Sainju v Minister for Immigration and Citizenship

The relevant legislation 14 The proceeding arises out of the failure of the appellant to respond to a notice sent to her under s 20 of the Education Services for Overseas Students Act 2000 (Cth). It is unnecessary to set out that provision. The appellant's failure to respond enlivened the operation of s 137J of the Migration Act by force of which the appellant's visa was automatically cancelled. 15 Section 137K(1) of the Migration Act provides that a non-citizen whose visa has been cancelled under s 137J may apply in writing to the Minister for revocation of the cancellation. 16 Section 137L of the Migration Act confers power on the Minister to revoke the cancellation if, and only if, the applicant satisfies the Minister of the matters set out in s 137L(1)(a) - (c). 17 A decision of the Minister under s 137L of the Migration Act not to revoke the cancellation of a non-citizen's visa is a Migration Review Tribunal reviewable decision: s 338(3A) of the Migration Act. The effect of s 347(1)(b)(i) of the Migration Act and reg 4.10(1)(b) of the Regulations is that the prescribed period for the lodgment of an application for review in the Tribunal is seven working days after the day on which the notice is received. 18 Section 137M of the Migration Act provides that when the Minister decides whether to revoke a cancellation under s 137L, he or she must give the non-citizen written notice of the decision. However, s 137M does not go on to prescribe the method or methods by which the Minister is to give notice to the non-citizen. 19 Regulation 2.55(1)(c) specifically provides that reg 2.55 applies to the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa. Regulation 2.55(3) goes on to provide as follows: (3) Subject to subregulation (3A), for a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways: (a) by handing it to the person personally; (b) by handing it to another person who: (i) is at the person's last residential or business address known to the Minister; and (ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (iii) appears to be at least 16 years of age; (c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister; (d) by transmitting the document by: (i) fax; or (ii) e‑mail; or (iii) other electronic means; to the last fax number, e‑mail address or other electronic address known to the Minister. 20 Sub-regulations 2.55(5) to (8) are deeming provisions which prescribe the point at which the person to whom the document is to be given is taken to have received the document. Those paragraphs of reg 2.55 are as follows: (5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person. (6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person. (7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia -- 7 working days (in the place of that address) after the date of the document; or (b) in any other case -- 21 days after the date of the document. (8) If the Minister gives a document to a person by transmitting it by fax, e‑mail 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. 21 Section 494A of the Migration Act provides relevantly: (1) If: (a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 494B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). 22 Section 494B of the Migration Act prescribes the method by which the Minister is required to give a document to a person. The section deals with the methods of giving the document by hand, and handing the document to a person at the last residential or business address, as well as dispatch by prepaid post, in similar terms to reg 2.55(3)(a) - (c). 23 Section 494B(5) goes on to provide, in similar terms to reg 2.55(3)(d): (5) Another method consists of the Minister transmitting the document by: (a) fax; or (b) e‑mail; or (c) other electronic means; to: (d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or (e) if the recipient is a minor -- the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister. 24 Section 494C is a deeming provision which is in similar terms to reg 2.55(5) - (8). The relevant provision is s 494C(5) of the Migration Act which corresponds to, although is not identical to reg 2.55(8). 25 Section 494C(5) of the Migration Act is as follows: If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e‑mail 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. 26 Section 494C(6) is important. It states that s 494C(5) applies despite s 14 of the Electronic Transactions Act 1999 (Cth) ("the ET Act"). There is no such direction in the Regulations with respect to the application of reg 2.55(8). 27 The objects of the ET Act are stated in s 3 as follows: The object of this Act is to provide a regulatory framework that: (a) recognises the importance of the information economy to the future economic and social prosperity of Australia; and (b) facilitates the use of electronic transactions; and (c) promotes business and community confidence in the use of electronic transactions; and (d) enables business and the community to use electronic communications in their dealings with government. 28 Section 5 of the ET Act contains definitions. The only relevant definition for present purposes is the term "information system" which is defined as follows: information system means a system for generating, sending, receiving, storing or otherwise processing electronic communications. 29 Section 14 of the ET Act deals with the time and place of dispatch and receipt of electronic communications. The relevant subsection for present purposes is s 14(3) which provides as follows: (3) For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.

