AAK24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 575
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAK24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 575
File number: PEG 5 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 28 June 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal finding that it had no jurisdiction – extension of time application to this Court – lengthy delay – inadequate explanation – no prejudice – whether the applicant was properly notified of the delegate’s decision as per the principles in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – whether the delegate’s decision to refuse to grant the applicant the visa amount to jurisdictional error – alleged bias on the part of the Tribunal – whether the Tribunal failed to have regard to the applicant’s response to the invitation to comment letter – no arguable case of jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 66, 412, 476, 477, 494B, 494C & 494D
Migration Regulations 1994 (Cth), regs 2.16 & 4.31
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
CAV18 v Minister for Home Affairs [2020] FCA 173
CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199
Craig v State of South Australia (1995) 184 CLR 163
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jia Legeng (2001) 178 ALR 421
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of hearing: 14 June 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 5 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAK24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 1-3 & 38). He first arrived in Australia in January 2019 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 26).
On 8 April 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-15 & 26). In his visa application, the applicant answered “no” when asked whether he authorised “another person to receive communication” about his application. The applicant also consented to the Department of Home Affairs (the “Department”) communicating with him by email and provided an email address to the Department so that it could do so (CB 5).
On 26 April 2019, the Department acknowledged receipt of that visa application (via email) and asked the applicant to attend an appointment at the Department’s Perth office so that he could “provide personal identifiers” (CB 16-21).
On 17 May 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 26-34).
One 17 May 2019 (that same day), the applicant was notified of the delegate’s decision by letter sent to him via email at the email address provided by him in his visa application (CB 22-25).
On 24 July 2019, the Department sent an email to the applicant advising him that his bridging visa had ceased and that, as a result, he was “unlawful”. The applicant was invited to attend at the Department to “rectify [his] immigration status” (CB 35).
On 26 July 2019, the Department sent a further email to the applicant and again asked the applicant to “immediately rectify [his] immigration status” (CB 36).
On 27 June 2020, the applicant contacted the Department (by email). He provided a copy of his Malaysian passport and stated as follows in that email (without alteration) (CB 37-38):
This email refer to my application for Protection (Subclass 866) visa, which was lodged at Perth at 26 April 2019.
I wish and need advise from Department Of Immigration And Border Protection / about my protection visa, i dint get any notifications about my refusal visa. How can i stay lawful? Do i need to apply a new visa? Can Department consider my visa for any further? Can i entitled to apply to the Administrative Appeals Tribunal (AAT) for review my visa and get a new notification for my visa refusal.
On 4 July 2020, the applicant sent a further email to the Department in largely the same terms as outlined above (CB 39).
On 7 July 2020, the Department provided the applicant with a copy of the delegate’s decision record. This was also done via email (CB 45).
On 17 February 2023, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 46-53). In his review application, the applicant asked the Tribunal to send all correspondence to him directly. He provided the Tribunal with an email address so that it could do so (CB 50-51).
On 17 February 2023, the Tribunal invited the applicant (via email) to comment on the validity of his review application (CB 54-55). That invitation letter relevantly stated (CB 55):
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31 (2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] - [46].
The primary decision was emailed to you on 17 May 2019 meaning that 17 May 2019 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 13 June 2019. As the application was not received until 17 February 2023, it appears to be out of time. However this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 3 March 2023. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 28 February 2023 and 6 March 2023, the applicant replied to the Tribunal’s invitation via email (CB 57-58). Both responses from the applicant contained the same information and, relevantly, stated (without alteration) (CB 57):
Sorry to inform that, i’m really need an extension time on the application of review with AAT. At this moment, i’m not holding any valid visa.
This is because at that time Home Affair sent email notification with regards my visa refusal, i’m unable to access my email because my Phone was stolen. And that’s the reason why i can’t access my gmail and lost my password.
Unfortunately, i’m only notice that i’m not holding any valid visa when i check through my Vevo application to apply for a job.
After that, i’ve tried to contact Home Affairs and double check my visa status, and only that time i notice that my visa actually was refused.
Hence that, i had updated my new email address to Home affairs with related to my visa application.Really appreciate if you could give me an extension of time to review with AAT.
