Dzhakhanhirova v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 This is an appeal from the decision of the Federal Circuit Court that refused Constitutional writ relief to the appellant in respect of the decision of the Administrative Appeals Tribunal given on 9 August 2018 that it did not have jurisdiction to review the decision of the Minister's delegate dated 22 January 2018 refusing to grant an Other Family (Residence) (Class BU) visa to the appellant: Dzhakhanhirova v Minister for Immigration [2019] FCCA 3032. Background 2 The appellant is a Ukrainian citizen. She applied for the visa using form 47OF on 27 February 2017. In the form, the appellant answered question 23, which sought her current residential address, by giving a residential address. She answered question 24 that asked for "Address for correspondence (if the same as your residential address, write "as above")" by writing "as above". She answered, in the affirmative, to question 26 that asked, "Do you agree to the department communicating with you by fax, email or other electronic means?" 3 At the time she submitted the application form the appellant also submitted a letter that said at its conclusion, "If you require any additional information, or you do have any questions, please feel free to contact me as below" giving her email address that she had included in answer to question 26 in the form, and her two telephone numbers that she had also included there. 4 On 22 January 2018, the delegate determined that the appellant did not meet the requirements for the visa, as set out in the Migration Regulations 1994 (Cth), which she had sought in order to be a carer for her infant son who had a medical condition. The delegate prepared a covering letter that he sent, with his decision record, by email to the appellant's email address given in answer to question 26, informing her of the refusal and that the decision could be reviewed. The letter informed her that she could apply to the Tribunal for merits review of the decision within 21 calendar days after the day in which she was taken to have received the letter, and that, as it had been sent to her by email, she would be taken to have received it at the end of the day on which it was transmitted. 5 There is no direct evidence in the appeal book about the date of the transmission. However, on 11 July 2018, the appellant emailed the Minister's Department, asking about what had happened to her visa application. She wrote that she had just received an email from the Department to contact it to see what stage she was at with her visa. Shortly afterwards, on the same day, the Department responded, informing the appellant that the delegate had made the decision to refuse the visa on 22 January 2018 and had notified her of it by email at her email address. The 11 July 2018 Departmental email attached a copy of the delegate's decision. 6 The appellant wrote back later on 11 July 2018, saying that she had not received the email in January and that she was still trying to find it in her other (electronic) spam, draft and deleted mail boxes, but that it was not there. 7 The appellant applied to the Tribunal on 17 July 2018 to review the delegate's decision. But on 9 August 2018, it held that it had no jurisdiction because on the material before it, she had been notified of the decision by email dated 22 January 2018 and that the period for review had ended on 12 February 2018. The proceeding before the trial judge 8 The appellant sought relief in the Federal Circuit Court on two grounds, but only the first is relevant for the purposes of this appeal, namely, that the Tribunal misapplied the law to the facts as found in determining its jurisdiction. The ground asserted that because she had advised the Department that her address for correspondence was her residential address, by sending the notification of the decision and the covering letter by email the decision had not been given to her at her "address for correspondence". 9 The trial judge found, correctly, that he was bound by the decision of Buchanan J in Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494, that, where an applicant supplied both a residential and email address, the Minister was entitled to choose to which of those addresses he gave a document to the visa applicant under s 494B of the Migration Act 1958 (Cth). Accordingly, his Honour rejected the ground of review and, ultimately, dismissed the application with costs. This appeal 10 At the commencement of the hearing today, I refused leave to the appellant to amend her notice of appeal to add two grounds to the ground that the trial judge rejected below. Those grounds were that the trial judge should have found that, first, the Department had not sent the notice of the visa refusal to the appellant's last residential address and address for correspondence and, secondly, the notification of the decision failed clearly to state the time within which any review application could be brought. 11 The solicitor for the appellant, who represented her both before the trial judge and in the appeal, accepted that the second of those additional grounds had emerged from the decision of the Full Court, in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492. That decision had been given on 18 April 2019, in circumstances where he had appeared on 23 October 2019 before the trial judge at the hearing where his Honour delivered judgment ex tempore. 12 The appellant's solicitor informed me that he had not been aware of the line of authority in DFQ17 270 FCR 492 or the cases that followed it until preparing for the appeal. He argued that it was in the interests of justice to allow the new argument to be raised. The other new ground was substantively an obverse or alternative way of putting ground 1. 13 Ordinarily, and particularly where a party was represented at the trial, an appeal court will not allow a new issue to be raised on appeal that was not the subject of the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7-8. In the circumstances, I was not satisfied that it was in the interests of justice to allow the amendments to the notice of appeal. The first new ground did not raise any substantive new argument and was simply another way of saying the original ground, so that its subject matter can be considered in substance, in any event. 