Background Facts 30 During 2008 the appellant was enrolled at an educational institute in Sydney in a Diploma of Accounting Course. On 4 September 2008 the institute sent her a certificate under s 20 of the Education Services for Overseas Students Act 2000 (Cth)stating that she was not achieving satisfactory course progress. This gave rise to a breach of the conditions of her visa. 31 Included amongst the documents sent with the certificate was a letter from the institute to the appellant informing her that her visa would be automatically cancelled if within 28 days she did not take the steps stated in the notice. 32 The appellant failed to respond to the notice and her visa was automatically cancelled under s 137J on 3 October 2008. She applied to the Minister on 16 October 2008 for a revocation of the cancellation. In her form of application, the appellant stated her email address. It is not necessary to set out the full address save to say it was "@hotmail.com". 33 On 13 January 2009 Ms Debra Clifford, an officer of the Department of Immigration and Citizenship, sent an email to the hotmail address referred to above. A copy of the email was in evidence before the Federal Magistrate. It showed that the email was sent on 13 January 2009 at 11:16 am, that it contained a number of attachments and it stated that it attached notification of the decision not to revoke the cancellation of the visa. 34 The appellant relied in the Federal Magistrates Court on an affidavit affirmed by her on 2 October 2009. She stated in the affidavit that on 13 January 2009 she received five emails in her inbox. She annexed a print out of her hotmail inbox for the period from 12 January 2009 to 21 January 2009 which did not record receipt of the email from Ms Clifford. 35 Ms Clifford affirmed an affidavit in the Federal Magistrates Court on 25 November 2009 stating that she sent the email on 13 January 2009 to the email address provided by the appellant in her request for revocation of the cancellation of her student visa. Ms Clifford also said that, whilst she did not request a "delivery receipt" or a "read receipt" of the email, she did not receive a notification that the email had not been delivered. 36 In her application before the Federal Magistrate, the appellant relied on an affidavit of an IT Professional, Mr Khoury. The effect of his evidence was that the email of 13 January 2009 went to a hub provided by the appellant's email server, Hotmail, in the United States of America. He gave the following pertinent answer to a question asked of him by Mr J Smith, counsel for the Minister, in relation to Ms Clifford's printed file copy of the email purportedly sent by her to the appellant on 13 January 2009: Would this document tell you that this email was sent at a particular time and date to that email address?---Yes. Yes.

The Federal Magistrate's decision 37 The Federal Magistrate said at [7] that the critical issue of construction debated before him was whether the words "transmitting the document by … email" in reg 2.55(3)(d) encompass the sending and actual receipt of the document, or only its due dispatch, and whether the deeming effect of reg 2.55(8) extended to the receipt of the document even if not actually received. 38 His Honour observed at [8] that neither the appellant nor the Minister submitted that s 494B of the Migration Act governed the giving of notice of the decision under s 137L and s 137M. He pointed out at [9] that counsel for the Minister took him to the legislative history of ss 494B(5) and 494C(5) to support his submission as to the proper construction of reg 2.55. 39 In his Honour's view, the language and legislative context of reg 2.55(8) sufficiently revealed the operation and construction of the regulation without recourse to the legislative history of ss 494B and 494C. 40 The learned Federal Magistrate observed at [11] that the immediate context of reg 2.55(8) is part of a series of sub-regulations which define the time of receipt of documents given by the various prescribed methods. He pointed out at [11] and [12] that the paragraphs which deal with non-electronic methods such as hand delivery or post indicate that receipt is deemed to have occurred even if actual receipt by the person is not proved. He referred to authorities which support this proposition. 41 The critical paragraphs of the Federal Magistrate's reasons for judgment are as follows: [13] In this context, I am unable to accept the submission of Ms Sainju's counsel that reg.2.55(8) should be construed as only defining the time at which an actual communication is taken to have occurred. In my opinion, the 'deeming' verb "is taken to have" clearly relates grammatically to the receiving of the document as well as the timing of the deemed receipt. Such a reading is also supported by the context and purpose of the provision, which is to provide certainty for the measurement of mandatory appeal limits, albeit at the risk of occasional unfairness. It endeavours to fix a precise point in time when receipt has occurred (see SZFKD v Minister for Immigration [2006] FMCA 49 at [10] - [19]), even if this were not found to be true if the facts were investigated. Necessarily, in my opinion, this objective encompasses deeming the fact of receipt as well as the time of that deemed receipt. (Emphasis in original). [14] Giving full effect to the deeming provision eliminates all ambiguity and uncertainty about 'transmitting' a document by email to an email address. Ambiguity otherwise arises because 'transmit' can mean 'send out' as well as 'communicate to'. I am inclined to accept Ms Sainju's submission that, in isolation, the ordinary language of reg.2.55(3)(d) would suggest the latter meaning, since it identifies the recipient of a single communication rather than a process of broadcasting. However, this meaning would then give rise to considerable uncertainties in relation to emails, concerning whether a transmission would be completed when the email reached the email service provider's mail server, or only when it was perused by the addressee when first accessing his or her mailbox. Obviously, satisfaction by a Tribunal or Court as to these matters would also be very difficult, particularly if it required reference to the computer logs of internet service providers. [15] On the construction of reg.2.55(8) which I prefer, all these uncertainties have been eliminated by deeming receipt of the email to have occurred at the end of the day of its dispatch, regardless of whether this can be proved to have actually occurred, and also regardless of whether it is proved not to have occurred. The effect of reg.2.55(8) can therefore be seen to assist proof that there has been a 'transmitting' of an emailed document to its recipient, by conclusively deeming the communication to have been completed by all relevant electronic means. Its presence therefore confirms that the words "by transmitting the document" in reg.2.55(3)(d) and in the opening words of reg.2.55(8) have the meaning only of 'by sending' and do not imply that any actual communication must have occurred. 42 His Honour's view as to the proper construction of reg 2.55(8) had the effect that it was necessary for him to make only limited factual findings. 43 The critical factual finding was at [20] in which his Honour accepted all of Ms Clifford's evidence and that the elements of "transmitting" were established by the sending of the email to the appellant's hotmail address so that she was taken to have received the email "at the end" of 13 January 2009. 44 His Honour said at [21] that it was therefore not necessary for him to make findings as to whether the email ever reached the appellant's email inbox so as to be accessible by her. 45 However, his Honour pointed out at [25] that the evidentiary onus of proof of non-receipt of the email fell on the appellant, this being a jurisdictional fact. He said he was not able to arrive at a conclusion on the balance of probabilities that Ms Clifford's email never reached the appellant's mailbox. That was sufficient to dispose of the application.

