ATA20 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 142
•10 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATA20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 142
File number: MLG 553 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 10 February 2025 Catchwords: MIGRATION – protection (subclass 866) visa – where application to the (then) Administrative Appeals Tribunal to review delegate’s decision was made outside the time prescribed – where Tribunal found it had no jurisdiction – applicant’s judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision – where application for review was made outside the time prescribed – whether the applicant was notified of the time frame to lodge an application to the Tribunal – whether the delegate’s notification letter was defective – where there is no acceptable explanation for the delay – where the judicial review grounds have no reasonable prospects of success – where application for review of Registrar’s decision has no reasonable prospects of success – application to extend the time prescribed to apply for a review of the Registrar’s decision refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Migration Act 1958 (Cth) pts 5, 7, ss 5H, 5J, 36, 36(2)(a), 36(2)(aa), 66, 66(2)(d)(ii), 66(2)(d), 412(1)(b), 494B(5)(b), 494B(5)(d), 494C(5), 500
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02, 21.02(1), 21.02(2)
Migration Regulations 1994 (Cth) reg 4.31(2)
Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102
ATA20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1452
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15
BMY18 v Minister for Home Affairs [2019] FCAFC 189; 271 FCR 517
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
CAV18 v Minister for Home Affairs [2020] FCA 173
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492
DZAFH v Minister for Immigration and Border Protection [2017] FCA 984
Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 8
SZULH v Minister for Immigration and Border Protection [2015] FCA 835
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 14 January 2025 Date of hearing: 21 January 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mrs S Ward Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 553 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATA20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
10 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application to extend, pursuant to r 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the time within which an application for review of the exercise of a power by a Registrar must be made is refused.
2.The application for review of the exercise of a power by a Registrar filed on 24 December 2024 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 Gostencnik
INTRODUCTION
On 18 February 2020, the applicant sought judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) made on 28 January 2020. The Tribunal determined it did not have jurisdiction to review a decision of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refusing to grant the applicant a protection visa.
In an amended Response to the applicant’s claim for final orders lodged on 18 November 2024, the first respondent sought for the matter to be listed for a summary dismissal hearing pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). On 10 December 2024, Registrar Cummings summarily dismissed the applicant’s application for judicial review as it had no reasonable prospects of success, and ordered the applicant pay the first respondent’s costs in the amount of $4,000.00. The Registrar delivered ex tempore reasons for his decision, and subsequently produced a written version thereof: see ATA20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1452.
On 24 December 2024, the applicant filed an application for review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.02 of the Rules. The application was made outside of the time prescribed by r 21.02(1). However, as will become clear later, the applicant appears to have lodged the application on 18 December 2024, but the application was initially rejected because it was not associated with a file for this matter.
For the reasons that follow, I have decided to refuse to extend time.
BACKGROUND
The applicant, a Malaysian citizen, arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa on 1 January 2019: Court Book (CB)46. On 20 March 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa and was granted an associated Bridging visa: CB11-CB30. On 29 March 2019, the (then) Department of Home Affairs acknowledged receipt of the visa application: CB34-CB38. The applicant’s visa application: CB25 set out that the applicant left Malaysia because she:
·lived alone and did not have anyone to support her; and
·needed to work to pay for her school fees, rent and expenses, including a loan used to buy a car for transportation.
The applicant claimed that returning to Malaysia would mean that she would “have no place to be [as the applicant] was born as a single child and [the applicant’s] parents [left the applicant] at age 17”. The applicant claimed that authorities in Malaysia could not or would not provide protection because “[the applicant] had to survive alone to pay the loan, [the applicant] did not have anyone, and [the applicant] did not want anyone to sympathize with [the applicant]”. The applicant claimed to want to start a new life, to try something new and to experience a new environment where the applicant could safely live.
A delegate of the Minister refused the visa application, and a notification of the delegate’s decision was transmitted to the applicant by email on 16 August 2019: Exhibit A2, Affidavit of Jessica Connolly affirmed 27 November 2024 at [4], annexure JGC-1; CB42. The applicant accepts receiving notification of the delegate’s decision by email on 16 August 2019. The notification attached to the email comprised a notification letter: CB42-CB45, a decision record CB46-CB49, and two attachments including an extract of ss 5H, 5J, 36 to the Migration Act 1958 (Cth) (Act): CB50-CB53. The delegate was not satisfied the applicant is a refugee as defined in s 5H, and the criterion in s 36(2)(a) of the Act is not satisfied for that reason. The delegate was also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm. Consequently, the applicant was not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa): CB49. The notification letter sets out the applicant’s right to seek review of the delegate’s decision: CB42-CB43.
