Ahmad v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 326
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmad v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 326
File number: MLG 3433 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 7 March 2025 Catchwords: MIGRATION – Student visa – Where application listed both for an extension of time hearing and if the time was extended a final hearing – Where the First Respondent consented to an extension of time – Whether the notification of the decision of a delegate to the Applicant stated the time in which the application for review to the Tribunal may be made in accordance with s. 66(2)(d)(ii) of the Migration Act 1958 (Cth) – Held the notification to the Applicant was complete and clear in compliance with the statute – No jurisdictional error – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 66, 347, 477, 494C, 494D
Migration Regulations 1994 (Cth) reg. 4.10, cl. 500.212
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62; [2021] FCAFC 46
Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 4 March 2025 Date of hearing: 4 March 2025 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms K Chan Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as costs ORDERS
MLG 3433 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SITI HALIZATUNNISAK BINTI AHMAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Multicultural Affairs.”
2.By consent the court extends time under s. 477(2) of the Migration Act 1958(Cth) for the Applicant to commence her application for judicial review until 14 November 2018.
3.By consent the court allows the Applicant to amend her initiating application made on 14 November 2018 as follows:
(a)to seek a final order for the issue of a writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application according to law; and
(b)to include an additional ground as to her initiating application (ground 4) as follows:
The Tribunal’s decision was affected by jurisdictional error because the applicant had not been notified of the delegate’s refusal to grant the visa in compliance with the requirements of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) to ‘state’ ‘the time in which the application for review may be made’.
4.The application is dismissed.
5.The Applicant is to pay the costs of the First Respondent fixed in the amount of $8,371.30.
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 CHAMPION:
INTRODUCTION
Ms Sita Ahmad (Applicant) is a citizen of Malaysia. On 27 September 2018 the Tribunal affirmed a decision of the delegate to refuse to grant the Applicant a Student (Temporary) (Class TU) Visa because it decided it had no jurisdiction as to her application because her merits review application as to the delegate’s decision was not made within the relevant 21 day absolute time limit.
In due course, the Applicant made an application for judicial review to this court as to the Tribunal’s decision. The Applicant requires an extension of time for her judicial review application.
Under orders of the court, the matter was listed before me both for an extension of time hearing, and, if the time was extended, a final hearing.
As is explained below, the real issue on the judicial review application is whether the delegate’s notification of the decision not to grant the Applicant a student visa complied with s. 66(2)(d)(ii) of the Migration Act 1958 (Cth) which requires the notification to “state … the time in which the application for review may be made.” Also, as is explained below, if the notification of the delegate’s decision did not comply with s. 66(2)(d)(ii), time would not run, and the Tribunal’s denial of jurisdiction would be in error.
The notification complied with s. 66(2)(d)(ii). I will dismiss the application.
My reasons follow.
THE EXISTING GROUNDS CANNOT SUCCEED
The Applicant did not comply with court orders to file and serve any amended application with proper particulars of the grounds before the hearing.
The Applicant’s grounds of application in her Initiating Application were as follows:
1.AAT decision is not acceptable. AAT didn't accept my application. AAT gave reason of non-acceptance of review application is out of time. AAT didn't consider my request to accept application out of time or reason of delay in application. In their decision they just said that they have no jurisdiction to review the decision. They didn't mention about the request of late application on the basis of special circumstances such as illness etc.
2.AAT decision was not taken in fairly manner. AAT decision is legally unreasonable.
3.I am not happy the decision of AAT. In decision AAT says that they don't have jurisdiction in this matter. They didn't consider my exceptional circumstances and illness, which was the main reason of late application. They didn’t accept the request of late application.
(As written)
The absolute time limit for an application for review of a delegate’s decision to the Tribunal
Under s. 347(1)(b) of the Act and reg. 4.10(1) of the Migration Regulations 1994 (Cth) there is an absolute 21 day time limit for the lodgement of an application with the Tribunal to seek merits review of a delegate’s refusal to grant a student visa. As Charlesworth J said in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] (approved in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, [49]):
The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
(Emphasis added)
Provided that the notification to the Applicant of the delegate’s decision complied with s. 66(d)(ii) of the Act (the issue to which I will return), the delegate’s decision was emailed to the Applicant on 28 June 2018. She made her application to the Tribunal on 1 August 2018 (about 33 days later), after the expiry of the 21 day “absolute” time period. Issues of “reasons of delay in [the] application” (Ground 1), whether the Tribunal’s decision was “fair” (Ground 2) or a failure to consider “exceptional circumstances and illness” as reasons explaining the late application (Ground 3) were not relevant in the context of an “absolute” time period and the resulting absence of any power or discretion for the Tribunal to extend time.
