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High Court of Australia Transcripts |
Last Updated: 2 July 2009
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S556 of 2008
B e t w e e n -
JAVED ALUM
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
Application for order to show cause
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 29 JUNE 2009, AT 9.34 AM
Copyright in the High Court of Australia
MR L.J. KARP: May it please your Honour, I appear for the plaintiff. (instructed by Parish Patience Immigration, Lawyers)
MS K.A. STERN: May it please your Honour, I appear for the defendant. (instructed by Clayton Utz Lawyers)
HIS HONOUR: I take it that the affidavits which were read on the last occasion will still be before the Court on this occasion.
MR KARP: Your Honour, I do not need to rely on the affidavit of Mr Soeryoatmodjo filed in December last year. That has been overtaken by the affidavit of Mr Soeryoatmodjo affirmed and filed on 1 June this year.
HIS HONOUR: Do you have any objection to that latter affidavit, Ms Stern?
MS STERN: Your Honour, no. If I can just confirm that the affidavit of Ms Bryant was read on the last occasion. We still rely upon that.
HIS HONOUR: Yes, very well. That new affidavit of the deponent will replace the former affidavit.
MR KARP: Thank you, your Honour. Your Honour, while I am on the subject of Mr Soeryoatmodjo’s latest affidavit, my friend drew my attention to the fact that her copy of the exhibit to that affidavit is missing one page. Mine is not. I am just wondering if your Honour’s is.
HIS HONOUR: What is the missing page?
MR KARP: Page 34.
HIS HONOUR: I have page 34. That is the second page of the acknowledgment of receipt of the visa application letter?
MR KARP: That is correct, your Honour, yes.
HIS HONOUR: Do you have the page now, Ms Stern?
MS STERN: Your Honour, I do have that page now. Mine was the second copy of the first page of the receipt letter. I have now clarified that with my learned friend and I am grateful for that confirmation, your Honour.
HIS HONOUR: I have read the extra written submissions of the parties which are very helpful. Is there anything you want to add to them?
MR KARP: Your Honour, I did wish to simply go through these and give your Honour an opportunity, if you wish, to raise issues about them.
HIS HONOUR: Yes.
MR KARP: But I think everything is pretty much in writing now. If I could just say, your Honour, that the plaintiff’s case can be stated fairly simply and that is that the skills assessment necessary to satisfy paragraph 485.221 of Schedule 2 of the Migration Regulations was sent by email by Mr Jung, the plaintiff’s agent, to the Department on 19 November 2007. This was receipted 17 minutes later and I refer to Mr Jung’s affidavit at paragraph 5 and pages 4 to 7 of the exhibit thereto. My submission is that information was given pursuant section 55, therefore the Minister had to have regard to it under section 54 but he did not have regard to it and therefore the plaintiff wins.
My friend, however, says that the email which was sent to – and I concede it was sent to aspc.processing@immi.gov.au was not communicated in the prescribed way and in any event was not received. I challenge those submissions and, if your Honour wishes, what I would do is go to the relevant legislation and go through it and analyse the way that I say is the correct way.
HIS HONOUR: If you wish to. I have read and do understand your written submissions but if you wish to either add to them or develop them, I am not stopping you.
MR KARP: Your Honour, I think everything is contained in the written submissions.
HIS HONOUR: I will just check one more thing. Yes. I am all right now. Continue.
MR KARP: Your Honour, I of course rely on the written submissions. I understand that the standard of satisfaction that I need to demonstrate here is an arguable case for a show cause.
HIS HONOUR: That might be so if it was a question of sending it to the Full Court, but one possibility is either that the application be dismissed, another possibility is that the orders you seek be made.
MR KARP: Yes.
HIS HONOUR: That would mean that the defendant could seek leave to appeal against those orders and that would be another route to the Full Court.
MR KARP: Yes.
HIS HONOUR: If you were to succeed in getting the orders made now, it is perhaps a higher standard than just an arguable case. To be perfectly frank, except possibly in relation to the electronic legislation that Ms Stern relies on, it is not a very attractive case for the Full Court. In a sense, it is not purely factual but it is mixed fact and law and that is a reason for disposing of it before a single Judge rather than sending it to the Full Court. But anyway, I think there is a difference in standard.
MR KARP: Yes, your Honour, I would certainly accept that, but I would submit that the alternative propositions that I have put are compelling and there is certainly an arguable case and, in my submission, it is a case which would succeed.
HIS HONOUR: I perhaps see things slightly differently from the way you put them. Let me just run a possible line of thought and see whether you adopt it. We have the plaintiff – and we know nothing about his language skills and we have his agent - - -
MR KARP: Your Honour, we do know his language skills. I am sorry to interrupt. There is in Mr Soeryoatmodjo’s exhibit an English language test result.
HIS HONOUR: Page 7, paragraph 30 he said he was providing IELTS or OET test result.
MR KARP: Yes, and that has been provided, your Honour. I am just trying to find it.
HIS HONOUR: You are, in effect, making a concession, which is very good of you. Let us assume he does speak moderately good English for a cook who comes from Bangladesh.
MR KARP: Yes, your Honour.
HIS HONOUR: The fact is he personally is not familiar with the types of documents that came along on 9 October 2007.
MR KARP: No.
HIS HONOUR: His agent might well be expected to be a lot more familiar with them but, without being unduly critical about it, judging by what one has read of what the agent has written and by various things that he did and did not do, it does not sound as though he is particularly skilful either in dealing with what I will call a quasi-legal document, particularly one which calls attention to methods of electronic communication. If you said to yourself, if you were a reader of the document, and said, “Look, the one thing that is lacking is a successful skills assessment, I have to send that to these people” – you are told in the first two pages twice that if you want to send further documents, you have to refer to the section on providing further documents in the attachment. You are told that once for ordinary documents and once for electronic copies of documents.
When you go to the attachment and you get to the last page of it, you come to the heading referred to “Providing further documents”, that tells you that:
Documents can be sent to the ASPC using ONE of the following methods –
and that applies to scanned copies of original documents and scanned copies of certified documents. It also says:
Scanned documents should be emailed to: aspc.students@immi.gov.au
This is one of your points, I think, it does not actually say “and they should not be sent anywhere else”.
MR KARP: Yes.
HIS HONOUR: But there is another part of the document that the defendant relies on which is under the heading “Processing Information”. The line of thought I am putting to you is simply this, that if you approach it saying “I must send this successful skills assessment, therefore I must comply with what is said under ‘Providing further documents’ and therefore I don’t need to bother with the processing information part” or, perhaps more likely, the reader simply did not concentrate on the processing information part, a question arises as to whether that is really communication of one method of emailing documents to the Department and specific exclusion of all others or whether it is not sufficiently precise to be that.
MR KARP: My submission, your Honour, is that it is not specifically precise to be that. It may be that Mr Jung made a mistake, but the address which is given there, aspc.processing@immi.gov.au, was an email address of the Minister’s Department. The relevant legislative provisions permit communication by email. This document was sent by email to an address of the Minister. It was receipted. There is nothing in the regulations or, indeed, in the Act or, indeed, in my submission, in the Electronic Transactions Act which permits the Minister to specify a particular email box.
