FEDERAL CIRCUIT COURT OF AUSTRALIA
BUI v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1931	

Catchwords: 
MIGRATION – Temporary Business Entry (Class UC) – where delegate had notified primary decision to email address in application for visa – where applicant alleged that subsequently email address varied – where tribunal held it had no jurisdiction because review application not lodged within time – where tribunal misapprehended evidence concerning notification of new email address – where tribunal failed to consider evidence that email address had been varied – jurisdictional error established.	

Legislation:
Migration Act 1958, ss.66(1), 347(1)(b), 494B, 494C, 494D, 494D(1), 494D(3)
Migration Regulations 1994, reg.4.10	

MZZDJ v Minister for Immigration [2013] FCAFC 156	

Applicant:	Thi Thanh Tuyen Bui	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE MIGRATION REVIEW TRIBUNAL)	

File Number:	BRG 1080 of 2014	

Judgment of:	Judge Jarrett	

Hearing date:	5 May 2015	

Date of Last Submission:	5 May 2015	

Delivered at:	Brisbane	

Delivered on:	17 July 2015	

REPRESENTATION
Solicitor for the Applicant:	Mr Nguyen	

Solicitors for the Applicant:	Essen Lawyers	

Solicitor for the First Respondent:	Mr Hawker	

Solicitors for the First Respondent:	Sparke Helmore	

The Second Respondent entered a submitting appearance	

ORDERS
(1)	The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Migration Review Tribunal)”.
(2)	A writ of certiorari issue quashing the decision of the second respondent made on 24 November, 2014.
(3)	The applicant’s application for a Temporary Business Entry (Class UC) visa be remitted to the second respondent for re-determination according to law.
(4)	The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $6,825.00.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Brisbane	
BRG 1080 of 2014
Thi Thanh Tuyen Bui	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE MIGRATION REVIEW TRIBUNAL)	
Second Respondent

