FEDERAL COURT OF AUSTRALIA

Somjich v Minister for Home Affairs [2019] FCA 1921

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to file an amended notice of appeal in the form of the draft attached to the appellant’s supplementary written submissions filed on 6 September 2019.

2.    The appeal is allowed.

3.    The judgment of the Federal Circuit Court of Australia delivered on 13 February 2019 is set aside.

4.    A writ of certiorari issue quashing the second respondent’s decision of 19 June 2019.

5.    A writ of mandamus issue requiring the second respondent to decide the appellant’s application for review according to law.

6.    The first respondent pay the appellant’s costs of the appeal.

7.    There be no order as to the costs of the proceeding before the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 13 February 2019, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).

2    The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (the Minister) to refuse to grant the appellant a Partner (Residence) (Class BS) visa (Permanent Partner visa).

3    The appellant’s notice of appeal alleges that he was denied natural justice by reason of the Tribunal sending an invitation to comment upon information to the wrong email address. He also seeks leave to rely upon a ground not argued before the Federal Circuit Court, to the effect that the Tribunal failed to consider centrally important evidence.

4    I will proceed by describing the decisions of the delegate, the Tribunal and the Federal Circuit Court, before considering the existing and proposed grounds of appeal.

The delegate’s decision

5    The appellant is a citizen of Thailand. On 14 May 2003, he lodged an application for a Partner (Temporary) (Class UK) visa (Temporary Partner visa) and a Permanent Partner visa on the basis of his relationship with his de facto partner.

6    On 9 April 2014, the appellant was granted a Temporary Partner visa. The criteria for the grant of a Permanent Partner visa are set out in cl 801 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 801.221(2) requires that, at the time of the decision, the applicant, inter alia, is the spouse or de facto partner of the sponsoring partner, and at least two years have passed since the application was made. There is an exception where the relationship has ceased because the applicant has suffered family violence committed by the sponsoring partner (cl 801.221(6)).

7    On 14 May 2017, the applicant notified the Department that his relationship with his sponsor had broken down. On 25 May 2017, the Department of Home Affairs (the Department) invited the appellant to comment upon the cessation of the de facto relationship. The applicant did not provide any additional information. On 6 July 2017, the delegate refused the grant of a Permanent Partner visa.

History of the proceeding before the Tribunal

8    On 12 July 2017, the appellant applied to the Tribunal for review of the delegate’s decision. In his application form, under the heading “Correspondence details”, the appellant gave the email address, mongkol88.education@gmail.com (the Gmail address).

9    On 4 December 2017, the Tribunal sent an email to the Gmail address noting that information on the Department’s file indicated that his relationship with his sponsoring partner had ended and inviting him to comment or respond.

10    On 18 December 2018, the appellant responded to the Tribunal’s email from the Gmail address raising claims of verbal, financial and emotional family violence perpetrated by the sponsor. The email was cc’d to the email address, jarrusom@hotmail.com (the Hotmail address).

11    On 18 January 2018, the Tribunal sent an email to the Gmail address inviting the appellant to attend a hearing scheduled for 19 February 2018. On that date, the appellant appeared before the Tribunal, assisted by a migration agent. The hearing was adjourned part-heard. On 17 April 2018, the appellant again appeared before the Tribunal, assisted by the migration agent.

12    On 24 April 2018, the appellant wrote to the Tribunal from the Hotmail address indicating that he had ended the appointment of his migration agent and requesting that all correspondence be sent directly to the appellant. On 29 April 2018, the appellant’s former migration agent wrote to the Tribunal confirming his termination as the appellant’s representative.

13    On 1 May 2018, the appellant, using the Hotmail address, emailed to the Tribunal a “Change of Contact Details—MR Division” form. Under the heading “Applicant contact details”, the appellant selected, “No change”. Under the heading “Cancellation of Authorised Recipient”, the appellant selected, “I withdraw my previous authorisation of a person to receive correspondence on my behalf. I now wish all correspondence to be sent to me”. The appellant also indicated that, “I agree to you sending all correspondence by email…”.

14    On 2 May 2018, the Tribunal sent an email to the Gmail address, stating:

I also note that you are using a different email address to the one we have on file. If you wish to change it, can you please resend the contact details form with a new email address.

