FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Border Protection [2018] FCA 627

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the first appellant be appointed as the litigation representative of the third and fourth appellants.

2.    The appeal be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This is an appeal from a decision dated 15 November 2017 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as Khan v Minister for Immigration and Border Protection [2017] FCCA 3112.

2    For the following reasons, the appeal will be dismissed. However, it is appropriate to state at the outset that this is an unusual case. The appellants find themselves in an unfortunate and awkward position through no fault of their own.

Summary of background matters

3    The four appellants are all members of the same family, comprising the husband and wife and their two children. They are Bangladeshi nationals.

4    On 8 June 2016, the husband, acting through a migration agent (Md. Haque from MS Haque & Associates), applied to the Department for a subclass 602 medical treatment visa in relation to treatment of his sinuses. By a Form 956, which was signed by both the husband and the agent, the Department was directed to send written communications about the visa application to the identified migration agent.

5    On 9 June 2016, the wife and two children applied separately for subclass 602 visas on the basis of each being a person who accompanied a person seeking treatment. It was indicated on each of the applications that all written communications about these accompanying persons’ applications should be sent to the same migration agent, Md. Haque .

6    On 16 June 2016, the Department sent letters to each of the appellants notifying them of the decision to refuse the grant of the visas. The visa applications of the first and second appellants were refused because they did not satisfy the relevant requirement that their applications be made within 28 days of the last day the appellants had held a substantive visa. The children’s applications were refused on the basis that there was no evidence that either of them were seeking medical treatment and also because their father’s visa application had been refused. The Department’s four letters were all sent by email to the nominated email address of the migration agent as set out in the husband’s Form 956. It was not disputed that the emails arrived in the inbox of the migration agent’s email account. It appears, however, that the agent did not immediately access those emails and it was only one or two days later that he says he went to the inbox and found that the emails had been deleted because of a technical problem.

7    It appears that the agent did nothing further about the matter until, on 30 June 2016, he sent an email to the Department requesting an update on each of the four applications in circumstances where it was explained in the email that “all correspondence has been deleted regarding this client”. The agent asked the Department to resend all correspondence to him regarding the client and he provided his mobile telephone number and email address.

8    The agent sent another email to the Department on 4 July 2016 in which he informed the Department that he had not received a reply to his earlier email dated 30 June 2016. On 5 July 2016, the agent sent a letter by facsimile to the Department. The letter stated that the agent believed that the applications had been decided by the Department and that an email had been sent to the agent but that, unfortunately, “we missed the email or it was deleted from our email”. The letter referred to the fact that other emails had been sent to the Department but no reply had been received. The letter contained a fresh request for the Department to send the agent “the decision of all applicants at your earliest” [AB 267].

9    The primary judge noted at [8] of his reasons for judgment that the material before him suggested that, on 7 July 2016 the Department reprinted the notification letters and delivered them to the migration agent on that day, and that perhaps it also gave copies of the letters to the first appellant on 8 July 2016 after he said that he drove to the Department’s offices in Canberra to collect them. The Court Book included a copy of an internal Departmental Case Note dated 18 July 2016, which included the following statement:

ICSE notes that original decision record had a mistake and notification letter was reprinted and hand delivered to MA on 7/7/16. It is unclear from ISCE whether the MA/RA were officially re-notified or the reprint was just a courtesy.

10    Another Departmental Case Note dated 12 August 2016 states:

Please disregard content of previous Jurisdiction Note made on 18/07/16 which states that there are ICSE records which suggest that the original decision record contained an error and was renotified to the migration agent. The original decision records do not contain errors and no re-notification has occurred (only a copy of the original decisions were [sic] provided to the migration agent).

11    The appeal book contained a handwritten letter dated 7 July 2016 headed “Authorisation” in which the agent gave authority to the husband to obtain “all of his documents”, including those of his wife and two children, because the agent had left Australia for overseas for a fortnight. There was also some material before the FCCA, in the form of an email dated 30 August 2016 from the husband to the Department, which stated that the husband had collected copies of the four letters from the Department’s Canberra office on 7 July 2016. On 13 July 2016, the four appellants lodged an application for review of the Department’s decisions with the Administrative Appeals Tribunal (AAT).