HIS HONOUR: That is a big submission you are making.
MR KARP: Yes.
HIS HONOUR: That is a sort of Full Court type submission, if I can put it that way. Is not an answer to it this? Look at the regulations, regulation 2.13(6) says that:
If an applicant . . . is required or permitted to produce a document –
and certainly your client was permitted to produce a document, namely, any successful skills assessment that came into being, the document –
may be in the form of an electronic communication only if . . .
(b) the Minister has permitted the applicant . . . to send the document by electronic communication.
MR KARP: Yes.
HIS HONOUR: The various materials of 9 October did permit electronic communication.
MR KARP: Yes.
HIS HONOUR: I think the argument against you on this high legal point be that if the Minister has a power to permit the sending of documents by electronic communications the Minister can attach conditions to that power and one of the conditions could be – query whether successfully in this case – it had to go to one address and no other. If you won on the idea that I raised with you a few moments ago, of course, one would not need to get into this legal question, but it would be a rather extreme position if the Minister had a general power but could not attach a condition to it. I know legislation often says the power can be exercised on conditions or not, but it always seems to be rather an unnecessary supplement.
MR KARP: Your Honour, to answer your question, I would go back to section 52, especially 52(1):
A visa applicant or interested person must communicate with the Minister in the prescribed way.
What is prescribed is a method of communication. It is not to a particular electronic mailbox. It does not say that the Minister may specify an electronic mailbox or not. It does not say that the Minister may prohibit communication to anything else but an electronic mailbox. The Minister relies on the black letter of the law to oppose my client’s application. I am providing the black letter of the law to confine the Minister to the regulations.
HIS HONOUR: Mr Justice Samuels, when he was alive, used to say anyone who took a point on traditional common law methods of pleading could almost always be met by some opposite point deriving from the principles of common law pleading. Is your argument that the regulation is ultra vires or merely that it does not go far enough to support the line of reasoning that the defendant is relying on?
MR KARP: It does not go far enough. The regulation in the form that I just suggested that permitted the Minister to specify an electronic mailbox would be within section 504, which is the general provision for regulations, but, in my submission, this regulation just does not go far enough.
HIS HONOUR: Going back to where we were, you are content with the way I was putting it?
MR KARP: Your Honour, I am.
HIS HONOUR: This factual level.
MR KARP: Yes, I am content with that, your Honour, and I just reiterate the submissions I just made and the ones which I previously made in writing.
HIS HONOUR: Can I just change the subject and go to the Electronic Transactions Act. If we take section 9(1)(a), which is one of the provisions the defendant relies on, your point there is that at the time the successful skills assessment was given it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference and that was reasonable because nothing had been said on 9 October along the lines of what was said in the affidavit of Ms Bryant to the effect that in fact the Department does not monitor the content of emails received at aspc.processing@immi.gov.au and it also has a policy of not saving or filing any emails received at that address. In other words, if you look at it from the Department’s point of view, no doubt it was reasonable for it to expect that it would not have the information readily accessible, but if you look at it from the point of view of people dealing with the Department, they were not told what the Department’s specific policy was.
MR KARP: That is correct, your Honour.
HIS HONOUR: That is your position on paragraph (a).
MR KARP: Yes.
HIS HONOUR: On paragraph (b), is the position similar to the position in relation to regulation 2.13, namely, the question is simply whether the Department did require that the information be given by means of a particular kind of electronic communication? Well, that is one possibility, but another possibility or another line you take is the reference to “particular information technology requirements” stresses “technology”, it does not stress addresses.
MR KARP: That is correct, your Honour. The “particular information technology requirements” deals with a method of communication, not an address, if you like.
HIS HONOUR: But do you also take the point that if it does deal with addresses, there had not been an effective requirement?
MR KARP: I do, your Honour. Your Honour, if I could also say about subsection (b) the opening line, “if the information is required to be given to a Commonwealth entity”, well, at least arguably here the information was invited. It was not required, although I suppose you could say that it was required if the applicant for a visa was to succeed.
HIS HONOUR: It was not an offence not to supply it, but if you wanted the visa, you were required to produce - - -
MR KARP: Yes.
HIS HONOUR: - - - the skills assessment by the relevant regulation you referred to at the start.
MR KARP: My friend has just pointed to subsection (2) which deals with permission and I thank my friend for doing that.
HIS HONOUR: So we have a similar scheme in subsection – yes.
MR KARP: Yes.
HIS HONOUR: So it does not really matter which it is.
MR KARP: No.
HIS HONOUR: On section 14(3) and (4), what is your position, in a nutshell, on them?
MR KARP: The use of the term “information system” deals with – as I said in I think my submissions in reply – a collection of items or things which together have some order about them. It is not apart. The word “system” does not encompass an individual item. If you were speaking about the rail system or the road system, you cannot talk about, in my submission, an individual railway station or an individual road. The clear meaning of the word “system” does not permit that and, in my submission, your Honour, the language is plain and that does not permit recourse to the extrinsic materials on which my friend relies.
HIS HONOUR: Do you rely on another argument to the effect that whether or not that is right, the 9 October 2007 document did not sufficiently designate an information system?
MR KARP: Yes, your Honour, I do.
HIS HONOUR: Then there is perhaps a further argument that these subsections - subsections (1) and (2) are dealing with proving time of dispatch or establishing time of dispatch. Subsections (3) and (4) are dealing with the topic of the time of receipt.
MR KARP: Time of receipt, yes.
HIS HONOUR: Here time is immaterial. In some sense, the successful skills assessment came into the Department’s hands. It did not get into the hands of the actual decision-maker to whom, of course, no criticism can be attached here. This helps you establish what time things were received, but it does not tell you whether or not they were received.
MR KARP: Yes, your Honour, I would adopt that, with respect.
HIS HONOUR: Right. Is there anything else?
MR KARP: Nothing further, your Honour.
HIS HONOUR: Let me just check one further thing. Yes.
MR KARP: Thank you, your Honour.
HIS HONOUR: Yes, Ms Stern.
MS STERN: Your Honour, I wonder if I could address the points that your Honour raised with my learned friend and, save for those points, rely on the written submissions that I have already provided, quite full written submissions. Could I invite your Honour to start by going to the affidavit of Mr Jung. It is the affidavit which was filed on 18 March 2009.
HIS HONOUR: Yes, I have that.
MS STERN: If I could invite your Honour to turn to – I think it is described as folio 1 to the affidavit.
HIS HONOUR: Yes, I have that.
MS STERN: It is the text of the email dated 19 November 2007. Your Honour, I raise that because your Honour will see that the addressee is the “Case Officer” and, your Honour, that is relevant.
HIS HONOUR: That is true, in a sense, but in another sense the addressee may be “Processing ASPC”. It says “From:”and “To:”.
