AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1432
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1432
File number: MLG 563 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 23 December 2024 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – reinstatement application – matter reinstated – extension of time application – insignificant 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), Items 10 and 25 in Schedule 16
Migration Act 1958 (Cth), ss 36, 66, 360, 412, 425, 476, 477, 494B, 494C & 494D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06
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
ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153
AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 639
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
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 and 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
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
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 1391
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
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 [2022] FedCFamC2G 640
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
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
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: 153 Date of hearing: 1 August 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Popal Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers) ORDERS
MLG 563 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUW21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
3.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
Recent amendments to the Migration Act 1958 (Cth)
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 14 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. Item 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 any proceeding in a Court that is not finalised before the transition time and that relates 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’s migration history
The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 9 & 29-31). She arrived in Australia in June 2019 (CB 15).
On 6 September 2019, the applicant applied for the Protection (Class XA) (Subclass 866) visa (the “visa”) the subject of the substantive application before this Court (CB 1-28 & 49). With her visa application, the applicant provided copies of her Malaysian passport, identity card and driver’s licence (CB 29-31). In that visa application, the applicant asked for all written communication about her application to be sent to her directly and stated that she did not receive any assistance in completing her visa application form (CB 7). She also agreed to the Department of Home Affairs (the “Department”) communicating with her via email and provided the Department with an email address (the “nominated email address”) to do so (CB 11).
On 22 June 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-55). The applicant was notified of that decision by letter dated 22 June 2020 (the “Minister’s notification letter”) (CB 45-48). The Minister’s notification latter was sent to the applicant via email at her nominated email address, together with a copy of the delegate’s decision (CB 44-55 and Supplementary Court Book (“SCB”) 1-2).
On 27 July 2020, the applicant sought merits review of the delegate’s decision by the Tribunal (as it then was) (CB 56-61). In that application, the applicant chose “email” as her preferred method for receiving correspondence and also provided the Tribunal with her nominated email address (CB 57). The applicant indicated that she did not have a representative assisting her with her review application (CB 58).
On 31 July 2020, the Tribunal invited the applicant to comment on the validity of her application for review (the “invitation letter”) (CB 65-66). That invitation letter was sent to the applicant via email using her nominated email address (CB 64) and relevantly provided as follows (CB 65):
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 22 June 2020 meaning that 22 June 2020 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 20 July 20202. As the application was not received until 27 July 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 14 August 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.
No response was provided by or on behalf of the applicant (CB 70).
On 14 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 69-70).
The Tribunal notified the applicant of its decision by way of a letter dated 15 January 2021 (the “Tribunal’s notification letter”) (CB 68). The Tribunal’s notification letter was sent to the applicant (via email sent to her nominated email address) on 15 January 2021 (CB 67). 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 71-73). Relevantly, that fact sheet stated (CB 72):
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 26 March 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was accompanied by an affidavit which annexed copies of the delegate’s decision record (together with the Minister’s notification letter) and the Tribunal’s decision record (together with the Tribunal’s notification letter and associated fact sheet).
Unfortunately, the applicant’s judicial review 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 matter was initially listed for a hearing of the application for an extension of time on 17 July 2024 (in person). When the matter was called, there was no appearance by or on behalf of the applicant. The Court dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) and made an order requiring that the applicant pay the Minister’s costs.
A judgment in this regard was published outlining the reasons why the matter was dismissed: AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 639. Relevantly, that judgment outlined the following procedural background.
On 27 February 2024, a directions hearing was held by Registrar Cummings of this Court. The applicant appeared at that directions hearing. Registrar Cummings made orders programming the matter to a “hearing of the application for an extension of time on a date to be advised”. He also made an order for the matter to “be transferred to the Perth Registry” of the Court, noting that the application was residing in Perth.
On 6 March 2024, the Court sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time at 11.00am (AWST) on 28 May 2024.
