the Tribunal has discretion as to whether or not to make any enquiry before determining the matter. The complaint the applicant makes is that in the circumstances of this case, the exercise of that discretion was unreasonable. It is of some significance to note that the migration agent was prompt in contacting the Tribunal when he received the notice of the decision and that he had not received the invitation to attend the hearing. It can be inferred by that that if the notice had been received, he would have attended with his client and would have provided further evidence.
In my view the comments of Mortimer J in Kaur at [132] to [135]. An applicant must be given a meaningful opportunity to appear. The Tribunal is not obliged to make enquiries about the non-attendance of an applicant in every case. In particular at [135] Mortimer J states:
I see nothing in the Full Court decisions to which the minister refers which compels the court to find that the exercise of discretion under
s 362B can never be legally unreasonable if a hearing invitation has been sent in accordance with s 379A(4) and deemed by s 379C(4) to have been received. Such a proposition would also be inconsistent in my opinion with the approach taken by the High Court in Li, and the concession made by the minister in the present case that the s 362B discretion is conditioned by a requirement that it be exercised reasonably. This proposition is also inconsistent with the terms of
s 362B itself, especially s 362B(2), which expressly contemplates there will be matters the tribunal may take account of to reschedule a hearing. Obviously one such matter might be the fact that a review applicant did not receive a hearing invitation.”In the Minister for Immigration and Li [2013] 249 CLR 332 Hayne, Kiefel and Bell JJ stated “the legal standards of unreasonableness should not be considered as limited to what is in effect a rational, if not bizarre, position – which is to say one that is so unreasonable that no reasonable person could have arrived at it…”
In the circumstances of this case, it was not reasonable for the Tribunal to determine the matter without making some enquiry as to the absence of the applicant and his agent given the history of communication. That history of engagement clearly shows an interest in participating in the proceedings.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 18 September 2015
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