Bui v Minister for Immigration and Border Protection

1. The notice of appeal filed on 10 January 2017 be dismissed.
2. The appellant pay the first respondent's costs of the appeal, to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 The sole question in this appeal is whether Ms Bui, the appellant, lodged her application to the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), within the 21 days' time limit set by s 347(1)(b)(i) of the Migration Act 1958 (Cth) (the Act). The Tribunal and the Federal Circuit Court of Australia have now both considered this question twice: the latter in [2015] FCCA 1931 (the 2015 decision) and [2016] FCCA 3347 (the 2016 decision). 2 In its first decision, the 2015 decision, the Federal Circuit Court remitted Ms Bui's review application to the Tribunal "for redetermination according to law". That decision was made because, as the reasons for that decision reveal ([2015] FCCA 1931 at [38]), there was nothing in the reasons for the Tribunal's first decision to indicate that it gave consideration to an email Ms Bui's authorised recipient had sent to the Minister's department on 8 August 2014, attaching a letter dated 18 June 2014. The 18 June 2014 letter purportedly gave notice of a change in Ms Bui's authorised recipient's email address. I have said "purportedly" because the critical issue throughout this matter has been whether there was, or is, evidence to establish that this letter was duly sent to the Minister's department. 3 There is a number of provisions of the Act and the Migration Regulations 1994 (Cth) (the Regulations) that bear on this question. First, s 494D(1) of the Act allowed Ms Bui to give notice to the Minister of the name and address of a person (described as the "authorised recipient") to receive documents on her behalf in connection with her visa application. Secondly, by ss 494D(3) and 494D(3A), both Ms Bui and her authorised recipient could vary the aforesaid notice of appointment by varying the address of the authorised recipient. This is what the 18 June 2014 letter above was intended to achieve. Thirdly, the way in which a visa applicant, such as Ms Bui, or her authorised recipient, communicated with the Minister was prescribed by a combination of s 52 of the Act and reg 2.13. In particular, s 52(1) required Ms Bui, as the visa applicant, or "an interested person" to communicate with the Minister in the prescribed way. Section 52(4) specified that an "interested person" meant a person who wanted to give information about the applicant to the Minister. This provision, therefore, extended to include Ms Bui's authorised recipient. Then reg 2.13 relevantly required any communication with the Minister to be in writing (reg 2.13(1) and (2)). 4 Fourthly, s 9(1) of the Electronic Transactions Act 1999 (Cth) (the Electronic Transactions Act) requires that if, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication. "Electronic communication" is defined in s 5 to mean, relevantly: "(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy". Fifthly, s 14 of the Electronic Transactions Act provides that the time of dispatch of an electronic communication is, paraphrased, when it leaves the information system concerned. That section is as follows: (a) the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or (b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator - the time when the electronic communication is received by the addressee. 5 Further, s 14A of the Electronic Transactions Act provides, paraphrased, that the time of receipt of an electronic communication is when it is capable of being retrieved by the addressee. That section is as follows: (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both: (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address. 6 Finally, s 52(3) of the Act provides that: If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it. 7 In broad terms, the effect of the provisions above is that Ms Bui needs to establish that the 18 June 2014 letter was either dispatched by email in accordance with s 14 of the Electronic Transactions Act or was actually received by the Minister in accordance with s 52(3) of the Act. 8 The change of email address that was purportedly communicated in the 18 June 2014 letter is crucial to Ms Bui's case. That is so because the time limit set by s 347(1)(b) of the Act commences "after the notification of the [delegate's] decision". In this case, Ms Bui was notified of the delegate's decision refusing her visa application by email which was transmitted on 27 June 2014 to her authorised recipient's last provided email address at "". The effect of s 66 of the Act and reg 2.16(3) of the Regulations is that the Minister's delegate was obliged to notify Ms Bui of the decision to refuse her visa application by one of the methods specified in s 494B of the Act. Section 494B(5) of the Act specifies that the notification may be transmitted by email to the last email address "provided to the Minister for the purposes of receiving documents". The effect of s 494C(5) of the Act is that the delegate's email of 27 June 2014 was deemed to have been received by Ms Bui's authorised recipient at that email address on the day on which it was transmitted, namely 27 June 2014. 9 It followed that, if was Ms Bui's authorised recipient's last email address, as described above, the 21 day time limit set by s 347(1)(b) of the Act commenced on 27 June 2014 and expired on 18 July 2014. 10 It is common ground that Ms Bui did not meet this time limit because she attempted to file her application on 26 August 2014. 11 Ms Bui's predicament is heightened by the following three factors. First, it has been held that the deemed receipt of the notification of the delegate's decision is not rebuttable: see Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [17] per O'Connor and Mansfield JJ and Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]-[14] per Spender, Kiefel and Dowsett JJ. Secondly, there is no provision in the Act which allows the Tribunal, or a Court, to override, or extend, the time limit set by s 347(1)(b). Thirdly, the filing of an application with the Tribunal within that time limit has been held to be a prerequisite to the existence of the Tribunal's jurisdiction: see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324 per Dowsett, Finkelstein and Heerey JJ and VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [32]-[33] per Gray, Whitlam and Mansfield JJ. 12 It was against this background that, in its second decision, the Tribunal considered Ms Bui's authorised agent's email of 8 August 2014 and, in particular, the attached 18 June letter mentioned above. Having considered all of the evidence before it on that issue, it concluded that there was no evidence that the 18 June 2014 letter had been sent to, or received by, the Minister's department, as follows (at [11]): The Tribunal question for the Tribunal (sic) as at the date of the delegate's decision of 27 June 2014, [was] did the delegate receive notice of the change of email address of the migration agent. The evidence from the department is that it did not receive any correspondence from the migration agent on or around 18 June 2014. The evidence of the migration agent is as set out in his email of 8 August 2014 - namely, a letter purported to be dated 18 June 2014 and a form 956. The migration agent did not provide to the department (nor to the Tribunal in his response of 4 November 2014) any record from his email system that he sent any email to the department on 18 June 2014. He merely attached a letter he claims was dated 18 June 2014. On that evidence, the Tribunal is not able to reach a state of satisfaction the migration agent did notify the delegate of his change of email address on 18 June 2014. The Tribunal finds as at the date of the delegate's decision, there was no notification before the delegate the migration agent had changed his email address. It follows that by sending the decision to the gmail address of the migration agent, the delegate lawfully notified the applicant of the decision pursuant to s.4940 and s.494B(5). 13 In the second decision, the 2016 decision, the primary judge correctly observed that the question whether the Tribunal had jurisdiction to consider Ms Bui's application was a matter for the Court, not the Tribunal, to determine ([2016] FCCA 3347 at [15]): see Corporation of the City of Enfield v Development Assessment Commission 2000 (2000) 199 CLR 135; [2000] HCA 5 at [28] and [33]-[34] per Gleeson CJ, Gummow, Kirby and Hayne JJ. I would interpose that, it would follow, in my view, that the Federal Circuit Court could therefore have determined the question of jurisdiction at the time of its first decision, based on the evidence before it at that time, without remitting the matter to the Tribunal for further determination. Nonetheless, the Minister did not appeal the 2015 decision and, as already noted above, in its second decision, the Tribunal did reconsider the issue on the evidence before it, including the email from Ms Bui's authorised recipient dated 8 August 2014, and reached the conclusion set out above. 14 In the 2016 decision, the primary judge noted that Ms Bui appeared to accept that, but for the notification purportedly contained in her authorised recipient's letter dated 18 June 2014, "her application was plainly out of time and could not be entertained by the tribunal" ([2016] FCCA 3347 at [16]). On the critical question whether there was any evidence to prove that the 18 June 2014 letter had been sent to, or received by, the Minister's department, his Honour reached the same conclusion as the Tribunal did above, as follows ([2016] FCCA 3347 at [17]): … there is no objective evidence to support the assertion that the correspondence dated 18 June, 2014 claimed to have been sent by the applicant's agent was actually sent either by post or email. There is an assertion by the applicant's representative that the relevant letter was sent by email and post but … there is no evidence to support that contention. There is no copy of the relevant email which was purportedly sent on 8 June, 2014 in evidence or any confirmation of a letter having been sent through the post. There is no evidence from the applicant's agent about the systems within his office for the posting of correspondence. Indeed there is no evidence at all from the applicant's representative, the same representative that represents her in these proceedings. At best, there is a deposition by the applicant to the effect that: "My agent provided the details of his new email address to the Department on 18 June 2014". … there is no deposition by the applicant as to how she knows of those matters. 15 Having regard to Ms Bui's onus of proof, his Honour therefore concluded that ([2016] FCCA 3347 at [18]): I am not satisfied on the balance of probabilities that the applicant or her migration agent notified the first respondent's delegate of any new email address as she alleges. 16 It is to be noted that the primary judge did not expressly conclude that the Tribunal did not have jurisdiction to entertain Ms Bui's application, because she had failed to meet the jurisdictional prerequisite of filing her application within the time limit set by s 347(1)(b). Nonetheless, that is the clear import of the 2016 decision. 17 Ms Bui's notice of appeal before this Court raises four grounds of appeal as follows: 1. The Federal Circuit Court judge made an error of law by failing to find that the Second Respondent denied procedural fairness and or committed an error of law pursuant to s 422B of the Migration Act 1958 (Cth) by failing to consider the claim made by the Appellant. Particulars: (a) His Honour failed to recognise that the Second Respondent has unreasonably refused to accept the evidence before it as to the notification of change of address which was material to the claim in the circumstances its decision depended upon its inability to be satisfied of the existence of evidence. At para 12 His Honour said: "However, the tribunal's decision depended upon the tribunal's inability to be satisfied of that fact". (b) The Second Respondent had evidence of a letter of notification of change of address sent prior to the date of decision. 