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:

1. 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.

2. 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 (the Tribunal). The letter included the warning:

   This review period is prescribed in law and an application for merits review may not be accepted after that date.

3. Mr Annon filed his application for review with the Tribunal on 16 August 2019. The Tribunal wrote to the applicant shortly afterwards to point out the application for review was filed one day outside the review period.

4. Mr Annon’s agent argued the commencement of the review period had not been triggered because the notification letter was faulty. The Tribunal disagreed. It decided the notification letter was in order, which meant the review period commenced on 25 July 2019 – ie, the day when notice of the decision was sent by email. The Tribunal concluded the application was filed out of time which meant the Tribunal did not have jurisdiction to entertain the application. The Tribunal’s jurisdiction decision was made on 6 January 2020.

5. Mr Annon has sought judicial review of the Tribunal’s jurisdiction decision.

6. The minister argues the Tribunal’s decision is not affected by material jurisdictional error. The minister adds there is no point in providing a remedy even if there was a defect in the notice. The minister explained it would be pointless to send the matter back to the Tribunal because Mr Annon did not have a valid nomination for a training position from an approved sponsor at the time of the decision.

7. I am satisfied the notification letter was not defective and that the review period commenced on 25 July 2019. That means the application was out of time. The Tribunal’s decision with respect to jurisdiction is not affected by material jurisdictional error. That means Mr Annon’s application for judicial review must be dismissed. I explain my reasons below.

   WHAT HAPPENED?

8. Mr Annon is a citizen of Bangladesh. He applied for the visa on 13 June 2019. His application form is reproduced in the court book (exhibit one) at pp 1ff. The form asked Mr Annon to nominate an email address to which all its correspondence – including notice of the ultimate decision – would be directed. Mr Annon gave the email address of his migration agent.

9. The Department of Home Affairs wrote to Mr Annon at the agent’s email address on 13 June 2019. The letter acknowledged receipt of the application: court book at pp 21-23. On 24 June 2019, the department wrote another letter to the applicant at that address. The letter said it appeared Mr Annon had not received a valid nomination from an approved sponsor. The letter asked Mr Annon for his comment on the implications for his application.

10. The absence of a valid nomination from an approved sponsor was important given the requirements in cl 407.214 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The Regulations make clear there must be a valid nomination at the time of the decision. If there was no valid nomination at that point in time, the application must be refused.

11. 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

12. 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.

13. 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.

14. 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 ANNON

    Notification of refusal of application for a Training (class GF) Training (subclass 407) visa

    Refused Applicant

    I wish to advise you that the application for this visa has been refused on 25 July 2019 for the following applicant:

Client Name	Inshanul Ahad ANNON
Date of Birth	XXXXX XXXXX

The applicant did not satisfy the provisions of the Migration Regulations 1994.

The attached decision record provides detailed information about this decision as it applies to this 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.

You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

[End page one]

This review period is prescribed in law and an application for merits review may not be accepted after that date.

Your immigration status

During the processing of your visa application, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for merits review of this refusal decision then that bridging visa will remain in effect during the merits review proceedings. Otherwise your bridging visa will cease 35 calendar days after the date of the decision. More information on bridging visas is available on our website Australia

You must depart Australia by the date your bridging visa ceases. If you stay in Australia after the date your bridging visa ceases (and you do not hold another visa) you will be here in Australia unlawfully. This has serious consequences including possible detention and removal from Australia.

If there are reasons why you cannot depart Australia by the time your visa ceases, you should contact us as soon as possible. Our contact details are available on our website immi.homeaffairs.gov.au/help-support/contact-us/

Lodging another application

While you are in Australia, you can only lodge another application in very limited circumstances for a visa to allow you to remain in Australia. Refer to Form 1026i Limitations on Applications in Australia available at immi.homeaffairs.gov.au/help-support/departmentalforms/pdf-forms

If you lodge a new application, you may be granted a bridging visa which will remain in effect until you are notified of a decision on that application.

Any new application will be considered on its individual merits.

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).

[End page two]

Online

of the Administrative Appeals Tribunal

New South Wales Level 6 83 Clarence Street Sydney NSW 2000	Victoria Level 4 William Street Melbourne VIC 3000	Western Australia Level 13 111 St Georges Terrace Perth WA 6000
South Australia Level 2 1 King William Street Adelaide SA 5000	Queensland Level 6 295 Ann Street Brisbane QLD 4000
Tasmania 39-41 Davey Street Hobart TAS 7000	Australian Capital Territory Level 8 14 Moore Street Canberra ACT 2601

Alternatively, review application forms can be lodged by email to [email protected] or by fax to 02 9276 5599 or 03 9454 6999 or 07 3052 3069. Make sure to include a copy of this letter and the attached decision record when lodging any application for review.

Further information about the merits review process is available from the AAT on the Tribunal website or by telephoning 1800 228 333.

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.

Visa application charge

The visa application charge which has already been paid can only be refunded in limited circumstances, regardless of the application outcome.

A receipt for your payment is available through your ImmiAccount.

Bridging visa application lodgement

ImmiAccount cannot be used to lodge further Bridging visa applications linked to this application. Applications for a bridging visa while you are seeking review of a decision must be made using Form 1005 Application for a Bridging visa.

[End page three]

Form 1005 is available on our website immi.homeaffairs.gov.au/help-support/departmentalforms/ pdf-forms

Yours sincerely

…

THE TRIBUNAL’S DECISION

1. 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.

2. The Tribunal was not persuaded the notification letter was defective. It affirmed the decision under review on 6 January 2020.

   THE APPLICATION FOR JUDICIAL REVIEW

3. That brings us to the application for judicial review. The application identified two grounds. The first asserts the “AAT has jurisdiction in my matter” while the second contends the applicant was denied procedural fairness. The grounds were not otherwise particularised. The applicant – who was not represented – was unable to explain what was meant by either ground when I discussed them with him at the hearing. Mr Annon candidly admitted he was hoping for some additional time so he could obtain a further visa, although he was unsure how that would occur.

4. I assume the first ground to be a generalised claim that the Tribunal failed to correctly apply the law when it evaluated the notification letter and concluded it did not have jurisdiction.

5. I have already explained s 347(1)(b) of the Act says an applicant who wishes to seek review of a delegate's decision must apply to the Tribunal within the time prescribed by law (ie, within 21 days after the day on which the applicant receives notice of the delegate's decision). The Act does not provide any discretion to extend the review period where an application is lodged late. The system is a strict one: if the applicant is late in lodging an application for review, that is too bad.

6. The real issue in this case is whether the notification letter which triggered the start of the review period was valid. If the notification was defective, the review period did not commence after 25 July 2019 when the email was otherwise deemed to be received pursuant to s 494C(5) of the Act.

7. Section 66(2)(d) of the Act sets out what information must be included in a valid notification letter in a case like this. The notification must 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

   …

8. A cursory reading of the text of the notification letter I reproduced at [14] reveals references to all the individual matters referred to in s 66(2)(d) of the Act. The letter:

   ·says the decision can be reviewed (on p 1);

   ·says the application must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (on p 1) and later explains (at the bottom of p 3): “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”;

   ·says the applicant is the person who may seek the review (on p 1); and

   ·provides the contact details for the Tribunal (on p 3).

9. While all the information is present in the letter, the case law makes clear that it must be presented in a proper and understandable way.

10. In written submissions to the Tribunal, the applicant’s agent referred to the decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17). That decision discussed the requirements of a valid notice in compliance with s 66(2) of the Act. Perram J said the requirement in the Act that the notification ‘state’ information must be read in light of the fact the notification letter triggered a review process. An incomplete or obscure statement of required information might prevent an individual from effectively engaging in that review process: at [52]. His Honour explained [57]-[58]:

    57.… The regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear.

    58.I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete … but clear as well.

11. In DFQ17, the Full Court was not satisfied the required information was ‘stated’ within the meaning of the Act because it was presented in a way that “was piecemeal, entirely obscure and essentially incomprehensible”: per Perram J at [62]. His Honour noted the reader of the notification letter in that case would need to glean the required information from different sections of the document that were spread across different pages. The minister in these proceedings pointed out one of the problems the Full Court identified in DFQ17 was the fact the information about the date on which the applicant would be taken to have received the notification was included under a seemingly unrelated heading. I also note the notification letter in DFQ17 was delivered by regular mail rather than email.

