Tsimperlenios v Minister for Immigration
[2018] FCCA 229
•8 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TSIMPERLENIOS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 229 |
| Catchwords: PRACTICE AND PROCEDURE – Evidence – onus of proof – discussion of who bears the onus of proving the existence or non-existence of jurisdictional facts. |
| Legislation: Electronic Transactions Act 1999 (Cth), ss.5, 14(1) Evidence Act 1995 (Cth), ss.69, 71, 144, 161(1) Migration Act 1958 (Cth), ss.347, 348, 379A, 379C, 379G, 494D Migration Legislation Amendment Act (No.1) 2014 (Cth), s.3, Schedule 4 |
| Cases cited: Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095 Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 MZZDJ v Minister for Immigration and Border [2013] FCAFC 156 Sainju v Minister for Immigration and Citizenship [2010] FCA 461 |
| Applicant: | GEORGIOS TSIMPERLENIOS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3141 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 16 February 2017; 7 April 2017 |
| Date of Last Submission: | 7 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3141 of 2015
| GEORGIOS TSIMPERLENIOS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Greece, seeks judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Partner (Temporary)(Class UK) visa (partner visa). The Tribunal found the applicant did not pay the prescribed fee and, for that reason, concluded the application for review was not a valid application.
Application for review filed with Tribunal
The applicant applied for a partner visa on 7 April 2014. On 6 August 2015 a delegate of the Minister refused to grant the applicant a partner visa because the delegate was not satisfied the applicant satisfied cl.820.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant applied to the Tribunal for review of the delegate’s decision on 17 August 2015.
Under s.348 of the Migration Act 1958 (Cth) (Act) the Tribunal has jurisdiction to review an application in relation to a “Part 5-reviewable decision”, such as the delegate’s decision not to grant the applicant a partner visa, only “if an application is properly made under section 347” of the Act. Section 347 of the Act provides, among other things, that an application for review of a Part 5-reviewable decision must “be accompanied by the prescribed fee (if any)”. Sub regulation 4.13(1) of the Regulations provides that the fee for an application for review of a decision by the Tribunal is $1,540. This fee is subject to increase under reg.4.13A and, at the time of application, the prescribed fee was $1,673.[1]
[1] The fee payable under reg.4.13 of the Regulations is subject to exemptions, but none of these is relevant to the application before me.
The applicant applied to the Tribunal for review of the delegate’s decision by filing an application in the prescribed form on 17 August 2015 (Tribunal Application). The applicant’s sponsor (Sponsor), who was nominated as the applicant’s representative, signed the Tribunal Application. The person who completed the Tribunal Application ticked a box next to the word “Yes” which, in turn, was next to a question asking whether “you agree to us sending all correspondence by email”. The details of the Sponsor’s name, address, and email address were included in that section of the form of the Tribunal Application headed “Representative’s details”.
According to her affidavit, the Sponsor attended the Tribunal on 17 August 2015 to pay the prescribed fee to accompany the Tribunal Application. The Sponsor deposed she spoke to an officer of the Tribunal who advised her to pay only half of the prescribed fee, being $836.50, because a “Request for Fee Reduction” form had been presented and she would need to pay the other half of the prescribed fee at “the end of the case”. The Sponsor does not remember being asked to pay the balance of the prescribed fee.[2] The Sponsor lodged with the Tribunal Application a document titled “Request for Fee Reduction”. The Sponsor completed that form which contained details only of the Sponsor’s income and expenses. [3]
[2] Affidavit of S Dimou, 28.05.2016, [1]-[2]
[3] CB155-162
On 20 August 2015 an officer of the Tribunal sent a letter by email to the Sponsor, as the applicant’s authorised recipient, informing the applicant that a “M11 Request for Fee Reduction” form should be completed with the applicant’s details and signed by him. The letter stated the form would need to be submitted to the Tribunal by 27 August 2015.[4]
[4] CB166-169
On 24 August 2015 the applicant submitted to the Tribunal a “Request for Fee Reduction” in his name (applicant’s M11 Form), together with supporting documents. The form the applicant submitted provided for the person who completed it to state the applicant’s name, postal address, and email address. The applicant included his email address that is different from the Sponsor’s email address that was included in the Tribunal Application.
There is in evidence what purports to be a copy of an email the Tribunal sent to the Sponsor’s email address on 1 September 2015 that attaches two letters, both dated 1 September 2015.[5] One is addressed to the Sponsor, which refers to an attached letter. The second document is addressed to the applicant. I use the word “purports” because, as I will discuss later in these reasons, the applicant claims the Sponsor did not receive the email and attachments. In the second of the two letters an officer of the Tribunal, writing for the Registrar of the Tribunal, informed the Sponsor that the fee reduction request had been refused, and that the remaining $836.50 of the application fee was required to be paid by 15 September 2015. The letter further stated:
If the remaining $836.50 of the fee is not paid by the due date your application for review will be allocated to a Member to determine whether you have made a valid application. If you do not pay the fee, the member may decide you have not made a valid application. If your application is invalid, we cannot review the decision.
[5] CB182-185
The applicant did not pay the balance of the prescribed fee.
Tribunal’s decision
The Tribunal proceeded to make its decision on the Tribunal Application on 22 October 2015. It referred to s.347(1) of the Act and reg.4.13 of the Regulations and the requirement that an application must be given to the Tribunal within the prescribed period and accompanied by the prescribed fee (unless a determination was made under reg.4.13(4) of the Regulations that the fee should be reduced on the basis of financial hardship). The Tribunal noted the prescribed period ended on 27 August 2015.
The Tribunal was of the view the applicant had to pay the fee within the prescribed period[6] or, if a determination was made pursuant to reg.4.13(4) of the Regulations, within a reasonable period after such determination.[7] It referred to the refusal of the applicant’s request to reduce the prescribed fee and the applicant’s being asked to pay the prescribed fee within 14 days of receiving the refusal letter. The Tribunal found the applicant was given a reasonable period to pay the prescribed fee and noted the prescribed fee had not been paid.
