FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 220

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an appeal against the decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal). The Court below found no error in the Tribunal’s decision that it lacked jurisdiction to undertake any review of the delegate’s decision refusing to grant a Skilled (Provisional) (class VC) subclass 485 (Skilled – Graduate) visa to the appellant by reason of the application for review being filed out of time.

2    For the reasons set out below, the appeal should be dismissed with costs. Those reasons can be summarised as follows.

a)    The delegate’s decision to refuse the grant of a visa was an “MRT-reviewable decision” covered by s 338(2) of the Migration Act 1958 (Cth) (the Act).

b)    As a result, Mr Singh had to apply for review to the Tribunal within 21 days of receiving notice of the delegate’s decision (s 347(1)(b)(i), the Act and reg 4.10(1)(a), Migration Regulations 1994 (Cth) (the Regulations)).

c)    While the Court below erred in finding that the relevant time limit was that set in accordance with s 347(1)(b)(iii) on the ground that the decision was covered by s 338(9) of the Act, the prescribed period within which an application for review must be made under reg 4.10(1)(d) was the same. As such, the error was not material.

d)    Notice of the delegate’s decision was “received” for the purposes of reg 4.10(1)(a) when notification in accordance with s 66(2) of the Act was transmitted, i.e. sent, by email (s 494C(5) of the Act). It was unnecessary to show actual receipt of the notification of the decision, contrary to the appellant’s submission.

e)    Evidence on judicial review as to the transmission of the email attaching the refusal decision and reasons must comply with the Evidence Act 1995 (Cth) (Evidence Act), the jurisdictional precondition being objective in nature.

f)    The evidence established that the email giving notification of the decision was sent at 15:42 on 7 December 2012 and the time within which the application for review must be made expired on 28 December 2012. As a result, the application for review was filed out of time and the Tribunal lacked jurisdiction to entertain the application for review. The appellant’s contention that the “email was not successfully transmitted as there was no delivery outside government servers” is contradicted by the evidence.

2.    THE GRANT OF LEAVE TO FILE A NOTICE OF CONTENTION AT THE HEARING OF THE APPEAL

3    In his written submissions, the Minister submitted that the Federal Circuit Court’s decision should be upheld on a different ground from that argued by then counsel for the Minister before the primary judge, and accepted by the Court below. However, no notice of contention had been filed in accordance with r 36.24 of the Federal Court Rules 2011 (Cth) (FCR). The change in the Minister’s position and fact of departure from the reasons below was mentioned only in a footnote in the written submissions. Moreover, while the Minister’s submissions had been interpreted by the interpreter before the hearing of the appeal commenced, not surprisingly the interpreter had not interpreted the footnote so that at the commencement of the hearing, the appellant was unaware of the change in position. I should add that the written submissions were otherwise very detailed, helpful and clear, as were the oral submissions.

4    Upon my raising the issue as to the change in position, the Minister submitted that the failure to raise the matter in a notice of contention occurred through oversight and sought leave to file a notice of contention to raise the issue. While I accept that the failure to file a notice of contention occurred through oversight, the importance of ensuring that any changes in the Minister’s position are raised in a timely fashion cannot be overemphasised. Especially is this so in cases where the appellant is unrepresented, not fluent in English and confronted with highly technical arguments based upon complex legislation.

5    These concerns notwithstanding, I granted leave to the Minister to file a notice of contention to raise the issue having regard to a number of matters. First, after the issue had been explained to the appellant through the interpreter, he did not oppose the grant of leave. Secondly, the issue (as I later explain) was a pure question of law, namely, whether the Court below applied the wrong provision of the Act specifying the period of time within which an application could be made to the Tribunal from the delegate. Ultimately this Court would be in difficulty if it were to uphold a decision which relied upon a provision which was, with respect, the wrong provision of the Act. Thirdly, irrespective of which provision applied, the time bar imposed upon the lodging of an application for review of the delegate’s decision was the same, namely, 21 days. Fourthly, the Minister’s written submissions, which were filed and served in advance of the hearing, contained detailed submissions addressing the issue sought to be raised by the notice of contention. Finally, I granted the appellant leave to file and serve any further submissions in response within 7 days, with a period of 3 working days within which the Minister could file a reply.

6    Ultimately no further submissions were filed by the appellant. However, the Minister filed a further submission on certain concerns raised by me at the hearing pursuant to leave granted to the parties at the hearing on the sufficiency of the evidence relied upon to establish the date on which the statutory time-limit within which to file an application for review to the Tribunal commenced.

