Abbas & Anor v Minister for Home Affairs & Anor
[2020] FCCA 1051
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABBAS & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1051 |
| Catchwords: MIGRATION – Employer Nomination (subclass 186) visa – decision of the Administrative Appeals Tribunal – where notification letter advising of delegate’s decision sent via email – where application to Tribunal lodged outside of time limit – whether Tribunal was wrong when it determined that it lacked jurisdiction because of late application – whether the applicant was validly notified – content and clarity of notification letter – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 494B, 494C, 494D Migration Regulations 1994 (Cth), regs.2.16, 4.10, 4.31, cll.186.223, 186.311 of sch.2 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 |
| First Applicant: | Mohsin Abbas |
| Second Applicant: | KAINAT ZAHRA |
| First Respondent: | Minister for Home Affairs |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | PEG 553 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 April 2020 |
| Date of Last Submission: | 28 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Mr S Cummings |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Perth |
PEG 553 of 2018
| Mohsin Abbas |
First Applicant
| KAINAT ZAHRA |
Second Applicant
And
| Minister for Home Affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Pakistan (Court Book (“CB”) 2). They are husband and wife respectively. The first applicant arrived in Australia on 7 December 2010 (CB 37).
On 23 August 2017, the applicants applied for an Employer Nomination (subclass 186) visa (the “visa”) (CB 1-17). The first applicant was the primary applicant. The second applicant was a member of the family unit. The applicants were assisted by a migration agent.
On 6 June 2018, an email was sent from the Minister’s Department to the applicants’ migration agent. That email attached a letter inviting the applicants to comment on certain information. Specifically, the letter informed the applicants that the first applicant’s sponsor had had their application refused and that this meant that the applicants’ visa could not be granted (CB 19-22).
No response was provided from the applicants or their migration agent.
On 9 July 2018, a Ministerial delegate refused to grant the applicants the visa (CB 28-30). The delegate found that the first applicant did not meet cl.186.223(2) of sch.2 to the Migration Regulations 1994 (the “Regulations”) as the nomination lodged by the applicants’ sponsor had been refused.
On 27 August 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 31-33).
On 28 August 2018, the Tribunal wrote to the applicants inviting them to comment on the validity of their application (CB 35). The Tribunal noted that it appeared that the application was lodged outside of the time limit.
On 7 September 2018, the first applicant responded as follows (CB 37-38):
I would like to bring to your attention following information in relation to my AAT application.
• My name is Mohsin Abbas and I was born on [omitted] in [omitted] Pakistan.
• I came to Australia on 07 December 2010.
• After coming to Australia, I completed Business and Engineering courses.
• On 4 August 2015 I was granted Subclass 457 visa from Hadi International Pty Ltd t/a Kwinana Beach Cafe.
• Since then I am working in capacity of Restaurant Manager in the business.
• On 23 Aug 2017 I applied for subclass 186 Employer Nomination Visa under Temporary Residence transition Stream.
• I was disheartened after the visa refusal and felt like all my hard work for 3 year went in vein.
• My father died on 28 April 2018 and I was already in stress at that time as I was unable to visit for his funeral as well because I was holding Bridging visa C at that time. Last time l visited my father in Dec 2014. I was very close to him and I felt alone after him.
• I was in so much stress, depression and anxiety that I was unable to concentrate on my daily activities. This led to delay in lodgement of my review application with AAT.
I would like to bring to your attention that I came to Australia as 19 years old and currently I am 27 years old. I have spent major part of my adult Life in Australia. Throughout my stay in Australia I have always been a law-abiding person and respected this land and its people. Currently I am Manager of Kwinana Beach cafe which employs 4 Australian Citizens/Permanent residents. As business owner can’t work in capacity of Restaurant Manager if my appeal is unsuccessful and I have to go back to my home country the business will be closed, and all the Australian employees will lose their livelihood. More than 50% of family is based in Australia. I have one elder brother and one younger brother in Perth. Also, if I leave Australia my career will be ruined.
Therefore, in best interest of myself and Australian Citizens employed by Kwinana Beach Cafe I would like to Tribunal to accept my appeal application and give me opportunity to present my documents and arguments for the application.