As a result, if the notification of the delegate’s decision complied with s. 66(2)(d)(ii), because the Applicant made her application to the Tribunal after the expiry of the 21 day period, none of Grounds 1-3 set out in the Initiating Application can succeed or is arguable as constituting jurisdictional error. If the notification did not comply with s. 66(2)(d)(ii) time did not run and the issues in Ground 1–3 do not arise. It is not necessary to discuss further Grounds 1-3.
In the particular circumstances of this case — because of the s. 66(d)(ii) issue — that is not the end of the matter.
AN EXTENSION OF TIME
The Applicant’s judicial review application in this court was filed some thirteen days out of time. The Minister submitted that time ought to be extended under s. 477(2) because the delay was short, there was no prejudice to the Respondents and there was an “arguable basis on which the court could allow the substantive application for judicial review”, namely that the notification of the delegate’s decision did not comply with s. 66(2)(d)(ii).
Because of the Minister’s consent, and because I accept each of the Minister’s submissions as to whether an extension of time ought to be granted, I will by consent make an order extending time for the commencement of the judicial review application until 14 November 2018. Further, as noted in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [57] the usual and proper approach in circumstances in which a court has considered an application for an extension of time and the substantive application in a single hearing is to grant the extension of time even if the substantive grounds have not been made out in circumstances in which those grounds had reasonable prospects of success.
LEAVE TO AMEND INITIATING APPLICATION
Also, by consent, I will make an order granting leave to the Applicant to amend her Initiating Application in this court to seek a writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application according to law.
Finally, and most importantly, the Minister, under model litigant obligations, drew the court’s attention to the arguable basis on which the court could allow the substantive application for judicial review if the Applicant proved that the delegate’s notification of the decision to her did not comply with s. 66(2)(d)(ii) of the Act; the issue I have described as the real issue on the judicial review application.
So that the Applicant could properly advance this “arguable” ground and the real issue was defined for the court and the parties, also ultimately by consent order, I granted the Applicant’s oral application to amend her substantive judicial review application to include a new Ground 4 as follows:
4.The Tribunal’s decision was affected by jurisdictional error because the applicant had not been notified of the delegate’s refusal to grant the visa in compliance with the requirements of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) to ‘state’ ‘the time in which the application for review may be made’.
Grounds 1 – 3 cannot succeed for the reasons set out above.
Aside from the new Ground 4, the Applicant did not make any oral submissions which expanded on her Initiating Application.
I turn directly therefore to consider Ground 4.
GROUND 4: WAS THE TRIBUNAL’S DECISION AFFECTED BY JURISDICTIONAL ERROR BECAUSE THE NOTIFICATION OF THE DELEGATE’S DECISION DID NOT “STATE” THE TIME IN WHICH THE APPLICATION FOR REVIEW MAY BE MADE IN COMPLIANCE WITH S. 66(2)(D)(II)?
The necessary sequence of events
Communications with the department
On 23 April 2016 the Applicant had arrived in Australia on an Electronic Travel Authority.
On 30 May 2018, the Applicant applied for the visa.
The Applicant nominated an authorised recipient, a migration agent, to receive communications on her behalf. She provided the migration agent’s address for “all correspondence, including notification of the outcome of the application”.
On 28 June 2018 the delegate refused to grant the Applicant the visa. The delegate was not satisfied that the Applicant intended genuinely to stay temporarily in Australia, and accordingly, she did not meet a criterion for the grant of a visa (Regulations, sch 2, cl. 500.212).
Notification of the delegate’s decision was sent under cover of a letter dated 28 June 2018 to the email address of the Applicant’s migration agent, the email address the Applicant had nominated. The letter dated 28 June 2018 set out its “transmission method” as an email to the nominated email address. Departmental records described as “enterprise correspondence – evidence of dispatch of notification of refusal of student visa application the decision record” also set out that the email attaching the notification of the decision letter was sent on 28 June 2018 to the email address the Applicant had nominated.