3.    BACKGROUND

3.1    The application for a visa and decision of the Minister’s delegate on 7 December 2012

7    The appellant is a citizen of India. On 18 November 2011, Mr Singh applied for a general skilled migration visa and specified his nominated occupation as being “Nurseryperson”. Schedule 2 of the Regulations sets out the mandatory criteria of which the Minister or his delegate must be satisfied before a Skilled - Graduate (subclass 485) visa can be granted.

8    Regulation 485.215 is one of the mandatory requirements for the grant of this visa. That regulation required that an applicant have “competent English”. The phrase “competent English” is defined in reg 1.15C which, for the purposes relevant to the appellant, provides that a person will have competent English if they satisfy the Minister that they have taken a specified language test within a specified period immediately before lodging the visa application and have achieved a specified score. For the purposes of reg 1.15C, the appellant was required to achieve an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening.

9    Although the appellant initially submitted a test reference number and indicated on his application form that he had undertaken the relevant test within the prescribed time period before lodging his application, the Minister’s Department could not find any record of the alleged IELTS test results. On 23 October 2012, Mr Singh was afforded an opportunity to provide evidence of his English ability but failed to satisfy the Minister’s delegate that he met the visa criteria. As a result, the delegate determined that Mr Singh did not meet the requirements as prescribed by the regulations and his application for the visa was refused on 7 December 2012.

3.2    The application for review to the Tribunal on 31 December 2012

10    On 31 December 2012, Mr Singh applied to the Tribunal for review of the decision to refuse to grant him the visa. On 19 March 2013, the Tribunal wrote to Mr Singh to invite him to comment on the validity of his application, having formed the preliminary view that the application was not valid as it was lodged outside the statutory time-limit. In that letter, the Tribunal noted that the decision was emailed to the appellant on 7 December 2012 and, on the basis that that date was the date when the appellant was taken to have been notified, the last day for lodging the application was 28 December 2012.

11    Mr Singh sent a letter in response to the Tribunal on 4 April 2013. In that letter, he alleged that he did not receive the Department’s notification on 7 December 2012 and became aware of the delegate’s decision to refuse to grant the visa only when he checked the Department’s online system on 31 December 2012.

12    The Tribunal wrote to Mr Singh on 16 April 2013 advising that the Tribunal had no jurisdiction to determine his application and therefore could not review the decision made by the delegate. In its written reasons, the Tribunal found that it lacked jurisdiction because his application for review to the Tribunal had been made out of time. The Tribunal found that Mr Singh was notified of the delegate’s decision to refuse his application on 7 December 2012. Pursuant to s 347(1)(b) and reg 4.10, Mr Singh had 21 days within which to apply to the Tribunal for a review of the delegate’s decision. Accordingly, the Tribunal concluded that the time in which he had to apply expired on 28 December 2012, before Mr Singh lodged his application for review.

3.3    The decision of the Federal Circuit Court

13    The primary judge upheld the validity of the Tribunal’s decision that it lacked jurisdiction to entertain the application for review of the delegate’s decision. In so holding, the Court below held that:

[4]    … I am satisfied that the decision of the delegate was an MRT reviewable decision as that is defined by virtue of the combined operation of s.338(9) and s.347(1)(b)(iii) of the Act. I am satisfied that it is an MRT reviewable decision. There is nothing in the Tribunal’s reasons to indicate that, had the application been validly made, the decision of the delegate would not have been an MRT reviewable decision.

[5]    I am therefore satisfied that it is covered by s.338(9) and, as a consequence of that, I am satisfied that s.347(1)(b)(iii) applies and that the application for review of the decision had to be made within the number of days prescribed in respect of the kind of decision in question, prescribed for the purposes of that subsection after the notification of the decision, and that by virtue of the operation of regulation 4.10(1) of the Regulations made under the Migration Act, that period was the period of 21 days from the date of receipt of the decision by the applicant. (emphasis added)

4.    CONSIDERATION

4.1    What time limit was prescribed for the application for review to the Tribunal?

14    Section 347 of the Act relevantly provides that:

(1)    An application for review of an MRT-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

(ii)    if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

(iii)    if the MRT-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c)    be accompanied by the prescribed fee (if any).