[6] The Tribunal relied on Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
[7] The Tribunal relied on Braganza vMinister for Immigration and Multicultural Affairs (2001) 109 FCR 364
On the basis of these findings, the Tribunal concluded it did not have jurisdiction to review the delegate’s decision because the Tribunal Application was not a valid application.
Course of judicial review hearing
The matter came before me for hearing on 16 February 2017. At the hearing the applicant, who is not legally represented, made four submissions, none of which related to the grounds of review contained in the application. One of the submissions made was that the Sponsor did not receive the Tribunal’s email of 1 September 2015. Although by that time the Sponsor had sworn an affidavit, she did not depose in that affidavit to not having received the email of 1 September 2015.
Notwithstanding that omission I decided I would consider the applicant’s submission on the assumption that the Sponsor did not receive the email of 1 September 2015. I did so partly because Ms Lucchese, who appeared for the Minister, submitted that the Minister’s primary response to the applicant’s submission is that whether or not the Sponsor received the email was not relevant to whether the Tribunal gave the letter dated 1 September 2015 to the Sponsor and, hence, to the applicant. I noted, however, that if I were not to accept the Minister’s primary submission, I would not deliver judgment on this issue without first inviting the applicant to adduce evidence from the Sponsor that she did not receive the email of 1 September 2015, and afford the Minister an opportunity to cross-examine the Sponsor and provide submissions.
In the course of my considering the matter after the hearing I formed the view that the proper consideration of the first issue raised by the applicant required me to have some knowledge of the means by which emails are transmitted; and that it was open to me to acquire such knowledge by relying on s.144 of the Evidence Act 1995 (Cth) (Evidence Act). I therefore relisted the matter for directions on 24 February 2017 and, on that day, made the following orders:
1.The matter be set down for further hearing at 10:15am on 6 April 2017 for the purpose of the Court:
(a) determining whether to grant the applicant leave to add as a ground in his grounds of application that [the Sponsor] did not receive the email dated 1 September 2015 (CB182) together with the attachments referred to in that email; and
(b)if leave is given, determining whether [the Sponsor] received the documents referred to in (a).
2.By 10 March 2017 the applicant file and serve on the first respondent (Minister) all affidavits on which he intends to rely in relation to the issues referred to in order 1.
3.By 24 March 2017 the Minister file and serve on the applicant all affidavits on which the Minister intends to rely in relation to the issues referred to in order 1.
THE COURT NOTES
4.The Court proposes, pursuant to s.144(1) of the Evidence Act 1995 (Cth) (Evidence Act), to acquire and take into account knowledge of the means by which email communications are effected over the Internet (Relevant Knowledge) by consulting the following material (Relevant Material):
(a)Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503;
(b)Collins, M., The Law of Defamation and the Internet 3rd ed Oxford University Press 2010, chapter 2; and
(c)Sanberg, B., Networking 3rd ed., McGraw Hill Education, 2015, pages 332-341.
THE COURT ORDERS THAT
5.Pursuant to s.144(4) of the Evidence Act, by 24 March 2017 each of the applicant and Minister file and serve, to the extent they so wish, a document containing submissions, and referring to information, relating to the Court acquiring by use of the Relevant Material the Relevant Knowledge, and the Court’s taking into account the Relevant Knowledge, in determining the issues referred to in order 1.
6.By 24 March 2017, each party may file and serve written submissions in relation to the matters referred to in order 1.
Pursuant to these orders on 10 March 2017 the applicant filed two affidavits. One attached an affidavit made by the Sponsor on 8 March 2017 in which she deposed that she “never received the email dated 1st September 2015 and its attachment referred to that [sic]”. In his second affidavit the applicant makes a number of submissions in support of his contention that the Sponsor did not receive any email from the Tribunal. The Minister did not file any affidavits, but he did file written submissions.
At the hearing on 6 April 2017 I read the affidavits of the applicant with the intent that I also read the affidavit of the Sponsor that was attached to one of the applicant’s affidavits. I read these affidavits subject to relevance because the Minister’s principal submission is that whether or not the Sponsor received the email was irrelevant.
The remainder of these reasons are arranged as follows. I will first consider the applicant’s submission that the Sponsor did not receive the email of 1 September 2015. In formal terms, the issue raised is whether I should permit the applicant to amend the application to include this as an additional ground. I will then consider the other grounds the applicant raised at the hearing on 16 February 2017 and, finally, the grounds of application stated in the application for review.
Proposed ground based on Sponsor not receiving email
As I have already noted, the Sponsor made an affidavit in which she deposed she did not receive the email of 1 September 2015 or the attachments to this email. By this I take the Sponsor to have intended to say that no email of 1 September 2015 from the Tribunal appeared in the inbox of whatever email application the Sponsor used on her computer.
Counsel for the Minister did not cross-examine the Sponsor, and he did not adduce any further evidence about the sending of the email. Counsel did not do so because he submitted that whether or not the Sponsor received the email is irrelevant. The relevant question, counsel submitted, is whether the email of 1 September 2015 was transmitted to the Sponsor’s email address. Counsel further submitted that, although it was not inappropriate for me, if I considered it necessary, to have regard to particular knowledge as provided for by s.144 of the Evidence Act, for the purposes of considering the means by which email communications are transmitted via the Internet,[8] that knowledge “would not lend an answer to whether, in this case on the available evidence, the email at CB182, and its attachments, were transmitted”.[9] Counsel submitted that, with the aid of the presumption provided for by s.161 of the Evidence Act, there can be no doubt that the email in question was transmitted to the applicant’s nominated address.
