Wai v Minister for Immigration
[2017] FCCA 2795
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2795 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – finding by the Tribunal that it lacked jurisdiction – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66, 342, 347, 351, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Fernando v Minister for Immigration (2000) 58 ALD 91 Minister for Immigration v Kim (2014) 220 FCR 494 Patel v Minister for Immigration [2012] FCA 145 |
| First Applicant: | BOON YOKE WAI |
| Second Applicant: | OSCAR TZE KYE WOO |
| Third Applicant: | TERRY TZE YAN WOO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1726 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
ORDERS
The application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1726 of 2016
| BOON YOKE WAI |
First Applicant
| OSCAR TZE KYE WOO |
Second Applicant
| TERRY TZE YAN WOO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 May 2016. The Tribunal found that it did not have jurisdiction in the matter because the review application made to it had been received late. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 6 November 2017.
Relevant factual background
On 23 November 2009 the first applicant, Ms Wai, applied for a skilled (residence) (class VB) subclass 886 visa[1]. The second and third applicants are the children of Ms Wai.
[1] Court Book (CB) at 1 to 41
On 12 February 2016, a delegate of the Minister (delegate) refused the visa and notified the applicants of the decision by email, at [email protected] (work email address), on the same day[2] .
[2] CB 185 to 201
The delegate was not satisfied that Ms Wai met the English language requirement in clause 886.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 12 March 2016, the applicants applied to Tribunal for review of the delegate's decision,[3] attaching a copy of the delegate’s decision and appointing a representative.
[3] CB 221 to 223
On 8 April 2016, the Tribunal sent a letter to the applicants inviting them to comment on the validity of their review application because their application had been made beyond the 21 day period by which to apply[4].
[4] CB 237 to 239
On 18 April 2016, the applicants’ representative responded with written submissions and supporting documents[5]. The submissions relevantly asserted that:
a)the refusal notification was sent during the Chinese New Year period. Whilst it is not a recognised Australian public holiday, “it would not be fair to expect the applicant to check her email during this period”[6]. Ms Wai was interstate to celebrate the Chinese New Year period and was unaware of the decision[7] ;
b)the refusal notification was sent to the wrong email address. The correct email address was [email protected] (personal email address), being Ms Wai’s “usual” email account[8]. There appears to have been “confusion” by the Minister’s Department[9];
c)Ms Wai infrequently checks her email address as she is a hairdresser[10];
d)it would have been prudent for the Minister’s Department to at least follow up with either a letter or telephone call to inform Ms Wai that an email had been sent[11], particularly in circumstances where “there is no clear definition of ‘received’ in regards to email delivery”[12]; and
e)there has been a lack of procedural fairness[13].
[5] CB 240 to 269
[6] CB 242 at [2]
[7] CB 242 at [3]
[8] CB 242 at [3]
[9] CB 243 at [5]
[10] CB 242 at [3]
[11] CB 243 at [6]
[12] CB 243 at [9]
[13] CB 243 at [9]
Tribunal decision
On 31 March 2016, the Tribunal found that it did not have jurisdiction to review the decision. The Tribunal found that:
a)the applicants were correctly notified of the refusal decision by email on 12 February 2016 in accordance with the statutory requirements[14];
b)it was apparent from the Minister’s Department’s records that Ms Wai updated her email address on 20 April 2015[15]. The refusal notification was sent to that email address, and Ms Wai was deemed under s.494C(5) of the Migration Act 1958 (Cth) (Migration Act) to have received it at the end of the day it was transmitted, on 12 February 2016[16];
c)there is no requirement for the Minister’s Department to telephone Ms Wai to inform her of the refusal notification being sent by email or to delay processing the visa application because it was Chinese New Year[17]; and
d)accordingly, the last day to lodge the review application was 4 March 2016. As the application was lodged (eight days) out of time on 12 March 2016, it followed that the Tribunal did not have jurisdiction[18].
[14] At CB 282 at [4]
[15] CB 282 at [6]
[16] CB 282 at [6]
[17] CB 282 at [6]
[18] CB 282 at [7]
The present proceedings
These proceedings began with a show cause application filed on 5 July 2016. The grounds in that application are:
1Since the filing of the Application for a Skilled Class B Visa, the First Applicant has established a thriving hairdressing salon and employing an apprentice.