12. The minister’s representative referred to several other authorities where courts have considered the contents of notification letters, including Ali v Minister for Home Affairs [2019] FCA 1102, CAV18 v Minister for Home Affairs [2020] FCA 173, Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Sandor), and Abbas v Minister for Home Affairs [2020] FCCA 1051. In each case, the Court examined notification letters provided by the minister’s department. Those letters came in a variety of forms with different headings and text. Some were sent by email and some by regular post; some were addressed to multiple parties. Different time frames applied depending on the category of visa.

13. There is not much point engaging in a forensic case-by-case comparison because each of these cases ultimately turns on its own circumstances. That point was made in Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 where the Full Court held the determination of whether a notification letter adequately states the information in question depends “upon the relevant objective facts and the form of the notification”: at [28] per Perram, Perry and Feutrill JJ. It was a question of fact whether the notification letter in question met the requirements in s 66(2)(d): at [29].

14. It follows I must focus on the contents of the notification letter in question and any relevant circumstances to reach a view as to whether the notification letter meets the requirements of s 66(2)(d) on this occasion.

1. The applicant argued before the Tribunal that the notification letter in this case was defective because it did not expressly identify the actual date by which the appeal must be filed. The applicant’s frustration is easy to understand. The letter would be clearer if it just stated the relevant date rather than requiring the reader to resolve a riddle. The explanation for the department’s approach appears to lie in the awkward wording of s 66(2)(d)(ii) of the Act. That provision requires the letter to refer to “the time in which the application for review may be made” rather than just stating a date. In those circumstances, I do not accept the letter is defective because it included the rules or formula which allowed the reasonably diligent reader to work that date out for themselves – assuming for the moment that the letter set out the necessary information with sufficient clarity.

2. The most concerning aspect of this letter lies in the fact it refers to the time limit within which an application for review must be filed under the heading ‘Review Rights’ on p 1 but does not provide the information required to determine when that 21-day period commenced until p 3. This second integer of the required calculation was provided after setting out the contact details of the Tribunal’s registries. Logically, it would be preferable if the information about the deemed date of receipt were included on p 1 under ‘Review Rights’. Forcing applicants to assemble the necessary information from different parts of the letter is less than ideal, particularly in circumstances where those individuals may not speak English.

3. I note Markovic J in Sandor criticised the fact the letter in that case “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”: at [51]. But there were other features of that letter which compounded the formatting issues. I also do not take her Honour’s observation to be dispositive of the issues in this case because it does not squarely answer the question I must ask: having regard to the text and format of the letter and other relevant matters, does this notification state the matters referred to in s 66(2)(d) with sufficient clarity so that the reader will be equipped to understand and exercise their rights of review?

4. With some hesitation, I am satisfied a reasonably diligent reader in the circumstances of this case would be able to comprehend the information that was provided, even if the letter could have been expressed more clearly. The applicant was told reviews were subject to a strict time limit that commenced the day after the decision was taken to be received, and he was told (elsewhere in the same letter, it must be acknowledged) the letter was taken to be received on that same date it was emailed – and that date was also clear.

5. The required information was all there, and the formatting issues, while unfortunate, were not such that the applicant could be said to have been denied the information he was entitled to receive in an intelligible form. The notification letter certainly did not present the information in a way that was “entirely obscure and essentially incomprehensible”: cf DFQ17 at [62].

6. Writing these letters in plain English is important, not least because many of these applicants do not themselves speak English. It is unclear whether the applicant was able to speak English in 2020. I note he did have the assistance of a migration agent. In any event, it can be assumed the recipient of an official communication from the department would carefully review the information in the letter with the assistance of someone who was able to translate. The required information was included in the letter, and it was not presented in such a way that the applicant would have been unable to understand what was being communicated.

7. It follows the notification letter was not defective, and the time for requesting a review commenced as set out in the legislation. That being so, the applicant’s appeal was filed out of time. The Tribunal had no jurisdiction to proceed with the review in those circumstances and no discretion to extend the time. It follows the first ground of review must fail.

8. The second ground of review must also fail. The Tribunal did comply with all its procedural fairness obligations. It provided notice of the issue in a timely way and invited the applicant’s input. Submissions were delivered but they ultimately made no difference to the outcome. The Tribunal’s performance cannot be criticised in this regard.

   CONCLUSION

9. The application for judicial review must be dismissed. I will hear from the parties as to whether costs should be ordered.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       17 January 2025