There was no response to that email.

15    On 2 May 2018, the appellant sent two statutory declarations to the Tribunal from the Hotmail address.

16    On 8 May 2018, the appellant sent an email to the Tribunal enclosing a further statutory declaration. The Minister accepts that it should be inferred that the email was sent from the Hotmail address.

17    On 8 May 2018, the Tribunal sent an email to the appellant at the Gmail address.

18    On 31 May 2018, the Tribunal sent another email to the Gmail address. The email noted that as the Tribunal was not satisfied that he had suffered family violence, the Tribunal had referred his claim to an independent expert. The email noted that the Tribunal had received the opinion of the independent expert that the appellant had not suffered relevant family violence. The email invited the appellant to comment upon that information.

19    The appellant did not respond to the email. On 19 June 2018, the Tribunal affirmed the delegate’s decision.

20    The appellant claims not to have received the Tribunal’s email of 31 May 2018 as he was using the Hotmail address, not the Gmail address. He states that the Gmail address was that of an “education agent” who was representing him at the time he lodged his application for review with the Tribunal.

The Tribunal’s decision

21    The Tribunal’s reasons for affirming the delegate’s decision to not grant the appellant a Partner Permanent visa include the following passages:

14.    The applicant told the Tribunal in oral evidence that he had suffered family violence but presented little evidence to support this claim. The Tribunal granted the applicant time to obtain the prescribed evidence of family violence. The applicant ultimately provided to the Tribunal a declaration a psychologist, a declaration from a community worker (of the Thai­Aussie Sisters Support Association) and a declaration from an accredited mental health social worker, as well as other statements and declarations. The Tribunal finds that a non­judicially determined claim of family violence has been made under r.1.23.

Has the applicant suffered family violence?

15.    The Tribunal has considered the applicant’s evidence but does not accept that the applicant has suffered family violence. The Tribunal is mindful that the claim of family violence has only been recently made and appears to have been made in response to the withdrawal of sponsorship. At no time prior to the sponsorship being withdrawn has the applicant made any reference to the family violence. The Tribunal also notes that the applicant’s engagement with the social workers and the psychologist appears to be very recent and, again, in response to the visa issues. Again, it appears that having had his visa application refused and determined that there were few other options of obtaining the visa, the applicant made the decision to claim family violence.

16.    Having considered the applicant’s evidence, including his oral evidence, the Tribunal is not satisfied that the applicant has been truthful in his dealings with the Department and the Tribunal does not accept the applicant has suffered relevant family violence. In accordance with r. 1.23, the Tribunal sought the opinion of an independent expert. On 31 May 2018 the independent expert provided an opinion that the applicant had not suffered relevant family violence. The Tribunal wrote to the applicant inviting his comments on that information pursuant to s. 359A of the Act. The applicant did not respond to the Tribunal’s correspondence.

17.    The Tribunal is satisfied that the independent expert’s opinion has been validly made. Having regard to that opinion, the Tribunal finds that the applicant has not suffered family violence.

18.    The applicant’s evidence to the Tribunal is that his relationship with the sponsor has ended. The Tribunal finds that at the time of this decision, the applicant is no longer the spouse or de facto partner of the sponsor. The Tribunal is not satisfied the applicant has suffered family violence. There is no evidence that the sponsoring partner has died and there are no children in relation to whom the applicant has any court orders or responsibilities. The Tribunal is not satisfied the applicant meets cl. 801.221.

19.    The applicant submitted to the Tribunal a number of character references and referred to his settlement in Australia. A number of witnesses provided statements concerning the relationship. The applicant told the Tribunal that they had a joint business but he did not get any funds when the relationship broke down. The Tribunal acknowledges that evidence but having found that the applicant does not meet key criteria for visa grant, the Tribunal has no option but to affirm the decision under review.

Conclusion

20.     For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

21.     The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

22    It may be seen that the Tribunal rejected the appellant’s claim to have been subjected to family violence by during the relationship on the basis that his evidence was not credible.