The applicant lodged an application with the Tribunal for a review of the delegate’s decision on 13 September 2019: CB54-CB55. The applicant accepts that the application to the Tribunal was lodged on 13 September 2019. The Tribunal acknowledged receipt of the application on 17 September 2019, noting that the validity of the application had not been assessed and enclosed an ‘Information for review applicants’ factsheet: CB56-CB58. On 7 January 2020, the Tribunal invited the applicant to comment on the validity of the application for review, and informed the applicant that the application appeared invalid as it was not lodged to the Tribunal within the relevant time limit, being 28 days commencing on the day the applicant was notified of the delegate’s decision pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). As the applicant was notified of the delegate’s decision on 16 August 2019, the last date for lodging the application for review was 12 September 2019, meaning the application was 1 day out of time: CB61-CB62. The applicant replied to the Tribunal’s invitation by email transmission on 16 January 2020: CB63, and stated the following (reproduced verbatim):
I was late in submitting my application for review to the AAT because I was confused about the deadline for submitting it. The date for expiry of my visa when I check with myVevo was different from the 28 days timeframe for me to apply for a review.
By its decision made on 28 January 2020, the Tribunal determined that it did not have jurisdiction to deal with the applicant’s application, nor to review the decision by the delegate: CB65. The applicant was provided with a copy of its Statement of Decision and Reasons (Decision) which enclosed an ‘Information about decisions – MR Division’ factsheet: CB66-CB68.
TRIBUNAL’S DECISION AND REASONS
The Tribunal noted that the applicant was notified of the delegate’s decision on 16 August 2019 by letter dispatched by email. The application for review before the Tribunal was required to be made within 28 days commencing on the day the applicant was notified pursuant to reg 4.31(2) to the Regulations. The Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements and as the notification letter was transmitted by email on 16 August 2019, the applicant is taken to have been notified of the decision [at the end of] 16 August 2019. Consequently, the Tribunal found that the last day the applicant could apply for review was 12 September 2019: Decision at [4].
The Tribunal considered the applicant’s response on 16 January 2020 addressing the late application: Decision at [6]-[7]. However, the Tribunal noted that the notification letter set out the applicant’s review rights and was satisfied that the applicant was appropriately notified of the time in which the review may be made: at [8]-[9].
The Tribunal acknowledged that as the applicant lodged her application on 13 September 2019, it was outside of the 28-day time frame to lodge a review application and noted it did not have the power to extend the prescribed time frame: Decision at [10]-[11]. Therefore, the Tribunal concluded it did not have jurisdiction in the matter: at [12].
PROCEEDINGS IN THIS COURT
Application for judicial review
In the earlier noted judicial review application filed on 18 February 2020, the applicant’s grounds of application are as follows (reproduced verbatim):
1.THE STATEMENT MADE ON MY APPLICATION FOR REVIEW DATED 28 JANUARY 2020 BY ADMINISTRATIVE APPEALS TRIBUNAL DECIDED THE TRIBUNAL DO NOT HAVE JURISDICTION ON MY MATTER BECAUSE I LODGED MY APPLICATION AFTER MORE THAN 28 DAYS AND COULD NOT CONSIDER MY SEEKING FOR EXTENTION OF TIME.
2.I SEEKED ASISTANCE FROM A MIGRATIONAGENT WHOM CLAIMED AND SAID THAT WILL HELP ME LODGING MY REVIEW APPLICATION WITH TRIBUNAL ALSO CHARGED ME $250.00 AS A FEES DID NOT SUBMIT MY APPLICATION. THEREFORE A DECISION WAS TAKEN TO FINALISE MY REVIEW WITHOUT GIVING ME A CHANCE TO REPRESENT MY ARGUMENTS WITH EVIDENCES AND ALSO TO REINSTATE MY APPLICATION BY SEEKING EXTENTION OF TIME .WHEN I CONTACTED THE TIBUNAL THROUGH PHONE AND SEEKED ADVICE , TRIBUNAL NEVER TOOK TO CONSIDERATION AND SAID HAVE NO MORE JURISDICTION.