12    On 17 August 2016, the AAT sent a letter to the appellants informing them of a tentative view that the applications for review were invalid because they were lodged out of time. The appellants were invited to provide written comments on that tentative view. By email dated 30 August 2016, the husband asked that the application be treated as a valid application in view of what had occurred. He added that he had collected the decision personally on 7 July 2016 from the Department’s Canberra office.

13    The AAT also received an undated letter from the agent in response to its letter dated 17 August 2016. The agent explained that he recalled seeing the Department’s email in his inbox on or shortly after 16 June 2016 and that when he returned to the inbox a day or two later to print and carefully read the decisions, he found that the emails “had disappeared”. The agent explained that he had “experienced an IT problem which caused some emails to be permanently deleted from the Inbox”. The agent said that he attached to his letter copies of his correspondence to the Department dated 30 June 2016, 4 July 2016 and 5 July 2016. After referring to those three pieces of correspondence, the agent stated in his letter that these documents indicated that:

(a)    on  30 June 2016, he informed the Department by email about the deletion and asked the Department to resend all correspondence;

(b)    on 4 July 2016, the agent informed the Department by email that he had not received a reply to his 30 June 2016 email; and

(c)    on 5 July 2016, he informed the Department by facsimile that the email attaching the Department’s decision had been deleted and another request had been made for the decision to be sent to the agent.

14    The agent stated in his letter that he had phoned the relevant office of the Department between 25 and 30 June 2016 and made the same request orally. He further submitted that the Department should take the view that notice of the decision had not been received until 7 July 2016, when the husband said that he had driven to Canberra and collected the decision from the Department.

15    On 7 September 2016, the AAT determined that it lacked jurisdiction because the review applicants had not made their applications for review within the prescribed time. The AAT reasoned that, in accordance with s 494C of the Migration Act 1958 (Cth) (the Act), the review applicants were taken to have been notified of the Department’s decision on 16 June 2016 when the Department emailed their agent, and that the prescribed period within which a review application had to be made ended on 7 July 2016. As the review application was not received until 13 July 2016, it was out of time.

FCCA proceeding

16    The appellants contended that the AAT erred in finding that they were notified on 16 June 2016 of the adverse primary decisions within the meaning of reg 4.10 of the Migration Regulations 1994 (Cth) (Regulations). They contended that they were not notified of the primary decision until 7 July 2016, when the husband drove to Canberra and collected the letters. It was argued that the method for notification set out in s 494B(5)(d) did not apply to the two children because they were minors and that the correct provision in relation to them was s 494B(5)(e).

17    The primary judge noted the requirement under s 66 of the Act for the Minister to notify an applicant for a visa of the decision in the prescribed way and that reg 2.16 of the Regulations prescribes, for the purposes of s 66(1), one of the methods specified in s 494B of the Act.

18    It is convenient to interpolate here that, in the case of a decision to refuse to grant a person a visa, reg 2.16(3) provides:

(3)    The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

19    Section 494B of the Act provides:

494B    Methods by which Minister gives documents to a person

Coverage of section

(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.

(1A)    If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a)    who is at least 18 years of age; and

(b)    who the Minister reasonably believes:

(i)    has day to day care and responsibility for the minor; or

(ii)    works in or for an organisation that has day to day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:    If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.

(1B)    However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

Giving by hand

(2)    One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

Handing to a person at last residential or business address

(3)    Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:

(a)    is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and

(b)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c)    appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of the Minister dating the document, and then dispatching it:

(a)    within 3 working days (in the place of dispatch) of the date of the document; and

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

(ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

(iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

Transmission by fax, email or other electronic means

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

(a)    fax; or

(b)    email; or

(c)    other electronic means;

to:

(d)    the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

(e)    if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.

When the Minister hands a document by way of an authorised officer

(6)    For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.

Documents given to a carer

(7)    If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

20    The primary judge noted the effect of s 494C, which relevantly provides that if the Minister gives a document to a person by the method in s 494B(5) that person is taken to have received the document at the end of the day on which the document is transmitted (see s 494C(5)). Section 494C provides:

494C    When a person is taken to have received a document from the Minister

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

Giving by hand

(2)    If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)    If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4)    If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or

(b)    in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

(5)    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email 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.

