ANP23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1153
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153
File number: MLG 337 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 7 November 2024 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16
Migration Act 1958 (Cth), ss 36, 66, 360, 412, 425, 441A, 441C, 476, 477, 494B, 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
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Ali v Minister for Home Affairs [2019] FCA 1102
Awon v Minister for Immigration & Border Protection [2015] FCA 846
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
CAV18 v Minister for Home Affairs [2020] FCA 173
CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199
CQP15 v Minister for Immigration & Border Protection [2017] FCA 854
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
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
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, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941
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
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 128 Date of hearing: 17 September 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 337 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANP23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in this proceeding.
2.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) 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 Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 6 January 2021 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Items 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to proceedings in a court that are not finalised before the transition time and that relate to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 1-3, 19 & 29). She first arrived in Australia in September 2018 as the holder of a visitor visa (CB 8).
On 17 December 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-18). The applicant provided a copy of her Malaysian passport with that visa application (CB 19). In her visa application, the applicant did not appoint an authorised recipient (to receive communications about her visa application on her behalf) but did provide her own email address (the “nominated email address”) and agreed to the Department of Home Affairs (the “Department”) communicating with her electronically using that nominated email address (CB 5).
On 3 January 2019, the Department acknowledged receipt of the applicant’s visa application and asked her to provide fingerprints, a digital photograph and certified copies of her current and previous passports (CB 20-28).
On or about 5 January 2019, the applicant provided the Department with a certified copy of her current passport (CB 29).
On 13 November 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 34-39). The applicant was notified of the delegate’s decision by letter dated 13 November 2019 (the “Minister’s notification letter”) (CB 30-33). The Minister’s notification letter was sent to the applicant via email to her nominated email address, together with a copy of the delegate’s decision (CB 30-39).
On 25 June 2020, the applicant filed an application for review of the delegate’s decision with the Tribunal (CB 40-41). The applicant asked the Tribunal to send correspondence to her directly and again provided her nominated email address so that the Tribunal could do so (CB 41).
On 25 June 2020, the Tribunal invited the applicant to comment on the validity of her application for review (the “invitation letter”) (CB 46-47). That invitation letter was sent to the applicant via email to her nominated email address (CB 45) and relevantly provided as follows (CB 46):
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 13 November 2019 meaning that 13 November 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 10 December 2019. As the application was not received until 25 June 2020, 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 9 July 2020. 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 29 June 2020, 1 July 2020, 2 July 2020 and 3 July 2020, the applicant responded to the Tribunal by sending blank emails (CB 48, 50 & 52-54). The Tribunal responded to the applicant’s emails (on 30 June 2020, 2 July 2020 and 3 July 2020) advising her that the emails received from her were “blank” and asking her to resend her response (CB 49, 51 & 55).
On 3 July 2020, the Tribunal spoke with the applicant (by telephone) regarding her response to the invitation letter. The Tribunal’s case notes in this regard read as follows (CB 56):
Applicant sent through another application form that did not adequately respond to PNJ letter. Called applicant and spoke to her - informed her to supply us with relevant documentation such as statements etc and the availability of interpreters
On 6 January 2021, the Tribunal determined that, because the review application had not been received within the prescribed time period, the application was not valid and, as such, the Tribunal had no jurisdiction in relation to the matter (CB 59-61).
The Tribunal notified the applicant of its decision by way of a letter dated 7 January 2021 (the “Tribunal’s notification letter”) (CB 58). The Tribunal’s notification letter was sent to the applicant (via email to her nominated email address) on 7 January 2021 (CB 57). The applicant was also given a “fact sheet” containing “information about decisions” and explaining how the applicant could seek review of the Tribunal’s decision (CB 62-64). Relevantly, that fact sheet stated (CB 63):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 1 March 2023, the applicant applied to this Court for review of the Tribunal’s decision. The application was accompanied by an affidavit (deposed by the applicant on 2 February 2023 and filed by the applicant on 1 March 2024) annexing a copy of the Tribunal’s decision.
Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act. In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has determined that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time and the applicant’s supporting affidavit (taken as read and in evidence at the hearing), both filed by the applicant on 1 March 2023, a court book numbering 66 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 5 June 2024.
Procedural orders were made by Registrar Downing of this Court on 3 July 2023 giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
On 15 May 2024, a callover was undertaken by Registrar van der Westhuizen of this Court. Orders were made at the callover transferring the application to the Perth Registry of the Court (noting that the applicant had indicated that she now lives in Western Australia) and giving the applicant a further 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 applicant appeared at a hearing of the application for an extension of time before this Court on 17 September 2024 without legal representative. She was assisted at that hearing by an interpreter in the Malay language.
The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not legally represented, the Court explained to her that in this matter, the Tribunal’s decision is dated 6 January 2021 and, as such, the date by which the applicant was required to file her application in this Court was 10 February 2021. The applicant did not file her application for judicial review in this Court until 1 March 2023. Hence, as was explained to the applicant, the delay here is 749 days.
The Court also explained to the applicant that, despite the late filing of a substantive application for judicial review, an applicant may ask the Court for an extension of time within which to file their substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided one “ground” which explained why she believes that an extension of time should be granted.
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant the applicant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court explained to her that the factors which may be considered in this regard are not limited. However (as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(c)the length of delay;
(d)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(e)whether the explanation for the delay is adequate; and
(f)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will make that assessment at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to highlight anything that she considered relevant to her request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
As this Court has previously noted, an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [24]), the delay in this matter is 749 days. This is an extraordinary delay and weighs heavily against the granting of an extension of time.
Prejudice
In written submissions before this Court, the Minister conceded that there was no prejudice to him in granting an extension of time “beyond the public interest in the finality of administrative decision making”.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in filing an application, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
Here, the applicant’s “ground” for an extension of time provides as follows (without alteration):
1.When my visa refused i dont get an any email, because i was run out of recharge for ages. I am not recharge my phone because i was run out of money due my seosoner job finish. When i got next job i recharge my phone than i am notice that my visa has been refused and past 28days that immigration give to me. I am try to summit to AAT but it was too lates.
Essentially, the applicant claims that she was unable to access her emails and was therefore unaware of the Tribunal’s decision (affirming the delegate’s decision to refuse to grant the applicant the visa).
The Court notes that the Tribunal notified the applicant of its decision by transmitting the document (together with the Tribunal’s notification letter and a “fact sheet”) to the applicant’s nominated email address on 7 January 2021 (CB 57-64). That email address was provided by the applicant in her Tribunal review application (CB 41). The Court further notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter where the notification was sent to the applicant via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case at the end of the day it was transmitted), regardless of whether the document was actually received or the email was in fact accessed by the applicant: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [36].
The Court also notes that, on 28 January 2021, the applicant emailed the Tribunal in relation to her visa status (seemingly in response to the Tribunal’s notification letter) (CB 65). That email correspondence reads as follows (without alteration):
DIVISION: Migration & Refugee Division
APPLICANT: [name omitted]
EMAIL: [email address omitted]
CASE NUMBER: [case number omitted]
DIBP REFERENCE(S): [reference number omitted]
COUNTRY OF REFERENCE: Malaysia
MEMBER: [member name omitted]r
DATE: 6 January 2021
PLACE OF DECISION: Melbourne
DECISION: The Tribunal does not have jurisdiction in this matter.hi..
I just read your email.
and I check the vevo my visa expire on 10feburary 2021. do you have any solution for continue my visa.
It appears from the above that the applicant was aware of the Tribunal’s decision from as early as 28 January 2021. Further, there is no evidence before this Court to suggest that the applicant attempted to contact the Tribunal or take any action in relation to seeking review of the Tribunal’s decision between 28 January 2021 (when the applicant contacted the Tribunal about the decision and her visa status) and 1 March 2023 (when the applicant sought review of the Tribunal’s decision in this Court). For example, the applicant did ask the Tribunal for a further copy of its decision (if, in fact, she had not received a copy as she claims) or make any enquiries in relation to what she might do if she was not satisfied with the Tribunal’s decision.
In oral submissions before this Court the applicant stated that she had sought the assistance of some friends to make her application to this Court. When she had received no feedback or updates in relation to her matter, the applicant then sought the assistance of another friend (who was working in the mines in Kalgoorlie) and that friend helped her to “check online” for an application. As explained by the applicant, when they found that no application had been made on the applicant’s behalf, that other friend assisted her with making her application.
The applicant did not make any claims in relation to any assistance sought from a migration agent or legal representative. Nor is there any evidence before the Court to suggest that the applicant was represented (by a registered migration agent or qualified legal practitioner) at any time.
Insofar as the applicant (arguably) claims that she did not file on time because she needed the assistance of a friend to do so or was unsure of what was required of her, the Court sympathises. Ignorance, however, is no excuse. As explained in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant here does not appear to have done that. There is no evidence here, for example, to indicate that the applicant sought assistance from the Court or the Tribunal about what was required of her.
The explanations provided by the applicant do not account for the extraordinary delay in this matter.
This weighs against the granting of an extension of time.
Merits
The most critical factor for consideration when determining whether the Court ought to grant an extension of time is whether the proposed application for judicial review has any “prospect of success” (viewed at an impressionistic level only).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what she thought the Tribunal “did wrong” in relation to her matter.
To assist the applicant, the Court explained to her that the only issue before the Court was whether there is an arguable case (viewed impressionistically) that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, 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 fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)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 whether there is an “arguable case” that 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 she was not given the opportunity to attend a hearing before the Tribunal.
The Tribunal’s decision
When considering the merits of any proposed application for judicial review, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision is three pages long and spans twelve paragraphs. In full, the Tribunal’s decision provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 13 November 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 25 June 2020. 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 13 November 2019 and dispatched by email.
4.The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of ss.494B and 494C of the Act (which deal with notification by email), and that it complied with s.66(2) of the Act, as it specified the criterion / provision upon which the visa was refused, gave written reasons, specified that the decision was reviewable by the Tribunal, specified the time in which the review application had to be lodged, specified who could apply for review, and specified where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.
5.On 25 June 2020, the Tribunal wrote to the applicant to advise that it appeared that her application was not a valid application as it was not lodged within the relevant time limit. The Tribunal advised that, 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 that an applicant is notified of the decision. The Tribunal further noted that 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 Tribunal noted that the primary decision was emailed to the applicant on 13 November 2019, meaning that 13 November 2019 was the date on which she was taken to have been notified. The Tribunal advised that in accordance with DZAFH, the last day for lodging the application for review was 10 December 2019, but as the application was not received until 25 June 2020, it appeared to be out of time. The applicant was requested to make any comments he wished to regarding the validity of the review application by 9 July 2020, and was advised that any comments she made would be referred to a Tribunal Member, who would make the ultimate determination of whether the review application was validly made.
6.On 30 June 2020 and 2 July 2020, the applicant responded by sending a blank email to the Tribunal. On each of these occasions, a Tribunal officer emailed the applicant to advise that no response had been attached, and that she should provide a response by the due date. The Tribunal’s records also indicate that Tribunal officers made several unsuccessful attempts to telephone the applicant on 2 July 2020.
7.On 3 July 2020, the emailed a copy of her review application. On the same date, a Tribunal officer responded by email noting that the applicant had made several attempts to respond to the Tribunal’s letter but appeared not to have done so successfully. The Tribunal officer suggested that the applicant call the Tribunal, noting that this could be done with an interpreter arranged by the Tribunal, in order to discuss her response to the Tribunal’s letter. Subsequently on the same date, the applicant again sent a copy of her original review application to the Tribunal.
8.The Tribunal received no further communication from the applicant after this date.
9.It is not disputed that the Department notification email was sent to the applicant on 13 November 2019. The Tribunal notes that s.494C(5) of the Act provides as follows (Tribunal’s emphasis):
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.
10.Therefore, the Tribunal finds that the applicant is taken to have been notified of the decision on 13 November 2019: s.494C(5) of the Act. There is no discretion in the Act or Regulations to overlook or waive s.494C and its requirements. Therefore, the prescribed period for lodgement of the review ran from 13 November 2019 and ended on 10 December 2019.
11.As the application for review was not received by the Tribunal until 25 June 2020, the Tribunal must find that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
12. The Tribunal does not have jurisdiction in this matter.
Proposed application for judicial review
The application for judicial review (filed by the applicant on 1 March 2024) includes two proposed grounds of review as follows (without alteration):
The Immigration do not make it’s decision on according in law in that:
1-The immigration commited Jurisdiction error by taking indoor account relevant consideration.
2- The immigration was made decision without looking at the evidence
The applicant also filed an affidavit in support of her application for judicial review. That affidavit annexed a copy of the Tribunal’s decision.
The grounds of review reference errors being made by “immigration”. To the extent that the applicant is raising concerns in relation to the delegate’s decision, this Court has no jurisdiction to review that decision: s 476(2) and s 476(4) of the Act.
The applicant in this matter appeared before this Court without legal assistance. In the circumstances, the Court will, in its duty to her as an unrepresented litigant, read the applicant’s proposed grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Whether the Tribunal was correct in determining that it had no jurisdiction in this matter
Noting the principles in MZAIB, the Court has considered for itself whether the applicant was properly notified of the delegate’s decision and whether, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
This Court has provided a detailed overview of the core requirements for notification letters broadly in its decisions in CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (“AGS20”)).
These judgments also provide an overview of the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”).
The Court repeats the analysis of these cases provided in its previous judgments below.
Sandor addressed 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 clarified the relevant case law in that regard. It is noted, however, that Sandor considered that issue within the specific context of a notification letter that was sent to an appellant (or applicant) via his or her authorised recipient.
There is no evidence before this Court that the applicant had nominated an authorised recipient to assist her with her application before the Department or the Tribunal. In those circumstances, it is unnecessary for the Court to consider or address the decision in Sandor as it does not apply to the circumstances of this matter.
As previously explained by this Court in Singh and AGS20, 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 did not require the applicant to do so.
The Court is satisfied that this matter is distinguishable from Sandor on its facts.
The analysis provided in the judgments referenced above (at [62]) in relation to the core requirements for notification letters is otherwise repeated (with minor amendments) below.
The Act and Migration Regulations 1994 (Cth) (the “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 properly 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 must be made.
At the time of the delegate’s decision (being as at 13 November 2019), Section 412(1)(b) of the Act required that an application for review of a Part 7-reviewable decision 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 was (at the time of the delegate’s decision) outlined in reg 4.31(2) of the Regulations which provided as follows (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, at the time of the delegate’s decision, relevantly provided 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.
In this matter, a delegate of the Minister refused to grant the applicant the visa on 13 November 2019 (CB 34-39). As outlined above, the Department was then required to notify the applicant of that decision “in a prescribed way” (see s 66(1) of the Act as set out in s 66(2) of the Act).
The applicant answered “no” to the question of whether she “authorise[d] another person to receive communication about [her] application on [her] behalf” in her visa application. Further, the applicant provided an email address and agreed for the Department to communicate with her electronically using that email address (CB 5).
The applicant was sent notification of the refusal decision via email on 13 November 2019. That email was sent to the nominated email address included by the first applicant in her visa application (CB 30). The notification comprised a letter from the Department (addressed to the applicant) with notification of the delegate’s decision (CB 30-33) and a copy of that decision (CB 34-39).
The notification letter in this matter satisfied the requirements set out in s 66(2) of the Act by:
(a)stating that the applicant had not satisfied s 36(2) of the Act, being a criterion for the grant of the visa (CB 30);
(b)referencing annexed written reasons which detailed that delegate was not satisfied that the applicant satisfied ss 36(2)(a) or 36(2)(aa) of the Act (CB 30 & 38-39): s 66(2)(a) of the Act;
(c)annexing those written reasons which outlined why the visa criteria was not satisfied: s 66(2)(c) of the Act;
(d)detailing the applicant’s review rights as follows (CB 30-31):
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.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
(e)providing information about how to lodge an application for review with the Tribunal (CB 31) as per s 66(2)(d) of the Act.