2. His Honour was wrong to decide that the tribunal's finding in relation to the existence of notification error was not material to the decision of the Federal Circuit Court. At paragraph 15 His Honour said: "as the first respondent properly points out, whether the tribunal had jurisdiction to review the delegate's decision is ultimately a question for this Court to determine and whether the tribunal itself has made an error in determining that question of fact is not determinative of this application". 3. His Honour failed to recognise that, the Second Respondent made an error of law by not investigating and giving the applicant an opportunity to provide corroborative evidence on her claim that her agent had notified the change of email address to the delegate of the First Respondent. At paragraph 17 His Honour states: "at best, there is a deposition by the applicant to the effect that: My agent provided the details of his new email address to the Department on 18 June 2014". As the first respondent points out, there is no deposition by the Applicant as to how she knows of those matters." 4. His Honour has placed too high onus on the Appellant as to the existence of evidence in relation to the notification of change of address despite his honour's earlier finding on the same matter in [2015] FCCA 1931 that the Second Respondent had evidence before it as to the notification of change of address. Particulars: (a) The Second Respondent had notice of a letter sent to the department by the Appellant's agent dated 18 June 2014 and it refused to accept it as evidence of notification which His honour has accepted as "evidence" [2015] FCCA 1931" (b) At paragraph 20 of the judgment which is the subject matter of this appeal, His Honour said: I reached no opinion about whether the correspondence had actually been sent and received by the first respondent, but rather only that the applicant made that assertion to the tribunal which it had failed to consider in its decision of 24 November 2014. (c) At paragraph 32 in [2015] FCCA 1931 His Honour said: "the email from the applicant's authorised agent of 8 August 2014 and the attached letter and form 956 was evidence that the authorised recipient had informed the delegate of a different email address before the delegate made decision under review". At 37 in the same decision His Honour further said, the tribunal has led itself into error and thereby deprived itself of jurisdiction to determine the applicant's review because it has failed to give any consideration to a clearly relevant piece of evidence because it either ignored that evidence or has misapprehended the nature of it". (Emphasis in original; footnote omitted) 18 At the hearing of this appeal, Ms Bui's lawyer accepted that the first ground of appeal erroneously referred to s 422B of the Act, rather than s 357A. 19 Before considering these grounds of appeal, it is appropriate to record the following exchange which occurred during the hearing of this appeal. Noting that Ms Bui had made no application to adduce any evidence in this appeal to attempt to address the findings made by the Tribunal and the primary judge, I asked Ms Bui's lawyer whether he intended to make such an application. In response, he sought an adjournment to allow him to consider his position, which I granted. Upon resuming, he informed me that, having made all reasonable inquiries, he could not produce any evidence that the letter of 18 June 2014 had been duly sent to the Minister's department. That being so, it was unnecessary for me to consider the other prerequisites for success in such an application, if it had been made, particularly whether, if such evidence did exist, there was a satisfactory explanation for it not having been adduced before the primary judge. 20 In short, there was, therefore, no evidence before the Tribunal at the time of its second decision that Ms Bui's authorised recipient's letter dated 18 June 2014 was duly sent to the Minister's department (see at [12] above). There was similarly no evidence before the Federal Circuit Court on that issue at the time of the 2016 decision (see at [14] above). And, finally, there is no evidence before this Court to establish that critical fact because, as set out above (at [19]), that evidence apparently does not exist. It necessarily follows that the precondition to enliven the Tribunal's jurisdiction, namely an application duly filed within the time limit set by s 347(1)(b), was not established before it and, more importantly, that precondition was not established before the primary judge. 21 The fundamental defect in all of Ms Bui's four grounds of appeal is that none of them grapples with this critical issue. They all proceed on the premise that Ms Bui is able to adduce evidence to show that the letter dated 18 June 2014 was duly sent to the Minister's department. The history of this matter set out above clearly demonstrates that she has no prospect of doing that. That being so, neither the primary judge nor, before him, the Tribunal made any error in concluding there was no evidence to prove that fact. It necessarily followed that the Tribunal did not have jurisdiction to consider Ms Bui's application. That being so, it also followed that the delegate's decision refusing her visa application constituted a final decision on that matter. 22 For these reasons, Ms Bui's appeal to this Court must be dismissed. Accordingly, I will order that: (1) The notice of appeal filed on 10 January 2017 be dismissed. (2) The appellant pay the first respondent's costs of the appeal, to be taxed or agreed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.