Discussion 46 Counsel for the Minister, Mr J Smith, argued the matter in a slightly different manner from the way in which it was argued below. He pointed in particular to textual differences between the Regulations and the relevant provisions of the Migration Act. Most notably, he took me to the provisions of s 14 of the ET Act, in case I should be of the view that the ET Act is not excluded by reg 2.55. 47 Mr Smith also placed some emphasis on the construction of ss 494B(5) and 494C(5), in support of a submission that those provisions applied to the matter. He also relied on them as an aid to the construction of reg 2.55. 48 I will therefore deal with the matter under each of these topics.

Application of reg 2.55 49 The Federal Magistrate approached the construction of reg 2.55 in an orthodox manner by considering the language and the legislative context of the regulation. This was in accordance with well established authority: CIC Insurance Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. 50 As the learned Federal Magistrate observed, the immediate context in which reg 2.55(8) appears is as one of a series of sub-regulations which define the time of receipt of documents given by the methods prescribed in reg 2.55(3). 51 What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received. 52 The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred. 53 Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee's residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated. 54 The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee. 55 It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee. 56 But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 ("Xie") at [13] - [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21] - [24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] - [19] per Dowsett, Stone and Bennett JJ. 57 The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8). There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view. That is to say "by transmitting" means by sending and the person is taken to have received the document at the end of the day on which it is sent. 58 The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility. 59 In Joshi v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 87 at [41] - [42], Emmett J pointed to the tension between the interests of administrative certainty and an effective right of review of administrative action which is revealed in this type of provision. However, in the present case, it is not necessary to consider that question because the Federal Magistrate was not satisfied on the balance of probabilities that the email did not reach the appellant's mailbox.

