FEDERAL COURT OF AUSTRALIA

DCD18 v Minister for Home Affairs [2018] FCA 2090

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal of 11 May 2018 to the effect that it did not have jurisdiction to review the decision of the delegate of the Minister for Immigration and Border Protection made on 11 October 2017 to refuse the applicant’s application for a Protection (Class XA) Visa be set aside.

2.    The application for review of said decision be remitted to the Tribunal for the exercise of its jurisdiction of review.

3.    The first respondent pay the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    The applicant is a transgender person who identifies as a woman who is a citizen of Pakistan who had sought a protection visa in 2008. The application was initially refused by a delegate of the Minister. That decision was overturned by the Refugee Review Tribunal (RRT) and remitted to the Minister. The application has been under consideration for a considerable period, partly explained by the difficulties over the years in contacting the applicant. In October 2017, a delegate of the Minister refused the protection visa on character grounds under s 501 of the Migration Act 1958 (Cth). The applicant had a number of criminal convictions for dishonesty and had been sentenced to imprisonment. The applicant discovered that her protection visa had been refused in March 2018 when she attended an office of the Department. She sought merits review of the decision in the Administrative Appeals Tribunal (the Tribunal), but the Tribunal decided that it had no jurisdiction to undertake a review of the decision. This conclusion was based on its finding that the applicant was out of time because the decision of the delegate had been sent by email to a relevant email address that engaged the operation of provisions of the Migration Act that are concerned with deemed receipt of the decision.

2    That finding by the Tribunal was a jurisdictional fact, open to factual challenge in this Court: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [19]; and DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521. For the reasons that follow, the Tribunal erred in so finding. The matter should be remitted to the Tribunal for its substantive jurisdiction of review to be exercised.

The legislative framework

3    Under s 500 the Tribunal is given jurisdiction to review decisions of a delegate of the Minister under s 501. Relevantly, by s 500(6B) an application for review must be lodged within nine days after the day on which the person was notified of the decision in accordance with sub-s 501G(1). Under s 501G(3) the Minister must give a relevant notice of cancellation in the “prescribed manner”. By reg 2.16(3) of the Migration Regulations 1994 (Cth), notification under s 501G(3) of a decision to cancel a visa under s 501(1) must be given in accordance with s 494B. Sub-sections 494B(1), (2) and (5) are relevantly in the following terms:

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.

…

    Giving by hand

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

…

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

4    Section 494C complements s 494B by clarifying when a person is taken to have received a document from the Minister under s 494B. Sub-sections 494C(1), (2) and (5) are relevantly in the following terms:

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.

…

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.

The issue here

5    The decision to refuse the visa was sent in October 2017 to the applicant by email. The question is whether it was sent to the “last…email address … provided to the Minister for the purposes of receiving documents” in accordance with s 494B(5)(d). If it was, the Tribunal was correct; if it was not, the Tribunal was not correct.

6    There was no issue but that the applicant did not receive the decision in 2017.

7    The issue is to be resolved by an understanding of the meaning and content of s 494B(5) and a close appreciation of the facts.

8    The regime for service of documents and the strict deadlines involved can be seen to have a clear and understandable rationale. In Khan v Minister for Immigration and Border Protection [2018] FCA 627 at [30] and [31] the matter was discussed by Griffiths J:

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.

9    There is nothing with which I would disagree in these paragraphs, except to qualify them with a recognition (that I would take to be implicit in them) that the meaning of the relevant provisions and the scheme for notification should recognise where possible that the decisions being made are about people who have important interests, sometimes involving life, liberty and safety. The regime is to be clear and certain, but its construction, interpretation and application should avoid, where possible and conformably with a need for certainty, outcomes that put one in mind of Franz Kafka or Joseph Heller.

10    The meaning, content and application of s 494B(5) is best approached by setting its operation in the facts of this case.

The facts

11    On 5 November 2008, the Department received an application from the applicant for a protection visa. The form as filled out reflected her then address in Adelaide, and showed that she had lived in Melbourne, Adelaide and Bendigo since 2003. She had studied in Pakistan and Australia. The applicant had come to Australia on a student visa. While in Australia she (to use her words in the application) “came out of the closet and took the road of my transsexualism”. Her claimed fear was of being killed by her family or religious people in Pakistan because of her sexuality. Question 17 of the form asked:

Do you agree to the department communicating with you by fax, email or other electronic means?

To which the answer was yes, and an email address was given (the gmail address).

12    In December 2008, the applicant filled out a form for financial assistance. The applicant was living at another address in Adelaide and had the assistance of the Red Cross. The form had a similar question asking whether she agreed to the department and the Red Cross communicating with her by fax or email or other electronic means. She once again agreed, giving a new email address (the ymail address).

13    Three months later (in February 2009) the applicant’s newly appointed migration agent sent two forms (Form 956 – appointment of a migration agent and Form 929 – change of address) to the department. The Form 956 contained a third email address (the yahoo address). This address was not provided in answer to a question but under the heading “Applicant details”.

14    After the Refugee Review Tribunal overturned the initial refusal the application was returned to the department. In November 2009, the department wrote to the applicant at her postal address in Kent Town, South Australia about further information.

15    There was then a two year gap in communication. The department had been trying to find the applicant. In November 2011 a letter was returned to the department. The department then sent an email on 8 November 2011 to the ymail address. On 22 November 2011 a response came from the applicant using the ymail address giving a new mailing address.

16    The department then received medical information that accorded with the request it made by letter to the applicant to the new address.

17    Then, in July 2012, the department received a Form 80 concerned with personal particulars for character assessment from the applicant. In answer to a question for her email address, the applicant gave the ymail address.

18    In September 2013, there is an attempt by a case officer to contact the applicant using the ymail address. This was followed up in February 2014. In February 2014 there is a departmental note discussing the difficulty in communication which stated:

Hi Sean

I propose consideration be given to an expedited AFP without consent so that we are able to refer this case to VACCU.

The client lodged PV on 5 November 2008 – was refused 25 March 2009 and remitted 20 November 2009.

Since then we have sent several requests for information:

∙    25/11/2009 – Requesting health, AFP, Form 80 – sent via post.

∙    06/05/2010 – Copy of letter sent 25/11/2009 – sent via post. AFP was received on 22/09/2011 with a result of not clear.

∙    02/11/2011 – AFP & Health – sent via post – this letter was returned to sender and the client contacted for up-to-date contact details.

∙    28/11/2011 – Health & Form 80

∙    26/09/2013 – AFP only – sent via email and post

∙    12/02/2014 – AFP only – sent via email (no current contact details on file)

The last contact we had from this client was on 13 July 2012, when we received a Form 80. We have had a lot of difficulty locating this person throughout their lodged application.

I have spoken to Lia Freeme, DCD18’s case manager in VIC, who has been unable to get in contact with the client. Sharon Pressley was the previous case manager in SA and also was unable to make contact. It is believed that the client is currently in WA given they have come to the attention of WA Police recently.

There is an ICSE note dated 28 January 2014 stating “On 17/01/2014 client came to attention of AFP at Brisbane Airport in relation to alleged credit card fraud and use of false names to book travel. Information from AFP indicates that client also has outstanding QLD criminal matters for possession of dangerous drugs. Recommend thorough criminal hoistory [sic] checks befor [sic] any further visa grant action. 28 JAN 2014 10:26 BRISBANE MARK GALLAGHER”.

Please let me know if you require further information.

Regards

Ashlea Moonie

RRT Remit Officer

Onshore Protection Victoria

Department of Immigration and Border Protection

19    In April 2016, the applicant was in Silverwater prison. Departmental officers went to see her. She was given a notice of intention to cancel her bridging visa (given whilst her substantive protection visa application was being considered) because of her criminal offences. The decision to cancel the bridging visa was made. There is a record in the documents of what the applicant said at the interview.

20    Upon release from Silverwater, the applicant was taken into immigration detention at Villawood. There, an interview was conducted with a case manager. The record of the interview by the case manager was on a form. Section F of the form recorded, amongst other things, what the applicant said about personal contact details. In answer to the question:

What is your current contact number and email address?

The case officer wrote the answer:

Contact number – “will provide number once known”

Email address – “Nil”.

21    The applicant relies on that record. It is to be taken as a statement by the applicant that she did not at the time have an email address. The first respondent says that it amounted merely declining to give further information on the subject; that it was just a failure to give an answer. I disagree. It is more. It evidences a statement that she did not have an email address.

22    Shortly after the interview, the applicant applied to the Tribunal to review the cancellation of the bridging visa. That application was successful and on 23 May 2016 the Tribunal sent to a departmental officer (Meherun Sheikh) a memorandum email that contained a notification of the decision and the decision record. The memorandum said:

“Under section 368A of the Migration Act, I am enclosing a copy of our statement under s 368 recording our decision...”

23    Section 368A is in the following terms:

368A    Notifying parties of Tribunal’s decision (decision not given orally)

(1)    The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:

(a)    within 14 days after the day on which the decision is taken to have been made; and

(b)    by one of the methods specified in section 379A.

(2)    A copy of that statement must also be given to the Secretary:

(a)    within 14 days after the day on which the decision is taken to have been made; and

(b)    by one of the methods specified in section 379B.

(3)    A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

24    In the body of the memorandum the following appeared:

The applicantâs [sic] contact information as recorded in our case management system (CaseMate) as at 23 May 2016 is:

15 BIRMINGHAM AVE

VILLAWOOD NSW 2163

Phone: No contact numbers provided.

Fax: 02 9780 9188

Email: ____________ (an address was given)

The applicant did not nominate an authorised recipient in connection with this review.