[8] Supplementary Submissions of the First Respondent, [2]
[9] Supplementary Submissions of the First Respondent, [11]
Relevance of whether email received
Whether or not the Minister’s submissions are correct depend, in the first instance, on the operation of s.379A, s.379C, and s.379G of the Act. I begin with s.379G(1) which provides as follows:
If:
(a)a person (the applicant) applies for review of a Part 5-reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Subsection 379G(2) of the Act provides that if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant; but this does not prevent the Tribunal giving the applicant a copy of the document.
Subsections 379G(3) and (3A) of the Act provide:
(3)Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(3A)In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary the notice by varying that address
Section 379A of the Act identifies the methods by which the Tribunal may give a document to a person other than to the Secretary, for the purposes of Part 5 of the Act or the Regulations that, among other things, require or permit the Tribunal to give a document to a person. One method is that provided for by s.379A(5), namely, “transmitting the document . . . by email”. Subsection 379C(5) of the Act provides that if the Tribunal gives a document to a person by, among other methods, transmitting the document by email, the person is taken to have received the document at the end of the day on which the document is transmitted.
The word “transmit” is not defined in the Act. Its meaning, as it appeared in a regulation indistinguishable from s.379A(5) of the Act, was, however, considered by Jacobson J in Sainju v Minister for Immigration and Citizenship.[10] His Honour said ““by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent”.[11] His Honour further said that the reasoning that applies to provisions dealing with the sending of documents by mail[12] – namely, that the “postal system will work in the ordinary way and that the addressee will receive the document within the time stated”[13] – also applies “to the statutory deeming provision relating to electronic communication”.[14] His Honour’s observations imply that, as with the postal system, there is a system in relation to the electronic communication by email that works in the ordinary way in which the addressee will receive the document within the time stated. What, then, is the system of electronic communications by means of email that is presumed will work in the ordinary way? And in what way is the system taken to operate in the ordinary way so that it can be said that an email has been sent? It is questions to this effect that suggested to me that I needed to acquire knowledge of the system by which email communications take place in order for me to make sense of when it can be said that a document has been sent by email.
[10] [2010] FCA 461
[11] [2010] FCA 461, [57]
[12] His Honour was here referring to a regulation that permitted the sending of a document by post, being a regulation that was indistinguishable from s.379A(4) of the Act, and the deeming of receipt by use of that method that was provided for by a regulation that was indistinguishable from s.379C(4) of the Act.
[13] [2010] FCA 461, [53]
[14] [2010] FCA 461, [57]
System by which emails are sent – need to go beyond common knowledge?
It might seem odd or, at the very least, over-cautious that I should feel the need to acquire knowledge of the system by which emails are sent before I can be in a position to determine the sense in which an email can be said to be sent, and when it is sent. The regular use of emails is within the common experience of the vast majority of people in our community; and its use for public and private business in Australia may be taken to be near universal. That means that the manner in which people communicate by email can be said to form part of the stock of common knowledge about which a court would not require evidence.[15]
[15] This is an example of what has been described as the “teachings of ordinary experience” – see Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [3200]
Thus, it is common knowledge, because it is the common experience of people who send and receive emails by computers, that to send an email from a computer it must have installed on it an email application which must be opened before it can be used; that the email application is capable of being used both to send and receive emails that have been sent to and received from persons; that to send an email to a particular person the sender must direct the cursor to that part of the email application that provides for the opening of a page on which text is to be composed and which provides for the inclusion of the email address of the person to whom it is intended to send the email; that after the sender has completed the message he or she directs the cursor to the “send” button on the document that contains the message; and, after the send button is clicked a copy of what was sent is created on the email application with information that states the time and date on which the email was sent and the email address to which the email was sent. It is also within the common knowledge of people who use emails that unless the email application receives a message stating that the email was unable to be sent it is reasonable to assume that the email was sent at the time and date the email application records it was sent. Finally, it is also within the common knowledge of people who use emails that the email application on a person’s computer alerts the person when a message is received in the “inbox” of the email application, and the person having access to the computer may access the message by opening the message.
It may be accepted that what I have described as common knowledge may be a sufficient basis for determining whether an email has been sent or received. In my opinion, however, it is insufficient to permit one to determine, or determine with confidence, as with the sending of a letter through the postal system, whether it is possible that an email can be transmitted and yet not be received by the intended recipient of the email so that an intended recipient’s not having received an email does not necessarily imply that the email was not in fact transmitted to the person. In my opinion, therefore, it is appropriate that I set out knowledge about the manner in which emails are communicated that is not reasonably open to doubt and which is capable of verification by reference to a document or documents the authority of which cannot reasonably questioned.[16] The documents on which I rely are those I identified in paragraph 5 of the orders I made on 24 February 2017.
[16] Evidence Act, s.144(1)(b)
Email communications
Email may be described as sets of software known as servers[17] that implement particular protocols that govern the communication of data between personal computers or other devices over a particular network or set of networks. Stated even more briefly, email “is a client-server application”.[18]
E-mail messages are not, however, physical objects capable of delivery in the same way as letters. Rather, an e-mail message is a series of packets of data transferred from device to device. Upon delivery, the pieces of data are reconstructed by software so that the recipient sees, on a screen, a message which resembles the message as it was depicted on the sender’s screen.[19]
[17] It “is important to understand that the term server refers to an application and not necessarily to a separate computer.” - Sanberg, B., Networking 3rd ed., McGraw Hill Education, 2015, page 333
[18] Sanberg, B., Networking, 3rd ed., McGraw Hill Education, 2015, page 333. At page 11 the author refers to the “client-server principle” in which “the processes needed to accomplish a particular task are divided between computers functioning as clients and servers.”
[19] The Law of Defamation and the Internet 3rd ed Oxford University Press 2010 at [2.29]
The most common form of email by far is that which facilitates the communication of data over the Internet. A description of how most emails are sent must therefore be prefaced with a description of the Internet; and in Roadshow Films Pty Ltd v Telstra Corporation Ltd, Nicholas J gave a very useful description of the Internet[20] which includes the following:[21]
The Internet is a network of interconnected computers and other digital devices. It enables computers or other digital devices (for convenience I will refer to all such devices as “computers”) to establish connections to other computers by cables or wireless technologies. These connections allow computers to communicate with other computers that are “online” using various protocols including the Internet protocol (“IP”) and transmission control protocol (“TCP”). A protocol in this context is a set of rules that computers use to communicate with one another. These communications are transmitted in packets of data sent or received by computers that are identified by their IP Addresses.
[20] [2016] FCA 1503, [8]-[12]
[21] [2016] FCA 1503, [8]
I have already noted that email is a client-server application. The client is the computer (or other device) to which the person wishing to send an email has access and on which there is installed a program or programs that enables the computer to communicate with a server. There are two types of servers. One is known as “SMTP servers”[22], and these are responsible for receiving outgoing mail from clients and transmitting the mail messages to their intended destination servers. The second type of servers is one that is used to maintain the mailboxes and which the email clients access to retrieve incoming mail; and the predominant protocols for this class of servers are POP3 and IMAP.[23]
[22] “SMTP” stands for “Simple Mail Transfer Protocol”
[23] Sanberg, B., Networking 3rd ed., McGraw Hill Education, 2015, page 333. “POP3” stands for “Post Office Protocol, version 3” and “IMAP” stands for “Internet Message Access Protocol”.
Large business or government organisations are likely to operate private networks. In these cases systems administrators employed within the organisations install and operate the relevant mail server application, create and maintain a mailbox for each user who has access to the private network, and register and maintain the registration of the server’s IP address in a “DNS MX record for the domain”.[24] The systems administrators, in turn, allocate names to users of the network in a form that is well known. In Australia it may take the form of “[email protected]”. “X” is the name of a person or an organisation, “networkA” is the name of the network of which X’s device forms part or of which devices used by an organisation form part, and is the name that has been allocated by the organisation that administers the “.com.au” domain. The network operator of “networkA” will have allocated the name “X” to the user or the organisation.[25] All this enables all other SMTP servers on the Internet to send mail to the users’ mailboxes. Users access the POP3 or IMAP servers to download mail from their mailboxes.[26]
[24] Sanberg, B., Networking 3rd ed., McGraw Hill Education, 2015, page 333. The author notes at page 282 that “MX” stands for “Mail exchanger” and denotes resource record of the DNS that identifies a system that will direct email traffic to an address in the domain to the individual recipient, a mail gateway, or another mail server.
[25] The Law of Defamation and the Internet 3rd ed Oxford University Press 2010 at [2.19]
[26] Sanberg, B., Networking 3rd ed., McGraw Hill Education, 2015, page 333
The means by which an email is transmitted through the Internet from a computer that is part of a network that is linked to the Internet may now be described. The following describes the transmissions of messages over the Internet in general:[27]
The sending network processes the destination address of the IP datagrams [that is, packets into which the message has been decomposed that is capable of being transferred over the Internet]. The precise address is established by interrogating a domain name server, which is a computer containing details of other networks which are connected to the Internet. The domain name server will typically be operated by an ISP or the operator of a backbone WAN [i.e., a wide area network]. The domain name server may recognise the location of the recipient’s network. If the domain name server does not recognize the location of the recipient's network, it will send a signal to another domain name server, and so on, until the location and address are identified. The process of identifying destination addresses is entirely automated, and usually almost instantaneous. . . .
The sending device sends IP datagrams to the router of the network to which the sending device is attached. That router examines the address to which the datagrams are to be sent, and forwards them on to the next network along an available path to that address. If two or more paths lead to the address, the IP datagrams are generally sent via the shortest path. The IP datagrams are then transferred from network to network until they reach their destination.
[27] The Law of Defamation and the Internet 3rd ed Oxford University Press 2010 at [2.20], [2.21]
The following specifically describes the sending of a message by email:[28]
The sender composes a message using an e-mail application program, also known as an e-mail client. The client prompts the user to fill in a number of fields, such as the recipient’s address, the title for the message, and the message itself. After the sender has directed the client to dispatch the message, it will be transferred to the recipient’s device via the Internet in the way described earlier. Usually, the message will be stored in a server in the recipient’s network, or a server in the network of the recipient’s ISP, so that the recipient can transfer a copy of the message to his or her e-mail client when convenient. There are also world wide web-based e-mail services which enable users to send and collect their e-mail messages by visiting a web page. Messages are retrieved from a server maintained by the operator of that page.
[28] The Law of Defamation and the Internet 3rd ed Oxford University Press 2010 at [2.28]
Having described the means by which email communications are sent, a clearer notion of what is involved in transmitting an email may now be given. Where an email is transmitted from a computer that is part of a network that is linked to the Internet (transmitting network), the transmission of the email consists of the steps by which data that comprises the email leaves the control of the transmitting network. This conclusion is consistent with the definition of “time of dispatch” of an electronic communication given in s.14(1) of the Electronic Transactions Act 1999 (Cth) (ET Act):
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is:
(a)the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or
(b)if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—the time when the electronic communication is received by the addressee.
Note: Paragraph (b) would apply to a case where the parties exchange electronic communications through the same information system.
The expression “information system” is defined in s.5 of the ET Act as a “system for generating, sending, receiving, storing or otherwise processing electronic communications”.
The description of the means by which email communications over the Internet take place also shows that, just like mail sent through the postal system, there is a distinct system by which emails are sent over the Internet; that the sending of an email consists of distinct steps; that only some of the steps are under the control of the transmitting network; and that, therefore, it is possible that the transmitting network may send the email but the intended recipient, for reasons that are outside the control of the transmitting network, does not receive it. That means that evidence by the intended recipient of an email that he or she did not receive the email is incapable by itself of contradicting or undermining evidence that the email in question was transmitted.