REASONS FOR JUDGMENT
1.	The applicant seeks judicial review of a decision of the second respondent made on 24 November, 2014 whereby the second respondent decided that it did not have jurisdiction to hear the applicant’s review application because the application was not made within the time limits imposed for the making of such applications by the Migration Act 1958 and the Migration Regulations 1994.
2.	The first respondent opposes the application.  The second respondent enters a submitting appearance.
3.	The applicant relies on the following ground of review specified in her application:
	The tribunal denied procedural fairness by failing to consider that the Applicant had an ineffective notification of refusal from the Department of Immigration and Border Protection. 
4.	According to the applicant’s written submissions filed on 19 May, 2015, the issues that arise for determination in this application are:
	(1) Whether notification of a change in contact details via written notice under s 494D Migration Act 1958 (Cth) is effected by the sending of the written notice alone or whether it is only effected once there is acknowledgement of receipt;
	(2)	Supplying the minister’s decision by the prescribed methods under s 494B Migration Act 1958 (Cth);
	(3)	The effect of incorrect notification of the Minister’s decision contrary to s 494B of the Act; and
	(4)	Whether the exercise of this court’s jurisdiction to set aside the decision of the Second Respondent and to remit the matter back to the Second Respondent for reconsideration is an exercise of futility.
Background
5.	The issues arise against the following background facts, most of which are not controversial.
6.	The applicant is a national of Vietnam.  She arrived in Australia in July, 2009 and she applied for a Temporary Business Entry (Class UC) visa on 2 November, 2013.  In the application form the applicant appointed Mr Sam Nguyen as her migration agent and authorised recipient for the purposes of the visa application.  The appointment of Mr Nguyen as her authorised recipient has a special significance under the Act, to which I will come shortly.
7.	The application form had a portion for completion by the applicant’s authorised recipient.  In that portion of the form was the question: “Do you agree to this Department communicating with you via email and/or fax?”.  Mr Nguyen answered “Yes” to that question.  An email address was nominated.  It was:
	BRISBANEMIGRATIONLAW@GMAIL.COM
8.	The evidence suggests that on 18 June, 2014 Mr Nguyen caused a letter to be sent to the first respondent by email with a form described as a “Form 956”.  Both the letter and the Form 956 notified the first respondent that the email address for the applicant’s authorised recipient had changed to:
	essenlawyers@bigpond .com
9.	The evidence suggests that the email attaching the letter from Mr Nguyen with the notification of the change to the email address was not received by the first respondent’s department.
10.	On 27 June, 2014 a delegate of the first respondent refused the grant of the visa for which the applicant applied on the basis that the applicant’s business activity was not the subject of an approved business nomination for the purposes of the Migration Act and Regulations and the delegate was therefore not satisfied that a critical requirement of the Regulations had been met.
11.	The notification of the refusal was emailed to the applicant’s authorised recipient, Mr Nguyen, using the email address BRISBANEMIGRATIONLAW@GMAIL.COM.
12.	On 8 August, 2014 an officer from the first respondent’s department sent an email to Mr Ngyuen at the email address essenlawyers@bigpond .com.  That email pointed out that the applicant was “unlawful” and “needs to present to discuss her options”.  The email also said:
	As discussed, if you can confirm that you advised the department of the change [in email address] then I can liase with the 457 team in relation to a re-notification.
	Please scan and email me evidence of that letter to the department so I can chase it up.
13.	Mr Nguyen took up that opportunity and by email of 8 August, 2014 he sent copies of a “notification of change of email together with an updated Form 956” to the department’s officer.
14.	On 11 August, 2014 the applicant visited the first respondent’s departmental offices in Brisbane and was given a paper copy of the tribunal’s reasons for decision. 
15.	On 26 August, 2014 the applicant lodged an application for review of the delegate’s decision by a migration review tribunal.  
16.	On 21 October, 2014 a tribunal officer wrote to the applicant expressing the view that the application for review was not valid as it was not lodged within 21 days from the day on which the delegate contended the applicant was taken to have been notified of the decision (27 June, 2014).  The applicant was invited to make any comments she wished to make on whether a valid application for review by a tribunal had been made. 
17.	On 4 November, 2014 the applicant’s representative provided a response.  He contended that the email of 27 June, 2014 notifying the applicant, by her authorised recipient, of the decision was not received “as the email account was defunct at the time”.  It was contended that “the notification date should be 11 August, 2014” when the applicant “received a hard copy of the decision from the Department office in Brisbane when she visited the Department”. He contended that notification of the delegate’s decision “must be in writing and dispatched by mail and not by email”.
18.	In its decision made on 24 November, 2014 the tribunal said:
	8.	The Tribunal disagrees that the delegate must provide the notice of the delegate’s decision via post. The departmental file contains the record of responses of the visa application which was filed online. Therein, the applicant consented to the delegate corresponding with the applicant via email and provided the email address of the migration agent as the address to which the Minister should send documents to the applicant. Although the migration agent has contended his email address was ‘defunct’ on 27 June 2014, he provided no other evidence supporting that was the case. The migration agent did not provide with the submission to the Tribunal any correspondence between him and the department advising his email address was ‘defunct’ and providing a different email address. The evidence before the Tribunal from the departmental file too does not indicate the migration agent had informed the delegate of a different email address before the delegate made the decision under review.
(my emphasis)
19.	The tribunal was satisfied that the applicant was notified of the delegate’s decision in accordance with the requirements of the Migration Regulations.  The tribunal determined that it had no jurisdiction to review the delegate’s decision as the application was not made in accordance with s.347(1)(b) of the Act and reg.4.10 of the Regulations which together require an application for review to be made within 21 days after the date the applicant was notified of the delegate’s decision.
The Legislative Scheme
20.	By s.66(1) of the Act, when the first respondent grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.  Section 494B of the Act prescribes the methods by which the first respondent might give documents to a person for the purposes of the Act.  Transmission of documents by email is expressly provided and will be sufficient provided that it is sent to the last email address provided to the Minister for the purposes of receiving documents.
21.	Section 494C provides that if the first respondent gives a document to a person by email the person is taken to have received the document at the end of the day on which the document is “transmitted”.
22.	Section 494D deals with authorised recipients.  An authorised recipient, if one is appointed, plays a pivotal role in the notification scheme established by the Migration Act.  Relevantly, it provides:
	494D  Authorised recipient
	(1)  If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
	Note:          If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
	(2)  If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
	(3)  The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
	(4)  The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
23.	Notification of a variation for the purposes of s.494D(3) can be made orally and it can be made by an authorised recipient appointed under s.494D(1): MZZDJ v Minister for Immigration  [2013] FCAFC 156 at [32] – [35].
Consideration
24.	The applicant submits that her authorised recipient notified the first respondent by email on 18 June, 2014 of a changed email address for receiving the documents from the first respondent.  That is to say, she varied the notice given under s.494D(1) as permitted by s.494D(3) of the Act.
25.	She argues that this was done prior to the decision to refuse the applicant’s visa application by the first respondent’s delegate. As an additional precaution, the authorised recipient, Mr Nguyen, also sent by email to the first respondent, an “updated form 956” to the same effect.  The new email address was “essenlawyers@bigpond.com”.  Having done that, if the first respondent chose to notify her of his decision on her visa application by email, he needed to use the email address essenlawyers@bigpond.com because that was the last email address provided to the first respondent for the purposes of receiving documents.
26.	The first respondent submits that whatever the applicant or her authorised agent may have done, the fresh notification was never received by the first respondent.  In that respect, the first respondent sought to rely upon evidence from Mr Gregory Albert Miiller, an internet gateway engineer employed by the first respondent’s department.  The effect of Mr Miiller’s evidence is that having checked the first respondent’s email system, there is no record of an email ever having been received from the applicant’s authorised recipient at or around the time Mr Nguyen claims to have sent his change notification to the department.  
27.	The tribunal determined that the applicant had been notified of the refusal decision on 27 June, 2015 because the notice had been sent to her authorised recipient at the email address notified to the first respondent when the applicant made her application.  Implicit in the tribunal’s reasoning is the proposition that if a different email address had been notified to the first respondent, the refusal notification could only have been validly sent to that email address if notification was to take place by way of email.
28.	The tribunal recorded and seemed to base its decision upon the proposition that although the applicant’s authorised agent contended that his email address was ‘defunct’ on 27 June 2014, he provided no “other evidence” supporting that was the case: “The migration agent did not provide with the submission to the Tribunal any correspondence between him and the department advising his email address was ‘defunct’ and providing a different email address.”  Further, the tribunal said: “The evidence before the Tribunal from the departmental file too does not indicate the migration agent had informed the delegate of a different email address before the delegate made the decision under review.” (see the emphasised passage in paragraph 8 of the tribunal’s decision extracted above).  
29.	But that is incorrect.  The court book filed in these proceedings contains a copy of all of the documents that were before the tribunal when it considered the applicant’s application.  There was evidence on the departmental file that the migration agent had informed the delegate of a different email address before the delegate made the decision under review.  That evidence was the email sent by the applicant’s authorised agent to the department on 8 August, 2014 in response to the email from the department that I have set out earlier.  It was in the following terms:
	Dear Isaia
	Please find attached my notification of change of email together with an updated Form 956.
	I sent this letter both by email and by post.
	Unfortunately, recently there is has been a change in my IT system, I could not retrieve the Automated Confirmation or Receipt from the Department.
	Neither my client nor myself has received any refusal letter from the Department.
	I would be grateful if you could resend the notification letter to myself or my letter.  So that appropriate action may be taken.
	Sam Nguyen
	0422 225 921
30.	Attached was a letter dated 18 June, 2014 from the applicant’s authorised recipient, in the following terms:
	Brisbane Centre of Excellence
	GPO Box 9984
	Brisbane Q 4000
	By email: 457@immi.gov.au
	18 June 2015
	