MS STERN: Your Honour, it may be but, in my submission, the sensible way of reading that is that it is addressed to the case officer, namely, that is the person to whose attention it is intended to come. Your Honour, that is relevant for section 14(4) of the Electronic Transactions Act that your Honour has just been referring to. Your Honour, I can go to that now if that would assist. Your Honour has indicated that this is simply relevant as to time of receipt, but it is relevant as to whether there was receipt at all. Your Honour will see that section 14(3) provides that where there is a designated information system, then the time of receipt is the time when it enters that information system, but if there is no designated information system, then the time of receipt is when the electronic communication comes to the attention of the addressee.
So, your Honour, in those circumstances there are two possibilities. One is that there was a designated information system in which case it will have been received if it reaches that designated information system. The other is that there is no designated system in which case it will only be received when it comes to the attention of the addressee which in this case would be the case officer.
HIS HONOUR: Now, of course, just as a background, subsection (3) says if the addressee has designated an information system, subject to various assumptions against Mr Karp, any attempt to designate an information system was done on 9 October.
MS STERN: Your Honour, yes. Your Honour, that is page 33, I think, of the paginated Department file.
HIS HONOUR: It is not signed by anyone except the Adelaide Skilled Processing Centre. It is not signed by the case officer.
MS STERN: No, your Honour, but it was sent by Ms Chea.
HIS HONOUR: Julee Chea, yes. We do not know whether Julee Chea was the case officer or someone else.
MS STERN: Your Honour, she was certainly dealing with this at this stage. There is a distinction between a delegate and a case officer. It appears that it was sent by a case officer, a person dealing with the application. That is certainly a different thing to the delegate for the purpose of decision-making.
Your Honour, just to be absolutely clear, I should bring to your Honour’s attention page 78 where there is a letter from Ms Wiseman who does specifically describe herself as a “Case Officer - Onshore Graduates”. So, your Honour, there is a distinction between the way that Ms Chea’s email is framed and the way that Ms Wiseman’s email is framed, and I accept that.
HIS HONOUR: Just while we are looking at that document from Ms Wiseman, at the bottom it says “Email: adelaide.gsm.team8@immi.gov.au” and that is what Mr Jung replied to when he sent the unsuccessful skills assessment instead of the skills assessment. How does that designation of an email address fit into the contents of the letters of 9 October?
MS STERN: As your Honour has already indicated to my learned friend, it is our case that if there is a power to permit, there is a power to permit subject to conditions or to permit specific forms of email. Your Honour will have seen that in the 9 October email there were specific designated email addresses and that is how I put my case, as your Honour is aware. Here, there is an addition to that where there is a specific permission given to provide documents by return email. So, your Honour, that is adding – and it may be that - your Honour, it is not necessary for your Honour’s decision but it may be that that is actually amending the permission altogether to provide that the way of providing the - - -
HIS HONOUR: One possibility is you must always do it this way in future, another possibility is you can do it the past way or you can do it this way, there are two ways you can do it.
MS STERN: There are, but, your Honour, my submission would be that the permission is to do it by return email.
HIS HONOUR: To that address.
MS STERN: And that that is it, and that would make sense when one looks at the overall scope and purpose of the legislative provisions. Here is someone saying we need it and we are going to make a decision and that is what they are asking for. That seems to be the way that it was interpreted because there was then an email sent following asking for a bit more time.
HIS HONOUR: It is not really a part of Mr Karp’s case, and it is easy to be extremely wise years after the event, but it is manifestly obvious now, is it not, that there was a mistake on the part of Mr Jung. He sent something which was not a skills assessment and he did send it that day. So if 29 August was a crucial day, there was still time for him to fix it up, but he never seems to have been queried as to whether, “Mr Jung, have you made a mistake and sent us the wrong document?”
MS STERN: Your Honour, no. The document that was sent was a skills assessment. It was just an unsuccessful skills assessment. So it did answer the description. It just was not of a character that was sufficient to enable the grant of the visa.
HIS HONOUR: There would have been no point in sending it unless it were a successful one.
MS STERN: Your Honour, that is right, but the Minister has to make the decision on the basis of the documents that are provided, or the delegate in this case make the decision, and the document that was provided was this by way of skills assessment and it was then for the delegate to consider all of the material and form a view as to whether or not it satisfied the requirements for the issue of the visa. Your Honour, there has been no case put against us on any basis other than the 19 November 2007 email.
HIS HONOUR: There is no other possible successful skills assessment in play, that is true, if it - - -
MS STERN: No, your Honour, but it is not suggested that there was any later issue arising, if I can put it in that way.
HIS HONOUR: Does the evidence enable us to draw any inference as to what was actually before the delegate? Would the delegate have had Ms Wiseman’s email and the reply to it?
MS STERN: Your Honour, it would appear so because it is in the file.
HIS HONOUR: The delegate would have had available the whole file?
MS STERN: Your Honour, I can take instructions. I do not have any specific instructions. I can have a quick look at Ms Bryant’s affidavit and see whether that provides any assistance. Your Honour, it does not appear to provide assistance.
HIS HONOUR: Anyway, Mr Karp is not taking any point - - -
MS STERN: Your Honour, the only further assistance is at page 93 where it is stated that:
This decision has been made on the basis of the information and claims made in the application -
Your Honour, that fits with the language of section 54 of the Act.
HIS HONOUR: Yes. Everything in that letter and in the decision record that was enclosed with that letter may well be technically correct and, in particular, the finding on page 72 that, “you have not provided a suitable skills assessment”. I appreciate the Department of Immigration is not an entirely charitable organisation, but looking at it, as I say, now, we can see that a mistake has occurred and sometimes those who notice a mistake has occurred draw that to the attention of those who have made the mistake. But Mr Karp does not seem to be taking any point along these lines, so perhaps there is not much point in examining it further.
Now, we started off with section 14(3) and (4). Your point is it does not matter whether an information system was designated or not. Those sections, in particular subsection (4), tell you when the time of a receipt is and your argument is that there cannot be receipt unless you know what the time of it is.
MS STERN: Your Honour, yes, that this sets out when something will be received and if neither of the two possibilities set out in section 14(3) or (4) are satisfied, then there is no receipt.
HIS HONOUR: This really all turns on who the addressee is and you making the point that the addressee was the case officer and by the time nine months or so had passed, the case officer was Ms Wiseman. But your point is the addressee is not Processing ASPC?
MS STERN: Your Honour, the starting point must be the addressee must be somebody or some person who can read or access the email and that simply would not be satisfied by what we know to be an automated system. But as your Honour is aware, my primary point in relation to this is that the designated information system was the specific email addresses or email boxes. Your Honour will have seen that I have referred to the explanatory memorandum on this and then that refers back to the UNCITRAL model law and your Honour will see that that makes it quite clear that “information system” could cover a part of an information system and that, in my submission, flows from the definition in any event that a particular email box is a system. This refers back to the definition section which is section 5 of the Electronic Transactions Act.