The judgment of the Federal Circuit Court

23    On 11 July 2018, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

24    The application set out five grounds, including that the Tribunal ignored relevant materials and facts and denied the appellant natural justice by sending its email of 31 May 2018 to the wrong email address.

25    However, the only ground argued by the appellant, who was represented by counsel, was the email address ground. That issue concerned s 379A(5)(d) of the Migration Act 1994 (Cth) (the Act), which permitted the Tribunal to transmit a document by email to the last email address, “provided to the Tribunal by the recipient in connection with the review”. The appellant argued that the last email address he had provided to the Tribunal in connection with the review was the Hotmail address, not the Gmail address. He argued that the Tribunal had denied him the opportunity to comment upon the opinion of the independent expert that he had not suffered family violence by sending its email of 31 May 2018 to the Gmail address.

26    The primary judge rejected the appellant’s argument, holding that the only email address provided by the applicant to the Tribunal was the Gmail address. His Honour noted that the “Change of Contact Details—MR Division form” indicated that there was no change in the appellant’s contact details. Accordingly, his Honour dismissed the application.

The proposed amended notice of appeal

27    On 6 March 2019, the appellant filed a notice of appeal asserting that the Federal Circuit Court erred by failing to find that the Tribunal had ignored relevant material and facts and had denied the appellant natural justice by forwarding its invitation to comment to the wrong email address.

28    At the hearing, the appellant sought to rely upon an amended notice of appeal, adding two grounds not raised before the Federal Circuit Court. The grounds were that the Tribunal had asked itself the wrong question and failed to take into account relevant considerations. In the course of argument, the Court suggested that these grounds did not capture the argument that the appellant seemed to be making, which was that the Tribunal had failed to consider relevant evidence. Subsequently, the appellant sought to substitute a ground that:

The Federal Circuit Court erred in failing to find that the second respondent’s decision was affected by jurisdictional error in that it failed to consider evidence that was so substantial and consequential that it amounted to a jurisdictional error, that being, the corroborating evidence of relevant family violence.

29    The appellant requires leave to file the amended notice of appeal and to raise the additional ground. The Minister opposes such leave on the basis that it is to be inferred that the appellant’s then counsel made a tactical decision not to rely upon the ground and, in addition, that the ground lacks merit.

30    The appellant was represented by the same solicitors, but by different counsel before the Federal Circuit Court. One of the grounds raised in the application for review was that the Tribunal had ignored relevant material and facts, but that ground was not pursued. It may be inferred that the appellant’s former counsel took the view that the ground should not be run because it lacked sufficient merit.

31    An appellate court will not ordinarily allow an appellant to depart from the basis upon which a case has been conducted at first instance: see, for example, Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 23 at 71; Zheng v Cai (2009) 239 CLR 446 at [16]; Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 at 395; [2015] HCA 42 at [18]; Park v Brothers (2005) 222 ALR 421; [2005] HCA 73 at [34] at 430. However, an appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient to do so in the interests of the administration of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCR 588 [48].

32    In this case, the appellant’s counsel made a seemingly deliberate decision to not argue before the Federal Circuit Court the ground now relied upon. However, that ground was, and is, strong. It is clear that the appellant’s former counsel made an error of judgment. The consequences for the appellant are serious, and there would be an unjust outcome if the appellant were bound by the error made by his counsel. In this exceptional case, that injustice should not be trumped by the public interest in finality of proceedings. I will grant the appellant leave to file the proposed amended notice of appeal and to raise the further ground.

Consideration of the appeal

The ground that the Tribunal failed to consider evidence that was so substantial that it amounted to jurisdictional error

33    It will be recalled that the Tribunal found:

The Tribunal has considered the applicant’s evidence but does not accept that the applicant has suffered family violence. The Tribunal is mindful that the claim of family violence has only recently been made and appears to have been made in response to the withdrawal of sponsorship. At no time prior to the sponsorship being withdrawn has the applicant made any reference to family violence...

34    The appellant submits that these conclusions demonstrate that the Tribunal failed to consider the statutory declarations of two witnesses which indicated that there had been family violence perpetrated against the appellant by his former partner. However, the Minister contends that the Tribunal’s reasons read as a whole show that the statutory declarations were considered.