Document not given effectively

(7)    If:

(a)    the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b)    the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

21    The primary judge set out the terms of s 494D:

494D    Authorised recipient

(1)    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note:    If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2)    If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

(3)    Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.

(3A)    In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

(5)    The Minister need not comply with subsection (1) if:

(a)    the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

(b)    the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

(c)    the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

22    The primary judge noted at [16] that, by s 347, an application for review of a Part 5-reviewable decision had to be given to the AAT within the prescribed period, namely a period not later than 28 days after notification of the decision. His Honour noted that the prescribed period in the particular circumstances was that set out in reg 4.10, which “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”. In other words, there was a 21 day period within which each visa applicant needed to make an application for review after the day on which notice of the adverse decision was received.

23    The appellants contended below that there was an important distinction drawn in ss 494B(5)(d) and (e) between the case of an applicant who is a minor and one who is not. In the case of an applicant who is a minor, the appellants contended that s 494B(5) requires the notification to be by way of a document sent to, relevantly, an email address for a “carer of the minor that is known by the Minister”. It was further contended that the migration agent was not a carer of either of the children.

24    The primary judge rejected these contentions in [18] to [21] of his Honour’s reasons for judgment:

18.    The difficulty with the proposition which lies at the heart of this application, is that sub-section (5) and in fact the whole of s.494D refers not to the applicant, but to a recipient. Sub-section 494B(1A) provides that for the purposes of the provision of the Act or Regulations that “require or permit the Minister to give a document to a person (the recipient)”. That means that sub-s.494B(5)(e) of the Act, where it refers to recipient does not necessarily refer to an applicant, but it is a reference to a person to whom the Minister is required, by a provision of the Act or Regulations to give a document.

19.    In this case, the requirement in s.494D of the Act provides the answer. That provision, in the circumstances where Md. Haque was given as an authorised recipient by each of the applicants, including the third and fourth applicant, required the Minister to give Md. Haque, instead of each of the applicants, any document in connection with those matters that the Minister would otherwise have given to the first person. That means for the purposes of s.494B, the recipient in question was not each of the applicants, but was Md. Haque. There was no evidence that Md. Haque was a minor. Indeed, it may be inferred from the fact that he has attained several degrees, including two Masters of Law from different universities, that he is not a minor. For that reason, s.494B(5) of the Act did not apply in the facts of this case.

20.    Counsel for the applicants argued that the answer to this was in s.66 of the Act, which requires an applicant to be notified of a decision in the prescribed way. The submission is correct, but only insofar as it goes. However, in light of s.494D(2), there is a deeming that that has been complied with. The difficulty with the construction argument put forward by the applicants is that it requires s.494B, together with s.66, to be read in the absence of, rather than to be governed by s.494D of the Act. The plain terms of s.494D undermine that argument.

21.    In those circumstances, I find on the uncontested facts, that as the notification of decision by letter 16 June 2016, was sent by email and received on the same day by the authorised recipient, the applicants were taken, pursuant to s.494D, to have been given those documents. Therefore, s.66 of the Act was complied with on that day, and the timeframe for making an application under s.347 of the Act commenced on that day, and finished on the twenty first day after it: namely, 7 July 2016. The application for review was not filed until after that day. Therefore, the application was not properly made and there was no obligation on the Tribunal to review the decisions of the delegate.

25    Accordingly, the judicial review challenge to the AAT’s decision that it lacked jurisdiction was dismissed.

Notice of appeal

26    Although the appellants were represented in the FCCA, they did not have legal representation in the appeal. The husband represented each of them. The Court made an order appointing him the litigation representative of the two minor children.

27    The notice of appeal filed on 6 December 2017 contained the following two grounds of appeal (without alteration):

1.    The Tribunal (Administrative Appeals Tribunals) the Tribunal erred in finding that the applicants were notified of the primary decision, within the meaning of reg 4.1 0(1)(a), on 16 June 2016. The applicants were not notified of the primary decisions until 7 July 2016, when the first applicant drove to the relevant office of the Department at Canberra to collect the decisions, the trial judge erred in considering this issue.