2The Second and Third Applicants have been attending school here in Australia with the medium of instruction being English and not Bahasa Malaysia. They will be unable to fit into the Malaysian school system whose medium of instruction is Bahasa Malaysia.
3The First Applicant is attending English Language classes to improve her spoken and written English so as to be able to properly integrate into Australian Society.
4Strong familial ties to Australia as the Applicant have the following members residing in Australia and contributing to Australian society:-
1)Yow Moi Lee (Mother - Permanent Resident) - 1 Lookout Rise, South Morang VIC 3752;
2)Kim Tuai Wai (Sister - Australian Citizen) - 24 Mackinnon Avenue, Padstow NSW 2211;
3)Boo Hua Wai (Sister - Australian Citizen) - 18 Gardiner Court, Mill Park VIC 3182;
4)Yong Sing Wai (Brother - Permanent Resident) - 48 Yangoora Road, Belmore NSW
5)Ah Eng Wai (Sister - Australian Citizen) - 48 Yangoora Road, Belmore NSW 3192
6)Boon Tee Leow (Sister - Permanent Resident) - 1 Lookout Rise, South Morang VIC 3752
7)Chan Pin Hean (Brother in Law - Permanent Resident) - 1 Lookout Rise, South Morang VIC 3752
5Having lived in Australia since February, 2006, I have effectively lost contact with the father of my children and to all intent and purpose has been estranged from him. There are lots of personal issues between us and these include his very controlling behaviour leaving me to take my children to live in Australia.
The application was supported by an affidavit filed with it which dealt at some length with Ms Wai’s personal circumstances. I received that affidavit as a submission. Ms Wai filed a second affidavit on 22 November 2016 in which she dealt further with her personal circumstances and circumstances in Malaysia more generally. That affidavit refers to a USB stick which was provided to the registry and sent to my chambers in a sealed envelope. I have not examined what is on the USB stick but Ms Wai told me that it dealt with problems in Malaysia. I received that affidavit also as a submission. I explained to Ms Wai that the submissions were not well directed as they could not assist me in order to determine whether the Tribunal’s finding on its own jurisdiction was attended by any legal error.
I have before me as evidence the court book filed on 30 September 2016.
I invited oral submissions from Ms Wai this morning and for that purpose I directed her attention to the findings of fact made by the Tribunal in its decision and the legal conclusions drawn from those facts. Ms Wai was not able to indicate any aspect of the Tribunal’s reasoning with which she disagreed. In submissions in reply Ms Wai observed, as her agent had done to the Tribunal, that no letter had been sent to her by regular mail.
Ms Wai’s agent had also submitted to the Tribunal that it was unfair for the Minister’s Department to notify Ms Wai of the delegate’s decision during the Chinese New Year period and that a different email address should have been used rather than her business email address. It is true that the Minister’s Department might have followed up its email with a phone call or a letter or a supplementary email to an alternative email address. There was, however, no legal obligation on the Minister’s Department to do so. As the Tribunal found, the Minister’s Department used the most recent email address notified by Ms Wai which appears at page 270 of the court book.
Having been notified in accordance with the requirements of the Migration Act, the time limit on applications for review to the Tribunal applied from the day the email was sent and the review application was received by the Tribunal after the expiry of that period. That, unfortunately, left the Tribunal with no jurisdiction. I have for many years on many occasions put the view that it would be desirable for the Tribunal to have the power to extend the time limit for applications to it.[19] Parliament, however, has not seen fit to provide the Tribunal with that power.
[19] See, for example, SZSKX v Minister for Immigration & Anor [2014] FCCA 157
The outcome is unfortunate for Ms Wai and her family. As I indicated to her, she could, if she wishes, invite ministerial intervention pursuant to s.351 of the Migration Act. That is a matter for her. In other respects, I agree with the Minister’s submissions concerning the grounds of review.
Grounds 1 to 5, as pleaded, do not identify any proper ground of judicial review. In essence, they invite the Court to engage in an impermissible merits review (of the primary decision).