Later that same day, Mr Joseph Wilczer (representative from HWL Ebsworth Lawyers, solicitors for the Minister) contacted the Court by email and sought leave for the Minister’s counsel to appear at the hearing via video link (noting that the Minister’s representatives in the matter were located in Melbourne – being the location of the original filing of the application).
On 14 March 2024, the Court confirmed that the Minister’s counsel would be granted leave to appear at the hearing of the application for an extension of time via video link.
On 24 May 2024, the parties were notified that, due to judicial unavailability, the hearing listed on 28 May 2024 had been vacated and the matter had been re-listed (for a hearing of the application for an extension of time) at 1.00pm (AWST) on 17 July 2024.
On 27 May 2024, Ms Maryam Popal (“Ms Popal”) (representative from HWL Ebsworth Lawyers) wrote to the Court to seek confirmation that the Minister’s counsel still had leave to appear at the re-listed hearing via video link.
Later that same day (being on 27 May 2024), the Court confirmed to Ms Popal that the Minister’s counsel still had leave to appear via video link at the re-listed hearing.
On 16 July 2024, the parties were reminded of the date and time of the hearing. They were also provided with instructions for an “in person” attendance at the Perth registry of the Court (in relation to the applicant) and instructions in relation to how to appear via video link (in relation to the Minister’s counsel).
As outlined above, when the matter came before this Court (on 17 July 2024), there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times. There was still no appearance by the applicant.
Ms Popal appeared at the extension of time hearing on behalf of the Minister (via video link).
An interpreter was also made available in the court room to assist the applicant. Given the applicant’s absence, the assistance of the interpreter was ultimately not required.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Ms Popal (affirmed and filed on 20 May 2024 (the “Popal affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put her on notice that, should she not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Ms Popal how the Minister wished to proceed in the circumstances.
Ms Popal advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Popal affidavit, the Court was satisfied that the applicant had been notified of the hearing date and time.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Popal was prepared to make oral submissions, as required, in relation to the application for an extension of time. The Court made orders accordingly.
Following the hearing on 17 July 2024, the Court sent the parties a copy of the orders made (referenced above) dismissing the application.
The applicant responded to that correspondence (also on 17 July 2024), stating as follows:
Hi. I went to 4.1courts according to the content of the email. I waited until 1 o’clock and no one responded. I went to the back desk to ask. The back desk told me to go to the 6th floor to ask. The back desk on the 6th floor told me that you have left. The back desk asked me to write this email to inform you.
The Court responded to the applicant (on 18 July 2024) as follows:
Dear Madam Applicant
Thank you for your email which has been brought to His Honour Judge Kendall’s attention.
His Honour notes that you have referenced an email which directed you to court room 4.1. His Honour asks that you please provide a copy of that email correspondence for consideration.
Please note that any correspondence sent in relation to your matter should also include the Minister’s representatives. The Court has copied Ms Popal into this reply for that reason.
To the extent that the Minister is aware of, or holds a copy of, the email correspondence referenced by the applicant below, the Court would appreciate being provided with a copy of that correspondence as soon as possible.
Once a copy of the email correspondence is received, His Honour will consider how to best to proceed.
On 19 July 2024, Ms Popal responded to the Court as follows:
Thank you for your email below and for providing our office with the applicant's email.
Please find attached the correspondence referred to in the applicant’s email below. It is our understanding that at the time the correspondence was prepared, the information regarding the court room in which the hearing was to be held was as set out on the Commonwealth Courts Portal.
In these circumstances, we have instructions to consent to the applicant’s email to the Court being treated as a request for reinstatement, if that is sought by the applicant. We would also ask that the hearing regarding the reinstatement, if any, be listed as soon as possible and together with an extension of time hearing, in the event that the matter is reinstated.
The applicant is copied into this email.
Please do not hesitate to contact me if you require further information.
The correspondence attached was an email from Ms Popal to the applicant dated 17 July 2024. Attached to that email was a letter to the applicant (dated 17 July 2024) which read as follows:
We act for the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in these proceedings.