15    Notwithstanding the impression that s 347 might convey, the section does not itself prescribe the number of days within which an application for review must be made. The “prescribed period” within which such an application must be made is prescribed by the regulations but cannot exceed the number of days referred to in s 347(1)(b)(i), (ii) or (iii), as applicable. As the Full Court held in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie) at [4]–[5]:

Even a reasonably careful reader might (wrongly) conclude that an application must be filed within 28 days from notification of the decision. However the word ‘prescribed’ in the phrase ‘within the prescribed period’ is of critical importance. Pursuant to s 5 ‘prescribed’ means ‘prescribed by the regulations’. Subs 347(5) offers some explanation of the statutory intention. It provides:

‘Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).’

Subsection 347(1) fixes the maximum period within which applications may be made but authorizes the making of regulations prescribing shorter periods.

16    In this case, the Minister rightly submitted that the delegate’s decision was an “MRT-reviewable decision” covered by s 338(2) of the Act, being a decision to refuse to grant a visa in circumstances where:

a)    the subclass 485 visa that was applied for by Mr Singh could have been granted whilst Mr Singh was in the “migration zone”, which relevantly includes Adelaide (s 338(2)(a));

b)    Mr Singh had applied for the visa whilst in the migration zone (s 338(2)(b));

c)    the delegate’s decision was not made when Mr Singh was in either immigration clearance or had been refused immigration clearance (s 338(2)(c));

d)    a criterion of the subclass 485 visa does not include that the applicant be sponsored by an approved sponsor (s 338(2)(d) and cl 485 of Sch 2); and

e)    it was not a decision under ss 501 (refusal or cancellation on character grounds) or 338(4) (refusal to grant bridging visa to non-citizen in immigration detention because of refusal or cancellation on character grounds).

17    As the delegate’s decision is an MRT-reviewable decision covered by s 338(2) of the Act, s 347(1)(b)(i) requires that an application to review that decision must be made within the prescribed number of days after the notification of the decision. Under reg 4.10(1)(a) of the Regulations, the “prescribed period” relevant to a s 338(2) decision is 21 days. That regulation provides that:

(1)    For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

(a)    if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;

…

18    While reg 4.10(1)(a) prescribes a period of 21 days ‘after the date on which the notice is received’ and s 347(1)(b)(i) of the Act refers to a period of time ‘after notification of the decision’, nothing turns on this inconsistency: Xie at [5].

19    It follows that, while I agree with the primary judge that the delegate’s decision was a “MRT-reviewable decision”, I accept the Minister’s contention that the primary judge erred in reaching that view “by virtue of the combined operation of s.338(9) and s.347(1)(b)(iii) of the Act” (at [4]). Ultimately, however, the error is not a material one. Where the decision is an MRT-reviewable decision by reason of s 338(9), reg 4.10(1)(d) applies and prescribes the same “prescribed period” within which an application must be made as regulation 4.10(1)(a), i.e., 21 days.

20    Importantly in this regard, the “prescribed period” is not the period of 28 days to which regulation 4.10(2A) refers which also applies in cases of MRT-reviewable cases covered by s 338(9). Regulation 4.10(2A) prescribes only the outer limits of the period that may be prescribed by regulation, in providing that “[f]or subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of an MRT reviewable decision prescribed under subsection 338(9) of the Act is 28 days.” In so providing, regulation 4.10(2A) serves, in my view, only to confuse the reader. While it makes sense for the enabling legislation to set a limit on the period which may be prescribed by regulation, no logical purpose could be served by the Regulations setting a maximum limit of 28 days for a prescribed period and then setting a lesser prescribed period of 21 days.

4.2    When is a decision received under the Act?

21    The question which then arises is when the applicant “receives notice of the decision” for the purposes of reg 4.10(1)(a). It is this issue which lies at the heart of the appeal.

22    The ground of appeal, which is almost identical to the ground of judicial review in the Court below, complains that the Tribunal erred in concluding that it had no jurisdiction because:

(a)    the Department had to formally notify him of the decision as a legal requirement;

(b)    he “never received the email from the Department of Immigration”;

(c)    he was “not even aware” of the decision on his application having been made and the printout of the email “simply state that ‘application finalised’”; and

(d)    “email was not successfully transmitted as there was no delivery outside government servers to the applicant”.