In one of his affidavits filed on 10 March 2017 the applicant referred to a variety of materials and requested that I “consider all the above information regarding the legislation and the technological limitations”.[29] The material included a paper titled “Trusted Email Open Standard: A Comprehensive Policy and Technology Proposal for Email Reform” which addresses the problem of unwanted email by proposing a standard the paper names the “Trusted Open Email Standard”. [30] The paper describes the means by which emails are sent over the Internet that is consistent with the description I have given, but is otherwise not relevant to providing knowledge of the means by which emails are sent over the Internet.
[29] Applicant’s affidavit, 10.03.2017, [5]
[30] Applicant’s affidavit, 10.03.2017, Annexure II
Another item on which the applicant relies is a document titled “Email and contractual notices”.[31] The paper deals with a number of legal issues that may arise where contractual notices are sent by email. It refers to the ET Act, and also to what the article refers to as “technological limitations”. There the article identifies a number of drawbacks inherent in electronic communication of which a party to a contract should be aware before the party agrees to being bound by a notice being sent by email, one of which is its not being possible to ascertain with any confidence whether the recipient has read the message, even with delivery or read receipt notification. Although this article may relate to issues of proof (which I consider later), it does not add to the description I have already given of the means by which emails are sent over the Internet.
[31] Applicant’s affidavit, 10.03.2017, Annexure I
The applicant also referred to the judgments of Pembroke J in Kavia Holdings Pty Ltd,[32] Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (No 2)[33]; and Kanitz v Rogers Cable Inc.[34] These cases are not relevant to the issues raised in this proceeding. Kavia and Kanitz considered whether under the terms of the relevant contract it was appropriate to give notice by way of email; and the issue in Metacorp was whether under the legislation in question in that case it was permissible to serve a notice by email. The applicant made other submissions in his affidavit, but it would be more convenient to deal with those submissions when I consider the question of proof.
[32] [2011] NSWSC 716
[33] (2010) 30 VR 141; [2010] VSC 255
[34] (2002) 21 BLR (3d) 104
Proof of transmission of email
The next question is how the sending of an email is to be proved. There are two provisions of the Evidence Act that facilitate proof. The first is s.71 which provides:
The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to:
(a)the identity of the person from whom or on whose behalf the communication was sent; or
(b)the date on which or the time at which the communication was sent; or
(c) the destination of the communication or the identity of the person to whom the communication was addressed.
The expression “electronic communication” is defined in the Dictionary to the Evidence Act as having the same meaning as it has in the ET Act. Subsection 5(1) of the ET Act defines “electronic communication” as, among other things, “a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; and “information” as “information in the form of data, text, images or speech”.
The second provision of the Evidence Act that assist in the proving the sending of an email is s.161(1) which provides:
If a document purports to contain a record of an electronic communication other than one referred to in section 162 [referring to lettergrams and telegrams], it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
At the hearing before me the applicant submitted that whether or not the Sponsor received the email of 1 September 2015 is not to be answered by general knowledge of how emails are sent over the Internet because “[e]verybody has this knowledge”.[35] The applicant said he was expecting the Minister to present log files of the servers of the email system the Tribunal used that demonstrated the sending of the email.[36] The applicant also submitted that the Minister should also have provided the log files of all servers through which the email passed.[37] Finally, the applicant submitted, both before me at the hearing, and in one of the affidavits which he filed on 10 March 2017, that there are means that may easily be implemented by which the sender of an email can be satisfied that it has been received by the intended recipient. The applicant mentioned “read receipts”, “encryption”, and “spam black and white lists”,[38] and suggested the government should adopt the “Trusted Email Open Standard”.[39]
[35] T9.10
[36] T9.30
[37] T11.5
[38] Applicant’s affidavit, 10.03.2017, [6], [7]
[39] Applicant’s affidavit, 10.03.2017, [8]
It would certainly have been open to the Minister to adduce records that show the sending of the email in question by the servers that formed part of the Tribunal’s email system. The Minister has done so in at least one other proceeding. Here I have in mind the judgment of Perry J in Singh v Minister for Immigration and Border Protection.[40] The question in that case was whether the applicant “received” a notification of a delegate’s decision made under s.65 of the Act. The notification was purportedly given by email and Perry J had to determine whether the email was transmitted to the applicant. Perry J found that whether or not the email was transmitted was a jurisdictional fact and that, “as such”, courts exercising judicial review and appellate jurisdiction “were in a position to determine whether the jurisdictional fact was or was not established”.[41] Her Honour further said that the question whether the jurisdictional fact exists or does not exist is not a question “in respect of which the Court, in determining whether a tribunal acted within jurisdiction, might give weight to the tribunal’s decision given, e.g., its specialised knowledge of a particular industry”.[42]
[40] [2015] FCA 220
[41] Singh v Minister for Immigration and Border Protection [2015] FCA 220, [37]
[42] Singh v Minister for Immigration and Border Protection [2015] FCA 220, [37]
In support of the proof the email was sent, the Minister in Singh adduced into evidence not only a copy of the email but a computer printout which was said by counsel for the Minister to show an email sent to the applicant of the refusal of the visa application at the last email address nominated by him at a particular time on a particular date; and that the computer printout indicated the email included attachments. Her Honour reproduced in her reasons for judgment a table that was set out in the printout that identified the email and described each of the attachments and the file sizes of each attachment.[43]
[43] [2015] FCA 220, [43]
Returning to the facts of the case before me, if it is assumed the burden lies on the Minister to prove the email of 1 September 2015 and its attachments were transmitted to the Sponsor, that the Minister has not adduced evidence of the sort he adduced in Singh does not necessarily mean there is no evidence on the basis of which I could be satisfied on the balance of probabilities that the email and its attachments were transmitted to the Sponsor. Whether that is the relevant question, however, depends on the burden of proof. That is, is the burden on the applicant to prove the email and its attachments were not transmitted or is the burden on the Minister to prove the email and its attachments were transmitted?