HIS HONOUR: Yes, I have section 5.
MS STERN: It is the definition section and in my copy on the second page of section 5 there is a definition of “information system” and, as you see, it says:
a system for generating, sending, receiving, storing or otherwise processing electronic communications.
Your Honour, an email box is a system for generating, sending, receiving, storing.
HIS HONOUR: It is not for generating. It is not for sending. Maybe it is for receiving and maybe it is for storing.
MS STERN: Your Honour, it is also for generating and sending because, unless one has an email address one cannot send an email.
HIS HONOUR: This is where I think – deeply sympathetic though I am to the problems of the Department of Immigration – they are operating in a world which is not the world of Mr Jung or the plaintiff.
MS STERN: Your Honour, one has to step back a little and look at how electronic communication works and there is a real difficulty if anything sent to any email address associated with the Department would suffice by way of service on the Department by email.
HIS HONOUR: I accept Ms Bryant’s evidence and I accept the substance of your submissions about that evidence.
MS STERN: Your Honour, that is then supported. Your Honour, I am not sure whether it is of assistance to work through the background to the legislative material that we have provided. I have my authorities tabbed, I am not sure whether your Honour has as well.
HIS HONOUR: I do not have them tabbed, but I can find my way through them, I think.
MS STERN: Your Honour, there is a reference, there is then the Electronic Transactions Bill Revised Explanatory Memorandum.
HIS HONOUR: Yes, I have that.
MS STERN: Your Honour will see they are actually not numbered at all but there is a general outline. Does your Honour have that?
HIS HONOUR: I do.
MS STERN: The first page. Your Honour will see four lines up from the end of the third paragraph on that page there is a recommendation of the Expert Group that:
the Commonwealth should enact legislation based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce of 1996, with some modifications.
Your Honour, then at page 22 of the explanatory memorandum your Honour will see the second paragraph from the bottom:
“Information system” is defined to mean a system for generating, sending, receiving, storing or otherwise producing electronic communications, however that system may operate. For example, it would include all or part of a communications network, such as a system operated by a Commonwealth department.
Your Honour, we say that supports what is the plain meaning in any event of the definition section, namely, that it can refer to a part of a communications network provided that what it is is a system, and even adopting your Honour’s construction, a system for receiving electronic communications and that would clearly be an email box or an electronic address.
HIS HONOUR: Your section 14 argument is really quite distinct, is it not, from your primary argument? Your primary argument is that, in effect, the plaintiff was treated perfectly fairly if his agent had read all the documents of 9 October in a rational way. It would have been perfectly clear, one email box is to be communicated with, no other email box is to be communicated with except for certain routine purposes that are irrelevant. But on your approach to section 14, even if the 9 October 2007 documents had been much less explicit than you say they are, the plaintiff would still lose. In other words, the plaintiff would bear the risk of things not getting to the right place within the Department.
MS STERN: Your Honour, I am not sure whether there is much between the two arguments actually, because my submission as to regulation 2.13(6) is that there was limited permission because there was a designated email address and there was a specific instruction not to communicate to another email address for these purposes. My submission as to section 14 is that there was a designated email address and that that is a designated information system, therefore one is within section 14(3) and not section 14(4) and because it was not sent to that email address, there is no receipt.
Your Honour, it does get slightly muddier if your Honour does not accept that there was a designated email address because then we are in the question – well, there are two possibilities really there. One, your Honour may say, well, there were a number of designated email addresses, one of which was the ASPC Processing address, which obviously I would - - -
HIS HONOUR: Resist.
MS STERN: - - - submit is incorrect, but your Honour may reach that finding, in which case it would be within section 14(3) and the receipt would be when it arrived in that email mailbox. The other alternative would be that your Honour may find that there was no designated email address at all and then there would be two possibilities. One would be that there was a larger scaled designated information system, namely, the entire communications network of the Department or that there was no designated information system, in which case the question would be whether it had come to the attention of the addressee.
HIS HONOUR: Is this one way of looking at it? Under subsection (3) it may be said that there was a designation of an information system in one of two ways. One is your preferred way, the 9 October documents tell you only to go to one place. Another way is that in some broad sense the whole of the Department’s methods of receiving information are one big information system which has been designated and people like the plaintiff are protected because the minute the communication enters that system that is the time of receipt, therefore there must have been receipt. But if neither of those arguments work, you go to subsection (4) and then there is no time of receipt of, indeed, receipt until it has come to the attention of the addressee and if the addressee is the case officer, it does not seem to have come to the attention of the addressee because – correct me if I am wrong – the successful skills assessment never got into the file.
MS STERN: Your Honour, yes. It never came to the attention of any individual and, your Honour, it did not make its way to the file.
HIS HONOUR: But if, on the other hand, the addressee is something more than whoever the case officer was from time to time, you say it still fails because all it hit was a machine and the machine sent something back, but there was no human being to whose attention it came?
MS STERN: Your Honour, yes, and the phrase “come to the attention of” does direct that there must be some or potential for some human interaction, as it were. Your Honour, at page 39 of that explanatory memorandum your Honour will see statements relating to section 14. Your Honour will see in the third paragraph there is a reference to:
The terms “originator” and “addressee” are used throughout clause 14 –
which became section 14 –
These terms are intended to have their ordinary meanings. An originator is someone who causes an electronic communication to be sent, while an addressee is someone who the originator intends to receive the electronic communication.
HIS HONOUR: Mr Jung intended a person with responsibility for the fate of the plaintiff to receive the electronic communication and I suppose Mr Jung would say and it is for the Department to make sure that whatever comes in is shuffled around into the right place.
MS STERN: Your Honour, in my submission, Mr Jung intended someone with responsibility for dealing with the application to receive the electronic communication.
HIS HONOUR: Just say that again, that submission again?
MS STERN: Mr Jung intended someone with responsibility for dealing with the application to receive it.
HIS HONOUR: Yes.
MS STERN: Your Honour, there is then underneath that paragraph the statement that clause 14 is “based upon article 15 of the UNCITRAL Model Law”. Your Honour, that then brings in the model law. Your Honour will have seen we have also provided your Honour with the UNCITRAL Model Law with the guide to enactment. Your Honour, there is a paragraph 40 in the guide to enactment which refers to the definition of “information system” and makes it clear, halfway through the paragraph, five lines down:
in other instances could include an electronic mailbox or even a telecopier.
Your Honour, I appreciated this morning that I had omitted to provide your Honour with the UNCITRAL definition of “information system” which would obviously be of assistance in understanding paragraph 40. Your Honour, I wonder if I could hand up that definition and I apologise for doing it in this way.
HIS HONOUR: Mr Karp?
MR KARP: I have a copy, your Honour.
HIS HONOUR: Yes, which is the definition in section 5.
MS STERN: Your Honour, when one turns to the definition in section 5, the only difference is that the UNCITRAL describes – the last two words are “data messages”, whereas the last two words in section 5 are “electronic communications”. Your Honour, again we say that that supports what would in any event be plain, that an electronic mailbox is capable of falling within the definition of an “information system”.