3.ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
4.ASSESMENT IN RELATION TO s5H (2) OF THE ACT TO JUSTIFY ME UNDER A REFUGEE CRITERIAN APPLICANT AND ASSESMENT ACCORDING TO PROTECTION CRITERIAN UNDER s36(2) (aa) OF THE ACT, RELATION TO s36(2C) WAS NOT BEEN MADE IN MY APPLICATION.
5.SEEK THE COURT TO ORDER SECOND RESPONDENT REQUIRING THEM TO DETERMINE MY APPLICATION MADE FOR REVIEW ACCORDING TO THE LAW AND FIRST RESPONDENT TO CONCEDES THAT THE DECISION MADE BY THE SECOND RESPONDENT IF AFFECTED BY JURISDICTIONAL ERROR.
6.THE LETTER NOTIFYING ME THE DECISION FROM THE FIRST RESPONDENT’S DELEGATE REFUSING MY APPLICATION DID NOT CLEARLY STATE THE TIME BY WHICH THE APPLICATION TO THE SECOND RESPONDENT WAS TO BE MADE AS REQUIRED BY s 66(2)(d)(ii) of the Migration Act 1958 (Cth), THE TRIBUNAL ERRED IN CONCLUDING THAT THE REVIEW APPLICATION WAS OUT OF TIME AND HAD NO JURISDICTION TO ENTERTAIN THE MY APPLICATION FOR REVIEW.
7.THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID’NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
8.I SEEK THE COURT FOR JUDICIAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
(emphasis and uppercase in original)
By affidavit affirmed on 18 February 2020 and filed with the judicial review application, the applicant deposes that the Tribunal’s decision is unfair because she “was unaware of the time limit given as it appeared on [the applicant’s] vevo application that [the applicant] still had time” to lodge the application to the Tribunal: Exhibit A1 at [4].
Summary dismissal of the judicial review application
As earlier noted, on 18 November 2024, the first respondent sought for the matter to be listed for a summary dismissal hearing pursuant to r 13.13(a) of the Rules. On 19 November 2024, the Registrar made orders for the applicant to file and serve any amended application for judicial review, written submissions in opposition to the summary dismissal application, and any further evidence in opposition to the summary dismissal application by 6 December 2024. The Registrar listed the summary dismissal application for hearing on 10 December 2024. The applicant did not file nor serve any further material.
On 10 December 2024, the Registrar decided ex tempore to summarily dismiss the applicant’s judicial review application because it had no reasonable prospects of success and as noted earlier, the applicant subsequently applied for review of the Registrar’s decision pursuant to s 256(1) of the FCFCOA Act and r 21.02 of the Rules. That application was made outside of the prescribed time frame. The application for review contains no grounds of application, and no application was made for an extension of time. The applicant seeks an order “[t]o be granted a fair AAT/ART hearing”. The review application was fixed for hearing on 21 January 2025, at which the applicant applied orally for an extension of time to make the review application.
CONSIDERATION
Section 256(1) of the FCFCOA Act permits a party to a proceeding in which a delegate has exercised any of the powers of the Court to apply to the Court for review of that exercise of power. Such an application must be made within the time prescribed by the Rules or within any further time allowed in accordance with the Rules. Rule 21.02(1) provides that an application for review of the exercise of a power by a Registrar must be made within 7 days. The Registrar exercised the summary dismissal power on 10 December 2024 and so the last day to lodge the review application was 17 December 2024. The application was made after the prescribed time frame lapsed. Rule 21.02(2) allows the Court to extend the time prescribed on any terms the Court thinks fit or with the consent of the parties to the proceeding. The first respondent does not consent.
The broad discretion to extend time in r 21.02(2) of the Rules should be exercised in the context of the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. These non-exhaustive principles were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36], [55]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556 at 566, [40]; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12].