We enclose, by way of service, copies of our sealed Amended Notice of Address for Service and Submitting Notice, filed on behalf of the First Respondent in the Federal Circuit and Family Court of Australia on 10 July 2024.
We remind you that your matter is listed for hearing at 1:00pm AWST time on 17 July 2024 at the Federal Circuit and Family Court of Australia, Perth Registry, Court 4.1 Level 4 Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth WA 6000 and that if you do not attend the scheduled hearing, we will seek orders from the Court that your application be dismissed with costs.
The Court noted that the applicant had not filed an application in a proceeding requesting reinstatement (which is the usual process to be followed). However, given that the applicant was unrepresented, and noting the correspondence from Ms Popal (outlined above), the Court considered it appropriate to accept what was clearly a request from the applicant that her matter be reinstated (by email) in its current form (without the need for the applicant to file any application in a proceeding). The parties were notified (by email) that the matter would be listed for an expedited interlocutory hearing of that application for reinstatement, followed by a hearing of the application for an extension of time (in the event that the matter was reinstated) at 11.00am (AWST) on 1 August 2024.
REINSTATEMENT APPLICATION
The reinstatement application came before the Court for a hearing on 1 August 2024. The applicant appeared in person without legal assistance. A Mandarin interpreter was available to assist the applicant at that hearing.
Ms Popal appeared via video link on behalf of the Minister.
The Court confirmed with the applicant that she had received a copy of the Court Book, the Supplementary Court Book and the Minister’s written submissions.
The materials before the Court at the reinstatement hearing thus include the applicant’s judicial review application (including the application for an extension of time within which to make that application) and supporting affidavit (the supporting affidavit being taken as read and in evidence at the hearing on 1 August 2024), both filed on 26 March 2021, a Court Book numbering 74 pages (marked as Exhibit 3), a Supplementary Court Book numbering two pages (marked as Exhibit 4), written submissions filed on behalf of the Minister on 13 May 2024 and the email correspondence from the applicant to the Court dated 17 July 2024 (with responses) (together, marked as Exhibit 2).
The power to set aside a judgment or an order of the Court is discretionary. It requires the Court to consider whether it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]-[52].
The Court notes that the matters which are ordinarily considered in relation to a reinstatement application include, but are not limited to:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the application for an extension of time within which to seek judicial review was dismissed;
(b)the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
(c)whether the applicant has a reasonably arguable prospect of success in relation to the application for an extension of time that was dismissed.
See: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530.
As outlined above, the Minister’s representative wrote to the applicant on 17 July 2024 and instructed her that the hearing would take place in court room 4.1 on level 4 of the Court’s Perth Registry. This information was incorrect.
The hearing was convened in court room 6.2 on level 6 of the Court’s Perth Registry and the matter was called outside of that court room.
In the circumstances of this matter, where the applicant did in fact attend the Court for her extension of time hearing (on 17 July 2024), the Court considered that it was in the interests of justice to reinstate the application and proceed to the hearing of the application for an extension of time.
In this regard, the Court notes that:
(a)the applicant’s explanation for being absent from the hearing was acceptable and the applicant’s absence was a direct result of incorrect information being provided by the Minister;
(b)there was no prejudice to the Minister by the application being reinstated; and
(c)the Court would ultimately need to consider whether the applicant had a reasonably arguable prospect of success in order to grant the extension of time in any event.
On that basis, the Court determined that it was appropriate to reinstate the applicant’s matter and did so.
The Court also noted that the application for judicial review filed by the applicant only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this issue to the applicant and made an order amending the application for judicial review to include seeking a writ of mandamus. This is now the preferred approach in this Court: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 per Judge Given at [25]-[35].
The Court thus made the following orders:
1.Counsel for the first respondent have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.Email correspondence from the applicant to the Court on 17 July 2024 is taken as a request to set aside the Court’s orders made on 17 July 2024 and for the applicant’s matter to be reinstated.