The departmentâs [sic] documents are being returned. Please note that we may have included copies of documents on which findings of fact were based. There may, however, be further documentation contained on our file, which is available on request. Such documents could include letters, photographs and recording of hearings.

…

25    The email address listed in the memorandum was new (the 2016 address).

26    The case officer was the person who had attended Silverwater prison to cancel the bridging visa (but not the officer who undertook the “client interview” at Villawood).

27    On 8 September 2017, the department sent an email to the applicant enclosing sentencing remarks and asking for comments.

28    There was no response and on 20 October 2017 a delegate of the Minister in the Visa Applicant Character Consideration Unit refused the protection visa under s 501(1) and sent notice of the refusal with associated documents to the gmail and ymail addresses (that is, the first two email addresses given).

29    The Tribunal accepted that these were not received by the applicant.

30    On 2 March 2018, the applicant was at a departmental office in Melbourne and was given the visa refusal notification. Within nine days she applied for review.

The Tribunal’s Decision

31    The reasoning of the Tribunal was contained in [23] to [27] of the decision:

REASONING

23    Section 494B of the Act permitted the Minister to provide notice of the cancellation decision in several different ways, one of which was “the last…email address…provided to the Minister for the purposes of receiving documents”. The choice of the particular method is a matter for the Minister.

24    The last email address provided to the Minister was the ymail address provided by the Applicant when she submitted the Form 80 – Personal particulars for character assessment in July 2012. This was the same address as that she provided when she submitted her request for asylum seeker assistance in 2008.

25    I agree with the argument put on behalf of the Minister that he was not required to notify the Applicant of his decision by means of the email address provided to the Tribunal in 2016 and subsequently notified to the Department by the Tribunal. This address was not provided to the Minister by the Applicant and in any event, it was not provided for the purposes of receiving documents in respect of the application for the Protection visa.

26    Subsection 494C(5) of the Act provides that in the case of email transmission a recipient “is taken to have received the document at the end of the day on which the document is transmitted”. As notice of the cancellation decision was emailed to the Applicant on 20 October 2017 she is taken to have received it on that day. It follows that the last day for making an application to the Tribunal to review the Minister’s decision was 29 October 2017. The Tribunal does not have power to extend the time for making the application.

CONCLUSION

27    The Tribunal does not have jurisdiction to review the decision of the Minister for Immigration and Border Protection made 11 October 2017 to refuse the Applicant’s application for a Protection (Class XA) visa.

(Footnote omitted.)

Consideration

32    The issue is short: Was the ymail address the “last…email address…provided to the Minister for the purposes of receiving documents”?

33    In my view, the answer is no, for at least two reasons. First, the “nil” answer to the department at the Villawood interview was a statement that there was no current email address. One does not construe s 494B(5)(d) to include the last email address given for the purposes of the receipt of documents when the applicant has later said that there is no current email address. The words of s 494B(5)(d) must be construed in a way not to include an email address said by the applicant no longer to be current. That is the plain meaning of the answer to the question that was given. It was not a refusal to update, leaving existing information current. It was a statement that there was no current email address. However one construes s 494B(5)(d), the last email address provided cannot include one that the person has said is not current. To construe it so would authorise the use of an email address, and to deem receipt at that address, being an address that the department had been told was not current, that is, not in use.

34    Secondly, the 2016 address was given by the Tribunal, in all the circumstances, for purposes that included the provision of contact details, and so the receipt of documents. Section 494B(5)(d) does not require the address to be supplied by the applicant. Nor are the words in s494B(5)(d) directed to any particular forms, or parts of forms, used by the department such as the forms, and questions, referred to at [11] and [12] above. The question is: objectively, was the email address provided for the purpose of receipt of documents, that is, for the purpose of communication? Here, one agency of the Executive (the Tribunal) informed the department of the person’s contact details. An email address is only useful for the receipt of electronic information and documents. Objectively analysed, one of the purposes of the email (another being related to ss 368 and 368A of the Migration Act 1958 (Cth)) was to provide the applicant’s contact details, including email address, to the department for use, if needed, for communication with the applicant, that is, the sending and receipt of information and documents.

35    If the 2016 address was not the last email address for s 494B(5)(d), the gmail and ymail addresses were also not. They could not be after the “nil” answer at Villawood. Further, though not argued, the yahoo address (which one would infer was also not current after the Villawood “nil” answer) was provided after the gmail and ymail addresses.

36    For these reasons the decision of the Administrative Appeals Tribunal of 11 May 2018 to the effect that it did not have jurisdiction to review the decision of the delegate of the Minister for Immigration and Border Protection made on 11 October 2017 to refuse the applicant’s application for a Protection (Class XA) Visa should be set aside; the application for review of said decision should be remitted to the Tribunal for the exercise of its jurisdiction of review; and the first respondent should pay the applicant’s costs of the proceedings.

Associate:

Dated:    21 December 2018