Extent and explanation for delay
The application is recorded as having been filed on 24 December 2024, but it seems clear the applicant lodged the application at an earlier time. In email correspondence to the applicant from the Court’s migration team dated 24 December 2024, it is noted that the application for review of the registrar’s decision was received on 18 December 2024 but was waiting for the applicant’s hardship application to be completed. The email correspondence also records that the initial lodgement was rejected because it was not associated with the file but that the applicant need not take any further action because the migration team “re-lodged everything and associated it with the file”. Consequently, I consider that the application for a review of the Registrar’s decision was “made” on 18 December 2024, which means it was made one day outside of the time prescribed.
The period of the delay is, as the first respondent accepts, short. During the hearing, the applicant provided conflicting explanations for the delay. Initially the applicant said that a day or two after the Registrar’s decision summarily dismissing the judicial review application, the applicant met with a Mr Muraval whom she believed to be a lawyer at a Dandenong food court. The applicant said that the lawyer told her that she could lodge a review application and “to leave it with me”. The applicant said that the lawyer did not mention the 7-day period within which a review application may be made. The applicant said that she paid the lawyer a fee of $500 in cash without obtaining a receipt. She said that the lawyer prepared and lodged the review application, and she learned of the lodgement of the review application when she received the hearing notification.
Later, when asked about email correspondence from the Court’s migration team about her review application on 24 December 2024 and her financial hardship exemption application dated 17 December 2024 which the applicant apparently lodged on 18 December 2024 together with the review application, the applicant said that she remembered that the lawyer told her that she had 28 days within which to lodge a review application to the Court. She said that she remembered meeting with the lawyer on 17 December 2024 and that the lawyer had prepared the financial hardship exemption application which she signed. She said that the lawyer did not witness the affidavit contained in the application and that he had told her that he could not do so and so she attended a library to have the affidavit witnessed by a Justice of the Peace.
Mr Muraval was not called to give evidence nor is there any evidence of his involvement in the preparation of any documents lodged in the Court. Neither the application for review nor the financial hardship exemption application indicate preparation by, or involvement, of a lawyer though each makes provision for lawyer details.
I am not persuaded by the applicant’s explanation for the delay. It is inconsistent and not supported by the objective evidence. Furthermore, to the extent that the applicant says she was unaware of the time limit attached to making a review application to the Court, an unrepresented litigant’s ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]. Here, the applicant had the earlier experience of lodging an application with the Tribunal outside of the time prescribed. Moreover, as recently as 10 December 2024 during the proceeding before the Registrar, the consequences of not complying with prescribed time frames were in sharp focus. In these circumstances, a diligent litigant would seek to inquire about any applicable time frames to the exercise of review rights in relation to the Registrar’s decision. Consequently, any lack of awareness by the applicant of the 7-day time frame within which to make an application to the Court does not provide an acceptable explanation for the delay in the circumstances. The absence of an acceptable explanation for the delay weighs against the grant of an extension of time but in the context of the very short period of delay, not significantly.
Prejudice
The first respondent properly accepts there is no substantial prejudice that could not be remediated by a costs order; however, mere absence of prejudice is not enough to justify the grant of an extension of time.
Merits
The applicant’s judicial review grounds are set out in 8 paragraphs in the application, but in substance they may be synthesised as follows:
(1)the applicant sought the assistance of a migration agent whom she paid to lodge the Tribunal application, but the agent failed to do so within the time prescribed;
(2)the Tribunal finalised the review without providing the applicant with an opportunity to present her case;
(3)the Tribunal did not investigate in order to make a decision, it did not follow the Act and it failed to assess the protection visa criteria in s 36 of the Act; and
(4)the delegate’s notification letter did not state the time the application to the Tribunal was to be made as required by s 66(2)(d)(ii) of the Act.
It is convenient to begin with the applicant’s contention that the delegate’s notification letter did not state the time the application to the Tribunal was to be made as required by s 66(2)(d)(ii) of the Act. For the 28-day period within which an application for merits review of the delegate’s decision must be given to the Tribunal to commence to run, the delegate must notify the applicant of the decision as required by 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; 284 FCR 62 at [58], [75]-[76], [78], [103].
Section 66 of the Act required the Minister, when refusing to grant a visa, to notify the applicant of the decision in the prescribed way and relevantly, by s 66(2)(d), required the notification to an applicant who had a right to have the decision reviewed under Part 5 or 7 or section 500 to 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
. . .