As outlined above, the Department correctly sent the notification letter to the nominated email address included in the applicant’s visa application – being the last email address provided to the Department for the purpose of receiving documents: s 494B(5)(d) of the Act.
The Department is permitted to communicate with an applicant by email pursuant to ss 494B(5)(b) and 494B(5)(d) 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 applicant did not receive those documents for any reason.
Further, by sending the document by one of the methods set out in s 494B or s 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 at [36] per Barker J.
The applicant here is thus taken to have received that notification at the end of the day on 13 November 2019 (being the date on which it was transmitted to her via email) regardless of whether or not she actually received the documents.
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 (“BMY18”); 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 (“Abbas”). 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 relies on and repeats its analysis as provided 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.
Here, under the heading “Review Rights”:
(a)the letter clearly states that “[an] application for merits review” must be given to the Tribunal “within the period of 28 calendar days, commencing on the day you are taken to have received this letter” (CB 30-31); and
(b)the letter goes on to state that “[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” (CB 31).
Here, as in Abbas, the notification letter is clear. The layout is not confusing. A clear heading is used that provides an unambiguous “signpost” which allows the applicant to identify the information that she requires.
On the basis of the above, the Court is satisfied that the Minister’s notification letter in this matter satisfied the requirements of s 66(2)(d)(ii) of the Act.
Having been validly notified of the delegate’s decision (and that Minister’s notification letter having satisfied the requirements set out in s 66(2)(d)(ii) of the Act) on 13 November 2019, the time within which the applicant could seek review of the Tribunal’s decision “began running” on that date (being 13 November 2019).
The applicant was required to file her review application within 28 calendar days, commencing on the 13 November 2019 (being the date the notification of the delegate’s decision was deemed to have been received). The applicant was therefore required to file her review application with the Tribunal on or before 10 December 2019.
Here, the Tribunal review application was not lodged online by the applicant until 25 August 2020 (CB 89-97). The application was therefore lodged more than eight months out of time.
In circumstances where the application for review was lodged outside of the prescribed time period, the Tribunal was correct to find that it did not have jurisdiction in the matter: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] per Charlesworth J. Further, the Tribunal did not have any discretion or any power to extend the period for the lodging of a valid application for review once it is evident that the 28 day time period had not been complied with: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 at [83]; Awon v Minister for Immigration & Border Protection [2015] FCA 846 at [38]-[39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [7] and Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460 at [48].
For the reasons set out above, the Court is satisfied that the applicant was properly notified of the delegate’s decision and, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
No arguable case of jurisdictional error arises in this regard.
Proposed grounds of review
Proposed ground one
As outlined above, proposed ground one relevantly states:
The Immigration do not make it’s decision on according in law in that:
1-The immigration commited Jurisdiction error by taking indoor account relevant consideration.
Here, the applicant appears to allege that the Tribunal either took into account irrelevant information or failed to take into account relevant information or considerations.
The Court notes that the only issue for the Tribunal to determine in this matter was whether the applicant’s review application had been filed with the Tribunal within the prescribed period. The Tribunal correctly identified that issue and considered the relevant legislation and case law in that regard.
To the extent that the applicant suggests that the Tribunal failed to consider any information, the Court disagrees.
As outlined above, the Tribunal invited the applicant to comment on the validity of her application for review on 25 June 2020 (by way of the invitation letter at CB 46-47). The invitation letter was sent to the applicant via email sent to her nominated email address (CB 45) and stated as follows (CB 46):
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 13 November 2019 meaning that 13 November 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 10 December 2019. As the application was not received until 25 June 2020, 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 9 July 2020. 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.