The sole issue in these proceedings is whether it was open to the Tribunal to find that it had no jurisdiction, which in the instant case turned upon whether the refusal notification was sent, pursuant to s.494B(5) of the Migration Act, to the last email address provided for the purposes of receiving documents.
Receiving documents – s.494B(5)
Section 66(1) of the Migration Act provides that the Minister must notify an applicant of its decision in a “prescribed way”. Regulation 2.16 of the Regulations sets out the “prescribed ways”. If the Minister decides to refuse to grant a visa, then pursuant to regulation 2.16(3), the Minister must notify the applicant in accordance with s.494B of the Migration Act[20].
[20] See also Minister for Immigration v Kim (2014) 220 FCR 494 at [32]
One “prescribed way” specified by s.494B(5) of the Migration Act is transmission by email to the last email address provided for the purposes of receiving documents. “Last” means “the most recent in the time in question”[21].
[21] Maroun v Minister for Immigration (2009) 112 ALD 424 at [36]
Last email address
As the Tribunal noted[22], the records of the Minister’s Department indicated that on 20 April 2015 Ms Wai advised the Tribunal of a new email address[23].
[22] CB 282 at [6]
[23] CB 270 to 271
After lodging the visa application Ms Wai variously engaged in a course of email communication with the Minister’s Department, which included:
a)on 24 November 2015, the Minister’s Department sent Ms Wai a request to provide outstanding documents, to the work email address[24]. Ms Wai replied to that email on 11 December 2015[25] from the work email address attaching confirmation of an IELTS test booking; and
b)on 8 January 2016, Ms Wai replied to the same email and attached an IELTS test result[26]. This was the last email communication from Ms Wai before the visa was refused.
[24] CB 160-162
[25] CB 163-167
[26] CB 181-184
I accept that, notwithstanding Ms Wai interchangeably used the work email address and the personal email address in the course of the review, the Minister’s Department was provided with the work email address on 20 April 2015 and that this email is the last “address” provided for the purposes of receiving documents from the Minister.
Deemed receipt of the Minister’s decision and calculation of time
Section 494C(5) of the Migration Act states when a person is taken to have received a document from the Minister which has been transmitted by email. In Singh v Minister for Immigration[27], Perry J observed at [32] that: “…reference to the document being ‘transmitted’” is a reference to the document being sent, regardless of whether it was actually received[28]. Accordingly, a person is taken to have received a document sent by email at the end of the day on which it was sent.
[27] [2015] FCA 220
[28] Sainju v Minister for Immigration [2010] FCA 461 at [77]
Section 494C(5) of the Migration Act does not create a rebuttable presumption of fact[29], and it is ultimately the recipient's responsibility to check their emails[30].
[29] Tay v Minister for Immigration (2010) 183 FCR 163 at [24]
[30] Singh v Minister for Immigration (2011) 190 FCR 552 at [40]
Ms Wai is deemed to have received the email notifying the delegate’s decision at the end of the day, being 12 February 2016[31]. Accordingly, the Tribunal correctly calculated 4 March 2016 as the last date on which an application for review could be made to the Tribunal[32], pursuant to regulation 4.10 of the Regulations.
[31] CB 185-201
[32] CB 282 at [3] and [7]
Prescribed period
The Tribunal does not have jurisdiction to hear an application for review received outside the time limit imposed by s.347(1), nor does it have the power, under either the Migration Act or Regulations, to extend the time prescribed by s.347[33].
[33] See Xie v Minister for Immigration [2005] FCAFC 172 at [5]; Patel v Minister for Immigration [2012] FCA 145 at [7]
As Heerey J observed in Fernando v Minister for Immigration[34] (where the application was received nine days after the relevant prescribed period), “the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT’s function”.
[34] (2000) 58 ALD 91 at [31]
Given the applicants did not lodged an application for review with the Tribunal until 12 March 2016, eight days after the prescribed period set out in s.342(1)(b)(ii) of the Migration Act and regulation 4.10(1)(a) of the Regulations ended, the Tribunal was correct to find itself without jurisdiction.
I conclude that Ms Wai has failed to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs against the first applicant only, fixed in the sum of $5,600. Ms Wai claims impecuniosity but that is not a reason for the Court to refrain from making a costs order.
I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 20 November 2017
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