Burden of proof
In Singh Perry J did not expressly address the question of burden of proof. It does not appear that the Minister submitted to her Honour that the burden was on the applicant to prove the email was not transmitted. In those circumstances her Honour appears to have proceeded on the assumption that the Minister bore the burden of proving the email was transmitted. That is reflected in her Honour’s comment that she had “some concern which” her Honour raised with the Minister’s counsel about the “failure by the Minister to prove such a critical document as notification of the decision”.[44] That Perry J assumed, however, that the burden lay on the Minister to prove the email was transmitted does not mean Singh is authority for any proposition of law about who bears the onus of proving the existence or non-existence of a jurisdictional fact.
[44] Singh v Minister for Immigration and Border Protection [2015] FCA 220, [51]
The question of the burden of proof must always be considered in a particular context; and that context is the claims one or more of the parties make in a proceeding. The general proposition is that the party who alleges a fact must prove it.[45] Where the existence or non-existence of a jurisdictional fact is in issue, the relevant context is the decision maker having found a jurisdictional fact exists or does not exist. If the decision maker has found a jurisdictional fact exists and it is alleged the jurisdictional fact does not exist, the burden lies on the party alleging the jurisdictional fact does not exist to prove that it does not exist. If, on the other hand, the decision maker has found the jurisdictional fact does not exist, and a party alleges the jurisdictional fact does exist, the burden lies on the party alleging that it does exist to prove the existence of the jurisdictional fact.
[45] See Waters Lane Pty Limited v Sweeney [2006] NSWSC 222 at [30] where Rein AJ said: “It has been said that as a general rule the burden of proof lies on the person who affirms a particular thing (expressed in the maxim ei incumb it pro batio qui dicit, non que negat Digest, xxii 3, 2) per Lopes LJ in The Glendarroch [1894] P 226 at 234, and see at 231 per Lord Esher MR.
Applying these considerations to the circumstances of the case before me, there exists a finding of fact by the Tribunal, namely, that the email of 1 September 2015 was transmitted to the Sponsor; that, according to Perry J’s judgment in Singh, is a jurisdictional fact. It is a fact partly on the basis of which the Tribunal concluded it did not have jurisdiction to entertain the application for review. The applicant challenges the existence of that jurisdictional fact. The burden, therefore, lies on the applicant to prove the jurisdictional fact does not exist. In other words, the burden is on the applicant to prove the Tribunal did not transmit the email of 1 September 2015 to the applicant.
The authorities support what I have said so far. A particularly emphatic statement concerning the burden of proof is to be found in R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd where the Court said:[46]
The burden of establishing clearly the facts which show absence of jurisdiction always rests upon a prosecutor seeking a writ of prohibition.
[46] (1952) 85 CLR 138 at page 153 (Dixon, Fullagar, Kitto JJ)
The principle was stated equally emphatically by the Full Federal Court in IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission:[47]
It is also clear that the onus of proof rests on a party seeking to establish jurisdictional error. This has been recognised at least since R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138. Ordinarily, the onus must be discharged, if it is to be, by the tendering to the court of evidence, admissible in accordance with the Evidence Act 1995 (Cth), establishing that the jurisdictional fact, which the decision-maker found to exist, actually did not exist.
[47] [2005] FCAFC 66 at [27]
These passages concern the burden of proof where it is alleged the decision-maker does not have jurisdiction. The same principle, however, should apply where a person alleges the decision-maker did have jurisdiction. That is, just as the burden lies on a party who claims a decision-maker does not have jurisdiction to prove that allegation, so does the burden lie on the person who claims the administrative decision-maker does have jurisdiction to prove the facts necessary to establish jurisdiction.
Although I have concluded the applicant bears the onus of proving that the email of 1 September 2015 was not transmitted to the Sponsor, this part of the applicant’s case does not turn on the burden of proof because, for reasons I shortly state, I am satisfied the email was transmitted to the Sponsor.
Was the email transmitted to the Sponsor?
I now turn to the question whether the evidence satisfies me the email of 1 September 2015 was or was not transmitted to the Sponsor.[48] There are three documents. The first is a record of an email with the following header (Email):
[48] CB182
From:“Administrative Appeals Tribunal” <[email protected]>
Sent:Tuesday, 1 September 2015 15:55
To:[Sponsor’s email address];
Subject1511173 – [applicant’s name] - NSW
Attachments: 1511173-2497952.pdf;
The body of the Email notes it is sent “in relation to an application for review” by the Tribunal, and requests that the addressee “read the attached correspondence carefully”. The Email contains representations that it was sent to the email address stated in the Email, that it was sent at the time and date stated in the Email, that it “attached correspondence”, and that the person who wrote the Email did so “in relation to an application for review” by the Tribunal. The first three representations, although hearsay, are admissible under s.71 and 161 of the Evidence Act; and the fourth representation, although also hearsay, is admissible under s.69 of the Evidence Act.
The second document is a letter dated 1 September 2015 (Second Document).[49] It is addressed to the Sponsor under whose name there appears the Sponsor’s email address. The letter is headed “FEE REDUCTION REFUSED – MR GEORGE TSIMPERLENIOS”. The letter then states:
I am writing about the request for a 50% reduction of the $1673 application fee relating to the application for review by Mr George Tsimperlenios in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.
The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.
[49] CB183
The third document is a letter, also dated 1 September 2015 (Third Document). It is addressed to the applicant. It does not identify any email address. It records the decision not to grant a 50% reduction of the prescribed fee, and the reasons for rejecting the application for the reduction.