The notification of the delegate’s decision
The relevant parts of the 28 June 2018 letter which contained the notification of the delegate’s decision in some detail:
28 June 2018
…
Transmission Method Email sent to: [nominated email address omitted]
Dear [Ms] Ahmad
Notification of refusal of application for a Student (Temporary) (class TU) Student (subclass 500) visa
Refused Applicant
I wish to advise you that the application for this visa has been refused on 28 June 2018 for the following applicant:
…
Review rights
The decision can be reviewed.
We 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 21 calendar days after the day on which you are taken to have received this letter.
…
Lodging an application for merits review
Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT).
…
Receiving 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.
Questions about this decision
We cannot consider your visa application any further.
…
Your sincerely
…
Department of Home Affairs
The original of this letter including any attachments was sent to:
[Name of migration agent omitted]
[Nominated email address omitted]
[Emphasis added]
The Tribunal application
On 1 August 2018 — assuming that the notification on 28 June 2018 was valid and therefore after the expiry of the 21-day absolute time limit s. 347(1)(b) and reg.4.10(1) prescribed — the Applicant submitted an application to the Tribunal for review of the delegate’s decision.
By letter dated 3 August 2018, the Tribunal requested any comment on the validity of the review application because apparently it was out of time and therefore apparently the Tribunal had no jurisdiction. The Tribunal wrote:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to your authorised recipient on 28 June 2018 and, on the basis that 28 June 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 19 July 2018. As the application was not received until 1 August 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.
The Applicant did not respond to the Tribunal or comment on the validity of her application.
The Tribunal decision
On 27 September 2018 the Tribunal held in its decision that it did not have jurisdiction as to the Applicant’s review application because it was not made within the relevant absolute statutory time limit of 21 days (s. 347(1)(b) of the Act; reg. 4.10) (TD, [5]).
The Tribunal also held in its decision that under s. 494C of the Act the Applicant was taken to have been notified of the decision on 28 June 2018 (TD, [4]). The Tribunal so held because s. 494C(5) of the Act is as follows:
If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
[Emphasis added]
If the delegate’s decision did not comply with s. 66(2)(d)(ii) time has not commenced to run
If the delegate’s notification of the decision to the Applicant dated 28 June 2018 did not comply with s. 66(2)(d)(ii), the notice given by the notification letter is invalid and it follows that there has been no notification of the decision and time has not yet commenced to run (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata(2021) 284 FCR 62; [2021] FCAFC 46 at [58], [75]–[76], [78] and [103]; cited in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, [53]).
Further, if the notification of the decision did not comply with s. 66(2)(d)(ii), “proof of the [Tribunal’s] erroneous denial of jurisdiction is sufficient, without more, to demonstrate jurisdictional error” and no issue of materiality arises (Parata, [58]).
Section 66(2)(d)(ii) – the notification must state the time in which the application for review may be made
Section 66 is as follows:
66 Notification of decision
(1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(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:
(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
…
[Emphasis added]
The relevant authorities - the notification must state the time for review in a way which is “complete and clear”
As a Full Court in Minister for Immigration, Citizenship And Multicultural Affairs v Park [2024] FCAFC 136 noted at [5] “the proper construction of s. 66(2)(d) of the Act and its application to asserted notifications of decisions to refuse applications for visas has been the subject of many decisions of this Court exercising its appellate jurisdiction”.
As to the correct statutory interpretation of s. 66(2)(d)(ii) the Full Court in Park said at [22] (approving an earlier full Court decision in DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492 at [58])
It is common ground that, on the proper construction of s 66(2)(d), the word ‘state’ means that the notification of the decision must set out the information in each of the subsections in a manner that is complete and clear
[Emphasis added]
Further, the Full Court in Park approved what Thawley J (with whom other members of the court agreed) had said in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] that:
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
The Full Court in Park accepted the Minister’s submission summarised at [23] that the “notification must crystallise the period [in which a review application may be made] either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the notification.”
I also note the Full Court’s observation in Park as to various authorities at [28] that “depending upon the relevant objective facts and the form of the notification before the court, the notification of the decision may or may not, as a matter of fact, meet the requirements of s. 66(2)(d)”. Further, in Park, the Full Court noted that there was “no real disagreement… concerning the correct statutory interpretation of s. 66(2)(d)(ii) … the difference between the parties concerns the application of the law to the facts.”
Section 66(2)(d)(ii) has been the subject of frequent litigation because of challenges in the application of agreed principles to different factual scenarios. The different form of the notification letters considered in decisions in Sandor, Singh and Park referred to in these reasons yielded different results as to whether the notification letters had complied with s. 66(2)(d)(ii).
