AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 619
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
File number: MLG 187 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 20 July 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal erred by failing to invite the applicant to appear at a hearing – whether the Tribunal failed to consider the applicant’s reasons for filing her review application out of time – whether the Tribunal erred by failing to “investigate” whether the applicant met the criteria for the grant of the visa – whether the Tribunal acknowledged that the applicant had made a valid review application – whether the Tribunal failed to comply with its obligation to conduct a review in this matter – whether the Tribunal failed to comply with its procedural fairness obligations – whether the Tribunal erred by not allowing the applicant an opportunity to present evidence and arguments in relation to her visa application – lack of legal assistance or legal advice – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 24Z
Migration Act 1958 (Cth), ss 66, 412, 414, 430, 476, 477, 494C & 494D and Division 4 of Part 7
Migration Regulations 1994 (Cth), regs 2.16 & 4.31
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Bala v Minister for Immigration & Border Protection [2019] FCA 600
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; Ali v Minister for Home Affairs [2019] FCA 1102
CAV18 v Minister for Home Affairs [2020] FCA 173
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271
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
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
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 and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
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
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
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
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZARX v Minister for Immigration & Border Protection [2014] FCA 423
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of last submission: 9 June 2023 Date of hearing: 3 May 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 187 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The application 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”) 10-12 & 36-37). She first arrived in Australia in March 2019 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 56).
On 23 May 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 10-35). In that application, the applicant did not include details of any “authorised recipient” for correspondence in relation to her visa. She did, however, include her email address for receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 16). The applicant also provide identity documents with her visa application (CB 36-37).
On 26 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 56-64). The delegate acknowledged that the applicant might not want to return to Malaysia because she “fears civil action as a result of her outstanding debts”. However, the delegate determined that any harm the applicant might face as a result of her defaulting on a bank loan or being declared bankrupt would not amount to significant harm (CB 59).
The applicant was notified of the delegate’s refusal decision by letter dated 26 July 2019 (the “notification letter”) (CB 52-55). The notification letter was sent via email to the applicant (personally) at the email address included in her visa application (CB 51-52). That notification explained how the applicant could apply for review of the delegate’s decision and, relevantly, stated (CB 52-53):
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 decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
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.
Please note that the abovementioned time in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
On 29 August 2019, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 65-66).
On 3 December 2019, the Tribunal invited the applicant to comment on the validity of her review application (CB 71-73). The Tribunal advised as follows:
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 26 July 2019 meaning that 26 July 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 22 August 2019. As the application was not received until 29 August 2019, 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 17 December 2019. 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 9 December 2019, the applicant responded to the invitation to comment (via email), as follows (without alteration) (CB 74-75):
The reason why I made late application to Administrative Appeals Tribunal is phone that I used to store all the document, including the access of my email was broken. Therefore I change to the new phone and when I tried to access my email that registered with Home Affairs Department was failed. This is happened because that email I used my previous Malaysia phone number to receive the access code. Due to that number already been disable by Malaysian provider, so it’s quite impossible for me to access to my email.
By the time I realize my current visa was being refused by Home Affair Department, I’m tried my best to get access to my email back. I asked for help from my families and friends in Malaysia, to search and find the new owner for my previous phone number. By the time they found the owner, the time for me to make an appeals to tribunal already over 28 days but not 35days.
I know it’s already late for me to make an appeals, but I do hope and begging for Administrative Appeals Tribunal accept and process my application because it very important for me to stay legal here, plus I do really need the access to medical services here.
Thankyou.
On 16 December 2019, the applicant phoned the Tribunal to confirm that it had received her submission (set out above and provided to the Tribunal on 9 December 2019) (CB 77).
On 17 December 2019, the Tribunal found that it had no jurisdiction in relation to the matter because the applicant’s review application had not been lodged within the requisite time period (CB 80-81).
On 17 January 2020, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-6). She also filed an affidavit in support of that application (affirmed on 17 January 2020 and annexing a copy of the Tribunal’s decision) (CB 7-9).
The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
In determining whether the Tribunal has fallen into error, it is useful to first set out the Tribunal’s decision.
In full, the Tribunal’s decision provides (CB 81):
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 26 July 2019 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 29 August 2019. 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: r.4.31(2) of the Migration Regulations 1994.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 July 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The Tribunal finds that the applicant is taken to have been notified of the decision on 26 July 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 August 2019.
5.As the application for review was not received by the Tribunal until 29 August 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
6. The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 17 January 2020 contains seven “grounds of review”, as follows (without alteration) (CB 4):
1.THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY DISMISSING AND NOT TO GRANT ME A PROTECTION VISA ON 17 DECEMBER 2019 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS.
2.I WAS TOTALLY UNAWARE ABOUT THE HEARING THAT THE RESULT WILL BE DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION.
3.THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.
4.ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
5.I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.
6.THEREFORE THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
7.I SEEK THE COURT FOR JUDICAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
With the application for judicial review, the applicant also filed an affidavit (affirmed by her on 17 January 2020) (CB 7-9). That affidavit provides as follows (without alteration) (CB 8):
1.I AM THE APPLICANT IN THE PROCEEDING SEEKING FOR JUDICAL REVIEW.
2.I AM APPLYING FOR JUDICAL REVIEW OF THE DECISION MADE BY THE ADMINISTRATIVE APPEALS TRIBUNAL ON THE 17 DECEMBER 2019 WITH DECISION DOES NOT HAVE WRISDICTION ON MY MATTER TO GRANT MY APPLICATION FOR PROTECTION VISA.
3.I HAVE ATTACHED MY TRIBUNAL DECISION RECORD TOGETHER WITH MY AFFIDAVIT APPLICATION AND MARKED IT AS “ANNEXURE A”.
4.I DID NOT HAVE A LAWYER AND ADVICE THAT I COULD APPEAL TO COURT UNTIL I OBTAINED THE CORRECT LEGAL ADVICE.
5.THE DECISION MADE BY MY REVIEW PROCESS IS UNFAIR TO ME AND NOT TAKEN TO CONSENT.
On 14 February 2022, orders were made by Registrar Carney of this Court (by consent) transferring the matter to the Perth Registry of the Court.
On 17 February 2022, procedural orders were made by Registrar Carney giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 17 January 2020, a Court Book numbering 81 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 18 April 2023 and the affidavit of service of Madisen Anne Scott affirmed on 24 April 2023 and filed in this Court on 25 April 2023.
The matter came before this Court on 3 May 2023. The applicant appeared at that hearing, without legal assistance but with the assistance of a Malay interpreter. Ms Scott appeared on behalf of the Minister. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
As is now common practice, to assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed 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: 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 decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that, when her visa was refused, the refusal notification was sent to her by email and she was unable to open her emails. The applicant explained that she had forgotten the password needed to access her email account and her Malaysian phone number was needed to reset that password. However, the applicant was not able to “use that phone number anymore as it had been expired for more than three months by that time”.
The applicant further explained that, when she checked what was happening using her VEVO account, she was able to see that the visa was refused. She then filed her application with the Tribunal – albeit eight days late.
The applicant also explained that she thought the Tribunal should have “exercised its discretion” to “accept her application and review her matter”. She also expressed concern about leaving her son, who is Australian (noting that the applicant is now married to an Australian citizen).
The applicant’s oral submissions, in so far as they raise the possibility of error on the part of the Tribunal, will be discussed further below.
Following the hearing of this matter, a decision was handed down by Justice Markovic in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). This Court determined that Sandor had implications for this matter. Relevantly, as discussed further below, Sandor addresses what constitutes proper notification of a delegate’s decision – that is, whether the notification letter sent by the Department advising of a delegate’s decision is “complete or clear”.
This Court wrote to the parties on 12 May 2023 to notify them of the decision in Sandor and to ask the Minister to file additional submissions addressing its applicability or consequences for the matter the subject of this judgment. The Court also confirmed that the Court would give the applicant an opportunity to file any submissions in reply.
Further written submissions addressing the issues raised in Sandor were filed on behalf of the Minister on 9 June 2023. No further documents were filed by or on behalf of the applicant.
CONSIDERATION
Sandor and its applicability to this matter
Notification letters post-Sandor
This Court recently provided a detailed overview of Sandor and the requirements for notification letters more broadly in its decision of Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]). The analysis provided in that judgment is repeated below (with minor amendments).
The Act and 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 may 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 s 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires the Minister to 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.
Further, by sending the document by one of the methods set out in ss 494B or 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; 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”.
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. 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 repeats its assessment 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.
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?
The Minister submits (in further written submissions filed on 9 June 2023) that matter before this Court is distinguishable from Sandor.
This Court agrees for the reasons that follow.
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 this matter are as follows (CB 52-55):
(a)the letter was dated 26 July 2019 (on the first page – CB 52);
(b)the letter was addressed to the applicant (referencing her by name) at her residential address (on the first page – CB 52);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 52);
(d)under the heading “Review rights” (on pages 1 to 2 – CB 52-53), 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 decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
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.
Please note that the abovementioned time in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
(e)the letter was sent by email to the applicant on 26 July 2019 (CB 51-52).
The notification letter in this matter differs from the letter the subject of Justice Markovic’s decision 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.
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.
As submitted by the Minister (at [9]-[10] in further written submissions filed on 9 June 2023), s 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 she had until 22 August 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 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;
(c)under a single heading titled “Review Rights” stated that:
(i)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; and
(ii)(in the very next line) the applicant was taken to have received it on the day the email was transmitted.
Importantly, the notification letter here explained that the applicant was taken to have received the letter at the end of the day it was transmitted to her (not to an authorised recipient).
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.
The Court notes that the Minister in this matter contends (at [15] in written submissions filed in this Court on 9 June 2023) that the decision in Sandor was “wrongly decided”. As explained by this Court in Singh, that is a matter best dealt with on appeal to a higher court.
For the reasons set out above, the Court agrees that present matter distinguishable from Sandor.
There was, accordingly, no error in the Tribunal’s decision or its conclusion as to want of jurisdiction.
No jurisdictional error arises in this regard.
Grounds of review
Turning now to the applicant’s grounds of review as articulated, the Court determines as follows.
Grounds 1 and 2
Grounds 1 and 2 provide:
1.THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY DISMISSING AND NOT TO GRANT ME A PROTECTION VISA ON 17 DECEMBER 2019 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS.
2.I WAS TOTALLY UNAWARE ABOUT THE HEARING THAT THE RESULT WILL BE DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION.
Grounds 1 and 2 seem to suggest that the applicant was not aware of the Tribunal’s scheduled hearing and, as a result of failing to attend that hearing, the Tribunal dismissed the applicant’s review application. Further, the applicant also claims she was not given chance to seek reinstatement of her application.
Those claims fail on a factual level.
The applicant here was never invited to appear at a hearing before the Tribunal and, where there was no valid review application before the Tribunal, there was no requirement for the Tribunal to schedule a hearing or to invite the applicant to appear before it at any hearing.
It follows then that the Tribunal was also not required to notify the applicant of what might happen if she failed to appear at a hearing (including in relation to the possibility of dismissal) or provide any information on how she might seek reinstatement of an application following dismissal.
No error arises in this regard.
The applicant also references a phone call to the Tribunal and claims that the Tribunal failed to “take into consideration” information provided by the applicant during that phone call.
The Court notes that the Tribunal’s case notes confirm that a telephone conversation took place between the applicant and the Tribunal on 16 December 2019 (CB 76-77). Those case notes include the following summary of that conversation (CB 77):
RA called via Switch – Confirming we have received her submission of 9 Dec 2019 about the reason for her late application.
Confirmed we have received this submission.
RA stated she couldn’t access her email, and her phone number used for the email was her Malaysian phone number so she couldn’t access anything.
I asked for her to please confirm her email address, and her residential address.
Details in Case Mate are correct and current.
Advised RA should check her email inbox and junk mail inbox (in case our emails go to the junk mail) regularly.
End of call.
The information discussed by the applicant in that telephone call (much of which was initially raised in the applicant’s response to the Tribunal’s invitation to comment letter at CB 75) explains why the applicant’s review application was filed with the Tribunal outside of the requisite 28 day time period. Relevantly, as outlined above, the applicant claimed that she was unable to access her email account and that the phone number linked to that email account (needed to reset her password) was the applicant’s Malaysian phone number she no longer had access to and she was therefore “unable to access anything”.
As acknowledged by the Minister (at [22] in written submissions filed in this Court on 18 April 2023), the Tribunal does not reference this information (either in relation to the applicant’s telephone call or the response to the invitation to comment letter) in its written reasons.
The Court notes that the Tribunal’s obligation under s 430 of the Act to provide a written statement of reasons does not require it to identify or to discuss each item of evidence it has had regard to in coming to its decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [68]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) at [34].
Whilst there is no requirement for the Tribunal to specifically reference each item of evidence before it, the Court is generally entitled to infer that evidence which is not mentioned in the Tribunal’s written reasons was, at a minimum, considered by the Tribunal to be immaterial: SZSRS at [33]. The Court considers that to be the case in relation to the information provided by the applicant here about why she was not able to apply for review within the requisite 28 day time period.
As correctly submitted by the Minister (at [23] in written submissions filed in this Court on 18 April 2023), once the Tribunal had determined that the applicant had been properly notified of the delegate’s decision and that she had not sought review within the time period permitted, it was required to find that it had no jurisdiction: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (“Beni”).
Further, even if the Tribunal had failed to consider this information entirely, it could not have altered the conclusion reached by the Tribunal in this matter. The Tribunal had no power to extend the time within which the applicant could submit her application for review: s 412(1)(b) of the Act; s 24Z(1) of the Administrative Appeals Tribunal Act 1975 (Cth); Beni at [64]. That is, regardless of the reason for the applicant’s delay in seeking review by the Tribunal, once the Tribunal had determined that the application had been filed out of time, it had no choice but to find that it had no jurisdiction in this matter.
No jurisdictional error arises in this regard.
Ground 3
Grounds 3 provides:
3.THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.
Insofar as the applicant claims that the Tribunal, without investigation, affirmed the delegate’s decision or otherwise determined that the applicant did not meet the refugee criteria for the grant of the visa, this fails on a factual level.
The Tribunal in this matter found that it did not have jurisdiction. Having made that determination, the Tribunal did not (and could not) go on to assess the applicant’s review application or make any determinations about the applicant’s visa application.
No error arises in this regard.
To the extent that the applicant references a legislative requirement for the Department to notify her that she had lodged a valid visa application, the Court notes that it has no jurisdiction in relation to the delegate’s decision or compliance by the Department with any legislative requirements in the lead up to such a decision being made: ss 476(2) and 476(4) of the Act.
No error arises in this regard.
The applicant also references an acknowledgement by the Tribunal that her application was valid. Unfortunately, this too fails on a factual level.
On 5 September 2019, the Tribunal did write to the applicant acknowledging receipt of the application for review (CB 68-70). That correspondence relevantly stated (emphasis added) (CB 69):
We received your application for review, in relation to a decision to refuse to grant a Protection visa, on 29 August 2019.
Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.
As outlined above, the Tribunal acknowledged that it had received the applicant’s review application but put the applicant on notice that it had not yet made an assessment about the validity of that application. The letter also told the applicant that she would be “advised if it appear[ed] that [her] application may not be valid”.
As foreshadowed in the acknowledgement letter, the Tribunal then wrote to the applicant again on 3 December 2019 to advise that it had concerns about the validity of her application and invited her to comment in that regard (CB 71-73).
No jurisdictional error arises in relation to ground 3.
Ground 4
Grounds 4 states:
4.ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
The applicant here raises concerns about whether the Tribunal complied with its obligation under s 414 of the Act to conduct a review and, by extension, complied with its procedural fairness obligations in that regard.
Where a valid application for review of a Part 7-reviewable decision is made, s 414 of the Act requires the Tribunal to review that decision. Section 414 of the Act relevantly provides:
414 Tribunal to review Part 7‑reviewable decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
…
In order for a valid application for review (of a Part 7-reviewable decision) to be made, that application must be made in accordance with the requirements set out in s 412 of the Act, which relevantly provide:
412 Application for review of Part 7‑reviewable decisions
(1) An application for review of a Part 7‑reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2)An application for review may only be made by the non‑citizen who is the subject of the primary decision.
(3)An application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(4)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
As outlined above (in s 412(4) of the Act), the Regulations set out different time periods within which an application for review must be made in different circumstances. Relevant here is reg 4.31(2) of the Regulations. Regulation 4.31 relevantly provides:
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.
In the circumstances of this matter (where the applicant was not in immigration detention at the time of notification), an application for review was required to have been made within 28 days of the date the applicant was notified of the delegate’s decision: reg 4.31(2) of the Regulations.
Here, the applicant was notified of the delegate’s decision on 26 July 2019 (CB 52). Any application for review to the Tribunal needed to have been made by 22 August 2019.
The applicant did not file an application for review with the Tribunal until 29 August 2019 and that application was therefore made outside of the requisite time period. In those circumstances, the review application filed with the Tribunal did not meet the requirements set out in s 412 of the Act for a valid application.
On that basis, no valid application for review was lodged and the Tribunal was therefore not required to comply with the procedural fairness obligations set out in Division 4 of Part 7 of the Act.
In relation to the question of any common law guarantee of procedural fairness or natural justice more broadly, the Court references its decision in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271 (“CLV21”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) at [83]) and reiterates that the common law rules of procedural fairness only require that the Tribunal bring to an applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
In this matter:
(a)the applicant was notified of the delegate’s decision and the timeframe within which her application for review could be lodged with the Tribunal (CB 51-55);
(b)the applicant was invited (on 3 December 2019, by email sent to her nominated email address) to comment on the validity of her Tribunal application (CB 71-73); and
(c)the applicant responded to that invitation via email on 9 December 2019 acknowledging that her application was late and outlining why she was of the view that the Tribunal should proceed to review the delegate’s decision in this matter (CB 74-75).
Here (as was the case in CLV21 and WZAVO), it cannot be said that the applicant was denied the right to present her case. Further, even if the Tribunal had invited the applicant to attend a hearing (where the applicant had already been asked to comment on the critical issue before the Tribunal and did so) this would not have assisted her.
As detailed by the Court above, the Tribunal did not have the power to extend the time within which the applicant could file an application for review with the Tribunal.
No jurisdictional error arises in this regard.
Grounds 5 and 6
Grounds 5 and 6 provide:
5.I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.
6.THEREFORE THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
Here, the applicant claims that the Tribunal denied her an opportunity to present evidence and arguments in relation to her visa application and that, on that basis, the decision made by the Tribunal was “not fair”.
As discussed above, the applicant in this matter did not make a valid application for review to the Tribunal. In those circumstances, the procedural fairness obligations set out in Division 4 of Part 7 of the Act do not apply. That is, there was no requirement for the Tribunal to invite the applicant to appear before it to give evidence and present arguments.
As submitted by the Minister (at [34] in written submissions filed in this Court on 18 April 2023), even if the Tribunal wanted to consider the applicant’s review application further, it was prevented from doing so in circumstances where the application had not been made within the requisite time period. Further, the Tribunal had no discretion (nor the power) to extend the time within which the applicant could make her application to the Tribunal.
No jurisdictional error arises in relation to grounds 5 and 6.
Ground 7
Ground 7 states:
7.I SEEK THE COURT FOR JUDICAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
The applicant here simply makes a plea for relief and does not raise any issue of jurisdictional error or any error of the sort that this Court can address.
No jurisdictional error arises in relation to ground 7.
Applicant’s affidavit
As outlined above, the applicant filed an affidavit (affirmed by her on 17 January 2020) in support of her application for review. Paragraphs four and five of that affidavit outline further concerns raised by the applicant in this matter. The Court determines as follows in that regard.
Paragraph 4
Paragraph 4 of the applicant’s affidavit states:
4.I DID NOT HAVE A LAWYER AND ADVICE THAT I COULD APPEAL TO COURT UNTIL I OBTAINED THE CORRECT LEGAL ADVICE.
To the extent that the applicant claims that she could not “appeal” or seek review in this Court, the Court notes that the applicant did, in fact, apply to this Court within the requisite 35 day time period required by s 477 of the Act and that she did so (seemingly) without the assistance of a lawyer.
To the extent that the applicant is referring to the delay in being able to seek review by the Tribunal, the Court notes that the applicant’s response to the Tribunal’s invitation to comment letter, subsequent phone call to the Tribunal and oral submissions to this Court all refer to the applicant being unable to access her email account as the reason for the delay. There is no evidence before the Court to suggest that the applicant raised a lack of legal representation as a reason for the delay in making her application.
Further, there is no right of legal representation in a proceeding before the Tribunal: see s 366A of the Act; WZARX v Minister for Immigration & Border Protection [2014] FCA 423 at [14] per McKerracher J.
In any event, as outlined above, the Tribunal had no discretion (or power) to extend the timeframe for the applicant to seek review. This is the case regardless of the reason for the applicant’s delay in seeking review.
No error arises in this regard.
Paragraph 5
Paragraph 5 of the applicant’s affidavit provides:
5.THE DECISION MADE BY MY REVIEW PROCESS IS UNFAIR TO ME AND NOT TAKEN TO CONSENT.
The applicant is here again suggesting that the Tribunal failed to comply with its procedural fairness obligations. The issue of procedural fairness (both pursuant Division 4 of Part 7 of the Act and any common law guarantee of procedural fairness) has been addressed above in relation to the consideration of ground 4.
No error arises in this regard.
Oral submissions
The issues or concerns raised by the applicant in her oral submissions before this Court have largely been addressed above when considering the applicant’s grounds of review. The Court notes, however, that the applicant also expressed concern about leaving her son, who is Australian (because the applicant is now married to an Australian person).
Whilst the Court is sympathetic to the applicant’s situation and her concern about being separated from her son, there is no evidence before the Court to suggest that this information was ever put to the Tribunal. Further, the information could not have assisted the applicant in her review before the Tribunal because, as previously noted, the Tribunal could not extend the time within which the applicant could seek review by the Tribunal.
Once the applicant failed to seek review within the requisite 28 day time period, the Tribunal was obliged to find that it had no jurisdiction in the matter.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 17 January 2020 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 July 2023
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Limitation Periods
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Admissibility of Evidence
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Natural Justice & Procedural Fairness
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