Your consideration on this matter are much appreciated.
On 25 April 2023, the Tribunal determined that it did not have jurisdiction in relation to the applicant’s review application because it was “not made in accordance with the relevant legislation” (CB 62-63).
The applicant was notified of the Tribunal’s decision by letter dated 27 April 2023 (sent to the applicant via email that same day, being on 27 April 2023, using the email address provided by the applicant in his Tribunal review application) (CB 60-61).
Also included with the notification email was an information sheet containing “[i]nformation about decisions” (CB 64-66). That information sheet provided the applicant with information in relation to how he could seek review of the Tribunal’s decision and, relevantly, provided (CB 65):
Review of decisions
Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 29 December 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application was accompanied by an affidavit annexing a copy of that decision. Unfortunately, that application was filed approximately 213 days outside of the 35-day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”).
In the circumstances, the applicant requires an extension of time to pursue his substantive application in this Court.
This judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for judicial review (including an application for an extension of time within which to make such an application) and supporting affidavit (both filed by the applicant on 29 December 2023), a court book numbering 66 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 May 2024 and an affidavit of service of Aatika Ismailjee affirmed and filed on 30 May 2024.
On 7 February 2024, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court on 14 June 2024 without legal representation. He was assisted at the hearing by an interpreter in the Malay language.
The Court confirmed with the applicant that he had received copies of the materials outlined above.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. It was further noted that, in this matter, the Tribunal’s decision was dated 25 April 2023. The date by which the applicant was required to file his application in this Court was thus 30 May 2023. The Court explained that, unfortunately, the applicant did not file his substantive application in this Court until 29 December 2023. As explained to the applicant, as the delay in this matter is 213 days, the applicant needs to be granted an extension of time before his substantive application can be considered.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided “grounds” explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court outlined to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to highlight anything that he considered relevant to his request for an extension of time.
The applicant’s responses are discussed in the consideration that follows.
Length of delay
As this Court has previously explained, an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As set out above (at [25]), the delay in this matter is 213 days.
This delay is significant and weighs against the granting of an extension of time.
Prejudice
In written submissions before this Court, the Minister conceded that there was no prejudice to him in granting an extension of time, save for the “public interest in the finality of administrative decision making”.
This weighs in favour of granting the extension of time.
Explanation
The applicant’s “grounds” for an extension of time in this matter provide as follows (without alteration):
1.I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
2.I was only able to file my case when a friend advised me how to file my case to the Federal Circuit And Family Court.
The applicant’s oral submissions before this Court largely echoed the grounds above, essentially stating that he “did not know how to proceed or to advance [his] application”. The applicant also stressed that he was “afraid and very worried” and told the Court that he had “been through some significant trauma”. When asked if he had contacted the Court or the Tribunal to find out what he needed to do to appeal the Tribunal’s decision, the applicant stated that he had not done so.
In relation to the applicant’s claim that he was not aware of the process or was unsure of what was required of him (until he received assistance from a friend), the Court sympathises. Court processes are particularly challenging for unrepresented parties and even more so for individuals who do not speak English as a first language.
Ignorance, however, is no excuse – a position made clear in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, wherein the Federal Court emphasised as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
An applicant seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter failed to do so. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about how to lodge an application for review with the Court or about what was required of him if he disagreed with the Tribunal’s decision.
The Court also notes that, as outlined above, the fact sheet provided to the applicant with the Tribunal’s decision included information about seeking review of that decision (CB 64-66). That information sheet relevantly stated (CB 65):
Review of decisions
Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
As can be seen from the information set out above, the applicant was informed that he could apply to this Court for review of the Tribunal’s decision and that he only had 35 days from the date of the Tribunal’s decision within which to do so.
The Court does not consider that the explanation provided by the applicant is satisfactory.
This weighs against the granting of an extension of time.
Merits
The most critical factor for the Court’s consideration when determining whether to grant an extension of time is, arguably, whether the proposed application for judicial review has any “prospect of success” (viewed impressionistically).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained to the Court that he had applied to the Tribunal and his application had been refused. He “then tried to reapply”. The applicant stressed that the Tribunal “did not seem to give much regard” to him, noting again that he had tried to apply and reapply but they “just did not want to hear [him] out”.