23    In the Court below, the appellant filed an affidavit sworn by him in which he repeated the ground of judicial review. As such, it is clear that the appellant was putting in issue, first, the question of whether the email was ever successfully transmitted and, secondly, that he had not in fact received the decision in any event, a submission which assumes the relevance of actual receipt.

24    The appellant rightly contends that there was a legal obligation to notify him of the delegate’s decision. That obligation is found in s 66(1) of the Act which requires that, when the Minister grants or refuses to grant a visa, he or she is to notify the applicant in the prescribed way.

25    Section 66(2) also requires that notification of a decision to refuse an application for a visa must comply with certain requirements intended to ensure that the basis for refusing the visa is clear and exposed by reasons. Specifically, s 66(2) relevantly requires that:

Notification of a decision to refuse an application for a visa must:

(a)    if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and

(b)    if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa – specify that provision; and

(c)    … give written reasons… why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)    if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:

(i)    that the decision can be reviewed; and

(ii)    the time in which the application for review may be made; and

(iii)    who can apply for the review; and

(iv)    where the application for review can be made.

26    A failure to give notification of the decision does not affect the validity of the decision by virtue of s 66(4). However, as the Minister conceded, time will not run for the purposes of making an application for review to the Tribunal until notification has been given in accordance with s 66(1) and (2) of the Act.

27    The means by which the Minister may give a document are specified in s 494B of the Act. Transmission by email is a method specified by s 494B which relevantly provides that:

(1)    For the purposes of provisions of this Act or the regulations that:

(a)    require or permit the Minister to give a document to a person (the recipient); and

(b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

…

(5)    Another method consists of the Minister transmitting the document by:

(a)    fax; or

(b)    e-mail; or

(c)    other electronic means;

to:

(d)    the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; … (emphasis added)

28    However it is apparent from s 494C(5) that where such means are used, the Minister’s obligation is discharged by the act of transmitting the document by email. The section also prescribes that the person is taken to have received the document at the end of that day, irrespective of whether or not the person in fact receives the document. Specifically, s 494C(5) provides:

If the Minister gives a document to a person by the method prescribed in 494B(5)(which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. (emphasis added)

29    Section 5(23) of the Act, in turn, provides that:

To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

30    It follows, in my view, that, assuming that notification of the decision was transmitted, the appellant is taken to have received it for the purposes of reg 4.10(1)(a) when it was transmitted in the sense of being sent. The very fact that s 494C(5) deems the document to have been received makes it clear that the critical act is the act of transmission in this sense as opposed to actual receipt.

31    This construction is supported by analogy with the construction of reg 2.55(8) of the Regulations adopted in Sainju v Minister for Immigration and Citizenship [2010] FCA 461; (2010) 185 FCR 86 (Sainju). Regulation 2.55(8) of the Regulations provided that if the Minister gives a document to a person “ by transmitting it by… email”, the person is taken to have received it at the end of the day on which the document is transmitted. The question in Sainju was whether the words “by transmitting” and “transmitted” in reg 2.55(8) mean “by sending” or “sent”, regardless of whether the document was actually received. In holding that it was sufficient for the Minister to send or transmit the document, Jacobson J held at [51]-[54] that:

What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.

The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.

Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.

The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.

32    Equally in this case, I see nothing in the language or context of s 494C(5) of the Act when read with s 5(23) to suggest otherwise than that the reference to the document being “transmitted” means by sending, and that the person is taken to have received that document at the end of the day on which it is sent.

33    A similar approach was taken by the Full Court in relation to the construction of “dispatch” in the context of s 494B(4) of the Act. As Stone and Jagot JJ said in SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233 at [18] and [19] (but cf at [29]-[30] (Bromberg J)):

… [Section] 494B(4) has nothing to do with receipt. Section 494B(4) is concerned solely with dispatch. The consequence of dispatch as required under s 494B(4) is deemed receipt under s 494C(4)., …

… Given that the statutory provisions contain their own detailed temporal sequence there is no basis for construing “dispatch” in s 494B(4) as meaning anything other than “send”. As the Minister said, the fact that the 3 working days is calculated in the “place of dispatch” supports construing “dispatch” as consisting of nothing more than the physical act of sending the document to the relevant address by one of the nominated means.

34    Like s 494C(4), s 494C(5) has nothing to do with the receipt. It is concerned solely with “transmitting”. The verb “transmit’ in s 494C(5) plays the equivalent role to “dispatch” in the cognate provision, s 494C(4), and should be given a consonant meaning.