35    Before considering the competing arguments, it is necessary to set out the relevant statutory provisions. In Sch 2 of the Regulations, cl 801.22 provided, relevantly, as follows:

801.22 - Criteria to be satisfied at time of decision

801.221

(1)     The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

  (2)     An applicant meets the requirements of this subclause if:

(a)     the applicant is the holder of a Subclass 820 visa; and

(b)     the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i)     the sponsoring partner;

…

(c)     the applicant is the spouse or de facto partner of the sponsoring partner; and

(d)     …at least 2 years have passed since the application was made.

…

(6)     An applicant meets the requirements of this subclause if:

(a)     the applicant is the holder of a Subclass 820 visa; and

(b)     the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

(c)     either or both of the following circumstances applies:

(i)     either or both of the following:

(A)     the applicant;

…

has suffered family violence committed by the sponsoring partner;

…

36    Regulation 1.23 provided:

Regulation 1.23 - When is a person taken to have suffered or committed family violence?

(1)    For these Regulations, this regulation explains when:

(a)    a person (the alleged victim) is taken to have suffered family violence: and

(b)    another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

…

Circumstances in which family violence is suffered and committed - non-judicially determined claim of family violence

…

(9)    For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

(a)    the applicant seeks to satisfy a prescribed criterion that the applicant. or another person mentioned in the criterion, has suffered family violence; and

(b)    the alleged victim is:

(i)    a spouse or de facto partner of the alleged perpetrator; or

…

(c)    the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

(i)    the alleged victim has suffered relevant family violence; and

(ii)    the alleged perpetrator committed that relevant family violence.

(10)     If an application for a visa includes a non-judicially determined claim of family violence:

(a)    the Minister must consider whether the alleged victim has suffered relevant family violence; and

(b)    if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

(c)    if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

(i)    the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

(ii)    the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

(11)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a)    an application for a visa includes a non-judicially determined claim of family violence; and

(b)    the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

(12)    For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

(13)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a)    an application for a visa includes a non-judicially determined claim of family violence; and

(b)     the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

(14)    For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

…

37    Regulation 1.21 defined “relevant family violence” as follows:

Relevant family violence means conduct, whether actual or threatened, towards:

(a)    the alleged victim;

…

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

38    The appellant’s case before the Tribunal was that he satisfied the criterion of cl 801.221(6) requiring that he had suffered family violence (as defined in reg 1.21) committed by his former partner during the relationship.

39    The appellant claims that the Tribunal overlooked the statutory declarations of Ms Arisara Janthorn and Mr Chomphunake Roweth, which he had provided to the Tribunal. The Tribunal did not expressly refer to these witnesses in its reasons.

40    It is necessary to consider, firstly, whether the Tribunal overlooked the relevant passages of the statutory declarations of the two witnesses, and, secondly, whether any such error was jurisdictional.

41    Section 368 of the Act requires the Tribunal to provide a written statement that, inter alia, sets out its reasons for decision and findings on any material questions of fact and refers to the evidence or any other material on which the findings of fact were based. It is unnecessary for the Tribunal to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47]. Further, the Minister’s obligation under s 368 is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]. However, where the written statement does not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court observed at [76] that whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The Full Court also observed that the reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

42    Whether the Tribunal commits jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]-[56].

43    The appellant provided a number of statutory declarations to the Tribunal. In his own statutory declaration of 15 February 2018, the appellant asserted that he had been the victim of domestic violence committed by his former partner. He said that he had twice been treated in hospital for injuries he received as a result of such violence. He claimed not to have complained about the violence previously as he loved his partner, did not want anyone to know about their personal issues and did not want his partner to be in trouble.

44    The Tribunal was not satisfied that the applicant has been truthful and did not accept that he had suffered any relevant family violence. The reason expressly given by the Tribunal for that conclusion was that, “at no time prior to the sponsorship being withdrawn has the applicant made any reference to the family violence”.

45    The appellant had produced to the Tribunal a statutory declaration from Ms Janthorn. She declared that:

6.    I met Trevor [surname deleted] in 2010. Trevor is substantially older than Jarrukit and I observed there to be a power imbalance in the relationship due to the age difference and Trevor’s behaviours. I have witnessed Trevor use degrading and controlling behaviours toward Jarrukit. For example I have observed Trevor ordering Jarrukit around by telling him where to go and what to do. Jarrukit was always very submissive when Trevor was telling him what to do.