The applicant’s oral submissions, to the extent that they point to any arguable case of error, will be addressed below.
The Tribunal’s decision
In order to determine whether the substantive application for judicial review has any “merit”, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision (dated 25 April 2023) is two pages long and spans seven paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Home Affairs on 17 May 2019 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 17 February 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: reg 4.31 (2) of the Migration Regulations 1994 (Cth) (the Regulations). The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 May 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
3.On 17 February 2023, the Tribunal sent a natural justice letter to the applicant advising that it appeared the application was lodged out of time. The applicant was invited to respond by 3 March 2023.
4.On 28 February 2023, the applicant sent an email in response to explain the delay in seeking review. The response states:
“Sorry to inform that, I’m really need an extension time on the application of review with AAT. At this moment, I'm not holding any valid visa.
This is because at that time Home Affair sent email notification with regards my visa refusal, I'm unable to access my email because my Phone was stolen. And that's the reason why i can’t access my gmail and lost my password.
Unfortunately, I’m only notice that I’m not holding any valid visa when i check through my Vevo application to apply for a job.
After that, I’ve tried to contact Home Affairs and double check my visa status, and only that time i notice that my visa actually was refused.
Hence that, i had updated my new email address to Home affairs with related to my visa application.
Really appreciate if you could give me an extension of time to review with AAT.”
5.The Tribunal has considered the applicant’s response and notes the explanation. The Tribunal finds however, that the legislation provides no discretion for waiver or extension of the temporal requirement for lodgement of an application for review. The legislation requires an application for review to be filed within 28 days of notification.
6.The Tribunal finds that the applicant is taken to have been notified of the decision on 17 May 2019 as per the statutory requirement (s 494C of the Act). Therefore the prescribed period to apply for review ended on Thursday, 13 June 2019. The Tribunal has no power to extend the prescribed period. As the application for review was not received by the Tribunal until 17 February 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
Proposed application for judicial review
The application for judicial review filed by the applicant on 29 December 2023 contains two grounds of review as follows (without alteration):
1.The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
Whether the applicant was properly notified of the delegate’s decision
Noting that the applicant appeared before this Court without legal assistance, the Court will, in its duty to him as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In this regard, the Court has considered for itself whether the applicant was properly notified of the delegate’s decision and whether, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
The relevant jurisprudential authority in this regard is Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”).
This Court has provided a detailed overview of Sandor and the core requirements for notification letters more broadly in its decisions in CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (“AGS20”)). The analysis provided in those judgments is repeated (with minor amendments) below.
The Act and Migration Regulations 1994 (Cth) (the “Regulations”) impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
Section 412(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”. The relevant prescribed period applicable in this matter is outlined in reg 4.31(2) of the Regulations which provides (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
For that 28-day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides as follows:
66 Notification of decision
…
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
The Department is permitted to communicate with an applicant by email pursuant to ss 494B(5)(b) and 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires that the Minister give the authorised recipient (instead of the applicant) any documents that would otherwise have been given to the applicant. Further, where the Minister gives documents to the authorised recipient, the Minister is taken to have given the documents to the applicant: s 494D(2) of the Act. There is also no obligation for the Minister to provide a copy to the applicant directly (but the Minister is not prevented from doing so): s 494D(2) of the Act.
By virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the document is sent to an applicant’s authorised recipient (who did not forward a copy of that correspondence to the applicant) or, if the applicant did not receive those documents for any other reason.
Further, by sending the document by one of the methods set out in s 494B or s 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”); Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh FCAFC”).
These cases clarify that in order to “state” a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
As noted, a detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“Abbas”). In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court relies on and repeats its analysis as provided in Abbas (at [78]-[79]).
Relevantly, the above cases make it clear that the following principles apply:
(a)where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
(b)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) this is sufficiently clear: Ali;
(c)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading “Receiving this Letter”), the notification is clear: Singh FCAFC;
(d)the letter should be read as a whole. Hence, the fact that different pieces of information may be spread across a number of pages is not decisive in relation to the level of clarity: Ali. Where the layout is confusing, however (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and
(e)whether a notification is “clear” will turn upon the language and terms in which the notification is expressed when read as a whole by a person exercising a reasonable level of care: Singh FCAFC; Ali. It is not significant that an applicant may not speak English as a first language. The question is whether the letter conveys the required information.