35    Furthermore, while such a deeming provision may cause unfairness where the assumption underlying the deeming provision is not fulfilled, there is no proviso to s 494C(5) such that an intended recipient is not to be taken as having received the document where the contrary is proved: Sainju at [57]; Xie at [13] – [14] (the Court). As the Full Court held in Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163 at 169 [24] in holding that s 494C(5) did not create a rebuttable presumption of fact:

Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. …

4.3    Is transmission of the decision on 7 December 2012 proved?

4.3.1    The relevance of the objective character of the jurisdictional precondition to the function of the Court on judicial review

36    In his written submissions, the Minister:

…accept[ed] that the objective fact of the ‘transmission’ of the email to the Appellant was a ‘jurisdictional fact’ - that is, a fact on which the jurisdiction (or, in this case, want of jurisdiction) of the Tribunal ultimately depended – because the period of 21 days prescribed for the purpose of s 347(1) was, by s 494C(5) taken to commence at the end of the day on which the delegate’s decision was ‘transmitted’ by email. (emphasis added)

37    Notwithstanding that the reasons of the Court below appeared to show deference to the Tribunal’s decision, this is not a case of a jurisdictional precondition defined by reference to the state of satisfaction of the administrative decision-maker: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). The jurisdictional fact here, as the Minister conceded, is objective. As such, this Court, and the Court below, were in a position to determine whether the jurisdictional fact was or was not established: see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (City of Einfield) at 148 [28], 149-150 [33]-[34] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Plaintiff M70/2011 v Minister for Immigration and Citizenship (Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144 at 193-194 [106]-[109], 195 [116], 199 [125], 201-202 [135] (Gummow, Hayne, Crennan and Bell JJ). Nor is this a question of fact 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: see the discussion in City of Enfield at 155 [48] – 156 [51].

4.3.2    Evidence relied upon to prove notification under s 66 of the Act on 7 December 2012

38    The Minister contends, in line with the Tribunal’s decision, that the delegate’s decision was transmitted to Mr Singh by email to his email address on 7 December 2012.

39    To prove transmission of the notification of the decision in accordance with s 66(1) and (2) of the Act, the Tribunal relied upon a computer printout said to show that:

…an email notifying the applicant of the refusal of the visa application was sent to the last email address nominated by him at 15:42 pm on 7 December 2012. The record shows that the email included attachments among which were the notification letter and the decision record. There is no evidence before the Tribunal that the email was not in fact transmitted. While the applicant has claimed not to have received the email, non-receipt could have occurred for a variety of reasons other than non-transmission from the Department’s computer system.

40    The same printout was included in the bundle of documents comprising the Departmental File which was included in the Appeal Book, and was relied upon by the Minister in the Court below and on appeal.

41    In his visa application form, the appellant consented to the Department communicating with him by email and entered his email address. The computer print-out states that an email was sent on 7 December 2012 to the email address given by the appellant in his visa application form. That sending process, according to the print-out, was initiated at 15:34 on that day. The email was then stored for eight minutes, and was sent at 15:42. The actual email as reproduced in the printout stated that:

Sent Items

Department of Immigration and Citizenship

Dear HARWINDER SINGH HARWINDER SINGH [sic]

Please see the attached information regarding C/O Karen [application and file numbers] - Refusal Notification.

The letter and attachments are provided as PDF files. To view or print a PDF file, you need the Adobe Reader®, version 5 or later, on your computer. You can download a free copy of Adobe Reader® and access instructions on how to install the software from the Adobe website …

Questions about this decision

If you have questions about the process or information that was taken into account in determining your application, you may contact your case officer using the specific team email address that has been provided to you. You will find the team email address of the bottom of this letter. We try to respond to all email inquiries within seven (7) working days.

Please be aware that no further assessment of this visa application can be taken at this office.

Yours sincerely,

[name and contact details of case officer/delegate]

42    The text of the email in the printout corresponds with the (undated) copy of the email which was contained in the Department’s file.

43    The printout then sets out a table in the following form:

Attachments

44    There was no other proof of the documents described as attached.

4.3.3    Sufficiency of the evidence to prove notification on 7 December 2012

45    Given that the jurisdictional precondition is objective, it does not automatically follow that it is sufficient for the Minister to rely upon evidence in the same form as that before the Tribunal. The Tribunal, unlike this Court and the Court below, is not bound by the rules of evidence: s 353 of the Act; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128 at 146 [52] (Kirby J) by analogy. The evidence placed before the Court on such an issue must be in admissible form in compliance with the rules of evidence.