2.    The trial judge erred in considering the deeming provision of the Migration Act of its section 494C(5).

Summary of parties’ submissions

28    As noted above, the first appellant represented all the appellants. He failed to provide a written outline of submissions. Mr Khan explained at the commencement of the hearing that he had been very unwell and had been unable to provide any written submissions. I accept that explanation. I invited Mr Khan to make oral submissions in support of the appeal. He restated the unfortunate facts concerning the deletion of the notification emails from his agent’s system and explained the other steps he had taken to obtain copies of the notification decisions. The Court explained to Mr Khan that he needed to identify an appealable error in the primary judge’s judgment. He candidly stated that he could not do so but he reiterated that what had occurred was beyond his control.

29    It is unnecessary to summarise the Minister’s submissions because they are substantially reflected in the reasons given below for dismissing the appeal.

Consideration and disposition of the appeal

30    Given the high volume of decisions made by the Minister and his Department, it is understandable that there is a need for certainty with regard to such matters as to when and how decisions on visa applications are to be notified. It is equally understandable that there is a need to specify time periods within which review applications must be made, by reference to the date when notification of adverse decisions has been made. These kinds of considerations explain why there are quite detailed provisions in both the Act and Regulations dealing with these matters. The legislative scheme includes provisions which deem matters to have occurred if particular actions are taken. The Note to s 494B(1A), s 494B(7), the Note to s 494D(1) and s 494D(5) are examples of such provisions.

31    The public policy rationale for this type of legislative scheme is clear and understandable. As this case well illustrates, however, the need for certainty from a public policy perspective can collide with individual justice considerations. The Minister did not suggest either below or in this Court that the agent’s account of what had occurred in respect of the inadvertent deletion of the emails dated 16 June 2016 from his email inbox due to technical problems should be disbelieved. Nor did the Minister contest the agent’s claims that from late June 2016 onwards he sought to draw the Department’s attention to the problem both in writing and by telephone calls. Nor did the Minister contest the agent’s claim that, despite his repeated attempts to rectify the problem, the Department did not respond to his requests that it resend the decision letters.

32    On the face of things, the appellants are justifiably aggrieved by the operation of the legislative scheme in their particular circumstances. The scheme has the potential to operate in ways that can fairly be described as harsh and draconian. It is unfortunate that there is no provision in the regime for discretionary powers to operate in appropriate cases to relieve the draconian operation of the scheme. The evidence strongly suggests that the first appellant has acted responsibly and conscientiously throughout this unhappy saga, which has been occasioned by the inadvertent deletion of the Department’s notification letters from the migration agent’s email system.

33    Having said that, however, in my respectful view, the primary judge has correctly applied the relevant legislative provisions, for the reasons given by his Honour in [18] to [21] of his Honour’s reasons for judgment (which are set out in [24] above). On one view, there is a tension between ss 494B(5) and 494D. As McHugh, Gummow, Kirby and Hayne JJ stated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70], where such a tension arises from the language of particular provisions, it must be alleviated, so far as is possible, by “adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”. Their Honours added that such a process of reconciliation often requires the Court to determine what is the leading provision, as opposed to the subordinate provision, the latter of which must give way to the former. In my respectful view, the primary judge was correct to treat s 494D as the leading provision to which s 494B(5) is subordinate. Accordingly, as held by the primary judge, for the purposes of s 494B, the recipient in question was not each of the appellants but rather was the nominated contact person, Md. Haque, who plainly was not a minor.

34    The appellants have failed to establish any appealable error in his Honour’s reasons for rejecting their judicial review challenge. Both grounds of appeal must be rejected.

35    The Minister sought costs. Notwithstanding the appellants’ failure, I do not consider that they should be ordered to pay the Minister’s costs having regard to the very unusual circumstances of this case and, in particular, the Department’s failure to respond to the agent’s repeated requests that further notifications of the refusal decision be sent during the period for seeking a review, a matter which was not disputed.

Conclusion

36    For these reasons, the appeal must be dismissed. It is to be hoped that the peculiar features of this case will be taken into account by the Minister and those who advise him.

Associate:

Dated:    11 May 2018