As set out above, the applicant sent numerous blank emails to the Tribunal in response (on 29 June 2020, 1 July 2020, 2 July 2020 and 3 July 2020, see CB 48, 50 & 52-54). The Tribunal responded to those emails (on 30 June 2020, 2 July 2020 and 3 July 2020) advising the applicant that the emails received from her were blank and asking her to resend her response (CB 49, 51 & 55).
On 3 July 2020, the Tribunal spoke with the applicant (by telephone) regarding her response to the invitation letter. The Tribunal’s case notes in this regard read as follows (CB 56):
Applicant sent through another application form that did not adequately respond to PNJ letter. Called applicant and spoke to her - informed her to supply us with relevant documentation such as statements etc and the availability of interpreters
Ultimately, after not being able to obtain an adequate response from the applicant to the invitation letter (despite giving the applicant more than six months to provide such a response), the Tribunal determined (on 6 January 2021) that, because the review application had not been received within the prescribed time period, the application was not valid and, as such, the Tribunal had no jurisdiction in relation to the matter (CB 59-61).
Once the Tribunal had reached that conclusion, there was no valid application before the Tribunal and it was therefore not required (and, in fact, had no power) to consider any additional materials.
No arguable case of jurisdictional error arises in relation to proposed ground one.
To the extent that the applicant suggests that the Tribunal failed to consider her protection claims or evidence provided by her in support of her visa application, the Court will address those concerns below in relation to proposed ground two.
Proposed ground two
Proposed ground two provides as follows:
The Immigration do not make it’s decision on according in law in that:
…
2- The immigration was made decision without looking at the evidence
Here, the applicant appears to suggest that the Tribunal failed to look at the evidence. As outlined above, the applicant did not provide any meaningful response to the invitation letter sent by the Tribunal.
In those circumstances, any suggestion that the Tribunal failed to look at evidence can only be reference to evidence provided by the applicant in relation to her visa application (that is, evidence relating to the applicant’s protection claims).
As discussed above, the applicant in this matter did not make a valid application for review to the Tribunal (because her review application was filed outside of the requisite time period). As a result, the procedural fairness obligations set out in Division 4 of Part 7 of the Act (at the time of the Tribunal’s decision) did 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 in relation to the applicant’s visa application.
Further, even if the Tribunal wanted to consider the applicant’s review application further or give consideration to the applicant’s visa application (and the relevant evidence provided with that application), it was prevented from doing so in circumstances where the application for review to the Tribunal had not been made within the requisite time period. Further, as set out above, the Tribunal had no discretion (nor the power) to extend the timeframe within which the applicant could make her application to the Tribunal.
No arguable case of jurisdictional error arises in relation to proposed ground two.
The applicant’s oral submissions
When the applicant appeared before this Court, she raised a concern that she was not given the opportunity to attend a hearing before the Tribunal.
To the extent that the applicant suggests that the Tribunal should have invited her to attend a hearing before it (as was required by s 425(1) of the Act at the time of the Tribunal’s decision), the Court disagrees for the reasons that follow.
As this Court has previously outlined in Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640 (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108), the issue of whether or not the Tribunal is under any obligation to invite an applicant to attend a hearing in matters such as this (where the Tribunal has correctly determined that it has no jurisdiction to review the matter) has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”) (in relation to relevantly similar provisions set out in s 360(1) of the Act).
In Benissa, the Federal Court relevantly determined as follows:
28.In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29.Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30.The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31.The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32.In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33.First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34.Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35.Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36.Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
In this matter, as in Benissa, the issues arising for consideration by the Tribunal related to whether it had jurisdiction in the matter and not in relation to the decision under review itself (that is, whether or not the applicant should have been granted the visa).
In the circumstances, the Court is satisfied that the applicant suffered no practical injustice arising from the Tribunal denying her a hearing concerning the question of jurisdiction. The Court is also satisfied that there was no obligation arising from the requirements of procedural fairness (in s 425(1) of the Act) for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s proposed “grounds of review” and oral submissions (assessed at a reasonably impressionistic level only), do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable case of error on the part of the Tribunal.
This weighs heavily against granting an extension of time.
CONCLUSION
The lack of any satisfactory explanation for the lengthy delay in filing and lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 November 2024
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