3.Orders made by the Court on 17 July 2024 are set aside pursuant to r 17.05(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and the application for judicial review filed by the applicant on 26 March 2021 (the “application”) is reinstated.
4.The application is amended to include seeking a writ of mandamus directed to the second respondent.
The Court then considered whether to grant the applicant an extension of time within which to pursue the substantive proceeding in this Court.
The remainder of this judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court has concluded that an extension of time should not be granted.
CONSIDERATION OF THE APPLICATION FOR AN EXTENSION OF TIME
Noting that the applicant was not legally represented, the Court explained to her that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant Tribunal decision. It was also explained that, in this matter, the Tribunal’s decision is dated 14 January 2021. As such, the date by which the applicant was required to file her application in this Court was 18 February 2021. Unfortunately, the applicant did not file her substantive application until 26 March 2021. The delay here is 36 days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her 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 a “ground” explaining why she believed that the extension 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 an extension of time.
Noting 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 (“Hunter Valley”) (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:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)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 do so at a “reasonably impressionistic level only”: 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. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
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 explained, an extension of time is not granted as a right as per the principles in 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 set out above (at [56]), the delay in this matter is 36 days. In the Court’s view, the delay in this matter is not significant.
This weighs in favour of granting the extension of time.
Prejudice
In written submissions before this Court, the Minister submitted that the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion sought by the applicant (citing Hunter Valley at 349 per Wilcox J) but ultimately conceded that there was no prejudice to him in the Court granting an extension of time to the applicant (save for the public interest in the finality of judicial decisions, citing Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496 [15]-[17] per McHugh J).
This also weighs in favour of granting an extension of time.
Explanation
The applicant’s “ground” for an extension of time in this matter (as included in her application for judicial review filed in this Court on 26 March 2021) provides as follows (without alteration):
1.I miscounted the deadline for judicial review; I obtained AAT outcome on 14 Jan 2021, I counted the week days and set the deadline on 3 Mar 2021. However, my friend just told me that judicial review period is 35 days after the decision include holidays. I so regret the fact I miscounted the date, but AAT clearly had a judgment error in their decision record. I want to protect my right by filing a FCC Case. However, my judicial review rights have been passed already; I have no other choice but apply for an extension of time.
In oral submissions before this Court, the applicant explained that she had “asked her friend for help” and that her friend told her that it would be taken care of. The applicant further explained that she did not take any action in the belief that her friend would take care of this matter for her.
To the extent that the applicant claims that she misunderstood the timeframe within which her judicial review application was required to be filed, the Court sympathises. Ignorance, however, is no excuse. In this regard, the Court notes the reasoning of the Federal Court in in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
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.
An applicant 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 in this matter failed to do so. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of her.
The Court also notes that the “fact sheet” provided to the applicant (with the Tribunal’s notification letter) explained to the applicant what was required if she wanted to seek review of the Tribunal’s decision. That fact sheet relevantly stated (CB 72):
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.
To the extent that the applicant might be suggesting that her “friend” was responsible, the Court disagrees. The applicant did not suggest that she had contacted any agent or legal representative to assist her with making her application. She instead left it in the hands of a “friend”. Nor did she suggest that she followed up with her friend or with the Court to ensure that an application had been filed or investigate what (if anything) was required of her. As explained by the Court above, an applicant must take the necessary steps to ensure that they do what is required of them. The applicant in this case did not do so.
The Court does not consider the explanation provided by the applicant to be satisfactory.
This weighs against granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining whether an application for an extension of time should be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
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.
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 decision 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 decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that when she looked at the refusal decision, she did not think that the decision had been properly or comprehensively explained to her. She also complained that there was no email correspondence inviting her to attend a hearing. The applicant’s oral submissions, to the extent that they point to any arguable case of jurisdictional error, will be addressed by the Court below.