In Sandor, Markovic J held, at [51]–[52], on the facts before Her Honour, that because the notification letter “required” 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” (emphasis added) the letter did not comply with s. 66(2)(d)(ii) of the Act. A requirement for a recipient to piece together the facts to allow him or her to know the time in which the application for review may be made led Markovic J to hold that the notification did not state the time for the review application in a way which was “clear and complete.”
In Park, in analysing whether the information in the relevant notification was clear and complete, the Full Court concluded it was not in circumstances in which the letter was “9 pages in length and addresses the position of 6 different visa applicants” (Park, [37]) and the reference to the 21 day period appeared in 6 places” (Park, [37]). In Park, the court concluded that the notification did not meet the requirement in s. 66(2)(d)(ii).
On the application of the same agreed principles of statutory interpretation to the relevant facts in Singh the Full Court held the notification met the criterion in s. 66(2)(d)(ii).
Applying the relevant principles to this case
I have concluded that the notification of the delegate’s decision dated 28 June 2018 stated the time in which the application for review may be made in a way which was complete and clear in compliance with s. 66(2)(d)(ii).
The notification dated 28 June 2018, under an appropriate heading, “review rights”, set out in a straightforward way that:
An 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 have received this letter.
Also, under an appropriate heading, “receiving this letter,” in its relevant part the notification read:
Receiving 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
With reference to those two statements, in my assessment, the notification was capable of being understood by a person exercising reasonable care in the circumstances to understand that a review to the Tribunal must be made within 21 days of 28 June 2018.
In my assessment, the extent to which a notification letter needs to state the import of s. 494C and s. 494D of the Act will depend on how the letter is crafted. Under s. 493C(5) if the Minister gives a document to a person by email “the person is taken to receive the document at the end of the day on which the document is transmitted”. The letter in this case, by reasons of the words under the heading “receiving this letter” which I have set out above, was clear and complete as to that issue. Under s. 494D(2), if the Minister gives a document to an authorised recipient, and I repeat that in this case the Applicant had nominated her migration agent as the authorised recipient for correspondence, the Minister is taken to have given the document to the Applicant.
In Singh, Thawley J noted that there was no confusion as to the headings under which the relevant time period for a review application was stated (at [13]). So too, in this case, the identification of the relevant time period under the appropriate headings “review rights” and “receiving this letter” created no confusion.
In Singh, there was no confusion arising from the fact that the date the notification was received had to be determined by reference to an email which was “external” to the notification letter. In Singh, the notification letter was communicated by an email sent on the same date as the notification letter bore (see, Singh, [17]). So too in this case, the letter notifying the delegate’s decision was dated 28 June 2018 and was emailed to the nominated email address on the same date, 28 June 2018.
The notification in this case did not have the confusion present in Park of being a communication to six applicants in a nine-page letter, where the 21 day period was referred to in six places. This was a shorter letter, to a single applicant, which referred once to the 21 day period in which the application for review may be made.
In Sandor, Markovic J had concluded that the recipient of the notification would need to “piece together the facts” to ascertain period for the application. Here, the objective facts were apparent on the face of the letter: a notification transmitted on 28 June 2018 which expressly stated that an application to the Tribunal must be made within 21 days. In my assessment, in contrast to Sandor, the recipient is not required to “piece together the facts” to understand when a review application must be made.
The fact that the decision notification was sent to the nominated email address of an authorised recipient and not directly to the Applicant – and therefore the Minister calls in aid s. 494D to make the notification effective – did not mean that the letter did not state the time in which the application for review may be made. There ought to be a harmonious interpretation of s. 66(2)(d)(ii) and the miscellaneous provisions in Part 9 of the Act and, specifically, s. 494D(2) which provides that if the Minister gives a document to the authorised recipient the Minister is taken to have given the document to the first person. The notification was sent to a recipient the Applicant herself had nominated.
Finally, although I wish to emphasise that whether a notification complies with s. 66(2)(d)(ii) must be determined by reference to the terms of the notification, in the Applicant’s late application to the Tribunal made on 1 August 2018 she herself included a note that the “department decision notification date” was 28 June 2018. The evidence in this case therefore was that the Applicant was not in fact confused as to the notification date of the delegate’s decision. This evidence fortifies me in my conclusion that the notification of the delegate’s decision to the Applicant complied with s. 66(2)(d)(ii).
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the costs of the First Respondent fixed in the amount of $8,371.30.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate: CH
Dated: 7 March 2025
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