Based on the representations contained in the Email, and relying on s.71 and s.161 of the Evidence Act, I am satisfied the message recorded in the Email was sent to the email address specified in the Email at the time and date stated in the header of the Email. I am also satisfied the Email was sent with “the attachments”, and “the attachments” related to the applicant’s application for review to the Tribunal. The Email, however, does not identify “the attachments”. In particular, the Email does not in terms identify the Second and Third Documents. Further, even though the Second Document contains an email address, it does not expressly represent it was an attachment to the Email or was sent to the Sponsor’s email address; and there is no express representation contained on the face of the Third Document to the effect that the Third Document was an attachment to the Email or was itself sent to the Sponsor’s email address. The question that arises is whether there is material from which it is reasonably open to me to find the Second and Third Documents were the documents that were attached to the Email and, if so, whether I am satisfied they were in fact attached to the Email.
In my opinion, it is reasonably open to me to find the Second and Third Documents were attached to the Email. First, it is not suggested the Second and Third Documents are not genuine. Second, on the face of the Second and Third Documents, they were prepared for the purpose of their being sent to the applicant. Third, there is no suggestion that any other document was prepared on 1 September 2015, or was intended to be sent by the Tribunal to the Sponsor or the applicant. Based on these considerations, I am satisfied the Second and Third Documents were attached to the Email. The Second and Third Documents were prepared for the purpose of being sent to the applicant; and, given the existence of the Email, it was intended that the Second and Third Documents would be sent to the applicant by email. It is more probable than not that the person or persons who prepared the Second and Third Documents for the purpose of being sent to the Sponsor carried out their purpose by attaching the Second and Third Documents to the Email at the time the Email was sent.
If, contrary to my finding, the evidence is not sufficient to justify a finding that the Email and the Second and Third Documents were transmitted to the Sponsor and, hence, to the applicant, I would not be satisfied that on the balance of probabilities that the Tribunal did not transmit to the Sponsor, and hence to the applicant, the Email and the Second and Third Documents.
I find, therefore, that, assuming the Sponsor did not receive the Email and the Second and Third Documents, the Tribunal transmitted the Email and the Second and Third Documents by email on 1 September 2015, as permitted by s.379A(5) of the Act to the Sponsor; and, because of s.379C(5) of the Act, the Sponsor is taken to have received the Email and the Second and Third Documents at the end of 1 September 2015. In the alternative, I am not satisfied the Tribunal did not transmit the Email and the Second and Third Document to the Sponsor and, therefore, the applicant is not to be taken to have received the documents on 1 September 2015.
For these reasons there would be no utility in granting the applicant leave to amend his application to include as a ground that the Sponsor did not receive the email of 1 September 2015.
Other matters raised at hearing
The second submission the applicant made at the hearing of 16 February 2017 is that the Tribunal ought to have sent the letter of 1 September 2015, not to the email address of the Sponsor, but to the applicant’s email address that he included in the applicant’s M11 Form. Whether that submission is correct depends on the application of the relevant parts of s.379G of the Act I have already set out.
In MZZDJ v Minister for Immigration and Border Protection the Full Federal Court considered s.494D of the Act as it existed before it was amended in 2014 which was equivalent to s.379G of the Act as it existed before it too was amended in 2014.[50] Although the amendments were directed to overcoming aspects of the Full Court’s judgment,[51] the following passage from that judgment is relevant to s.379G(3) as it stood at the time the email of 1 September 2015 was transmitted:[52]
The subject matter of the entitlement to withdraw or vary in subs (3) is the written notice itself. The provision contemplates two quite different kinds of conduct: withdrawal and variation. The former is an absolute act and operates on the entire written notice given under subs (1). It may be either so that a different person can be nominated under subs (1) or so that the notifications can revert to the applicant. Either way, the written notice ceases to have effect.
[50] [2013] FCAFC 156. Sections 379G and 494D were amended by the Migration Legislation Amendment Act (No. 1) 2014 (Cth), s.3 and Sch 4.
[51] See Explanatory Memorandum at [73], [94]
[52] [2013] FCAFC 156 at
The question is whether, by submitting to the Tribunal the applicant’s M11 Form that contained an email address different from the email address specified in the “Representative’s details” section of the Tribunal Application, the applicant withdrew the nomination of the Sponsor as his representative or varied the Sponsor’s email specified in the “Representative’s details” section of the Tribunal Application.
The applicant’s M11 Form does not expressly withdraw the Sponsor as the applicant’s representative. Nor does it expressly vary the “Representative’s details”. If the applicant’s M11 Form does any of these things, it must be taken to have done them by implication. In determining that question the context in which the application’s M11 Form was lodged made must be considered. The context is as follows:
a)As I have already noted, at the time the Sponsor lodged the application for review she completed an “M11 Request for Fee Reduction” form.
b)On 20 August 2015 the Tribunal sent an email to the Sponsor at the Sponsor’s nominated email address. The email attached a letter dated 20 August 2015 also addressed to the Sponsor which in turn attached a letter of the same date addressed to the applicant.[53] The letter addressed to the applicant stated that the “M11 Request for Fee Reduction” form should be completed with the review applicant’s details and to provide any supporting evidence or documents in the review applicant’s name.[54]
c)On 20 August 2015 an officer of the applicant had a telephone conversation with the “AR”, which I infer was intended to be a reference to the Sponsor, in which the officer informed the Sponsor that the “M11 Request for Fee Reduction” form had to be filled in by the applicant and requested that the Sponsor “get the updated M11 to the AAT by 27.8.15”.[55]
d)On 24 August 2015 the applicant and the Sponsor attended the counter of the Tribunal to obtain a new “M11 Request for Fee Reduction” form. An officer of the Tribunal gave “them until 28.8.15 to return the form and provide any supporting documents”.[56]
e)On 24 August 2015 the following email was sent from the applicant’s email to the Tribunal:[57]
[53] CB166-168
[54] CB168
[55] CB171
[56] CB172
[57] CB173
We send you through this email the attachments of the M11 form plus the Bank Statements as you asked us earlier today. (Tina/Stamatia Dimou and Georgios Tsimperlenios) regarding our case.