The Tribunal’s decision
In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision is two pages in length and spans seven paragraphs (CB 69-70). In full, it provides as follows (CB 70):
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 22 June 2020 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 27 July 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 June 2020 and sent by email. The letter set out the information required to determine the time period to make a review, under the heading ‘Review Rights’, and the Tribunal finds that this complied with s.66(2)(d)(ii). The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
3.The Tribunal finds that the applicant is taken to have been notified of the decision on 22 June 2020: s.494C of the Act.
4.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. Therefore the prescribed period to apply for review ended on 20 July 2020.
5.The Tribunal wrote to the applicant on 31 July 2020, advising of its preliminary view that her application was not valid, as it was not lodged within the prescribed period; and inviting her to comment. The Tribunal received no acknowledgement or reply.
6.As the application for review was not received by the Tribunal until 27 July 2020, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
Proposed application for judicial review
The substantive application for judicial review filed by the applicant on 26 March 2021 contains two proposed “grounds of review” as follows (without alteration):
1.I have firm reason to support my claim that AAT missed one of the important administrative error which presented in the refusal letter. I have been searching Federal Court Files, and I found some appellants (DFQ17 and BMY18) share a similar situation with me and their claim approved by Federal Court. I do not think the department of home affairs complies Section 66 of the Migration Act 1958. The refusal letter did not clearly notify me on the review rights. The department did not simplify their language used in the letter, especially for the review rights section. The interpretation of those sentences cost me a significant time to translate and to comprehension, also the department misguided me, and let me think the review application ought to be submitted on the day of 28 days from the day of I saw the letter in email instead Department of Home affair is counting the date from the date they sent to me instead of the date I actually received it.
2.Another judgment error has been found in the visa refusal letter. the section of review right has been separately delivered into two different pages (bottom of page 1, and top of page 2). Yet, they neither clarify the linkage of the sentences on top of page 2 nor highlighting the relevance of the sentences with a section of review rights. I found it was piecemeal, entirely obscure, and essentially incomprehensible. Consequently, the letter did not state the matter in Section 66(2)(d)(ii). Since the error presented in the letter, AAT’s conclusion of out of time was also wrong. AAT should accept my case with a proper jurisdiction review procedure. I found the case DFQ17 v Minister of Immigration {2018} FCCA 635 and BMY18 v Minister for Home Affairs [2019] FCAFC 189 have shared the same grounds with me and I believe my case should be properly assessed by AAT as well.
The Court has read the applicant’s proposed grounds of review as broadly as possible (as required by the decision in MZAIB). Having done so, the Court considers that the applicant raises the following two issues:
(a)whether the 28-day time period within which the applicant could seek review of the delegate’s decision was incorrectly calculated; and
(b)whether the Minister’s notification letter was affected by errors of the sort identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [58] (“DFQ17”) and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [30]-[32] (“BMY18”).
These issues will be addressed in turn below.
Whether the 28-day time period within which the applicant could seek review of the delegate’s decision was incorrectly calculated
The applicant arguably suggests that the time period within which she could seek review of the delegate’s decision was incorrectly calculated and ought to have been calculated from the date upon which the applicant received the email from the Minister and not the date upon which the email was sent.
The Court disagrees for the reasons that follow.
In this matter, a delegate of the Minister refused to grant the applicant the visa on 22 June 2020 (CB 49-55). 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).
As outlined above, the applicant requested that all written communication about her visa application be sent to her directly (CB 7). The applicant also agreed to the Department communicating with her via email and provided the Department with her nominated email address to enable the Department to do so (CB 11).
The applicant was sent notification of the refusal decision via email on 22 June 2020 (by way of the Minister’s notification letter). That email was sent to the applicant’s nominated email address included by the applicant in her visa application (CB 11 & 43-45 & SCB 1-2).
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 or did not open or read those documents until a later date.
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 v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [36] per Barker J.
The applicant here is thus taken to have received that notification at the end of the day on 22 June 2020 (being the date on which it was transmitted to her via email) regardless of whether or not she actually received the documents.
At the time of the delegate’s decision (being as 22 June 2020), 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 Migration Regulations 1994 (Cth) (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.