As earlier noted, the delegate’s letter contained information about the applicant’s review rights as follows: CB42-CB43:
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.
The delegate was permitted to notify the applicant of the decision by email: ss 494B(5)(b) and (d) of the Act. As outlined above, the applicant was deemed to have received the delegate’s notification letter on the date it was transmitted to her by email: s 494C(5). There is no dispute that the notification letter was correctly transmitted by email to the nominated email address included in the applicant’s visa application – the last email address provided by the applicant for the purpose of receiving documents: s 494B(5)(d) of the Act.
The issue raised by the applicant’s ground of review here is whether the delegate’s notification letter states the time in which the application for review may be made. Guidance in assessing whether a notification letter so states is found in cases such as DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492, BMY18 v Minister for Home Affairs [2019] FCAFC 189; 271 FCR 517, Ali v Minister for Home Affairs [2019] FCA 1102; CAV18 v Minister for Home Affairs [2020] FCA 173, and Singh v Minister for Immigration and Border Protection [2020] FCAFC 31. In sum, a notification letter will state a matter the Act requires, if it does so clearly and completely in a way that the recipient will “reasonably understand”. The notification letter should be read as a whole and so the question whether a notification letter is “clear” will turn on its language and terms when so read by a person exercising a reasonable level of care.
The first respondent submits that the delegate’s notification letter was not defective as found in DFQ17 and BMY18. I consider the first respondent is correct. In the instant case, the notification letter states the time in which the application for review may be made in a manner that is in my view clear. Under a heading “Review Rights” the notification letter states that an “application for merits review of this decision” 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”. In the next paragraph, the notification letter states 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”. The notification letter and the email transmitting it contain the same date (16 August 2019): Exhibit A2 at [4], annexure JGC-1; CB42. Unlike in DFQ17 and BMY18, the layout of the notification letter and its headings are not confusing. To the contrary, the letter uses a clear heading to signpost the applicant’s review rights allowing her to identify the requisite information which the letter must state. For these reasons, I do not consider that this ground of review has any reasonable prospects of success.
For the avoidance of doubt, the notification letter also set out that the visa application was refused because the applicant did not satisfy s 36(2) of the Act – not being a person in respect of whom Australia had protection obligations; it attached written reasons and stated that the decision could be reviewed, that the applicant could apply for the review, and where the review application could be made. And as already mentioned, the notification letter was given to the applicant in accordance with s 494B. It was transmitted by email as permitted by s 494B(5)(b), to the last email address provided to the Minister by the applicant for the purposes of receiving documents as contemplated by s 494B(5)(d). That the email attaching the notification letter was transmitted to the applicant at the correct email address on 16 August 2019 is not in dispute. Thus, there appears no other basis on which it might be said the notification letter was invalid or not received.
Turning then to the other review grounds the applicant advances. The Tribunal determined it did not have jurisdiction to deal with the applicant’s merits review application because the application had been given to the Tribunal outside of the time prescribed.
As the background earlier set out discloses, the delegate refused to grant the applicant a protection visa on 16 August 2019: CB49. A notification letter containing the requisite information, including about the applicant’s review rights, and a copy of the delegate’s decision was transmitted to the applicant by email on that day: Exhibit A2 at [4], annexure JGC-1; CB42-CB53. Because notification of the delegate’s decision was transmitted to the applicant by email, the applicant is taken to have received it at the end of that day, being 16 August 2019. Section 412(1)(b) of the Act (as then in force) required that the application for merits review be given to the Tribunal within the period prescribed. Regulation 4.31(2) to the Regulations (as then in force), required the applicant to give the Tribunal the review application within 28 days of the delegate’s decision, commencing on the notification day. The day the decision was transmitted to the applicant by email – which is the day the applicant is taken to have been notified of the decision – was the first day of the 28-day period: reg 4.31(2); DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5]. The 28-day period therefore commenced on 16 August 2019 and ended on 12 September 2019.
It is not in dispute that the applicant applied to the Tribunal for merits review of the delegate’s decision on 13 September 2019, and as she did so, the application was given to the Tribunal one day outside of the prescribed period. Accordingly, the Tribunal was bound to find that it had no jurisdiction to consider the application: Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394; SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [17]. The Tribunal is not empowered to extend the time within which a merits review application may be made to it: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [82]; 267 FCR 15 at 39.