Please accept our apologies for any inconvenience.
Thank you very much.
Sincerely
Georgios TsimperleniosTina/Stamatia Dimou
In my opinion, it cannot reasonably be implied that by submitting the applicant’s M11 Form the applicant intended to communicate to the Tribunal either that the Sponsor was no longer the applicant’s authorised representative or that the applicant intended to vary the email address in the “Representative’s details” section of the Tribunal Application. The applicant completed and submitted the applicant’s M11 Form with the Sponsor in response to the Tribunal’s informing the Sponsor that the applicant had to complete the relevant form and provide the relevant information. Had the applicant intended to notify the Tribunal that he no longer wanted the Sponsor to be his authorised representative, or that he did not want the Tribunal to communicate to the Sponsor at the email address specified in the “Representative’s details” section of the Tribunal Application, it is reasonable to expect that the applicant would have said something to the effect at that time; but he did not say so. That indicates the applicant had no intention of notifying to the Tribunal of any withdrawal of the Sponsor as his authorised agent, or varying any of the details concerning the authorised representative.
Further, given that the applicant provided the applicant’s M11 Form in response to statements the Tribunal made to the Sponsor that it was the applicant who must complete the relevant form and provide the relevant supporting documents, it is unreasonable to hold that the Tribunal ought to have understood the applicant’s providing the applicant’s M11 Form, not only as a response to the Tribunal’s statements, but also as a notification by the applicant to withdraw the Sponsor as the applicant’s authorised representative or to vary the email address specified in the “Representative’s details” section of the Tribunal Application.
This part of the applicant’s claims, therefore, fails.
The third submission the applicant made at the hearing on 16 February 2017 before me is that the Tribunal acted unreasonably in refusing the applicant’s request for fee reduction. I considered a similar claim in Fairy v Minister for Immigration & Anor (No.2).[58] I there noted that the decision refusing a request to reduce fees was a decision made, not by the Tribunal, but on behalf of the Registrar of the Tribunal. I further held that whether or not the Registrar acted unreasonably in rejecting an application for the reduction of the fee was irrelevant to whether the Tribunal had jurisdiction to hear an application for review. I so held for the following reasons (references omitted):[59]
A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs to which I referred in my earlier reasons.
[58] [2017] FCCA 3095
[59] [2017] FCCA 3095 at [4]
This part of the applicant’s claims also fails because whether or not the Registrar acted unreasonably was irrelevant to whether the Tribunal had jurisdiction to determine the applicant’s claim for review.
Grounds claimed in application
The application filed with this Court contains four grounds of application. The first ground is:
The Tribunal failed to establish that I was personally contacted and given a reasonable period to pay the extra fee.
The applicant appears to contend the Tribunal was under a duty to contact the applicant personally, but failed to establish that it did contact him to inform him of the fee reduction refusal and failed to give him a reasonable period within which to pay the remainder of the fee. That claim must be assessed by reference to s.379A, s.379C, and s.379G of the Act to which I have already referred.
As I have already noted, the Tribunal Application nominated the Sponsor as the applicant’s authorised representative and, as the applicant’s nominated representative, the Sponsor agreed the Tribunal could communicate with her by email at the email address specified in the “Representative’s details” section of the Tribunal Application. I have found the Tribunal transmitted the letter dated 1 September 2015 to the email address specified in the “Representative’s details” section of the Tribunal Application. Under s.379A(5)(b) of the Act, an email sent to the last email address provided to the Tribunal by the recipient in connection with a review is one of the methods permitted in s.379A of the Act by which the Tribunal may give a document to a person. Under s.379C(5) of the Act if the Tribunal gives a person a document by email, the person is taken to have received the document at the end of the day on which the document is transmitted. That means that the Sponsor is taken to have received the Tribunal’s letter dated 1 September 2015 at the end of that day. And given that the Sponsor was the authorised representative of the applicant then, because of s.379G(2) of the Act, by transmitting the letter dated 1 September 2015 and the attachments to that letter to the email address of the Sponsor, the applicant is taken to have been given the letter dated 1 September 2015 at the end of 1 September 2015.
The Tribunal was not required to do anything more than what it did to communicate to the applicant the Registrar’s decision not to waive 50% of the prescribed fee. Ground 1, therefore, fails.
The second ground is:
The Tribunal’s decision is not reasonable and the authorised officer of the Tribunal did not contact me and ask for the balance.
This ground overlaps in part with ground 1. For the reasons I have already given, the Tribunal was not obliged to attempt to contact the applicant of the decision of the Registrar not to waive 50% of the prescribed fee; it was required to do no more than transmit the letter to the email address of the applicant’s authorised representative, namely, the Sponsor. Further, the Tribunal had no discretion as to whether it had jurisdiction, given that the applicant did not pay within the required time 50% of the prescribed fee. Ground 2, therefore, also fails.
The third ground is:
The Tribunal failed to take into consideration our compelling and compassionate circumstances and the wellbeing of my Australian wife.
This ground assumes that whether or not the Tribunal had jurisdiction to consider the applicant’s application for review required the Tribunal to consider the circumstances of the applicant and the Sponsor, and whether those circumstances were compelling and compassionate circumstances. That assumption is incorrect. The Tribunal’s jurisdiction depended on the applicant’s paying the prescribed fee in full. Ground 3, therefore, fails.
The fourth ground is:
I reserve my right to obtain copy of the file and argue my case as the decision of the Tribunal that it does not have jurisdiction in this matter is not a proper decision.
This is not a ground. I have already considered submissions the applicant made challenging the Tribunal’s decision.
Conclusion
I propose to order that the application be dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 8 February 2018
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