FEDERAL COURT OF AUSTRALIA

Rana v Minister for Immigration and Border Protection [2014] FCA 1233

THE COURT ORDERS THAT:

1.    The application for leave to appeal be refused.

2.    The applicant pay the first respondent’s costs fixed in the sum of $2,250.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

1    This is an unfortunate case. It shows how some provisions of the Migration Act 1958 (Cth) (the Act) can operate in a needlessly harsh and unreasonable way in some circumstances.

2    Mr Rana, a national of Nepal, applied for both a temporary and permanent spouse visa under the provisions of the Act and the Migration Regulations 1994 (Cth) (the Regulations). That application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister). Mr Rana then sought a review of that decision in the Migration Review Tribunal (the Tribunal). The Tribunal found, however, that it had no jurisdiction to entertain the review because Mr Rana’s application was filed out of time. Mr Rana unsuccessfully challenged that decision in the Federal Circuit Court. The dismissal of his application in the Federal Circuit Court was pursuant to a rule of that court which provides for interlocutory dismissal. Since the dismissal was an interlocutory dismissal, leave to appeal to this Court is required. Mr Rana now seeks that leave.

3    The critical question, both in the Tribunal and upon review in the Federal Circuit Court, concerned the date when Mr Rana was notified of the delegate’s decision to refuse his visa applications. The combined operation of ss 347(1)(b)(i) and 338(2) of the Act and cl 4.10(1)(a) of the Regulations meant that any application by Mr Rana for review of the delegate’s decision was required to be given to the Tribunal within the period starting when Mr Rana received notice of the decision and ending 21 days after the day on which the notice was received. The Tribunal has no discretion to extend the time within which an application can be made, or to otherwise waive the time limitation or receive an application out of time.

4    Section 494B of the Act specifies the methods by which the Minister may give documents to a person. Subsection 494B(5) provides that one method consists of the Minister transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents. Where that method is chosen, s 494C(5) of the Act provides that “the person is taken to have received the document at the end of the day on which the document is transmitted”.

5    There is no dispute that in his visa application Mr Rana agreed that the Minister could contact him by email and nominated an email address. That email address was the last email address provided to the Minister. It was accordingly open to the Minister to give Mr Rana the delegate’s decision and reasons for refusing his visa application by transmitting a document containing the decision and reasons by email to Mr Rana’s nominated email address. By reason of s 494C(5) of the Act, if the Minister did email the document to Mr Rana at that email address, Mr Rana was taken to have received the document at the end of the day on which the document was transmitted. That is so even if, for whatever reason, Mr Rana did not, in fact, receive the document.

6    There was evidence before the Tribunal concerning the transmission of a document containing the delegate’s decision and reasons to Mr Rana’s nominated email address on 4 September 2013. That evidence was in the form of a document that appears to be a printout of a computer record or log. On its face, the document appears to record that an email with attachments was sent to Mr Rana’s nominated email address at either 1.25pm or 1.31pm on 4 September 2013. The Tribunal found on the basis of that evidence that the email and attachment was sent to Mr Rana’s email address on 4 September 2013.

7    Before the primary judge the Minister relied on additional evidence concerning the transmission of the email. That evidence was in the form of an affidavit of an officer of the Department which analysed the Department’s electronic records concerning the transmission of an email to Mr Rana’s email address on 4 September 2013. There was no objection to the affidavit. The officer was not cross-examined and his evidence was not challenged. The primary judge found that the evidence in the affidavit established that “the email transmission was successful in that it left the Department’s system and entered the system associated with the Hotmail email service”. Mr Rana’s email address was a Hotmail address. His Honour concluded on that basis that the delegate’s decision and reasons were transmitted to Mr Rana’s last notified email address on 4 September 2013. By reason of s 459C(5) of the Act, Mr Rana was therefore taken to have received the decision and reasons at the end of that day.

8    That finding was critical. That is because it was common ground, both before the Tribunal and the primary judge, that Mr Rana’s application for review was not made within the 21-day period commencing on 4 September 2013. That period ended on 25 September 2013. Mr Rana’s review application was received only two days later on 27 September 2013.

