Annon v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 22

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Annon v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 22

File number(s): SYG 253 of 2020

Judgment of: JUDGE MCCABE

Date of judgment: 17 January 2025

Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – training visa – whether the Tribunal erred in stating it had no jurisdiction –procedural fairness – no jurisdictional error established – application dismissed.

Legislation:
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:
Abbas v Minister for Home Affairs [2020] FCCA 1051

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

Ali v Minister for Home Affairs [2019] FCA 1102

CAV18 v Minister for Home Affairs [2020] FCA 173

Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136

Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434

Division: Division 2 General Federal Law

Number of paragraphs: 37

Date of hearing: 16 December 2024

Place: Sydney

Applicant: The applicant appeared in person

Counsel for the first respondent: Ms R Francois

Solicitor for the first respondent: Ms S Russo (HWL Ebsworth) for the first respondent

Second respondent: Submitting appearance, save as to costs

Table of Corrections

23 January 2025
In paragraph 38, the statement “provided notice of the hearing in a timely way and invited the applicant’s input” is corrected to “provided notice of the issue in a timely way and invited the applicant’s input”.

ORDERS

SYG 253 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
INSHANUL AHAD ANNON

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE MCCABE

DATE OF ORDER:

17 JANUARY 2025

THE COURT ORDERS THAT:
1.The application for judicial review is 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 MCCABE:

The applicant in these proceedings, Mr Inshanul Ahad Annon, applied for a Training (Class GF) Training (subclass 407) visa (the visa) in 2019. The application was refused by a delegate (the delegate) of the first respondent (the minister). The delegate’s decision was dated 25 July 2019. The decision was transmitted under cover of a notification letter on the same day by email to the email address of his migration agent. The decision was emailed to the agent’s address because Mr Annon had nominated it as his address for correspondence.
The notification letter included information about Mr Annon’s review rights, including information about the time limit for making an application to the Administrative Appeals Tribunal (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Annon v Minister for Immigration and Multicultural Affairs

Details

AGLC: Annon v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 22
Case: [2025] FedCFamC2G 22
Decision Date: 17 January 2025

CaseChat Overview and Summary

In the case of Annon v Minister for Immigration and Multicultural Affairs, the dispute revolves around the refusal of a training visa application and the subsequent review process. The applicant, Mr Annon, sought a review of the decision made by the delegate under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The crux of the matter lies in the timing and validity of the notification letter sent to Mr Annon regarding the refusal of his visa application and the procedural fairness of the process. The Administrative Appeals Tribunal (AAT) dismissed Mr Annon’s application for review, leading to his appeal to the court.

The central legal issues before the court were whether the Tribunal erred in finding that it had no jurisdiction due to the late filing of the review application, and whether there was any procedural unfairness in the handling of Mr Annon’s visa application. Specifically, the court had to determine if the notification letter met the statutory requirements for notifying Mr Annon of the visa refusal, and whether any procedural flaws rendered the review process unfair.

The court examined the statutory provisions and found that the notification letter was indeed compliant with the prescribed methods of communication as outlined in the Act and the Regulations. The court further held that the applicant was deemed to have received the notification on the day it was sent, and thus the application for review was filed just outside the prescribed 21-day period. Despite Mr Annon’s argument that the notification letter was defective for not specifying an absolute date, the court found no jurisdictional error and dismissed the application for review. The court reasoned that the letter clearly indicated the refusal date and complied with the statutory requirements for notification.

The court's decision concluded that the Tribunal did not err in dismissing Mr Annon's application for review, and there was no procedural unfairness. The application was dismissed, and the court upheld the Tribunal’s decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It turns out the entity which had sought to nominate Mr Annon was not approved at the time of Mr Annon’s application for the visa. A delegate subsequently refused that entity’s nomination of Mr Annon on 25 July 2019: see affidavit of Ms Sophia Russo affirmed 9 December 2024 at pp 14-19. The entity sought review of that decision in the Tribunal but the application was withdrawn: affidavit of Ms Russo at pp 27-28.THE DECISION NOTIFICATION LETTER I have already explained the delegate wrote to Mr Annon at his nominated address to advise the application for a visa had been refused. The content and presentation of that letter are important for the purposes of these proceedings. I will begin by noting the formal requirements of a valid notice before describing the notification letter in this case. Section 66(1) of the Migration Act 1958 (Cth) (the Act) says the minister must notify the applicant of the decision in a prescribed way. Communication by email is one of those prescribed methods of communication: see s 494B(5) of the Act and reg 2.16(3) of the Regulations. Importantly, s 494C(5) of the Act deems the applicant to have received the email decision on the end of the day it was sent. It follows that, if the notification in this case was otherwise valid, it was deemed to be received by the applicant on 25 July 2019 because that is the date on which the notification letter was despatched by email. Section 347(1)(b) of the Act says the application for review must be given to the Tribunal within the prescribed period. Reg 4.10(1)(a) says the prescribed period ran for 21 days after the day on which the applicant is deemed to have received the notification. That period ended the day before the applicant filed his application for review. The decision notification letter from the delegate was transmitted to the email address of Mr Annon’s migration agent since that was the email address he had provided. The letter (excluding the email cover page reproduced at p 29 of the court book) is just over three pages in length. The body of the notification letter reads as follows (with personal information redacted):Transmission Method Email sent to [applicant’s nominated email address]Dear Inshanul Ahad ANNONNotification of refusal of application for a Training (class GF) Training (subclass 407) visaRefused ApplicantI wish to advise you that the application for this visa has been refused on 25 July 2019 for the following applicant: The Tribunal invited Mr Annon to comment on the fact the application for review appeared to be out of time if one accepted notification of the delegate’s decision was received on the day it was sent. In written submissions dated 8 October 2019, Mr Annon’s representative argued the notification letter was defective because:The visa refusal letter does not specify a date in absolute terms, rather the notification letter set out the formula contained in the legislative provisions for determining that deadline, along with the parameters to be used in that formula, such as the date the person was taken to be notified.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 253 of 2020
Judgment of:	JUDGE MCCABE
Date of judgment:	17 January 2025
Catchwords:	MIGRATION – review of a decision of the Administrative Appeals Tribunal – training visa – whether the Tribunal erred in stating it had no jurisdiction –procedural fairness – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) Migration Regulations 1994 (Cth)
Cases cited:	Abbas v Minister for Home Affairs [2020] FCCA 1051 DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 Ali v Minister for Home Affairs [2019] FCA 1102 CAV18 v Minister for Home Affairs [2020] FCA 173 Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of hearing:	16 December 2024
Place:	Sydney
Applicant:	The applicant appeared in person
Counsel for the first respondent:	Ms R Francois
Solicitor for the first respondent:	Ms S Russo (HWL Ebsworth) for the first respondent
Second respondent:	Submitting appearance, save as to costs

Table of Corrections
23 January 2025	In paragraph 38, the statement “provided notice of the hearing in a timely way and invited the applicant’s input” is corrected to “provided notice of the issue in a timely way and invited the applicant’s input”.

SYG 253 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	INSHANUL AHAD ANNON Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	17 JANUARY 2025