On 20 September 2018, the Tribunal determined that it did not have jurisdiction as it had no power to extend the prescribed period within which the applicants had to make their review application (CB 42-44).
On 22 October 2018, the applicants filed a judicial review application in this Court.
Tribunal’s Decision
The Tribunal’s decision is short. The relevant paragraphs provide as follows:
2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 9 July 2018 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.
4. On 28 August 2018, the Tribunal wrote to the applicants by way of email correspondence, and advised that it had formed the view that their application was not a valid application because it had not been made within the relevant time limits. The applicants were advised that the time limit is 21 days from the day on which they were taken to have been notified of the primary decision. The primary decision was emailed to their authorised recipient on 9 July 2018 and, on the basis that 9 July 2018 was the date on which they were taken to have been notified, the last day for lodging the application for review was 30 July 2018. As the application was not received until 27 August 2018, it appeared they were out of time. The applicants were invited to make any comments on whether they had made a valid application for review by 11 September 2018.
5. On 7 September 2018, the first-named applicant provided a response to the Tribunal. He outlined his visa and work history in Australia and indicated that he was disheartened when he received his visa refusal. He indicated that his father, with whom he was very close, had died on 28 April 2018 and he was unable to return to Pakistan for his funeral because he was the holder of a bridging visa C at that time. He indicated that stress, depression and anxiety led to him being unable to concentrate on his daily activities and the delay in lodgement of his review application. The first named applicant indicated in his response that he has spent much of his adult life in Australia and has always been a law-abiding person. He stated he is currently working as a Manager at the Kwinana Beach Café and if his appeal is unsuccessful the business will be forced to close and its employees will lose their livelihoods. He stated he has two brothers currently residing in Perth. He urged the Tribunal to proceed with his review application.
6. The Tribunal has considered the applicants’ response and is mindful that its decision to find the applicants have not made a valid application for review may cause some hardship to them. However, none of the applicants’ reasons for lodging their application for review out of time, individually or cumulatively, would give the Tribunal jurisdiction to accept the review application after 30 July 2018. The Tribunal has no power to extend the prescribed period within which the applicants had to make their review application.
7. The Tribunal finds that the applicants are taken to have been notified of the decision on 9 July 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 July 2018.
8. As the application for review was not received by the Tribunal until 27 August 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
Proceedings in this Court
The applicants’ application for judicial review contains 14 “grounds of review” as follows:
1. My name is Mohsin Abbas and I was born on [omitted] in [omitted] Pakistan
2. I came to Australia on 7th December 2010
3. After coming to Australia, I completed my Business and Engineering courses.
4. On 4th August 2015, I was granted subclass 457 visa from Hadi International Pty Ltd t/a Kwinana Beach Cafe.
5. Since them I am working in capacity of Restaurant Manager in the business.
6. On 23 August 2017, I applied for subclass 186 Employer Nomination Visa from the same business.
7. On 7th June 2018, the nomination application was refused and subsequently my visa application was refused on 9th July 2018.
8. I was disheai1ened after my visa refusal and felt that all my hard work of 3 years went in vein.
9. My father died on 28 Apr 2018 and, I was already in stress at that time as I was unable to visit for his funeral as well because I held Bridging Visa C at that time. Last time I visited my father was in December 2014. I was very close to him and felt alone after him.
10. I was in so much stress and Depressing that I was unable to concentrate on my daily activities. This led to delay in lodgement of my AAT application.
11. I applied for review application with AAT 27 August 2018.
12. I was sent Invitation to comment on validity of review application by AAT on 28 August 2018 and I gave submission in relation to my circumstances.
13. The Tribunal did not consider my circumstances and didn’t review my application.
14. I believe that AAT has not considered the compelling circumstances in my case and I don’t agree with its decision.
An affidavit from the first applicant sworn 23 October 2018 contained identical paragraphs to those contained in the grounds of review in the application for judicial review.
The applicants were given an opportunity to provide an amended application, any affidavit evidence and an outline of submissions. No further materials were provided.
This matter was heard by this Court on 28 April 2020. The applicants were not legally represented. The first applicant spoke of behalf of himself and the second applicant.