As previously explained by this Court, Sandor also addresses whether a notification letter sent by the Department advising of a delegate’s decision was a proper notification (that is, whether the time period within which the appellant – Mr Sandor – could seek review by the Tribunal was made clear to him by that notification letter) and clarifies the case law summarised above. Sandor considers this issue within the specific context of a notification letter that is sent to an appellant (or applicant) via his or her authorised recipient. Until Sandor was handed down, that variable had not been specifically addressed by the Courts.
In Sandor, Justice Markovic summarised the characteristics of the relevant notification letter in that matter, noting that (at [45]):
(a)the notification letter was dated in the top left-hand corner of the first page (13 February 2018);
(b)immediately under the date, the notification letter was addressed to the visa applicant, Mr Sandor, by his name;
(c)the first page of the notification letter stated “Transmission Method: Email sent to [email protected]”;
(d)also on the first page, under the heading “Review Rights” the notification letter stated that the decision can be reviewed and that: “[a]n application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to receive this letter”;
(e)on the third page, under the heading “Receiving this letter”, the notification letter stated “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”; and
(f)at the end of the letter, the notification letter also stated:
The original of this letter including any attachments was sent to:
Karola SZECSKO
Ms Szeckso was Mr Sandor’s migration agent. Mr Sandor had identified her as being authorised to receive correspondence in connection with his visa application.
Justice Markovic first rejected Mr Sandor’s contention that the notification letter did not meet the requirements of s 66(2)(d)(ii) of the Act because the letter stated that it was sent to Mr Sandor when, in fact, it had been emailed to his authorised recipient: at [48]. As in Sandor, no issue in relation to s 66(2)(d)(ii) of the Act arises in this matter.
Her Honour then addressed a separate contention – that is, whether the notification letter was invalid because it was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient: at [49]. Mr Sandor argued that, on that basis, the notification letter was invalid and, as such, the Tribunal had erred in finding that it had no jurisdiction because the time within which Mr Sandor could seek review had not begun to run.
The Minister submitted that the letter was clear, emphasising that the language reflected the terms of s 494D(2) of the Act. Relevantly, the Minister stressed that, in light of what was stated on page three (that Mr Sandor was “taken to have received it at the end of the day it was transmitted”) and page one (that it was transmitted to Mr Sandor’s authorised recipient) it was clear that the 21-day time period commenced from that date.
Justice Markovich rejected the Minister’s argument, determining as follows:
49.The second matter is whether the Notification Letter was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the Notification Letter did not explain the effect of s 494D(2) of the Act.
…
51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister’s submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister’s reading of the Notification Letter, the appellant must understand that the reference to “the day the letter was transmitted” requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
Is this matter distinguishable from Sandor?
As outlined above, the issue in Sandor related to the contents of the notification letter sent by the Minister’s delegate and, in particular, whether the timeframe within which the applicant could seek merits review by the Tribunal was clearly set out in that notification letter.
The contents of the notification letter in the matter the subject of this judgment are as follows (CB 22-25):
(a)the letter was dated 17 May 2019 (on the first page – CB 22);
(b)the letter was addressed to the applicant (referencing him by name) at his residential address (on the first page – CB 22);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 22);
(d)under the heading “Review rights” (on the first and second pages, CB 22-23), the letter stated (emphasis added):
The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
(e)the letter was sent by email to the applicant on 17 May 2019 (CB 22).
It is clear that the notification letter in this matter differs from the letter the subject of Justice Markovic’s judgment in Sandor. The letter in this matter was sent to the applicant directly (via email sent to the applicant’s nominated email address). The notification letter in Sandor was sent (via email) to the applicant’s authorised recipient.
As previously explained by this Court in Singh and AGS20, the defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not “manifest”.
The notification letter in Sandor required the appellant to understand that he “was taken to have received” the letter on “the day the letter was transmitted” to his authorised recipient. However, the notification letter in this matter does not require the applicant to do so.
