Somjich v Minister for Home Affairs
[2019] FCCA 479
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOMJICH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 479 |
| Catchwords: MIGRATION – Application for partner visa – relationship ended – criteria no longer satisfied – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 357AA, 379A, 494B Migration Regulations 1994 (Cth), r.801.221 |
| Cases cited: Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | JARRUKIT SOMJICH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTATVIE APPEALS TRIBUNAL |
| File Number: | BRG 709 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 13 February 2019 |
| Date of Last Submission: | 13 February 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.B. Balzamo |
| Solicitors for the Applicant: | Stephens & Tozer Solicitors |
| Solicitors for the Respondents: | Sparke Helmore |
IT IS ORDERED THAT:
The application for review filed on 11 July 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 709 of 2018
| JARRUKIT SOMJICH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTATVIE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Thailand. On 14 May 2013, he lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on the basis of his asserted relationship with a male de facto partner. On 9 April 2014, the applicant was granted a Partner (Temporary) Class UK) (Subclass 820) visa.
On 30 June 2015, the applicant engaged in the second stage of the application process and applied for the visa the subject of these proceedings, namely the application for a Partner (Residence) (Class BS) (Subclass 801) visa.
On 3 May 2017, telephone communications were had between a departmental officer and another person who had “dobbed in” the applicant as no longer being in a relationship with the applicant’s sponsor. On the same day, the department wrote to the sponsor seeking confirmation about whether he was still in a relationship with the applicant. The department also sent a request to the applicant for more information including, amongst other things, evidence of his continuing relationship with his sponsor.
On 14 May 2017, the applicant responded to that request and provided a relationship statement in which the applicant confirmed that the sponsor was in a new relationship and intended to remain in an overseas country. On 25 May 2017, the department invited the applicant to comment on information to the effect that the de facto relationship, upon which the visa application was based, had ceased. The invitation advised the applicant that the information was likely to result in a refusal of the application for the visa. On 29 May 2017, the sponsor wrote to the department confirming that he had ended his relationship with the applicant.
On 6 July 2017, the delegate refused to grant the visa on the basis that the applicant did not meet the criteria as set out in clause 801.221 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate found that as the applicant was no longer in the de facto relationship, he did not satisfy the criteria.
On 12 July 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. The application for review of the delegate’s decision is set out at CB 223‑225 inclusive. At two points on CB 224, the applicant recorded his email address as being [address omitted]. The application was dated 12 July 2017 and appears to have been lodged electronically.
At CB 226 there appears an email from the Tribunal directed to the email address referred to above and addressed to the applicant. That email relevantly attached an acknowledgement of application letter. In that letter, at CB 227, it was recorded as follows:
It is important that you:
·Tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address).
…
On 4 December 2017, the Tribunal invited the applicant to comment on and respond to information which it considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of that information were recorded as being:
a)it was a requirement for the grant of the visa that at the time the application was made, and at the time of the decision, the applicant was the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applied; and
b)information on the department’s file indicated that his relationship with the sponsoring partner had ended and that the sponsoring partner had withdrawn the sponsorship.
The invitation advised that there were a number of exceptions under which the applicant could be granted the visa, one of which included family violence. The applicant was invited to provide any further relevant information. On 18 December 2017, the applicant provided a personal statement in which he raised claims of financial, verbal and emotional family violence allegedly perpetrated by the sponsor upon him.
On 18 January 2018, the Tribunal invited the applicant to attend a hearing before it, scheduled for 19 February 2018. On 19 February 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He was assisted at that time by a registered migration agent and an interpreter in the Thai and English languages. The hearing was adjourned part‑heard.
On 25 February 2018, the applicant’s representative wrote to the Tribunal requesting an extension of time within which to provide submissions in respect of family violence. Attached to the email by which the letter was sent was a statutory declaration relating to allegations of family violence. On 12 March 2018, the applicant’s representative again requested an extension of time within which to provide submissions relating to family violence.
On 13 March 2018, the Tribunal invited the applicant to attend a resumed hearing scheduled for 17 April 2018. On 17 April 2018, the applicant again appeared before the Tribunal to give evidence and present arguments, assisted as he then was, by his registered migration agent and an interpreter.
On 24 April 2018, the applicant told the Tribunal that he had ended the appointment of his previous representation and requested that all future communications be sent directly to him. The email sent by the applicant in that regard appears at CB 289‑290. On 290, it was recorded:
Lastly, I have ended the appointment of my previous migration agent, Mr Walun Apiratkasem and request that all communications are to be sent directly to myself to ensure I can respond to them in as soon as it is received.
The email appears to have been sent by “jarrukit somjich” which has regularly appeared in email correspondence in circumstances where here it has been accepted by the parties that in doing so, the email was sent via an address [address omitted]. That email address was not the email address provided by the applicant to the Tribunal as being his email contact address which he set out in his application for review sent to the Tribunal.
At CB 291‑293 inclusive, there appears a document constituting an advice by the migration agent dated 22 April 2018, signifying that his appointment on behalf of the applicant had ceased.
On 30 April 2018, an email was sent by one Amelia Taylor to the applicant. The email was sent to [address omitted] and was copied to [address omitted]. That email provided as follows:
Dear Mr Jarrukit,
Thank you for your email of 24 April 2018.
If you would like to cancel your authorisation of your representative please complete the attached Tribunal form indicating[ sounds unusual – pls check] at part D and E, provide current details where you would like your correspondence sent, and also whether you agree to email.
Kind regards,
…
On 1 May 2018, the applicant sent, from his [address omitted] address, an email directed to “National Registry Mailbox” of the Administrative Appeals Tribunal attaching, amongst other things, a change of contact details form. The change of contact details form appears at CB 302‑303 inclusive. Next to section A of such form, marked “Applicant Contact Details”, the applicant recorded that there was to be no change in his contact details.
The applicant signed the change of particulars form and dated it 30 April 2018. By signifying that there was to be no change, the applicant must be taken to have reaffirmed that he wished email correspondence to be directed to him at [address omitted] which was the email address recorded in his application for review sent to the Tribunal on or about 12 July 2017.
The change of contact details form additionally withdrew a previous authorisation given to his agent to receive correspondence on his behalf; withdrawing any previous authorisation on the part of the agent to act as his representative; and agreeing that all correspondence should be sent by email, in part acknowledging that there were risks associated with transmitting information via email.
On 2 May 2018, the Tribunal wrote to the applicant advising him that a psychologist’s report was required to be provided as a sworn statutory declaration. That email was addressed to [address omitted], was dated 2 May 2018, and appears at CB 307. The time of the sending of such email was 10.45 am.
Relevantly, the email from the Tribunal to the applicant dated 2 May 2018 contained the following paragraph:
I also note that you are using a different email address to the one we have on file. If you wish to change it could you please resend the contact details form with the new email address.
Yours sincerely,
Amelia Taylor
for the Registrar
It is common ground that no contact details form recording an email address for correspondence other than [address omitted] was ever filled out and submitted by the applicant consequent upon the sending of the email to him by the Tribunal on 2 May 2018.
It is also of note that the email of 2 May 2018 asked that the applicant submit to the Tribunal a statutory declaration from the psychologist sought to be relied upon by the applicant rather than simply providing a report.
By an email dated 9 May 2018, sent by the applicant from his [address omitted] email address, the applicant forwarded to the Tribunal the statutory declaration from the psychologist relied upon by him. In doing so, the applicant was responding directly to the email sent to him at his nominated [address omitted] email address, albeit that his response was by sending an email from his jarrusom address. The email from the applicant dated 9 May appears at exhibit 2, being the supplementary court, book at pages 1-2 inclusive. Two things flow from the sending of that email of 9 May 2018 by the applicant to the Tribunal.
Firstly, the applicant must be taken to have received the email sent to the email address [address omitted]. The applicant clearly responded to the request for the sending of a statutory declaration from such psychologist. The applicant must be taken to have read or had interpreted to him the contents of such email sent to that email address.
The second matter which flows from the sending of the email of 2 May 2018 by the Tribunal to the applicant is that notwithstanding it being pointed out to him that he was using a different email address for the purpose of sending correspondence, he made no attempt to change the contact details recorded at the Tribunal for correspondence being sent to him by email, notwithstanding that he had been invited to do so.
On 8 May 2018 the Tribunal sent an email to [address omitted] advising the applicant that the domestic violence claim raised by the applicant had been referred to an independent expert for assessment. A letter dated 8 May 2018 was attached to that email. (See CB312-314 inclusive).
On 31 May the Tribunal sent an email to the applicant at [address omitted] which attached a letter dated 31 May 2018 from the Tribunal to the applicant inviting the applicant to comment on or respond to information, that being that the Tribunal was not satisfied that the applicant had suffered any family violence as alleged by him. A copy of the family violence assessment attached to the email appears at CB318-339 inclusive.
The email dated 31 May 2018 was sent to [address omitted], as had previous emails. As at 31 May 2018 no change of contact details form as referred to earlier had been submitted by the applicant. The Tribunal did not receive any response to the invitation set out in the emailed letter of 31 May 2018 sent to the applicant.
On 19 June 2018 the Tribunal affirmed the decision of the delegate not to grant the application for the visa. On 11 July 2018 the applicant sought judicial review of the decision of the Tribunal.
The grounds of the application for review are as follows:
1. The Second Respondent’s decision was affected by jurisdictional error in that:
a) It did not act according to substantial justice and the proper merits of the case in breach of section 353 of the Migration Act 1958 (‘the Act’) and:
i. It asked or focused on the wrong question
ii. It ignored relevant material and facts
iii. It failed or substantially failed to exercise the authority or powers given to it under the Act
iv. It failed to consider the Applicant’s response to its Invitation to Comment on or Respond to Information (‘the Invitation’) dated 31 May 2019.