It is usually appropriate for unrepresented parties to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before it was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: 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 them the visa. Rather, the role of the Court is restricted to determining if 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 Court asked the first applicant to explain what he thought the Tribunal “did wrong”. He stated that at the time that the application was due, he was under great stress. The applicant stated that he “made a mistake” but “did not do anything illegal” and “people should be allowed to make a mistake”.
Unfortunately, the first applicant’s oral submissions do not identify any jurisdictional error. As the Minister submitted, notwithstanding the unfortunate situation the applicants found themselves in, there is no discretion for the Tribunal to extend time (no matter how compelling the circumstances might be): Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 (“Beni”).
This then requires the Court to determine whether the applicants’ grounds of review or any other matter identified by the Court points to jurisdictional error on the part of the Tribunal.
Consideration
Grounds of Review
Unfortunately, as is often the case in matters of this sort, grounds 1-11 are not grounds of review. They point to factual matters that are not in dispute and which are readily apparent from the materials in the Court Book.
To the extent the first applicant refers to his circumstances in grounds 9 and 10, these were not relevant to the Tribunal’s consideration. While the Court does not doubt that the first applicant was experiencing difficult times, this is not a matter that gives rise to jurisdictional error in the circumstances of this case.
Grounds 12-14 also refer to the applicants’ having provided an explanation for the delay and the Tribunal failing to take into account the “compelling circumstances” that explained the delay.
Where the applicant lodges an application outside of the prescribed time limit, the Tribunal has no discretion to extend time: Beni. On that basis, as compelling as the applicants’ circumstances may have been (which the Court notes the Tribunal did refer to in its decision), the Tribunal simply had no power to do anything other than find that it could not review the delegate’s decision. The applicants may disagree with the Tribunal’s decision but the Tribunal arrived at the only decision that was open to it.
The grounds of the application are, accordingly, are dismissed.
Other Matters Arising
Notification Letters – Requirements
The Court is mindful that where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Here, s.347(1)(b) of the Migration Act 1958 (Cth) (the “Act”) requires that an application for review of the delegate’s decision must be lodged with the Tribunal within the prescribed period. The prescribed period is found in reg.4.10(1)(a) which provides as follows:
…starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
For that 21 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements of s.66 of the Act.
If the notification does not accord with these requirements, then there has been no “notification” of the decision and the time period does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
A copy of the notification letter relevant to this matter (with the necessary redactions) is attached to these reasons as Annexure A.
Although not expressly raised in the applicants’ judicial review application, the Court will consider if the Tribunal was correct when it determined that it had “no jurisdiction” to hear the matter because the application had been filed late.
This issue has been the subject of considerable judicial analysis of late. The Courts’ concerns arise from the operation s.66 of the Act. What is clear from these cases (discussed in detail below) is that in assessing whether the Tribunal did, in fact, lack jurisdiction, the Court must assess:
a)whether (and how) the applicants were notified of the delegate’s decision;
b)the content and clarity of the notification letter; and
c)whether the application for review was, in fact, late.
Were the applicants “notified”?
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant in the prescribed way. Regulation 2.16(3) of the Regulation prescribes that the Minister must notify an applicant of the decision by one of the methods specified in s.494B of the Act.
Pursuant to s.494B(5)(b) of the Act, the Minister’s Department is permitted to communicate with an applicant via email. Here, the Minister’s Department sent the notification letter by email to the applicants’ authorised recipient. The applicants’ consented to the Minister’s Department sending all correspondence to the authorised recipient (CB 7). In accordance with s.494D, the Minister’s Department was required to give the authorised recipient (i.e., the migration agent) all documents: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181. There is no obligation or requirement to provide the notification letter to the applicants personally.
By virtue of s.494C(5) of the Act, the applicants were deemed to have received the notification letter on the date it was sent to the authorised recipient. That is, at the end of the day on 9 July 2018.
The notification letter was validly sent to the applicants.
Was the notification letter “valid” – that is, was the letter “clear”?
Section 66(2) of the Act provides that a 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
Here, the notification letter and decision clearly identified that the visa was refused because the first applicant did not satisfy cl.186.223 of the Regulations and the second applicant did not satisfy cl.186.311 of the Regulations. The delegate provided written reasons why the criterion were not satisfied and the grant of the visa was refused. Hence, s.66(2)(a)-(c) was satisfied here.
Section 66(2)(d) of the Act requires the notification contain specific information about an applicant’s right of review. The Court is satisfied that:
a)having stated expressly that “The decision can be reviewed” and advising that the applicants were entitled to apply to the Tribunal for review, s.66(2)(d)(i) of the Act was satisfied (CB 23 and 24);
b)having indicated that if they sought a review the applicants must be “physically present in Australia” (as required by s.347(3)), the notification satisfied s.66(2)(d)(iii) (CB 23 and 24); and
c)in providing a large table indicating the address for each of the Tribunal’s registries, the national email and the national fax numbers for the Tribunal, the notification letter satisfied s.66(2)(d)(iv) of the Act (CB 26).
The important issue here is whether, the notification letter satisfied s.66(2)(d)(ii) of the Act.
As noted above, this section has been the subject of extensive judicial commentary in the past year: see, 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 (“CAV18”); Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
To determine if the letter in question here (attached as Annexure A) addresses the Court’s concerns about the need for clarity in letters of this sort, these cases will be summarised in detail below. This is necessary to properly understand what is required by s.66(2)(d)(ii) of the Act.
DFQ17
The legislative provisions relevant to this matter were extensively canvassed by Perram J in DFQ17. Counsel for the Minister suggested that the facts in this case are distinguishable from the facts in DFQ17. As such, it is necessary to analyse DFQ17 in detail.
DFQ17 concerned an appeal from the Administrative Appeals Tribunal. The Tribunal had been asked to review a decision of the delegate to refuse the appellant’s application for a protection visa. That refusal was communicated to the appellant by a letter dated 3 February 2017. That letter was sent to a post office box address the appellant had provided on her protection visa application.
Justice Perram explained that an appeal to the Tribunal must be brought within 28 days of the date upon which a visa applicant is taken to have received notification that the visa application has been refused. The Minister contended that the appellant was duly notified by the delegate that her application for the visa had been refused by means of the letter dated 3 February 2017. Consequently, she needed to lodge any review application by 13 March 2017. She did not do so until 28 March 2017. The Tribunal concluded that her application was out of time and could not be entertained.
His Honour noted, relevantly, that:
a)on the second page of the letter sent to the applicant under the heading ‘Review Rights’ the letter says:
‘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 the decision, and ends at the end of 28 days.’
b)on the third page of the letter under the heading ‘Financial or case worker assistance’ the letter says:
‘As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.’
As discussed below, Justice Perram found that the letter in question was obscure and confusing. His Honour explained that the question for the Court was whether a letter which explains the date by which a review application must be lodged in an obscure manner ‘states’ the time within which such application must be lodged within the meaning of s.66(2)(d)(ii). If it does not, the visa applicant has not been notified of the refusal and the 28 day period in which to apply for a review has not yet commenced to run.
In assessing whether the time by which the application to the Tribunal was to be made was ‘stated’ in the letter of 3 February 2017, His Honour noted that s.66 of the Act requires the Minister to notify an applicant of a decision to refuse to grant a visa. Section 66(2)(d)(ii) relevantly provides:
Notification of decision
…
(2)Notification of a decision to refuse an application for a visa must:
…
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
…
(ii) the time in which the application for review may be made; and
…
His Honour then asked: what is the time in which a review application must be made and noted that if, as in DFQ17, the applicant is not in immigration detention the issue is governed by reg.4.31(2) of the Regulations which provides:
4.31Time for lodgement of application with Tribunal
…
(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.
His Honour explained that in light of these legislative provisions, an unsuccessful applicant must make any review application to the Tribunal within 28 days of the day the applicant is notified of the decision or, should that decision fall on a non-working day, the next working day.