HIS HONOUR: Right.
MS STERN: Your Honour has my submissions as to other aspects of the Electronic Transactions Act.
HIS HONOUR: I did. I have them now.
MS STERN: Your Honour, as those submissions largely dovetail, if I can put it that way, with the submissions on regulation 2.13(6), I do not intend to address your Honour upon a situation where they might be compliant with regulation 2.13(6) and non-compliant with the Electronic Transactions Act. In my submission, it is likely my submissions stand or fall.
HIS HONOUR: If you won on the regulation, one does not get to the ETA.
MS STERN: No. Well, your Honour, one might do, in fact, because there may still - - -
HIS HONOUR: The question is if you need to, would you? Once you have established that the Minister was entitled to impose a condition on the permission granted under the regulation and once you have established that condition was not complied with, then there was no obligation on the Minister’s delegate to look at the successful skills assessment. The plaintiff loses. But if the plaintiff won on those points, there might be a question whether the defendant would do better under the ETA.
MS STERN: Your Honour, the difficulty is that section 52 deals with a method of communicating but does not itself have any deemed receipt provision. So there may still be a question whether, if you communicate in a prescribed way, whether or not something should be taken to have been received by the Department and that is where the ETA could come in. But if your Honour finds that there were a number of different designated email addresses, then there would be no need to consider that because that would then cover receipt as well under the ETA. It would be only if your Honour found that there was no designated information system at all that it may then be necessary to consider whether or not there was receipt and that would then bring in section 14(4) of the ETA.
HIS HONOUR: Let us just go back a couple of stages. If the plaintiff had failed to communicate in the prescribed way and purported to communicate in a way that was not the prescribed way, then the communication is taken not to have been received, period, qua time unless the Minister in fact receives it. That is a kind of subsidiary or secondary argument that Mr Karp in certain conditions would wish to run. But if you won on that part, you do not get to the ETA if you lost on that part, so that there had been compliance with section 52(1). Does it not follow from subsection (3) that the communication is taken to have been received? If you do not communicate in the prescribed way it is taken not to have been received. Does it not follow that if you do communicate in the prescribed way it was received? It sort of covers the universe.
MS STERN: Your Honour, in my submission, no. There are obviously provisions which will be deemed receipt provisions, for example, the Acts Interpretation Act section 29 provides that if something is sent, it will be deemed to have been received on a certain date. There is also section 160 of the Evidence Act. So there are provisions which would then work together with the communication which would have the effect of deemed receipt, but there is not a specific provision that has that effect as regards electronic communications other than section 14. So, your Honour, the way we say the section works is that you have to communicate in the prescribed way. There are then other deeming provisions which might, as it were, take effect, save for the circumstances where you are in the territory of section 52(3) which specifically says “is taken not to have been received” in those circumstances.
So that the way the section works is actually, if I can put it this way, a negative deeming in section 52(3) rather than any positive deeming, but that those positive deeming provisions are actually to be found in other places. Your Honour, we say that is supported when you look at the Act as a whole where where there is an intention to deem receipt it is made perfectly clear in the Act.
HIS HONOUR: Migration Act?
MS STERN: In the Migration Act, yes. I am sure your Honour is familiar with the various provisions, but they generally refer to communications by the Minister because of the requirements for notification and time limits dating from the date or time of notification. Your Honour, there is no deemed receipt provision in section 52(3), it rather works the other way. In section 52(1) it goes the other way.
HIS HONOUR: The difficulty is, though, if there is any attractiveness in the defendant’s position at all, it rests on the documents of 9 October. If the Minister lost on those documents and was relying on the ETA, it is a very unattractive state of affairs because the Mr Jungs of this world know nothing about the ETA. It is part of the law of the land, but it is a rather recondite part of the law of the land; a fortiori the plaintiffs of this world do not either.
MS STERN: If your Honour were to find against the Minister on the 9 October document, your Honour may do so on the basis that there are a number of specific email addresses provided and therefore they would all be designated email addresses, in which case one does not get to this difficulty. Equally, your Honour may find there is a designated information system, namely, the Minister’s communication network or the Department’s communication network as a whole, in which case again one does not get to this position. It really is only if your Honour were to find that there is no designated information system and, your Honour, that is, in a sense, with respect, a difficult finding in some ways given that, if your Honour is to find that there is permitted communication electronically. So, your Honour, I do not think we actually get to that position.
HIS HONOUR: I see now why you say the two arguments may not logically, but for most practical purposes, all rise and fall together.
MS STERN: Your Honour, yes.
HIS HONOUR: Because the weakness of the Minister on 9 October is that it leaves open more than one email address and one was used, but it may only have hit a machine but it did hit.
MS STERN: If that is your Honour’s finding and it is a finding specifically on the facts of the 9 October 2007 letter, then I do not think any of the legal difficulties arise.
HIS HONOUR: No. Let me just check one more thing. Yes, I understand now what you have been saying.
MS STERN: Your Honour, the other matter I just wanted to urge – I am going to come to the letter finally because I can see that that is probably the one matter that is troubling your Honour. Your Honour will have seen that one of the documents that we handed up to your Honour is the explanatory memorandum for the 1992 Migration Reform Bill.
HIS HONOUR: Just one moment. Yes, just before the Model Law one.
MS STERN: Your Honour, I did not intend to invite your Honour to go to it now. It is provided really on the section 52(3) point in support of the Minister’s submission as to what “received in fact by the Minister” means. Your Honour will see the last three lines under paragraph 53 under the heading “Section 26T Communication of Applicant with Minister”.
HIS HONOUR: Yes, I see that.
MS STERN: Your Honour sees that it actually emphasises what we would say would necessarily flow from the section in any event. I do have a copy of section 26T as it was added so that your Honour can be quite clear that that is in the same terms as the current section 52. It is just simply to make sure that that paragraph can take effect by reference to the Bill.
HIS HONOUR: If you happen to see Senator Evans walking down the street and shouted something at him, that might satisfy section 52(3) or 26T(3) but merely spattering his Department with email communications that do not get to the right places is not good enough.
MS STERN: No, your Honour, that is precisely the point.
HIS HONOUR: Right.
MS STERN: Your Honour, I think that leaves me to do what I can as regards the letter of 9 October which is at pages 33 to 39 of the exhibit to the plaintiff’s solicitor’s affidavit. Your Honour, we rely on page 34, around the second hole punch, if your Honour has it in that form, otherwise about two-thirds of the way down the page:
If you need to send further documents in support of this application please refer to the section on Providing further documents in the attachment to this letter below.
So, your Honour, we say right at the outset it is making it perfectly clear where you go if you are providing further documents. Your Honour, then underneath that it sets out the written addresses. Then your Honour has, at page 39, the section on “Providing further documents” in a sense incorporated by reference into the letter. This is what you are told to do if you need to provide any further information. Your Honour, we say it is quite clear that the sentence at the end of that section “should be emailed to” makes it quite clear how this should take place and sets out the limits of the permission given by the Minister.
