Tsimperlenios v Minister for Immigration - [2018] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

TSIMPERLENIOS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 229

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) that it had no jurisdiction because the applicant did not pay the remaining 50% of the prescribed fee within a reasonable time after Tribunal notified applicant of Registrar’s decision not to waive 50% of prescribed fee for lodging application for review – whether by transmitting by email the Registrar’s decision not to waive 50% of the fee to the email address of the authorised representative the Tribunal gave the applicant notice of the Registrar’s decision – whether applicant withdrew authorised representative or varied notice previously given of authorised representative – application dismissed.

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
Migration Regulations 1994 (Cth), reg. 4.13A, Schedule 2, cl.820.211(1)

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
IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66
Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (No 2) (2010) 30 VR 141; [2010] VSC 255
Kanitz v Rogers Cable Inc (2002) 21 BLR (3d) 104
Kavia Holdings Pty Ltd [2011] NSWSC 716

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99

MZZDJ v Minister for Immigration and Border [2013] FCAFC 156
Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503
R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1] (1952) 85 CLR 138

Sainju v Minister for Immigration and Citizenship [2010] FCA 461
Singh v Minister for Immigration and Border Protection [2015] FCA 220
Waters Lane Pty Limited v Sweeney [2006] NSWSC 222

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 229
Decision Date: 8 February 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The applicant sought to challenge the Tribunal's finding that it lacked jurisdiction because the applicant had failed to pay the remaining 50% of the prescribed fee within a reasonable time after being notified that their request for a fee waiver had been refused. The core dispute revolved around whether the Tribunal had effectively provided the applicant with notice of the Registrar's decision to refuse the fee waiver.

The court was required to determine two primary legal issues. Firstly, whether the Tribunal's transmission of the Registrar's decision, refusing the fee waiver, via email to the applicant's authorised representative constituted valid notice to the applicant. Secondly, the court considered whether the applicant had withdrawn their authorised representative or varied the previously provided notice of representation. The court also considered the applicant's contention that the Tribunal acted unreasonably in refusing the fee reduction, and the onus of proof regarding jurisdictional facts.

Justice Manousaridis reasoned that a precondition to the Tribunal's jurisdiction was the payment of the prescribed fee, or a portion thereof, within a reasonable time following a refusal of a waiver. The court found that the applicant had nominated an authorised representative and agreed that the Tribunal could communicate with her via email at a specified address. Applying sections 379A(5)(b) and 379C(5) of the Migration Act 1958 (Cth), the court held that transmitting the relevant letter and attachments to the nominated email address constituted valid notice. Under section 379C(5), the recipient is taken to have received the document at the end of the day it was transmitted. Furthermore, under section 379G(2), notice given to an authorised representative is taken to have been given to the applicant. Consequently, the applicant was deemed to have been given notice of the fee waiver refusal on 1 September 2015. The court also determined that the reasonableness of the Registrar's decision to refuse the fee waiver was irrelevant to the Tribunal's jurisdiction.

The application was dismissed. The court found that the Tribunal had validly notified the applicant of the Registrar's decision to refuse the fee waiver by emailing the applicant's authorised representative, and that the applicant was therefore taken to have received this notice. As a result, the applicant's failure to pay the remaining fee within a reasonable time meant the Tribunal correctly concluded it lacked jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 NOTES4.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 THAT5.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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.