His Honour then asked, “when is an applicant notified of a refusal decision” and noted that the answer to this question turns upon the mode of delivery by which the refusal is communicated. It was noted that in DFQ17, the decision was sent by pre-paid post. Accordingly, the matter was governed by s.494C(4) which provides:
494CWhen a person is taken to have received a document from the Minister
…
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
…
His Honour highlighted that the letter in DFQ17 was sent from an address in Sydney to a post office box in Sydney. Consequently, subclause (a) applied and the appellant was taken to have received the decision on 14 February 2017 – that being 7 working days after the date of the letter of 3 February 2017. Hence, if the letter of 3 February 2017 was an effective notification of the decision then the effect of reg.4.31(2) was that any review application with the Tribunal had to be made by the appellant within 28 days, i.e., 13 March 2017.
Having assessed the letter and the relevant legislative provisions, His Honour expressed concerns as follows:
45.Pausing here, it should be noted that the calculation of 13 March 2017 from 3 February 2017 is not a straightforward exercise. Section 494C(4)(a) uses the expression ‘7 working days… after the date of the document’ whereas reg 4.31(2) stipulates ‘28 days, commencing on the day the applicant is notified of the decision’. Applying s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(2) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)) and having regard to the difference between days and working days, the 7-day period is not inclusive of the first day, weekends and public holidays but the 28-day period is inclusive of the first day, weekends and public holidays. Accordingly, 14 February 2017 must be double-counted. Whilst previous decisions of this Court have accepted that the notification letter need not draw attention to the need to double-count the day a person is deemed to have been notified of the decision (see, for example, Cao v Minister for Immigration and Citizenship [2009] FCA 586; 176 FCR 396 per North J; 176 FCR 396; CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 per Allsop CJ), it does serve to highlight a certain need for clarity.
46.The first step in the Appellant’s argument is that s 66(2)(d)(ii) requires that a notification of a refusal decision must ‘state… the time in which the application for review may be made’. The second step is the factual contention that the letter annexed below is so obscure it cannot be said to state that time. The final step is that a decision which is sent to an unsuccessful applicant which does not state the time in which a review may be made to the Tribunal, has not been notified within the meaning of reg 4.31(2) so that the 28 day period has not yet begun to run.
47.As the appeal was conducted, this third step was not disputed by the Minister…
48.Attention may therefore be confined to the first two steps…
49.One starts with the meaning to be given the word ‘state’ in s 66(2)(d)(ii)….
….
58.I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete …. but clear as well. This required the letter of 3 February 2017 …. clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
59.Turning then to the letter of 3 February 2017, the question is whether it ‘states’ the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.
60.As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.
61.The Minister submitted that there was nothing misleading or erroneous about putting the statement as to the date on which the letter was taken to be received on a separate page because the period in which review may be sought was not the only matter in the letter that proceeded by reference to that date. Accordingly, it made logical drafting sense to express the deemed notification period separately from the explanation of the period in which review may be sought. Whilst that may explain the intent behind the drafting choices of the Minister, the present question is whether the letter clearly conveyed that the time in which the application for review may be made ended on 13 March 2017.
62.I have no doubt that in this case the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application.
This was the first instance in which the “clarity” of a notification letter was raised as a concern and it was found that the result of “a lack of clarity” was that time had not commenced and the Tribunal did, in fact, have jurisdiction.
BMY18
Following the decision in DFQ17, the Full Court had reason to consider s.66(2)(d)(ii) in BMY18.
BMY18 concerned two appeals heard together. In the first appeal, the appellant BOQ15 contended that the notification letter “lacked the level of clarity required” and was, as a result, not a valid notification.
In BMY18, the notification letter sent by post to BOQ15 stated as follows:
Review rights
No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT 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.
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
The Court referenced the decision in DFQ17 and noted that the letter in DFQ17 contained the statement about when the notification was taken to have been received on the next page of the letter under the heading ‘Financial or Case Worker Assistance’. The Court found that the letter sent to BOQ15 was distinguishable. At [19], the Court stated:
That is not the case here. It is possible to determine the time within which the review application may be brought. The layout is not confusing. The complexity which exists is not the fault of the author of the letter but is a result of the terms of the statute itself. Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state ‘the time in which the application for review may be made’. This is a reference to a period and not a date.
The Court then went on to consider the letter sent to the appellant BMY18.