The period in which the application for review of the decision was required to be made to the Tribunal therefore commenced on 22 June 2020 (regardless of whether the applicant saw the correspondence from the Minister in her email account on that date or at a later date).
No arguable case of jurisdictional error arises in this regard.
Whether the Minister’s notification letter was affected by errors of the sort identified in DFQ17 and BMY18.
As outlined above, the applicant also suggests that the Minister’s notification letter was affected by errors of the sort identified in DFQ17 and BMY17. As such, the Court will consider whether the Minister’s notification letter contained any such error and whether, as a result, the Tribunal was incorrect in determining that it did not have jurisdiction in this matter.
This Court has previously provided a detailed overview of the core requirements for notification letters broadly. The Court most recently did so in its decision in ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153 (“ANP23”) (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 as follows.
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 in this case 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 [103]) in relation to the core requirements for notification letters is otherwise repeated (with minor amendments) below.
The Act and 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.
As outlined above, at the time of the delegate’s decision (being as at 22 June 2020), s 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) “28 days, commencing on the day the applicant is notified of the decision” (see reg 4.31(2) of the Regulations set out above).
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 22 June 2020 (CB 49-55). 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).
As outlined above, the applicant agreed to the Department communicating with her via email in relation to her visa application and provided the Department with her nominated email address to enable the Department to do so (CB 11).
The applicant was sent notification of the refusal decision via email on 22 June 2020. That email was sent to the nominated email address included by the applicant in her visa application (CB 11 & 43-45 and SCB 1-2). The notification comprised a letter from the Department (addressed to the applicant) with notification of the delegate’s decision (CB 45-48) and a copy of that decision (CB 49-55).
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 45);
(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 45, 50 & 54): 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 45-46):
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 46) 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 by the applicant 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. As outlined above, the applicant was deemed to have received the Minister’s notification letter on the date it was sent to her by email (being on 22 June 2020, CB 43-45 & SCB 1-2). Further, by sending the document by one of the methods set out in s 494B or s 494C of the Act, the applicant was taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received (or opened at a later time): SZNZL at [36] per Barker J.
The applicant here is thus taken to have received that notification at the end of the day on 22 June 2020 (being the date on which it was transmitted to her via email) regardless of whether or not she actually received the documents or looked at them at that time.
As detailed by this Court in previous judgments (noting, for example, ANP23), 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; 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 45); 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 46).
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 22 June 2020, the time within which the applicant could seek review of the Tribunal’s decision “began running” on that date (being 22 June 2020).
The applicant was required to file her review application within 28 calendar days, commencing on the 22 June 2020 (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 20 July 2020.
Here, the Tribunal review application was not lodged online by the applicant until 27 July 2020 (CB 56-61). The application was therefore lodged seven days 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 was evident that the 28 day time period had not been complied with: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 (“Beni”) at [83]; Awon v Minister for Immigration & Border Protection [2015] FCA 846 (“Awon”) at [38]-[39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 (“CQP15”) at [43]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 (“NACG”) at [7] and Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460 (“ASE15”) at [48].
For the reasons set out above, the Court is satisfied that the Minister’s notification letter in this matter did not contain any error of the sort identified in DFQ17 or BMY18. The Court is also 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.
Applicant’s oral submissions
When the applicant appeared before this Court (on 1 August 2024), she complained that there was no email correspondence inviting her to attend a hearing.
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 ANP23 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640 and 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).
The Tribunal wrote to the applicant (on 31 July 2020, CB 64-66) and gave her an opportunity to comment on the validity of her application for review filed with the Tribunal. The applicant was given until 14 August 2020 to make any such comment (CB 65) but did not do so.
As explained by the Court above, 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 was evident that the 28 day time period had not been complied with: Beni at [83]; Awon at [38]-[39]; CQP15 at [43]; NACG at [7] and ASE15 at [48].
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 made before this Court (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 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 delay in filing this application and the 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 fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 December 2024
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