14 The second new ground raised a matter that could have been raised below. There was no reason that it could not have been raised below, other than the failure to identify an up-to-date understanding of the law. I appreciate that, in migration decisions, given the huge volume of those matters, it is not necessarily easy to be familiar with every new decision at the time of argument before a trial judge or appellate court. However, in my opinion, the second ground had no real prospect of success. That is because, reading the notification letter as a whole, on the material before me, it communicated clearly the time in which the appellant could seek review of the delegate's decision. The notification was free from ambiguity of the kind present in the convoluted method of communication in a different letter that the Full Court considered in DFQ17 270 FCR 492. In this case the notification was pellucid in informing the appellant that she had to appeal within 21 days of being notified of the decision. And, because it was sent to her by email, she was informed that she would be taken to have received it on the date it was sent. Consideration 15 The Minister must notify, pursuant to s 66(1) of the Act, an applicant of a decision to grant or refuse a visa in the prescribed way. Where the Minister refuses to grant a visa, reg 2.16(3) requires that he notify an applicant by one of the methods specified in s 494B. When giving such a notification, s 66(2)(d) requires the Minister to inform the applicant if he or she has a right to have the decision reviewed, under, relevantly Pt 5 of the Act, state a time in which the application for review may be made, who can apply for it and where it can be made. 16 Relevantly, s 494B is headed "Methods by which Minister gives documents to a person". In other words, s 494B reflects the "prescribed way" in which the Minister must give a notification under s 66. For the purposes of the provisions of the Act or Regulations that requires or permits the Minister to give a document to a person, s 494B(1) provides that the Minister has to do so by one of the methods specified in the section. Those methods in s 494B provide that the Minister may give documents through an authorised officer handing the document to an applicant, handing it to a person at an applicant's last residential address, dispatching the document by prepaid post or other prepaid means, or transmitting it by fax, email or other electronic means. 17 Each of questions 24 and 26 that the appellant answered in completing her visa application form referred to means under s 494B(4) and (5), by which the Minister could give documents to her, namely, at her address of correspondence or by email. 18 The appellant argued that, effectively, because the form itself used two different ordinary English words, "correspondence" and "communicating", in questions 24 and 26, it was necessary to give each a different meaning for the purposes of ascertaining what could be sent as "correspondence" as distinct from what could be given to an applicant for a visa in a "communication." 19 I reject that argument. The visa form is not a statute. Although it could be expressed with greater clarity, I am of opinion that an ordinary, reasonable reader of the form would understand it to be asking the visa applicant, in each of questions 24 and 26, whether the Department could provide material to him or her using a postal address or electronic means and that, if he or she answered both of those questions, as the appellant had, he or she would understand that the Department could use either or both methods. 20 Here, the appellant, was able to use email communication. She authorised the Department in answer to question 26 to use that means to communicate with her. She also said that correspondence could be sent to her residential address. Neither question 24 or question 26 required the use of only one of the particular means with which it dealt by which documents could be given to the appellant. Each question simply asked whether documents could be given to a visa applicant by either of the two specified methods. Section 494B(4) allowed the Minister to give a visa applicant a document by dating it and dispatching it, within three working days in the place of dispatch, by prepaid post or other prepaid means to the last address of service provided to the Minister for the purposes of receiving documents or to her last residential or business address for that purpose. Section 494B(5) provided that the Minister could use another method to give a visa applicant a document by transmitting it by email to the email address provided to the Minister for the purposes of receiving documents. Both methods in s 494B(4) and (5) fell within the concepts conveyed by the responses to questions 24 and 26 in the form. 21 In Kim 220 FCR 494, the visa applicant had stated, in exactly the same way as the appellant here, that her address for correspondence was her residential address and had agreed to the Department communicating with her by email. Buchanan J referred to what Keane CJ, Collier and Logan JJ had said in Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 at 564 [40], that a person who invited the sending of correspondence to any one of a number of addresses can sensibly be taken to have assumed responsibility for checking his or her mail at each such address. Buchanan J held that the Minister could elect to deliver a communication in any of the ways authorised by s 494B, describing the choice of which as a "discretion" as to how the Minister might give a document to an applicant or person with whom he was communicating in the performance of his functions under the Act. His Honour drew on Haque v Minister for Immigration and Citizenship (2011) 114 ALD 547 at 557 [64], (and see too: Pathania v Minister for Immigration and Border Protection (2015) 240 FCR 254 at 258 [18] per Gilmour J and Radzi v Minister for Immigration and Border Protection (2014) 143 ALD 124 at 129 [32] to [35] per Rangiah J) where Gilmour J said that: The appellant's consent to the receipt of communications by email did not oblige the [Minister] to communicate with him or her by that means…It was open to the [Minister] to use any one of the methods provided under s 494B, even to have done so by email… 22 I am of opinion that the Minister, through his delegate, was entitled to send the notification of the visa refusal and his decision record by email to the appellant's email address that she had given in answer to question 26 of the application form. The Tribunal did not make an error in finding that she was out of time to apply for review of that decision, as the trial judge correctly found. Conclusion 23 It follows that the appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.