Sections 494B and 494C of the Migration Act 60 The question of whether ss 494B and 494C are engaged turns on the operation of s 494A. The effect of that section is that the Minister is entitled to give the document to an appellant by a method the Minister considers appropriate, including a method specified in s 494B, if a provision of the Migration Act or the Regulations requires the Minister to give a document to a person and the provision does not state that the document must be given by one of the methods specified in s 494B. 61 This would suggest that s 494B(5) was not engaged because reg 2.55(1)(c) specifically states that reg 2.55 applies to the present circumstances. However, since neither counsel submitted before the Magistrate that s 494B or s 494C was engaged, it does not seem to me to be appropriate for me to decide this question. 62 Nevertheless, the provisions of ss 494B and 494C are in very similar terms to reg 2.55 and bear closely upon the construction of that regulation. The provisions form part of a statutory scheme of notification of decisions made under the Migration Act and the use of identical expressions in the Migration Act and the regulation suggest that they have the same meaning in each provision. 63 In the present case, there are only two relevant differences between the Migration Act and the regulation. The first is a minor one. Section 494B(5) provides for the transmission of an electronic document to the address provided to the Minister by the recipient for the purpose of receiving documents. The corresponding regulation, which is reg 2.55(3)(d) refers to the transmission to the last address known to the Minister. 64 I do not think that anything turns on this difference between the two provisions because of the way in which the case was conducted below. 65 However, the second difference is more significant. It is that under the Migration Act deeming provision in s 494C, s 494C(6) specifically provides that the deeming provision in s 494C(5) applies despite s 14 of the ET Act. There is no such statement in reg 2.55, perhaps because of the difficulty in dealing with that question in a regulation. 66 Sections 494B and 494C of the Migration Act were introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). The Explanatory Memorandum to the Bill stated relevantly that its main purpose was to bring the Migration Act into line with the ET Act. 67 The Explanatory Memorandum at [162] - [163] makes clear the reason why s 494C(6) was included so as to expressly "disapply" the deemed receipt provisions of the ET Act. The Explanatory Memorandum states at [163]: There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application begins to run. Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the ET Act. 68 This again emphasises the need for administrative certainty, to which I referred above, as the evident purpose of these provisions. 69 Sections 494B and 494C were introduced into the Migration Act on 10 August 2001. Regulation 2.55 was added to the Regulations by the Migration Amendment Regulations 2001 (No. 6) 2001 No. 206 (Cth), with effect also from 10 August 2001. This suggests that the regulation was enacted for the same purpose as the corresponding provisions of the Migration Act, and, as I have said, as part of the same statutory scheme. 70 The authorities to which I referred above, in particular the decision of the Full Court in Xie, dealt with non-electronic communications under the Migration Act. For reasons stated above, the observations made by their Honours in that case, apply with equal force to regs 2.55(3)(d) and 2.55(8).

The ET Act 71 There is a live question as to whether reg 2.55(8) excludes the operation of s 14 of the ET Act. Section 14(3) states expressly, that for the purposes of a law of the Commonwealth, if the conditions referred to in s 14(3) are satisfied, the time of receipt of an electronic communication is the time when it enters the information system. 72 The nomination by the appellant of her email address and the email of 13 January 2009 were given for the purposes of the Migration Act. It may therefore follow that s 14(3) of the ET Act applies. Against this, it may well be that the express terms of reg 2.55(8) are sufficient, without more, to displace the operation of the provisions of s 14 of the ET Act. 73 However, I do not need to decide that question because even if s 14(3) of the ET Act applies, in my opinion, the transmission of the email of 13 January 2009 to the appellant's hotmail address was sufficient to satisfy s 14(3) of the ET Act when the email was sent. 74 It seems to me that the proper construction of s 14(3) of the ET Act was correctly explained by Macready AsJ in Reed Constructions Pty Ltd v Eire Contractors Pty Ltd [2009] NSWSC 678 ("Reed"). His Honour there dealt with the corresponding provision in s 13(3) of the Electronic Transactions Act 2000 (NSW) but his reasons apply equally to s 14(3) of the ET Act. 75 In Reed, Macready AsJ observed at [29] there are two questions of construction which arise. The first is whether receipt equates with service. The second is whether an email address is an information system or simply a direction to an information system. 76 His Honour answered the second question at [30] by explaining how, when an electronic communication is sent, the domain name part of the email address alerts a server which processes the email and allocates it to the designated user account. He continued: Therefore, an email address is not simply a passive description of where mail should go but it is an active information system which performs a function within the meaning of the Electronic Transactions Act. 77 His Honour went on to explain at [31] - [32] that the legislation assumes that electronic communications are more or less instantaneous so that the relevant question is when was the email sent, not when it came to the attention of the addressee. This has the benefit of preventing an addressee from deliberately not opening the email.

Conclusion and Orders 78 For reasons stated above, the appeal must be dismissed. I should add that, whilst it has often been stated that provisions such as those described above can operate harshly, I do not consider that they do so in the present case. This is because the learned Federal Magistrate at [24] did not find the appellant to be a convincing witness and he was not satisfied that the necessary jurisdictional fact was established by her evidence. 79 I will therefore order that the appeal be dismissed with costs. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.