Section 66 of the Act does not require the notification letter to state a specific date by which an application for review must be filed with the Tribunal: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. The decision in Sandor also stops short of requiring any notification letter to do so. That is, the notification letter in this matter did not need to advise the applicant that he had until 13 June 2019 to file an application for review with the Tribunal. All that was required was that there be sufficient information, on the face of the notification letter, to permit the applicant to correctly determine the relevant time period.
Here, the information on the face of the notification letter allowed the applicant to determine the period correctly. Relevantly, the notification letter:
(a)stated that the transmission method was by email;
(b)identified the applicant’s own email address; and
(c)under a single heading titled “Review Rights” stated that the application for review had to be given to the Tribunal within 28 days, commencing on the date that the applicant was taken to have received the letter.
On the basis of the above, the Court determines that the notification letter in this matter did comply with the requirements set out in s 66(2)(d)(i) of the Act and is thus distinguishable from the notification letter in Sandor. Further, the Court is satisfied that the applicant was validly notified of the delegate’s decision in this matter on the date that it was transmitted to him via email (being on 17 May 2019).
The prescribed period within which the applicant was required to apply to the Tribunal ended on 13 June 2019. The applicant did not apply within the prescribed time period. He submitted his review application to the Tribunal on 17 February 2023 (CB 46-53).
The Tribunal did not have the power to extend the time period within which the applicant could seek review by the Tribunal: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (“Beni”) at [49].
There was, accordingly, no error in the Tribunal’s decision or its conclusion as to want of jurisdiction.
No arguable case of jurisdictional error arises in this regard.
Proposed grounds of review
Proposed ground one
Proposed ground one relevantly provides as follows:
1.The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.
Proposed ground one simply states that the decision maker made a jurisdictional error (without providing any further details or particulars). The applicant was also unable to expand on this proposed ground during the hearing before this Court.
This proposed ground of review does not raise any arguable case of jurisdictional error on the part of the Tribunal.
Proposed ground two
Proposed ground two states as follows:
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
By proposed ground two, the applicant arguably raises a claim of bias.
To the extent that the applicant is suggesting bias in relation to findings about the applicant’s protection claims, the applicant is arguably referencing the delegate’s decision (as the Tribunal here only determined that it did not have jurisdiction in the matter).
This Court has no jurisdiction to review the delegate’s decision: s 476(2) and s 476(4) of the Act.
In relation to any concerns about bias in the Tribunal’s decision, it is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
As outlined above, the Court is satisfied that the applicant was properly notified of the delegate’s decision and that the Tribunal was correct to find that the application for review had been filed outside of the requisite time period.
The Court is also satisfied that the Tribunal complied with the common law rules of procedural fairness.
Further, the Tribunal had no power or discretion to extend the timeframe within which the applicant could seek review of the delegate’s decision: Beni at [49].
In those circumstances, there was only one decision open to the Tribunal and that was to determine that it did not have jurisdiction in the matter.
No allegation of bias can be made out where there was only one decision open to the Tribunal on the material before it.
No arguable case of jurisdictional error arises in relation to proposed ground two.
Oral submissions
In oral submissions before this Court, the applicant claimed that the Tribunal “did not want to hear him out”.
To the extent that the applicant suggests that the Tribunal did not have regard to the applicant’s response regarding the validity of his review application, this fails on a factual level. The Tribunal expressly considered the applicant’s response (at [4] in its written reasons) (CB 63).
Insofar as the applicant takes issue with the Tribunal being unable to review the delegate’s decision in this matter, the Court sympathises. Unfortunately, as outlined above, the prescribed period within which the applicant was required to apply to the Tribunal ended on 13 June 2019. The applicant did not apply within the prescribed time period. He submitted his review application to the Tribunal on 17 February 2023 (CB 46-53).
The applicant filed his review application in this matter outside of that requisite time period. In those circumstances, the Tribunal was simply unable to conduct a review in this matter and had no discretion, nor any power, to extend the timeframe within which to allow the applicant to seek review of the delegate’s decision: Beni at [49].
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s proposed “grounds of review” and oral submissions, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable grounds of error on the part of the Tribunal.
This weighs heavily against granting an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the lengthy delay in filing and lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 June 2024
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