9    I should note that given that the main issue before the Federal Circuit Court was whether there was evidence before the Tribunal capable of supporting the finding that an email was transmitted on 4 September 2013, it is perhaps somewhat unusual that the Minister led (and was permitted to lead) additional evidence of that fact in the Federal Circuit Court. Nevertheless, as already indicated, it appears no objection was taken to the filing and reading of that affidavit evidence before the Federal Circuit Court. It is clear, in any event, that there was evidence before the Tribunal which was capable of supporting the Tribunal’s finding that the email was transmitted on 4 September 2013.

10    Before the primary judge Mr Rana gave evidence that he did not receive any email from the Minister’s department on 4 September 2013. That evidence was not challenged. The primary judge accepted it. Mr Rana also relied on evidence that dealt with problems with Hotmail accounts, presumably to support his case that for some reason or other he did not receive the disputed email on 4 September 2013.

11    The difficulty for Mr Rana, however, was and is that once it is found that the delegate’s decision and reasons were transmitted by email to his correct email address, he is effectively deemed to have received it on the day of its transmission. That is so even if he did not, for whatever reason, actually receive it. The language of ss 494B(5) and 494C(5) is such that it is sufficient that it is established that the document was transmitted to the correct email address. It is not necessary to establish that it was received at or by that email address, let alone that the email was actually received, opened and read by the intended recipient. Whilst s 494C(7) makes specific provision for the situation where documents are not given to a person “effectively”, it only applies where the Minister makes “an error” in giving the documents to a person in accordance with a method specified in s 494B. It is difficult to see how it could be concluded that the Minister made any error for the purposes of s 494C(7) if the Minister transmitted a document to the person’s correct email address. There was no suggestion, let alone evidence, in the Tribunal or Federal Circuit Court of any error on the part of the Minister in transmitting the document to Mr Rana. Mr Rana’s case rose no higher than his evidence that he did not receive the disputed email, perhaps as a result of problems associated with Hotmail accounts.

12    In the Federal Circuit Court Mr Rana relied on three grounds of challenge to the Tribunal’s decision. Those grounds were as follows:

1.    The Department of Immigration failed to notify me of the decision to refuse my application and the Migration Review Tribunal failed to accept my review which was lodged on time.

2.    The Tribunal failed to provide evidence that it did not have jurisdiction in this matter.

3.    The Migration Review Tribunal Failed to accept that my review of 1 October 2013 was made validly.

13    The primary judge rejected each of the three grounds.

14    In relation to ground 1, as already indicated the primary judge found that the delegate’s decision was transmitted by email to Mr Rana’s correct email address on 4 September 2013. By reason of s 494C(5) of the Act, he was therefore taken to have received it on 4 September 2013. As Mr Rana’s application was lodged more than 21 days after that date, it was out of time. The assertion in ground 1 that the Department failed to notify Mr Rana of the decision to refuse his visa application is therefore wrong. So too is the assertion that Mr Rana’s application to the Tribunal was lodged on time, or should have been accepted by the Tribunal as having been lodged on time.

15    In relation to ground 2, the primary judge held that the contention that the Tribunal failed to provide evidence that it did not have jurisdiction was incorrect. The evidence that was before the Tribunal that led it to conclude that it had no jurisdiction is referred to in the Tribunal’s reasons. It was evidence that was capable of establishing that the delegate’s decision was transmitted by email to Mr Rana on 4 September 2013.

16    In relation to ground 3, the primary judge noted that this ground did not allege any legal error. His Honour found that the Tribunal was correct to find that Mr Rana’s application was, in fact, made out of time.

17    For Mr Rana to obtain leave to appeal he must, at least, demonstrate that the decision of the primary judge is attended with sufficient doubt to warrant it being revisited on appeal. Unfortunately for Mr Rana he has not satisfied this requirement. The decision of the primary judge is not attended with any doubt.

18    Mr Rana has prepared a draft notice of appeal which he would file if granted leave to appeal. It identifies four proposed grounds of appeal. They are:

1.    There is no evidence before His Honour nor in the Court Book that I have been notified by email by the Department on 4 September 2013.

2.    I have an arguable case as there is no evidence before the Court or before the Tribunal that an email was sent to me.

3.    I rely on my explanation which was given to His Honour Driver as well as to the Tribunal in Court Book p. 178.

4.    As His Honour suggested there are compelling and compassionate circumstances involved. The Tribunal does not have evidence to substantiate the date of the refusal sent to me.

19    The first two of these grounds rely on the contention that there was no evidence before the primary judge and the Tribunal that Mr Rana was notified of the delegate’s decision on 4 September 2013. For the reasons already given, that contention is incorrect. There was evidence that was capable of establishing that the delegate’s decision was transmitted by email to Mr Rana’s last notified email address on 4 September 2013. It was open to the Tribunal and the primary judge to accept that evidence, which was essentially unchallenged, and find that, by reason of the operation of s 494C(5), Mr Rana received the decision on that day.

20    In relation to proposed appeal ground 3, the explanation given by Mr Rana was that he did not receive the delegate’s decision until 17 September 2013. He said that he did not receive the 4 September email. The primary judge accepted Mr Rana’s evidence that he did not receive the 4 September email. His Honour was correct, however, to find that by operation of s 494C(5) Mr Rana was, in any event, taken or deemed to have received the decision on 4 September 2013 because the decision was transmitted by email to his correct email address on that day.

21    Proposed appeal ground 4 repeats the “no evidence” contention which, for the reasons already given, has no merit. As for the “compelling and compassionate circumstances” it is difficult to gainsay Mr Rana’s assertion that such circumstances exist in his case. His evidence that he did not, in fact, receive the email was accepted by the primary judge. It was plainly supported by contemporaneous facts. In any event, he only filed the application for review two days out of time. It is difficult to see how anyone would or could have suffered prejudice had Mr Rana’s review application been treated as having been filed in time. The existence of compassionate circumstances, however, does not provide a basis for the grant of leave to appeal. That is because the Act does not allow for the extension of time within which to file a review application on any grounds, let alone compassionate grounds.

22    It follows that none of Mr Rana’s proposed grounds of appeal have any merit. The correctness of the primary judge’s decision has not been shown to be attended by any doubt.

23    Leave to appeal is accordingly refused.

24    It should be noted that in the course of his submissions Mr Rana effectively applied for an adjournment of his leave application. The basis of his adjournment application was that an adjournment would allow him to ascertain the relevant “IP” addresses from which, and to which, the 4 September email was sent and received. Mr Rana suggested that if he was able to ascertain the IP addresses, he would be able to prove how and why the 4 September email was not received by him. The Minister opposed the application.

25    I refused Mr Rana’s adjournment application. I did so because it was futile. It was futile because the primary judge accepted that Mr Rana did not receive the email. But that did not matter because he was nevertheless deemed to have receive it by operation of s 494C(5). That would remain the case even if Mr Rana was able to obtain the IP addresses and even if the IP addresses were able to explain how and why he did not receive the 4 September email. There was therefore no point in giving Mr Rana more time to explore this issue. No other reason for an adjournment was advanced by Mr Rana.

26    One final observation should be made. Like the primary judge, I regard it as most unfortunate that the Act does not give the Tribunal any power or discretion to extend time for the filing of review applications where, as here, it would have been just and reasonable in the circumstances to permit an application to be filed out of time. Unlike the primary judge, however, I see little point in recommending a legislative change. It is plainly Parliament’s intention to provide no such power or discretion, even in compelling circumstances and even where, as here, it would have been preferable, and taken no more time or resources, to deal with the review application on substantive rather than procedural grounds.

27    Accordingly, the orders of the court are:

1.    The application for leave to appeal be refused.

2.    The applicant pay the first respondent’s costs fixed in the sum of $2,250.

Associate:

Dated:    24 November 2014