HIS HONOUR: Your case rests on those passages. It does not rest on the section headed “Processing Information” on page 2 of the attachment?
MS STERN: Your Honour, that is a secondary point. Under that heading “Processing Information” and that is page 38, the second sentence on page 38, we do rely upon:
This is an automated service providing processing information only.
We say it could not be clearer than that this is an automated process:
Please do not send any other enquiry or information to this e-mail address.
Your Honour, the fact that there is a “please” there does not change the fact that that is a specific instruction not to send any other inquiry or information to that email address. So, your Honour, we do rely on the twin provisions and the specific direction to refer to the section on providing further documents if you need to provide anything further. Your Honour, I am not sure whether there is anything further upon which I could assist your Honour, but those are the Minister’s submissions on the application.
HIS HONOUR: Thank you. They have been very helpful. Yes, Mr Karp, anything you wish to say in reply?
MR KARP: Just a couple of things, your Honour.
HIS HONOUR: Just if we can clear up this section 14 question, is your position really section 14(3) is met in this case in the sense that there is more than one - - -
MR KARP: More than one email address to which the - - -
HIS HONOUR: There is the one that the defendant relies on and one sees the force of the arguments advanced, but then there is the one actually used and that is another one.
MR KARP: And the document at page, I think, 78 indicates – I think it is 78 - - -
HIS HONOUR: Yes.
MR KARP: - - - indicates that other email addresses may be available as well.
HIS HONOUR: Yes, that, of course, was not around on 19 November which was the day of blunders or one of the blunders anyway.
MR KARP: Yes. It may have been around but it was not communicated to Mr Jung in the particular email, but it certainly was around. The fact that there is an additional email address which is possible indicates that the system, in my submission, is more than a particular box.
HIS HONOUR: Yes.
MR KARP: Now, my friend also handed up to you the definition section or provision of the United Nations – I forget how to pronounce it - - -
HIS HONOUR: Ms Stern pronounced it UNCITRAL, Sir Maurice Byers always used to pronounce UNCITRAL. He always used to go to those meetings. I do not wish to discount Ms Stern’s skills, but I would suspect Sir Maurice Byers is right. I will ask Mr Bennett the next time I see him.
MR KARP: Thank you, your Honour. No matter how it is pronounced, there is a difference between the definition of “information system” in the United Nations document, as has been mentioned before. Those last words are “processing data messages” which would appear to indicate focus on individual messages, and the definition in section 5 of the Electronic Transactions Act, which is “processing electronic communications”, which is a collective term.
HIS HONOUR: Yes.
MR KARP: That, in my submission, reinforces my submission about section 14(3) of the Electronic Transactions Act. In my submission, section 14(4) does not apply because it only applies if there has not been designated an information system for the purposes of receiving electronic communications. Here, quite plainly, there has been and that is the email
system set up and used by the Minister’s Department. Your Honour, unless I can further assist, those are my submissions.
HIS HONOUR: I might just adjourn for a few minutes just to consider the oral arguments.
AT 10.48 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.01 AM:
HIS HONOUR: The plaintiff seeks relief against the defendant in the nature of certiorari, mandamus, prohibition and injunction. The matter came before the Court on 18 May 2009 and the plaintiff succeeded in obtaining an adjournment in order to deal with an affidavit filed by the defendant on the previous working day.
The plaintiff has since filed an affidavit exhibiting the contents of the file with the Department of Immigration and Citizenship (“the Department”). That file deals with his application for a Class 5C subclass 485 Skilled Provisional Graduate Visa (“the Visa”). The key facts revealed by that file and by other evidence are as follows.
In May 2005, the applicant came to Australia from Bangladesh. He has worked, and wishes to continue to work, as a cook. He and his wife have two young children. Whether those members of his family obtain visas depends on the success of the plaintiff in obtaining the Visa.
On 2 October 2007, the plaintiff signed an application for the Visa. His migration agent sent it to the Adelaide Skills Processing Centre, a unit of the Department (“ASPC”). It is common ground that the application did not contain a successful skills assessment as required by paragraph 485.221(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). This was not fatal because of the following provisions of the Migration Act 1958 (Cth) (“the Act”).
Section 54(1) obliged the defendant, in deciding whether to grant or refuse a visa, to have regard to all the information in the application. Section 54(2) provided that included within the meaning of the expression “information in the application” was information given under section 55. Section 55(1) provided that until the defendant had made a decision whether to grant or refuse to grant a visa, the applicant might give the Minister any additional relevant information and that the Minister was obliged to have regard to that information in making the decision.
By a letter of 14 November 2007 the plaintiff was informed by the relevant assessing authority, Trades Recognition Australia, that his application for the skills assessment of his “training and/or work experience” as a cook was successful. At 11.21 am on 19 November 2007 the plaintiff’s migration agent sent an email to the ASPC attaching the letter of 14 November 2007.
The difficulty in the case arises from the following facts. An ASPC email of 9 October 2007, which, under cover of a covering letter, was a two page “Acknowledgment of Receipt of Visa Application”, acknowledged receipt on 4 October 2007 of the application signed on 2 October 2007. It included a receipt for the application fee. To it was also attached a “Letter Attachment: Additional Visa Processing Information” which was four pages in length. The two-page letter stated:
If you need to send further documents in support of this application please refer to the section on Providing further documents in the attachment to this letter below.
The plaintiff was a person who had that need. The email also said:
For information on sending electronic copies of documents, please refer to the section Providing further documents included in the attachment to this letter below.
The plaintiff’s agent was a person who desired to use that method of communication. The four-page Letter Attachment under the heading “Providing further documents” on the last page relevantly stated two things. One was that scanned copies of original certified documents could be emailed directly to the ASPC. The other was “Scanned documents should be emailed to: ‘aspc.students@immi.gov.au’”.
Among the many other headings in the Letter Attachment on the second page was the heading “Processing Information”. Under that heading the reader was told:
Information on processing is updated weekly and can be obtained by sending a blank e-mail to: aspc.processing@immi.gov.au
This is an automated service providing processing information only. Please do not send any other enquiry or information to this e-mail address.
You can obtain information about contacting the ASPC using the following link: contact us”.
The defendant submits that the email sent by the plaintiff’s agent on 11.21 am on 19 November 2007 was sent to what might be called a wrong address, aspc.processing@immi.gov.au, not to what might be called the correct address, aspc.students@immi.gov.au. This submission is neither supported nor contradicted by anything appearing on the face of the email. The submission is based on the fact that at 11.38 am on 19 November 2007 an email was sent to the plaintiff’s agent. The agent said this was an email “referring specifically to the plaintiff by name and stating the plaintiff’s date of birth and file number”. That was a reference to its fourth line “Re: RE: CLF 2007/1404854 Mr Javed Alum (21/09/1966)”.