BMY18 was sent the notification letter via email. The Court referenced the letter as follows:
28. The notification letter was dated 9 January 2018. One part of the letter dealt with review rights under the heading ‘Review Rights’. This appeared at the foot of p 1 of the letter but went over to the top of p 2 as well. It was in these terms:
Review Rights
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.
29. There was no mention in this part of the letter of when it was that the Appellant was taken to have been notified of the decision. However, towards the lower half of p 3 of the letter under the heading ‘Financial or case worker assistance’ there appeared this statement:
If you are receiving Status Resolution Support Services (SRSS), you are refused a protection visa, and you do not lodge an application for review with the AAT, you will be transitioned out of the SRSS programme within seven business days from the end of the prescribed timeframe for seeking merits review.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The Court continued:
32. Was the notification in this case ‘clear’? As in DFQ17 the time when the notification was taken to have been received was located on p 3 under the heading ‘Financial or case worker assistance’ and not under the section dealing with the right to apply for a review. As in DFQ17 the calendar date of sending or transmission was located on a different page to either the section headed ‘Review Rights’ or the section headed ‘Financial or case worker assistance’. In DFQ17 the critical date was the date on the letter (since it was sent by post) which was located on p 1. In this case, the critical date was the date of the email (since the notification was transmitted as an attachment to an email). The date of the email was necessarily located outside the letter which it attached and hence even further from the section headed ‘Review Rights’. In this case, there was no difference between the date of the email and the date of the letter (which would generate it owns problems were it to occur).
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35. Consequently, DFQ17 does not directly control this case. Be that as it may, the placing of the information as to when the notification is taken to have been received on p 3 under the incorrect heading ‘Financial or case worker assistance’ and away from the pertinent section on p 2 headed ‘Review Rights’ means that the letter was confusing and misleading. Consequently, it does not state clearly the matter required by s 66(2)(d)(ii).
36… in general, where the information as to when the notification is taken to have been received is located in the notification away from the section dealing with review rights and under an incorrect heading, there is likely to be a problem and that problem is not solved merely because it was sent by email.
37. On the other hand, where the information as to when the notification is correctly located under a sensible heading having a connection with the exercise of review rights it is likely that the notification will be clear in the requisite sense, as Ali holds. Although what the regulation requires by way of time limits is very poorly drafted, we would not hold that an accurate statement of what the regulations require is unclear just because the regulation itself is. Nor would we hold that the obligation can only be discharged by nominating an actual date although this would certainly be a far better outcome for all concerned. But we would emphasise that clarity is not demonstrated just because the reader can put all the pieces together and arrive at the correct answer. Another way of putting this is the standard of clarity is not achieved merely because the letter is formally correct: a document may be correct without being clear, as anyone who reads the output of ultimate appellate courts will attest. For example, if a notification informs its recipient of the time within which a review application must be made by means of integers of correct information scattered in a disconnected manner over several pages but which can be assembled into the correct answer, then the notification will be clear in the way that a jig-saw puzzle is. So too, where the correct information is included under a heading which is apt to suggest that the information following it has nothing to do with review rights then this will be confusing. It is trivial that that which is confusing is not clear.
The Court concluded that the letter was “unclear” and, as such, like in DFQ17, the time in which the applicant had to seek review had not actually commenced.
In obiter, the Court (at [39]) remarked that in circumstances where the notification letter uses the heading “Receiving this Letter” to provide information about when an applicant is taken to have received a notification, this too does not meet the required level of clarity.
Ali
In Ali, a notification letter (sent via email) was structured as follows:
a)on the first page of the notification, under the heading “Review Rights”, it was stated that an application for review must be given to the Tribunal within 21 calendar days after the applicant is taken to have received the letter; and
b)on the third page of the notification, under the heading “Lodging an Application for Review” was a table (similar to the table seen in in this matter) which set out the addresses of the Tribunal’s registries and how an applicant could lodge an application electronically. The final paragraph stated “as this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”
Justice Nicholas found that the notification letter in Ali met the level of clarity required. Relevantly, His Honour stated:
28. The first of the emphasised statements appears on page 1 of the letter whereas the second appears on page 3. But the letter must be read as a whole and the fact that these statements appear on different pages does not mean that the relevant information is not clearly conveyed.