7.     Within the time frame of their relationship, I had observed Trevor becoming increasingly dismissive, isolating Jarrukit and becoming more aggressive to him on a weekly basis.

8.    On another occasion Jarrukit and I brought seafood and we went to his house. When we were preparing to eat our meal Jarrukit suddenly said not to put oysters on the plate as he feared that if Trevor finds out, a big argument would commence. I often observed Jarrukit to be ‘walking on eggshells’, as if he made any decisions that Trevor didn’t like, he would be subjected to criticism.

...

14.    As a result of Jarrukit’s disclosure to me regarding his financial and emotional abuse I provided information to him with respect to making a domestic violence protection order. However, Jarrukit declined this support as he loved his partner and he didn’t want to be perceived as doing ‘bad things’ to Trevor.

46    The appellant also provided a statutory declaration from Mr Roweth, a former workmate. Mr Roweth deposed that:

2.    I often heard him swear at Jarru - his mood was up and down. Most of the times, Jarru could not deal with him, and just cried. I was the one who sat next to Jarru and told him that Trevor needed to be more patient as Jarru loved his ex­partner.

3.    His ex-partner also did one thing that I could not accept, one time I saw Trevor pushed Jarru away very hard and Jarru’s head was about to hit the wall. As mentioned earlier when Trevor had a mood swing, Trevor abused Jarru verbally and physically. Then a few hours later, Trevor said sorry and said that Trevor wouldn’t do that again. However, this happens again and again.

47    The Minister submits that the Tribunal’s reasons demonstrate that it took into account all of the evidence the appellant had produced. The Minister points out that the Tribunal stated at para 14 of its reasons that, “The applicant ultimately provided to the Tribunal a declaration of a psychologist, a declaration from a community worker…and a declaration from an accredited mental health social worker, as well as other statements and declarations”. The Minister submits that the reference to “other…declarations” is a clear indication that the Tribunal considered the statutory declarations made by Ms Janthorn and Mr Roweth.

48    Ms Janthorn and Mr Roweth each declared that they had observed the appellant’s former partner engaging in verbally abusive conduct towards the appellant. Mr Roweth also deposed that he observed the former partner engaging in physically violent conduct on one occasion. The conduct described was capable of answering the description of “family violence” within reg 1.21 of the Regulations. The Tribunal could only have made its findings that the appellant had not suffered family violence and had not raised claims of such violence prior to the sponsorship being withdrawn by either finding that Ms Janthorn and Mr Roweth were untruthful or mistaken, or by finding that the conduct was not “family violence”. However, the Tribunal’s reasons do not disclose any analysis of, or even make any express reference to, their evidence.

49    The evidence of Ms Janthorn and Mr Roweth was centrally important to the appellant’s claims that he satisfied cl 801.221(6) of Sch 2 of the Regulations as a victim of relevant family violence. In view of its centrality, if the Tribunal had considered and rejected or discounted that evidence, the Tribunal would have said so. That the Tribunal did not do so indicates that it was overlooked. The Tribunal’s mere reference to the appellant having provided “other statements and declarations” does not, in these circumstances, demonstrate that the Tribunal considered the relevant passages.

50    I am satisfied that the Tribunal failed to consider the relevant passages of the statutory declarations of Ms Janthorn and Mr Roweth. As these passages were centrally relevant to the appellant’s case, the Tribunal’s error was material and was jurisdictional.

The ground that the Tribunal denied the appellant natural justice by sending a critical email to the wrong email address

51    On 31 May 2018, the Tribunal sent an email to the appellant at the Gmail address inviting him to comment upon the opinion of an independent expert that the appellant had not suffered relevant family violence. The appellant claims that he did not receive that email as he was using the Hotmail address, not the Gmail address. He submits that he was denied natural justice by the Tribunal’s failure to invite him to comment upon the expert’s opinion.