However, the defendant submitted the second email was from aspcprocessing@immi.gov.au, ie, the address which is identified as being automated and only for processing information and not for the receipt of documents in the letter dated 9 October 2007 from the ASPC to the plaintiff’s agent. The inference is that the email sent by the plaintiff’s agent on 9 October 2007 was, in fact, sent to the address aspc.processing@immi.gov.au.
In his written submissions to this Court the plaintiff admitted that the 11.21 am email was sent to aspcprocessing@immi.gov.au. Indeed, that concession was an essential part of the plaintiff’s submission that the email was received at that address and hence had been received by the defendant within the meaning of the last six words in section 52(3) of the Act.
On 21 August 2008, an officer of the Department sent an email referring to a letter of 30 June 2008 in a telephone call of 21 August 2008 and requesting the successful skills assessment “by return email no later than 29/8/08”. Her email address was stated as “adelaide.gsm.team8@immi.gov.au”.
On the same day, the plaintiff’s agent responded to the email address given by the officer, which was incidentally not the so-called correct address nominated on 9 October 2007 in the attachment under the heading “Providing further documents”, but did not send the successful skills assessment of 14 November 2007. Instead he sent an unsuccessful skills assessment of 3 October 2007.
On 15 September 2008, the Department sent a letter to the plaintiff indicating that the plaintiff’s application for the Visa had been refused and that none of his family had been granted a visa either. The letter enclosed a decision record. In part that decision record stated:
You provided with your application a skills assessment dated 3 October 2007, as evidence of your skills being assessed by the relevant assessing authority, whom have deemed your skills as unsuitable for your nominated occupation.
. . .
As you have not provided a suitable skills assessment from a relevant assessing authority for your nominated occupation, you do not satisfy the requirements of Regulation 485.221(1).
It is common ground that the delegate did not take the successful skills assessment into account and that subject to the defendant’s arguments to be considered below that was a jurisdictional error. The position thus appears to have been that the only identified obstacle to the plaintiff’s success in obtaining the Visa was his failure to obtain a successful skills assessment. In fact, he had obtained a successful skills assessment, but his agent had sent it to the wrong email address. His agent had sent a failed skills assessment to an email address which, if not that stipulated on 9 October 2007, was at least one apparently accepted as correct by the Department. Thus, the successful assessment had gone to the incorrect address and the unsuccessful assessment had gone to a correct address.
If the defendant’s position in these proceedings is good in law the plaintiff will have failed, not on any point of substance, but only because of a failure to comply with a particular procedure. The Migration Review Tribunal did not examine this unsatisfactory state of affairs. That was because it held it had no jurisdiction since the plaintiff’s agent had failed to lodge the application for review within the required period.
The plaintiff’s claim is that section 54(1) of the Act required the defendant to have regard to the successful skills assessment sent by the agent on 19 November 2007 to aspc.processing@immi.gov.au. The defendant’s argument starts with section 52 of the Act. It provides:
(1) A visa applicant . . . must communicate with the Minister in the prescribed way.
(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way . . .
(3) If the applicant . . . 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.
“Prescribed” means “prescribed by the regulations” – section 5. Regulation 2.13(2) provides:
Except as provided by subregulation (3), the communication must be in writing.
Regulation 2.13(6) provides:
If an applicant . . . is required or permitted to produce a document in connection with the visa application, the document and the written communication that accompanies it may be in the form of an electronic communication only if:
. . .
(b) the Minister has permitted the applicant . . . to send the document by electronic communication.
There is no doubt that regulation 2.13(6)(b) specified “the circumstances when communication is to be made in a particular way” within the meaning of section 54(2). It specified when communications were to be by electronic means, namely when the defendant permitted this.
The plaintiff’s argument is that he was permitted to send the successful skills assessment, that he was permitted to do so by an electronic communication and that he did do so.
The defendant’s primary argument is that section 52(1), regulation 2.13(2) and regulation 2.13(6)(b) in the events which happened in combination had the effect of requiring the plaintiff to communicate with the defendant only in writing and, if by email, only to aspc.students@immi.gov.au. A second argument was that it could not be said of a successful skills that the defendant had, in fact, received it within the meaning of the last six words of section 52(3). A third argument related to the Electronic Transactions Act 1999 (Cth) (“the ETA”).
In relation to the first argument, the defendant pointed to sections 52 to 56 and regulation 2.13 as aiming to achieve speed, efficiency and fairness in handling and determining visa applications including applications employing electronic communications. The defendant submitted that the legislation should not be construed “so as to preclude the Minister effectively designating an email address to which further information for the purposes of visa applications was permitted to be sent and specifically instructing applicants not to send such emails to another clearly identified address”.
The defendant also submitted:
There would be further absurdity, inefficiency and delay in that emails sent to any address associated with the Department would have to be monitored in order to check whether or not information relating to extant visa applications had been received. This could apply to out-of-date email addresses, addresses of former employees of the Department, addresses of other officers or addresses of unrelated areas such as catering or grounds.
Such an interpretation would greatly impede the administrative efficiency of electronic communications. It would also effectively prevent the Minister from establishing an automated system for providing processing information about visa applications in order to deal with the many thousands of email processing inquiries it receives each week.
The plaintiff submitted that nothing in either the Act or the Regulations required the plaintiff or his migration agent to communicate with a particular email address as distinct from a particular office. However arguably - it is not necessary to decide the point - the Minister’s power to permit applicants to send documents by electronic communications was a power which could have been exercised unconditionally or on conditions. If so, one of the conditions could have been that only one email address was to be used. The essential question is whether the Minister did impose that condition. In the language of the defendant’s submissions, the question is whether it can be said that the defendant had designated “an email address to which further information for the purposes of visa applications was permitted to be sent and specifically instructed applicants . . . not to send such emails to another clearly identified address”.
In favour of the defendant it may be said that his arguments directed to the construction of the legislation are also material to that question, but in assessing that question four other considerations must be remembered. Those considerations go to an issue of communication - what email address was designated? In assessing issues of communication the position of the hearer must be considered as well as that of the speaker. The importance of the underlying activity in relation to which the communication takes place is also relevant.
The four considerations are as follows. First, it must be remembered that the documents sent to the plaintiff’s agent on 9 October 2007, which appear to be in a standard form designed to cover a large range of potential problems, were quite long and quite complex. They are not as simple as the extracts from them, sometimes separated by small distances and sometimes separated by wide distances, which were quoted above might suggest.
Secondly, it must also be remembered that so far as the intended audience for those standard form statements consisted of applicants for visas, it comprised classes of people with widely varying capacities to read English and understand references to electronic communications. The same is true of many migration agents who also fell within the intended audience.
Thirdly, it must be remembered that the grant of visas is a matter of vital importance to applicants, including those applicants whose fate depends, as here, on the fate of a primary application. If the application is to fail on procedural grounds rather than on grounds resting on non-compliance with substantive criteria, the procedures in question ought to be stated with a clarity which the audience addressed by their statement cannot reasonably mistake.