29. A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review: Zhan at [66].
In BMY18 (at [36]), the Full Court stated that Ali was not overruled and that the level of clarity was sufficient as the statement about when the notification was taken to have been received was “correctly located” (and “sensibly located”) under the heading “Lodging an Application for Review”.
CAV18
In CAV18, Justice Foster was provided with consent orders from the parties. The Minister conceded an error of the sort addressed in DFQ17 and BMY18.
Justice Foster was not minded to make the orders and invited the parties to address him.
Relevantly, His Honour stated:
45. In my opinion, the decision in Ali does not sit comfortably with the decisions in DFQ17 and BMY18. In Ali, Nicholas J ultimately held that the notification of the right to seek merits review and the timeframe within which to do so were stated clearly enough and would have been noted and understood by a person reading the letter with appropriate care. I think that his Honour’s conclusion was correct. After all, the Court is entitled to assume that persons receiving a serious letter of the kind in question in the present case and under consideration in the other cases, will read that letter very carefully and, to the extent that that person requires translator assistance to overcome any language difficulty, that person will seek such assistance.
46. Whilst I do not doubt that the notification letter required by the Act and the Regulations must state the information set forth in s 66(2)(d)(ii) in such manner as can be understood by a person reading the letter with appropriate care, with great respect to the Full Courts in DFQ17 and BMY18, I do not agree that the letters in question in those cases and the letter in question in the present case failed to state that information as required by s 66(2)(d)(ii). It is true that the letters were clumsily drafted and could have been expressed with greater clarity. However, in my view, that is not to the point. The question is whether or not the relevant information has been stated as required by s 66(2)(d)(ii). For the reasons which I have endeavoured to explain, I think that the information was so stated.
Ultimately, while His Honour disagreed with the findings in DFQ17 and BMY18, His Honour concluded that he was bound by those decisions and, accordingly, granted the appellant the relief he was seeking.
Singh
Earlier this year, a differently constituted Full Court handed down ex tempore reasons in Singh. This appeal concerned one of the matters identified in BMY18 at [39] that the Court in BMY18 remarked concerned a notification letter that was lacking in clarity. Again, the notification letter sent in Singh was conveyed via email.
At [10], Justice Thawley stated:
It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to “state … the time in which the application for review may be made”. Whether or not a notification meets this requirement is a question of fact. Examining whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text
His Honour then described the structure of the notification letter in Singh. Relevantly:
a)on the first page under the heading “Review Rights” it was stated that an application for review must be given to the Tribunal within 21 calendar days after the applicant is taken to have received the letter; and
b)on the third page under the heading “Receiving this Letter”, it was 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.”
His Honour states that these passages made clear the time in which an application for review was to be made (at [12]). His Honour then continued:
15. The appellant’s main complaint was that information regarding the determination of when the email was taken to have been received was not under the same heading, “Review rights”. That information was on a separate page under the heading “Receiving this Letter”. The text under that heading stated “As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”. As the Minister submitted, this statement was both correct and clear. The heading “Receiving this Letter” was clear and relevant. The wording of the heading is clearly referable to the words “taken to receive this letter” under the heading “Review rights”. This distinguishes DFQ17.
16. As the Minister also submitted, there was good reason to provide the information regarding receipt of the letter under a separate heading. There were two relevant time periods to explain. One was the time of 21 days for applying for review; the other was the cessation, after 28 days, for the bridging visa. The fact that there were two relevant time periods to explain is a consequence of the statutory scheme.
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18. The appellant submitted that the average recipient would not have English as a first language and that, whilst it may be obvious to a person proficient in English that they are required to piece together disparate pieces of information, it would or may not be to the average recipient.
19. The average recipient would read the whole of the letter and would know the letter contained information of importance. The real question, however, is what the statute required be done. It required that the notification “state … the time in which the application may be made”. An inquiry into the possible characteristics of the average recipient has the potential of distracting attention away from the central inquiry of what the letter “stated”
The Court found that the letter in Singh met the requirements of s.66(2)(d)(ii). The standard of clarity was met. Justice Thawley concluded (at [23]):
It should be noted that cases concerning s 66(2)(d)(ii) hinge upon a simple factual inquiry into whether or not the notification letter states the time within which the application for review may be made. That question is to be resolved by examining the particular terms of the relevant notification letter in question.