PARTICULARS:
1. The Invitation was forwarded to the wrong email address, namely [address omitted]
2. The Applicant’s email address is [address omitted], as conveyed to the Second Respondent on 24 April 2018, 30 April 2018 and 9 May 2018.
b) It did not act in a way that is fair and just, thereby denying natural justice and violating sections 357A and 357AA of the Act.
The applicant claims that the invitation to comment as set out in the letter from the Tribunal to the applicant dated 31 May 2018 was sent to the wrong email address. It is asserted by the applicant that rather than sending the invitation to [address omitted], the invitation should have been sent to [address omitted]. It is asserted by the applicant that the Tribunal did not act in a way that was fair and just, thereby denying natural justice to the applicant and breaching sections 357A and 357AA of the Migration Act 1958 (Cth) (‘the Act’).
At [13] of its reasons, the Tribunal found that it was not satisfied on the evidence before it that at the time of its decision, the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others. The Tribunal also found that it was not satisfied that the relationship was genuine and continuing, or that, at the time of the decision, the applicant was the spouse or the de facto partner of the sponsor. There was clear evidence upon which the Tribunal could base such a finding.
At [15]-[17] of its reasons, the Tribunal relied upon the opinion of the independent expert that there had been no family violence of relevance perpetrated on the applicant. It, therefore, found that the applicant had not suffered any family violence. The Tribunal went on to find that the applicant’s relationship with the sponsor had ended and that, therefore, the applicant did not meet the relevant criteria as set out in clause 801.221.
During the course of the hearing, Mr Balzamo of counsel pointed to the wording of section 379A of the Act and, in particular, to subparagraph (5) thereof. Section 379A, relevantly, provides as follows:
Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient ); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
(5) Another method consists of a member or an officer of the Tribunal 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 Tribunal by the recipient in connection with the review; or
…
Mr Balzamo submitted that because the applicant had, subsequent to 31 May 2018 (that being the date on which the invitation to comment or respond to the independent expert’s report on family violence had been emailed to the applicant by the Tribunal), provided to the Tribunal the email address [address omitted], then that was the last email address provided to the Tribunal “in connection with the review”, and that, therefore, the Tribunal ought to have sent its email of 31 May 2018 not to [address omitted], but, rather, to [address omitted].
Reference was made during the course of submissions to the case of Maroun v Minister for Immigration and Citizenship [2009] FCA 1284, where the Court was there dealing with the provisions of section 494B(5) of the Act. Section 494B(5) provides as follows:
Transmission by fax, email or other electronic means
(5) Another method consists of the 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; or
(e) if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Section 494B(5) is similar to section 379A(5), save that section 494B(5)(d) refers to:
the last … email address … provided to the Minister for the purposes of receiving documents.
Whereas section 379A(5)(d) refers to:
the last … email address … provided to the Tribunal by the recipient in connection with the review.
Mr Balzamo submitted that the last email address provided to the Tribunal by the applicant before 31 May 2018 was the email address [address omitted], being the email address used to send the email of 9 May 2018 to the Tribunal (supplementary court book page 1).
The proper construction of the word “provided” in the circumstances of this case is by reference to the email provided by the applicant to the Tribunal in his application filed on 12 July 2017, that being [address omitted]. That information was so provided and was unchanged, notwithstanding that the applicant had, on 30 April 2018, submitted a change of contact details form. That form recorded that there was to be no change in the applicant’s contact details. The applicant cannot be allowed to both approbate and reprobate in respect of the contact address for email correspondence.
In the analogous case of Khan v Minister for Immigration and Border Protection [2018] FCA 125 at [12], Collier J found no fault in a Federal Circuit Court judge finding that the faxing by the Tribunal of a letter to the address recorded for correspondence was entirely appropriate, notwithstanding that the address was that of a migration agent who had ceased to represent the applicant. The Federal Circuit Court judge had found that the Tribunal, having sent the letter in the manner it did, was entitled to decide the application without inviting the applicant to appear before it, though the circumstances in the current case are different. At [21] of her Honour’s judgment, her Honour said as follows:
It was the responsibility of the applicant to ensure currency of his contact details, at least with the Tribunal. In relation to the applicant’s somewhat belated challenge to the evidence of Mr Bitel in this Court, I note – and accept – the submission of the Minister that, in light of his illness, the applicant could have sought an adjournment of the hearing in the Federal Circuit Court.
There was no question of the applicant in the case before this Court having suffered any illness or otherwise that he did not receive the email correspondence of 31 May sent to him by the Tribunal. The Tribunal properly assessed all of the material before it, including the independent expert’s advice relating to family violence. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. [1]
[1] See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR
611 at [130].
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
No jurisdictional error has been demonstrated.
The application for review is without merit and is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 4 March 2019
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