52    Section 357A(1) of the Act states that Div 5 of Pt 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 359A(1) requires the Tribunal to, inter alia, give to the applicant clear particulars of any information that the Tribunal considers would be a reason for affirming the decision under review and invite the applicant to comment or respond to it.

53    Section 359A(2) of the Act relevantly provides that the information and invitation must be given to the applicant by one of the methods specified in s 379A. Section 379A(5) provides:

Another method consists of a member or an officer of the Tribunal 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 Tribunal by the recipient in connection with the review; 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 member or officer.

54    The appellant submits that the last email address he provided to the Tribunal in connection with the review was the Hotmail address. He submits that he did so by sending emails to the Tribunal on at least 24 April and 1, 2 and 8 May 2018 in connection with the review.

55    The Minister submits that merely sending an email to the Tribunal from a particular email address containing information relevant to the review does not make that address one provided to the Tribunal by the recipient in connection with the review. The Minister submits that an applicant must indicate with more specificity that the email address is to be one to which the Tribunal is to send documents.

56    Section 379A(5) of the Act allows a member or officer of the Tribunal to give a person a document by transmitting the document by email to, “the last…email address…provided to the Tribunal by the recipient in connection with the review”. When the appellant sent emails from the Hotmail address to the Tribunal, the Tribunal must have been able to see the address from which the emails originated. It may be accepted that the appellant “provided”, in the sense of “furnished or supplied” (see The Macquarie Dictionary), the Hotmail address to the Tribunal.

57    However, the relevant email address must, for the purposes of s 379A(5) be provided to the Tribunal, “in connection with the review”. The phrase “in connection with” is, “capable of describing a spectrum of relationships from the direct and immediate to the tenuous and remote”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. Its meaning must depend upon the statutory context. Section 379A(5) deals with how the Tribunal may provide documents to an applicant for the purposes of, inter alia, complying with the natural justice requirements of s 359A(1). Plainly, it would be unworkable for the Tribunal to be required to track down an applicant’s whereabouts in order to comply with its obligation to provide the applicant with documents. As Collier J observed in Khan v Minister for Immigration and Border Protection [2015] FCA 125 at [21], s 379A(5) makes it the responsibility of an applicant to ensure the currency of their contact details. The purpose of s 379A(5) is both to place an onus the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided. In this context, the expression “provided to the Tribunal…in connection with the review” is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents.

58    While the appellant sent several emails to the Tribunal from the Hotmail address, those emails did not give any clear indication that the Hotmail address, and not the Gmail address, was to be the address to which documents were to be sent. To the contrary, on 1 May 2018, the appellant provided the Tribunal with a form indicating that there was to be no change to his contact details in circumstances where his application form had given the Gmail address as his address for correspondence. The statement in that form that he wished documents to be sent to him and not his former agent did not assist in circumstances where he had not made it apparent that the Gmail address was that of the agent.

59    In SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614, Gilmour J observed at [49] that the Pt 7 provision equivalent to s 379A does not identify any particular method by which an applicant may provide an address for service to the Tribunal. Section 379A(5) does not require any particular degree of formality in the provision of the relevant email address. It is not essential, for example, that a “Change of Contact Details—MR Division” form (which is not a prescribed form) be completed in order to provide a new email address. However, the mere sending of emails from the Hotmail address gave no indication that the Hotmail address was the address to be used for the provision of documents instead of the Gmail address. The Hotmail address was not, in my opinion, “provided to the Tribunal in connection with the review”.

60    Accordingly, s 379A(5) of the Act allowed the Tribunal to comply with its obligation under s 359A by sending its email of 31 May 2018 inviting the appellant to comment upon the expert’s opinion to the Gmail address. There was no denial of natural justice.

Conclusion

61    I have found that there was jurisdictional error on the part of the Tribunal by failing to consider centrally relevant evidence provided by the appellant. The appeal must be allowed on that basis and the judgment of the Federal Circuit Court set aside. The Tribunal’s decision must be quashed and the Tribunal ordered to decide the appellant’s application for review according to law.

62    The Minister should be required to pay the appellant’s costs of the appeal. However, the argument that has succeeded was not argued before the Federal Circuit Court and, for that reason, there should be no order for costs of the hearing at first instance.

Associate:    

Dated:    21 November 2019