Fourthly, the question is one of interpretation. Interpretation is the ascertainment of the meaning which a document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situations in which they were at the time. The plaintiff and his agent did not have available to them the background information about the Department’s problems, the evidence in relation to which underlies the submissions of the defendant which were quoted above.
The Department certainly designated an email address to which further information was permitted to be sent – aspc.students@immi.gov.au. But, in my opinion, if one takes into account the four considerations just mentioned, it cannot be said that the Department specifically instructed the plaintiff and his agent not to send emails to another clearly identified address in the section to which the reader was referred in relation to providing further documents. That section did say “Scanned documents should be emailed to: aspc.students@immi.gov.au”. To one class of readers that might suffice as an explicit prohibition. It is not sufficient when directed to the class to which the 9 October 2007 documents and documents in that form were directed.
It is true that in another section, that headed “Processing Information”, the reader was requested not to send certain types of information to aspc.processing@immi.gov.au but as earlier noted the “Acknowledgment of Receipt of a Visa Application” was two pages long and the attachment to it was four pages long. The references in the letter to sending further documents and electronic copies of documents did not direct the reader to the “Processing Information” section of the attachment which arguably did contain an instruction to the reader not to send emails to a particular address and, therefore, not to send them to any address but the one designated. Rather, those references directed the reader to the “Providing further documents” section which did not contain that instruction.
The plaintiff’s agent has not given evidence about his actual mental processes, but it would not be unreasonable for a reader like him, who wished to provide further documents, to pay attention to what was said under that heading and not to attend to what was said under other headings.
Since the plaintiff did communicate with the Minister in the way prescribed in the Regulations in writing through an electronic communication and to an address which was not specifically forbidden in the documents sent to him on 9 October 2007 in those sections entitled “Providing further documents”, he satisfied section 52(1). He was told an address to which a successful skills assessment “should” be emailed, but he was not told that it should not have been emailed to the address to which it was sent.
It may well be that those who drafted the 9 October documents and documents in that form were intending to communicate a prohibition in sending material to the email address to which the plaintiff’s agent sent it, but in all the circumstances they did not achieve a clear statement of the prohibition. Hence, if the argument rested there, the defendant ought to have taken the successful skills assessment into account.
It follows that it is not necessary in relation to this part of the argument to consider the plaintiff’s contention that even if section 52(1) was not complied with, the defendant had, in fact, received a successful skills assessment within the meaning of the last six words of section 52(3). Nor is it necessary to consider the defendant’s ripostes to that contention.
It is, however, necessary to deal with a group of arguments advanced by the defendant based on the ETA. One of these was that section 9(1)(a) and section 9(1)(b) of the ETA were not complied with. Section 9(1) relevantly provides:
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, where:
(a) in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication – the entity’s requirement has been met . . .
Section 5(1) defines “information technology requirements” as including “software requirements”. It was implicitly suggested that an information technology requirement includes the requirement that electronic communications be sent to a particular address. That suggestion is based on section 9(1)(b). I disagree with the submission that section 9(1)(b) had not been complied with. It is an element of that submission that when an entity stipulates that a particular address be employed, it can be said that the entity “requires that the information be given in accordance with particular information technology requirements by means of a particular kind of electronic communication”. That element may be controversial. Thus, the plaintiff submitted that requirements referred to “the kind or type of electronic communications rather than a particular address”. This submission is not without some force but it is not necessary to decide on its validity. Even if that element of the defendant’s submission is accepted, the submission as a whole must fail because in the circumstances it cannot be said that the Department required that the successful skills assessment be sent to one email address and no other. That is so for the reasons given in relation to the section 52, regulation 2.13 argument discussed above.
As to the defendant’s submission that section 9(1)(a) had not been complied with, it was reasonable at the time the successful skills assessment was sent on 19 November 2007 to expect that the information in it would be readily accessible so as to be useable for subsequent reference. It is true that there is evidence that at the time when the Department established the email address aspc.processing@immi.gov.au it implemented a policy of not monitoring the content of emails received at that address and of not saving or filing those emails. But the plaintiff’s agent was not told this in the parts of the Letter Attachment under the heading “Processing Information” (to which the agent’s attention was not directed in the Acknowledgment of Receipt letter if he were interested in filing further documents) or under the heading “Providing further documents” (to which the agent’s attention had been directed in this respect) or in any other part of the material sent on 9 October 2007. In other words, it was within the reasonable expectation of the plaintiff’s agent that the information transmitted would be readily accessible so as to be useable for subsequent reference.
The defendant advanced another argument in relation to the ETA. It relied on section 14(3) and (4). The subsections provide:
(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.
(4) For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has not 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 comes to the attention of the addressee.
Section 14(4) plainly does not apply if there has been a designation of an information system by an addressee of an electronic communication. The addressee of the 19 November 2007 was ASPC. It was sent to an address to which the Department on a strict reading of the 9 October 2007 documents did not want it sent. But on the reading I prefer, the Department, in its form as ASPC, had not forbidden the use of other email addresses of ASPC. Hence, ASPC had designated those addresses as part of an information system and the 19 November communication did enter that information system.
For those reasons, I favour granting relief of the general type which the plaintiff seeks. Mr Karp, do you have short minutes of order? I have some orders which I can - - -
MR KARP: I do not have short minutes of order, your Honour.
HIS HONOUR: Let me read out four orders and then ask Ms Stern a question and both sides can comment on them.
There is a fifth order I will make if you want it, Ms Stern. Do you want an order that – assuming that orders 1 to 4 are otherwise in satisfactory form – they be stayed until the expiration of a period of 28 days or if an application for leave to appeal is brought within that period until it is refused or until any appeal brought pursuant to a grant of leave is determined? You may wish to consider - - -
MS STERN: Yes, your Honour. I would be grateful for an order in those terms. Can I be heard as to the order 3, as to whether it is necessary to grant the prohibition and injunction?
HIS HONOUR: Certainly.
MS STERN: Your Honour, simply my submission is that it is unnecessary - - -
HIS HONOUR: Just one moment. Is it necessary, Mr Karp?
MR KARP: I think it is, your Honour, because if an order for prohibition is not made, then my client may be detained.
HIS HONOUR: I agree that if we were living in Soviet Russia that might be so, but once a writ of certiorari has been issued quashing a decision and an order of mandamus has been made, I think we can assume that the Department of Immigration will set up the procedure again and it will be brought before a delegate and the matter can be looked at afresh.
MR KARP: I understand, your Honour.
HIS HONOUR: I take that to underlie Ms Stern’s - - -
MR KARP: Yes, on reflection, your Honour, I would accept my friend’s submission. Could I also, just say, your Honour, the class of visa is Class VC, not 5C.
HIS HONOUR: I see, thank you.
MR KARP: Other than that I am more than satisfied with the orders, your Honour.
HIS HONOUR: I bet you are.
MS STERN: Your Honour, that was the only matter that I wished to raise as regards the orders.
HIS HONOUR: I make the following orders that:
Adjourn the Court.
AT 11.33 THE MATTER WAS CONCLUDED
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