The Tribunal was thus plainly correct in finding the application was made outside of the time prescribed and that it did not have jurisdiction to deal with the applicant’s merits review application. And it is in that context that it may comfortably be concluded that the applicant’s judicial review application and the remaining grounds which underpin it have no reasonable prospects of success. Thus, the applicant’s complaint in which she seeks to sheet home blame for the late application to the migration agent, does not sound in jurisdictional error in the circumstances of this case. As the Tribunal was not empowered to extend time, the reason for the late application is immaterial. The review application was either made within time or outside of the time prescribed. Here, there is no dispute the review application was late. There the matter ends. Such remedy as may be available to the applicant is against the migration agent she says she engaged to make the review application to the Tribunal, but blame for the delay attributed to a migration agent’s inaction or poor advice about the time frame for lodgement of the merits review application has no reasonable prospects of success as a ground for judicial review.
For completeness, it should be noted that the applicant’s allegation that her migration agent failed to lodge the Tribunal application within the time prescribed is not supported by any evidence that she had engaged a migration agent at all. It also contradicts the explanation given to the Tribunal in writing by the applicant by email transmission on 16 January 2020: CB63, in which she wrote that she “was late in submitting [her] application for review to the AAT because [she] was confused about the deadline for submitting it. The date for expiry of [her] visa when [she] check[ed] [on] myVevo was different from the 28 days timeframe for [her] to apply for a review”. During the hearing of this application, the applicant alleged that her migration agent prepared the text of the email, but it is unnecessary for me to resolve the veracity of that allegation.
The applicant’s proposed review ground contending she was not afforded an opportunity to present her case also has no reasonable prospects of success. The Tribunal could not proceed to deal with the application for the reasons it correctly gave. Its procedural fairness obligations under Pt 7 to the Act were not engaged and the Tribunal was not empowered to invite the applicant to a hearing or to otherwise determine the application: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [38]. In any event, the applicant was put on notice of the Tribunal’s preliminary view that the application was not valid, and the reasons for that view were explained – she was afforded an opportunity to comment on the reason for the late application: CB61-CB62 and she took up the opportunity given: CB63. The allegation that the applicant was denied procedural fairness must be rejected in the circumstance where the Tribunal did not have jurisdiction to review the application: SZEYK at [39].
The proposed review ground also complains that the Tribunal did not review nor investigate the applicant’s protection claims and that it did not give her an opportunity to provide further evidence about the claims. These complaints are misconceived. Putting to one side the fact that the Tribunal is not under any general duty to investigate visa claims, the Tribunal simply had no jurisdiction or power to review the delegate’s decision because the application for merits review was late. As already noted, the Tribunal gave the applicant an opportunity to respond to the jurisdictional issue raised by the applicant’s late application. The Tribunal considered the applicant’s response as is clear from [6]-[7] of the Decision. These review grounds also have no reasonable prospects of success.
The Rules provide as follows in respect of an application for review of a Registrar’s exercise of power:
21.02Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
21.03 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of the power under review.
21.04 Procedure for review
(1) The review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
(2) In the review, the Court:
(a) may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(b) may with leave receive further evidence; and
(c) may receive as evidence:
(i) any transcript of the proceeding before the Registrar; or
(ii) if there is no transcript—an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.
A review of a delegate’s decision is undertaken de novo, and so the Court must decide for itself the merits of the matter that was before the delegate. Here, the relevant matter was an application for summary dismissal of the applicant’s judicial review application because it had no reasonable prospects of success. As already noted, the Registrar dismissed the applicant’s judicial review application on that basis. For the reasons explained above, I agree with the Registrar’s conclusion. It was plainly correct. Consequently, both the application for a de novo review and the underlying judicial review application have no reasonable prospects of success. This weighs strongly against the grant of an extension of time.
Save for the absence of prejudice, which alone would not provide a proper basis for extending time, most other relevant matters discussed weigh against the grant of an extension of time – with merits weighing strongly so – and so I am not persuaded that time should be extended. Accordingly, the application to extend the time within which an application for review of the exercise of a power by a Registrar must be made is refused and the application is dismissed.
I will hear the parties on costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 10 February 2025
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