46    In this regard, I accept, as the Minister’s counsel submitted, that the computer printout is admissible under s 71 of the Evidence Act as evidence that the email with its attachments were sent to Mr Singh on 7 December 2012, notwithstanding the hearsay character of that evidence. Section 71 provides that:

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.

47    An electronic communication is defined in the Dictionary to the Evidence Act so as to pick up the definition in s 5(1) of the Electronic Transactions Act 1999 (Cth) as follows:

electronic communication means:

(a)  a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b)  a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

48    “Information” in turn is also defined in s 5(1) of the Electronic Transactions Act 1999 (Cth) to mean “information in the form of data, text, images or speech”.

49    The definition of “electronic communication” is sufficiently wide to embrace both the covering email, the text of which was set out in the printout, and the attachments listed on the printout. Both constitute “text” and/or “data”.

50    Furthermore, following the hearing, the Minister drew attention to s 161 of the Evidence Act which creates a rebuttable presumption that:

(1)  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.

…

51    The failure by the Minister to prove such a critical document as notification of the decision in the context of this case under cover of an affidavit caused me some concern which I raised at the hearing with the Minister’s counsel. My concerns particularly related to the question of proof that the attachments were sent. While the text of the covering email was set out in the body of the printout, the only proof that the documents of which notification was required to be given under s 66(2) of the Act were in fact given was inferential.

52    However, I accept the Minister’s submission that (assisted by s 161(1)(a) of the Evidence Act) the evidence is sufficient in this case to prove not only transmission of the email but also of the attachments given that:

(a)    the appellant’s case is that the email notifying him of the delegate’s decision was not despatched by the Department or received by him;

(b)    it was no part of the appellant’s case at any time that he had received the email but it did not contain the correct, or any, attachments;

(c)    there was no dispute as to the genuineness of the printout;

(d)    the printout establishes that the email was sent on 7 December 2012 with attachments, bearing in mind that the list of attachments ascribes a number of kilobytes to each attachment (cf the position if the number of kilobytes ascribed to a “document” had been “0”);

(e)    the printout includes a description of the documents attached in the list of attachments which includes documents described as “Refusal Notification” and “Decision Record”;

(f)    those descriptions correspond with the letter dated 7 December 2012 to Mr Singh headed “Notification of refusal of application for a Skilled (Provisional) (class VC) visa” and the Decision Record also dated 7 December 2012 which contains the delegate’s reasons; and

(g)    together the documents referred to in paragraph (e) satisfy the requirements of s 66(2) of the Act. (quoted at [25] above).

53    As to paragraph (g) above, my reasons are as follows.

(a)    The grant of a subclass 485 visa was refused because Mr Singh did not satisfy a criterion for the visa. As a result, ss 66(2)(a) and (c) of the Act apply.

(b)    In accordance with s 66(2)(a), the Decision Record specified the criterion which was not satisfied, and had led to the decision to refuse to grant the visa, namely, that Mr Singh has competent English as defined in reg 1.15C of the Regulations.

(c)    The Decision Record included written reasons as to why that criterion was not satisfied in accordance with the requirements of s 66(2)(c) of the Act.

(d)    As the appellant had a right to have the decision reviewed under the Part 5 of the Act, it was necessary also for the notification of the decision to comply with s 66(2)(d).

(e)    The letter dated 7 December 2012 stated in accordance with s 66(2)(d) that: the decision could be reviewed; the time within which the application for review could be made (namely, 21 days after Mr Singh is taken to have received the letter); and that Mr Singh was entitled to apply to the Tribunal for review of the delegate’s decision.

54    It follows that I am satisfied that notification in accordance with the Act occurred on 7 December 2012 and therefore that time commenced to run at the end of that date.

55    Nonetheless, in my view, it would be preferable for such evidence in the future to be annexed to an affidavit by a deponent with relevant knowledge who can explain the printout, how it was generated, and verify the facts evidenced by the printout. The care required in interpreting the technical evidence provided by a “standalone” computer printout, as demonstrated by these reasons, highlights the importance of this, particularly where the individual is unrepresented, does not speak English as his or her first language and may have no background in interpreting such documents.

5.    CONCLUSION

56    For the reasons set out above, the appeal should be dismissed with costs.

Associate:

Dated:    16 March 2015