Was the notification letter clear here?
Singh did not consider or comment on whether DFQ17 or BMY18 were incorrectly decided. Hence, they remain binding authority on this Court (notwithstanding what was said in Singh at [23] – i.e., that the resolution of any issues concerning s.66(2)(d)(ii) is determined by an examination of the particular terms of the notification letter). Further, as demonstrated by CAV18, the Court may well consider that the notification letter is clear enough but is bound to find otherwise.
Despite the jurisprudential complexity, the Court can derive the following principles from the cases canvassed above:
a)the difficulty in calculating the day on which a person is taken to receive the notification is a result of the lack of clarity of the legislation, not the notification letter. For example, the mere fact that the notification letter states “As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted” does not necessarily make the letter “unclear”: 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 disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
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 is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) it is sufficiently clear: Ali;
d)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;
e)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 (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and
f)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; Ali. It is not significant that an applicant may not speak English as a first language. The question is one of whether the letter conveys the required information.
Turning to the facts and circumstances of this case, the Minister submits that the notification letter here was in the same form as the letter scrutinised in Singh. On that basis, it is argued, the notification letter was “clear” and satisfies the requirements of s.66(2)(d)(ii).
The Court agrees.
Here:
a)under the heading “Review Rights” it is stated that that the review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 23 and 24); and
b)under the heading “Receiving this Letter” it is 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.”. The heading directly encompasses the language of the statement referring to the time limit. A person reading the letter as a whole would be sufficiently alert to this and would be able to identify and determine the relevant information.
It is true that the notification letter in this matter slightly differs from the notification letter in Singh. The letter here concerned two applicants as opposed to one. As a result, the notification in this matter was slightly longer as the Tribunal repeated some of the information for both applicants (as both applicants had had their visa refused and were entitled to seek review). Nonetheless, the notification letter was clear. Specifically, the layout was not confusing. Clear headings were used that provided effective signposts for the applicants to identify the information they needed. The language, or the terms, used in the notification letter are unambiguous.
Critically, in Singh what was identified as the “distinguishing” element from DFQ17 is present in the notification letter in this case. That is, in Singh it was found that the use of the heading “Receiving this Letter” (which was clearly referable to the words “taken to receive this letter” under the heading “Review rights”) distinguished the letter from DFQ17.
Here, the letter is also distinguishable from DFQ17 for the same reasons as articulated in Singh.
Further, Singh is authority that the heading “Receiving this Letter” is a “sensible” heading that negates confusion. On that basis, BMY18 is also distinguishable.
The Court is satisfied that the notification letter here meets the requirements of s.66(2)(d)(ii).
The Court also notes that it is not the case here that the applicants have ever indicated that they did not understand the notification letter or were unable to identify the time within which to file an appeal. Rather, they failed to do what was required of them because of a number of unfortunate personal circumstances that prevented them from lodging their application on time.
Was the application for review, in fact, late?
The applicants do not appear to dispute that their application to the Tribunal was lodged late.
The Tribunal correctly observed that the time in which the applicants had to lodge an application for review of the delegate’s decision was 21 days from the date on which they were notified: s.347(1)(b) of the Act and reg.4.10(1)(a) of the Regulations.
The applicants were notified of the delegate’s decision on 9 July 2018. The applicants therefore had until 30 July 2018 to lodge their application. They did not do so until 27 August 2018. The application was, therefore out of time.
Did the Tribunal err?
The Tribunal was correct to find it did not have jurisdiction. The applicants were validly notified of the delegate’s decision, correctly informed of their rights of review but were, regrettably, unable to lodge their application in time due to personal circumstances beyond the control of the Tribunal. In these circumstances, the Tribunal had no jurisdiction to assess the application for review.
Conclusion
The applicants’ application for judicial review fails to identify any jurisdictional error. Nor has the Court identified any error in the decision as a whole. The Tribunal’s decision was the only decision that was open to be made.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 8 May 2020
ANNEXURE A
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