	Dear Sir/Madam
	Client name:				Ms Thi Thanh Tuyen BUI
	Date of birth:			17 December 1988
	Nomination TRN:		EGO5FQCNBV
	
	I refer to the above matter and confirm I act for the visa applicant.
	My practice is in the process of amalgamating with Essen Lawyers Pty Ltd. Hence, the email brisbanemigrationlaw@gmail.com is now defunct.
	For future reference please forward all correspondence to my new email address – namely, essenlawyers@bigpond.com .
	Please find enclosed an updated Form 956.
	Kindly update your records accordingly.
	Thank-you for your assistance with this matter.  Should you have any queries regarding this matter, please do not hesitate to contact the undersigned.
	Yours sincerely
	
	Sam Nguyen
	Registered Migration Agent - 0319875
31.	Also included was a Form 956 which purports to be signed on 18 June, 2014.
32.	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 the decision under review.  
33.	In my view, the tribunal made an error when it determined that “The evidence before the Tribunal from the departmental file too does not indicate the migration agent had informed the delegate of a different email address before the delegate made the decision under review”.  The tribunal has clearly not understood the purport of the email of 8 August, 2014 because it was a clear assertion that notification of a changed email address had been made.  As requested by the department, copies of the documents that were said to have effected that change were attached. 
34.	Contrary to the first respondent’s submissions, the finding constituted by the tribunal‘s statement that “The evidence before the Tribunal from the departmental file too does not indicate the migration agent had informed the delegate of a different email address before the delegate made the decision under review” was not open to it on the evidence before the tribunal.  The evidence indicated the opposite.  That was a critical step in the tribunal’s ultimate conclusion and it was clearly based upon a misapprehension of the evidence before it.
35.	To the extent that the tribunal’s reasons to which I have just referred represent a finding by it that there was no evidence before it that the migration agent had informed the delegate of a different email address before the delegate made the decision under review, the error was one of law.  There was evidence to that effect that the tribunal did not recognise as such.
36.	Alternatively, the finding by the tribunal might be seen as a factual finding only.  But whatever be the case, the finding by the tribunal led it to determine that it had no jurisdiction to determine the applicant’s claims.  If it was a factual finding, it was a finding which misinformed the tribunal’s ultimate finding as to as to the existence of its  jurisdiction.
37.	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.
Conclusion  
38.	There is nothing in the tribunal’s reasons to suggest that the tribunal gave any consideration at all to the email of 8 August, 2014 and its attachments.  Whilst the tribunal might have reached the same conclusion that it did, had it properly considered that email, because the tribunal misapprehended the nature of the email and its contents, it did not consider them at all.
39.	In my view, the applicant establishes that the tribunal’s decision is infected by jurisdictional error.  Accordingly, it is appropriate to make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 July, 2015.

Associate:  

Date:		17 July 2015