Federal Court. Can it be said that "the AAT’s exercise of discretion under s359C of the Migration Act 1958 (Cth) miscarried and through the failure to exercise the discretion properly the AAT failed to conduct a proper review under Part V of that Act"? Can it be said that the "AAT was unreasonable and/or that the AAT failed to conduct a proper review under Part V of the Migration Act"?
The Federal Court (FCA) said as follows:
13 On 21 March 2017, the appellant made an application for approval of an employer nomination of Ms Jing Jin for a permanent appointment (namely, the appellant’s office manager) in Australia. The application was lodged by Hourigan Visa & Migration Services Pty Ltd, which had the stated role of migration agent.
14 The appellant nominated Mr John Hourigan, migration agent, of Hourigan Visa & Migration Services Pty Ltd to be its “authorised recipient”. That is, Mr Hourigan was nominated to be the person authorised to receive all written correspondence that would otherwise be sent directly to the appellant.
15 The application stated that the Department of Immigration and Border Protection (as it then was known) prefers to communicate electronically. The application stated that all correspondence, including notification of the outcome of the application, will be sent to visas@hourigan.com.au (that is, Mr Hourigan’s email address).
16 On 5 December 2018, a delegate of the Minister refused the application. The notification of the refusal was sent by email to Mr Hourigan’s email address.
17 On 20 December 2018, the appellant made an application to the Tribunal for review of the delegate’s decision. Once again, Mr Hourigan was identified as the appellant’s representative for the purpose of the review and Mr Hourigan’s email address was provided.
18 The Tribunal sent an email to Mr Hourigan’s email address on 21 December 2018 which attached a letter. One of the letters was addressed to Mr Hourigan. The second letter was addressed to Ms Jin. There was no suggestion by the appellant that this email was not seen by Mr Hourigan.
19 A case note dated 9 October 2020 forms part of the records of the Tribunal relating to the appellant’s review application. It relevantly states:
The Presiding Member has instructed that a letter be issued under s.359(2) of the Migration Act requesting updated and current information addressing the relevant criteria in rr.5.19(2) and (4) of the Regulations.
20 On 9 October 2020, at 3:46 pm, the invitation was sent by an employee of the Tribunal to Mr Hourigan’s email address. The covering email concluded with these words:
Yours sincerely
Tanya I
For the Registrar
21 The email attached two letters, both of which appear to be standard form letters. The letters were not signed but concluded with the same words as the covering email (being from Tanya I, For the Registrar). They both commenced with the statement that, “I am writing on instruction from the Member …”.
22 One of these letters sought updated and current information addressing the relevant criteria in regs 5.19(2) and (4) of the Regulations. Examples of the types of information which could be provided were then listed. The letter also advised that, if the information was not provided within the period allowed or as extended, “we may make a decision on the review without taking any further action to obtain the information”.
23 The appellant was required to provide a response to the invitation by 23 October 2020. No response was provided.
24 Mr Hourigan did not see the invitation and the Minister accepted below that it did not reach his email inbox, although the reasons for this are not explained in the evidence. However, the invitation was accepted by Mr Hourigan’s server and the Tribunal ceased to have control over it. The email was delivered successfully (that is, sent) to Mr Hourigan’s email address at 3:46 pm on 9 October 2020. In the words of Mr Boccabella, counsel for the appellant, “it’s not in dispute that the email was transmitted for the purposes of the Act”.
Some of the questions to the FCA were as follows:
Question 1: Can it be said that "the AAT’s exercise of discretion under s359C of the Migration Act 1958 (Cth) miscarried and through the failure to exercise the discretion properly the AAT failed to conduct a proper review under Part V of that Act"?
Question 2: Can it be said that the "AAT was unreasonable and/or that the AAT failed to conduct a proper review under Part V of the Migration Act"?
The FCA answered those questions as follows: