Federal Court: Appellant's previous counsel made a "deliberate decision to not argue before the [FCCA ground 1 now relied upon]". Was it "unjust for Appellant to be bound by error made by counsel"? Ground 2: Appellant applied to AAT and gave a Gmail address for correspondence. AAT sent email to the Gmail address and Appellant replied from it, CCing a Hotmail address. Appellant then sent AAT several emails from Hotmail, but never formally indicated a change of email address. AAT sent invitation to comment on adverse information to Gmail address, but Appellant claimed he did not receive it. Did the Hotmail address fit the description of "last email address ... provided to the Tribunal", under s 379A(5)(d)? If so, did it also fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5)(d)? Is it essential that a "change of contact details" form be completed?
A delegate refused to grant the Appellant a subclass 801 (partner) visa and the Appellant then applied to the Tribunal (AAT) for merits review of the delegate's decision.
The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision and was represented by solicitors and counsel.
The Appellant's counsel "made a seemingly deliberate decision to not argue before the Federal Circuit Court [one of the grounds] now relied upon", namely that the "Tribunal failed to consider evidence that was so substantial that it amounted to jurisdictional error".
The FCCA dismissed that application and the Appellant eventually appealed that decision to the Federal Court (FCA).
At the FCA, the Appellant was represented by the same solicitors, but by different counsel.
The relevant facts regarding the other ground of appeal, which had been relied upon at the FCCA, were described by the Federal Court (FCA) as follows:
8 On 12 July 2017, the appellant applied to the Tribunal for review of the delegate’s decision. In his application form, under the heading “Correspondence details”, the appellant gave the email address, mongkol88.education@gmail.com (the Gmail address).
9 On 4 December 2017, the Tribunal sent an email to the Gmail address noting that information on the Department’s file indicated that his relationship with his sponsoring partner had ended and inviting him to comment or respond.
10 On 18 December 2018, the appellant responded to the Tribunal’s email from the Gmail address raising claims of verbal, financial and emotional family violence perpetrated by the sponsor. The email was cc’d to the email address, jarrusom@hotmail.com (the Hotmail address).
11 On 18 January 2018, the Tribunal sent an email to the Gmail address inviting the appellant to attend a hearing scheduled for 19 February 2018. On that date, the appellant appeared before the Tribunal, assisted by a migration agent. The hearing was adjourned part-heard. On 17 April 2018, the appellant again appeared before the Tribunal, assisted by the migration agent.
12 On 24 April 2018, the appellant wrote to the Tribunal from the Hotmail address indicating that he had ended the appointment of his migration agent and requesting that all correspondence be sent directly to the appellant. On 29 April 2018, the appellant’s former migration agent wrote to the Tribunal confirming his termination as the appellant’s representative.
13 On 1 May 2018, the appellant, using the Hotmail address, emailed to the Tribunal a “Change of Contact Details—MR Division” form. Under the heading “Applicant contact details”, the appellant selected, “No change”. Under the heading “Cancellation of Authorised Recipient”, the appellant selected, “I withdraw my previous authorisation of a person to receive correspondence on my behalf. I now wish all correspondence to be sent to me”. The appellant also indicated that, “I agree to you sending all correspondence by email…”.
14 On 2 May 2018, the Tribunal sent an email to the Gmail address, stating:
I also note that you are using a different email address to the one we have on file. If you wish to change it, can you please resend the contact details form with a new email address.
There was no response to that email.
15 On 2 May 2018, the appellant sent two statutory declarations to the Tribunal from the Hotmail address.
16 On 8 May 2018, the appellant sent an email to the Tribunal enclosing a further statutory declaration. The Minister accepts that it should be inferred that the email was sent from the Hotmail address.
17 On 8 May 2018, the Tribunal sent an email to the appellant at the Gmail address.
18 On 31 May 2018, the Tribunal sent another email to the Gmail address. The email noted that as the Tribunal was not satisfied that he had suffered family violence, the Tribunal had referred his claim to an independent expert. The email noted that the Tribunal had received the opinion of the independent expert that the appellant had not suffered relevant family violence. The email invited the appellant to comment upon that information.
19 The appellant did not respond to the email. On 19 June 2018, the Tribunal affirmed the delegate’s decision.
20 The appellant claims not to have received the Tribunal’s email of 31 May 2018 as he was using the Hotmail address, not the Gmail address. He states that the Gmail address was that of an “education agent” who was representing him at the time he lodged his application for review with the Tribunal.
The questions to the FCA were as follows:
Question 1: Did the Hotmail address fit the description of "last email address ... provided to the Tribunal", under s 379A(5) of the Migration Act 1958 (Cth)?
Question 2: If the answer to Question 1 is "yes", did the Hotmail address fit the description of "provided to the Tribunal ... in connection with the review", under s 379A(5) of the Migration Act 1958 (Cth)?
Question 3: Is it essential that a “Change of Contact Details—MR Division” be completed in order to provide a new email address?
The FCA answered those questions as follows: