AZL24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1154
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZL24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1154
File number: MLG 526 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 1 November 2024 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – jurisdictional error identified by the Minister – Minister had been unable to obtain the applicant’s consent to remit matter – Court satisfied the Tribunal erred – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 66, 441C and 476
Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 1 November 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms H Sassine Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 526 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZL24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The parties 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.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 9 February 2024 (Case Number 1730076).
5.A writ of mandamus issue directed to the second respondent, requiring it to reconsider and determine the application according to law.
6.The first respondent pay such costs as the applicant is entitled to as a self-represented litigant.
7.Written reasons for judgment will be published from Chambers at a later date.
AND THE COURT NOTES THAT:
The first respondent concedes that the decision of the Administrative Appeals Tribunal (the “Tribunal”) is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [41]-[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [32]-[35] per Reeves, Perram and Charlesworth JJ.
In circumstances where the letter notifying the applicant of the decision of the first respondent’s delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate’s refusal decision in accordance with the statutory requirements (at [3]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [7] and [8]).
With effect from 14 October 2024, the Administrative Appeals Tribunal is replaced by the Administrative Review Tribunal.
Under Item 25, Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Court may do anything in relation to the Administrative Review Tribunal that it could have done in relation to the Administrative Appeals Tribunal, including remitting a decision of the Administrative Appeals Tribunal to the Administrative Review Tribunal.
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:
INTRODUCTION
This matter was listed for a directions hearing before the Court on 1 November 2024 (by video link).
At that directions hearing, the Court made the following orders:
1.The parties 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.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 9 February 2024 (Case Number 1730076).
5.A writ of mandamus issue directed to the second respondent, requiring it to reconsider and determine the application according to law.
6.The first respondent pay such costs as the applicant is entitled to as a self-represented litigant.
7. Written reasons for judgment will be published from Chambers at a later date.
The Court also noted that:
The first respondent concedes that the decision of the Administrative Appeals Tribunal (the “Tribunal”) is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [41]-[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [32]-[35] per Reeves, Perram and Charlesworth JJ.
In circumstances where the letter notifying the applicant of the decision of the first respondent’s delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate’s refusal decision in accordance with the statutory requirements (at [3]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [7] and [8]).
With effect from 14 October 2024, the Administrative Appeals Tribunal is replaced by the Administrative Review Tribunal.
Under Item 25, Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Court may do anything in relation to the Administrative Review Tribunal that it could have done in relation to the Administrative Appeals Tribunal, including remitting a decision of the Administrative Appeals Tribunal to the Administrative Review Tribunal.
These reasons for judgment are those referred to in order 7 above. They explain why the Court proceeded to issue writs in this matter.
BACKGROUND
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). The decision the subject of this judgment is dated 9 February 2024 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).
Before the Court is an application for judicial review filed by the applicant in the Melbourne Registry of this Court on 6 March 2024 (the “application”). That application was accompanied by an affidavit (deposed by the applicant on 26 February 2024 and filed in this Court on 6 March 2024).
The application was brought pursuant to s 476 of the Act and seeks review of a decision made by the Tribunal on 9 February 2024 (Court Book (“CB”) 75-77). By that decision, the Tribunal determined that it did not have jurisdiction to review the applicant’s matter (CB 77).
On 20 May 2024, Mr Joseph Wilczer (“Mr Wilczer”), a law graduate at HWL Ebsworth Lawyers, solicitor for the first respondent (the “Minister”), sent an email to the applicant at the email address listed in her application for judicial review (filed in this Court on 6 March 2024). The email attached proposed consent orders (remitting the matter to the Tribunal) (see the affidavit of Ms Shanthiya Ravindran affirmed and filed on 29 October 2024 (the “Ravindran affidavit”), pp 7-9) and provided as follows: (the Ravindran affidavit, p 7):
Dear Applicant
AZL24 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
Federal Circuit and Family Court of Australia Ref MLG526/2024
Proposed Consent Orders
Our Reference: SST: JW 1221123
We refer to your judicial review application. We act for the Minister in this matter.
Please see our proposed Consent Orders attached. We are instructed to concede that the Administrative Appeals Tribunal fell into jurisdictional error, detailed in the note following the proposed Orders.
If the Court makes the proposed Orders, your matter will be remitted to the Tribunal and the Tribunal will undertake a fresh review of your application.
We ask that you please confirm the legal costs that you have incurred in this matter and provide us with evidence, such as a receipt or bank statement to substantiate those costs. If you agree with the proposed Orders being made, we ask that you sign the proposed Orders attached to this email.
Kind regards
Attached to the email (detailed above) were proposed consent orders that provided as follows (the Ravindran affidavit, pp 8-9):
THE COURT ORDERS BY CONSENT THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing its decision dated 9 February 2024 (Administrative Appeals Tribunal case number 1730076).
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for the review of a delegate of the First Respondent dated I November 2017 according to law.
3.The First Respondent to pay such costs as the Applicant is entitled to as a self-represented litigant.
THE COURT NOTES THAT:
The First Respondent concedes that the decision of the Second Respondent (Tribunal) is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]-[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [32]-[35] per Reeves, Perram and Charlesworth JJ.
In circumstances where the letter notifying the Applicant of the decision of the First Respondent's delegate to refuse to grant the Applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the Applicant was notified of the delegate's refusal decision in accordance with the statutory requirements (at [3]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [7] and [8]).
On 13 June 2024, Mr Wilczer sent a further email to the applicant, again attaching proposed consent orders (as detailed above) and asking that the applicant review and sign those orders and provide evidence of any costs she had incurred (the Ravindran affidavit, pp 11-12).
On 28 June 2024, Ms Marcela Castro (legal assistant at HWL Ebsworth Lawyers) sent a letter to the applicant enclosing the proposed consent orders and again asking that the applicant review and sign those orders and provide evidence of any costs she had incurred (the Ravindran affidavit, pp 3 & 14-16).
On 17 September 2024, orders were made by Registrar Downing of this Court programming the matter to a final hearing “on a date to be advised”.
On 18 September 2024, Ms Cihan Icel (“Ms Icel”), a law graduate at HWL Ebsworth Lawyers, sent an email to the applicant again attaching the proposed consent orders and asking that the applicant review and sign those orders and provide evidence of any costs she had incurred (the Ravindran affidavit, pp 18).
On 19 September 2024, Ms Icel attempted to phone the applicant on the mobile phone number included by the applicant in her judicial review application filed with this Court. The applicant did not answer the phone call and Ms Icel left a voicemail message asking the applicant to return her call (the Ravindran affidavit, pp 3 & 20).
That same day (on 19 September 2024), Ms Icel contacted the Court’s Migration Team (via email) advising that the Minister had “identified an error in the Tribunal’s decision and ha[d] been trying to obtain the applicant’s consent to remit the matter” but had “not received a response” from the applicant. Ms Icel requested that the matter be listed for a directions hearing before the Court.
On 14 October 2024, the Court’s Migration Team notified the parties that the matter had been listed for a directions hearing before Registrar Foster on 30 October 2024 (by telephone).
On 29 October 2024, Ms Helen Sassine (“Ms Sassine”), solicitor from HWL Ebsworth Lawyers, provided proposed consent to the Court’s Migration Team and indicated that the Minister would seek those orders at the directions hearing on 30 October 2024.
That same day (being on 29 October 2024), the Ravindran affidavit was filed on behalf of the Minister. That affidavit (as outlined above) was affirmed by Ms Ravindran on 29 October 2024 and annexed the correspondence from Minister’s representatives to the applicant between 20 May 2024 and 19 September 2024 (referred to above).
When the matter came before Registrar Foster for a directions hearing (on 30 October 2024), there was no appearance by or on behalf of the applicant. In the circumstances (noting that Registrar Foster did not have the delegated authority to make orders in the absence of the applicant’s consent) the matter was referred to a Judge for consideration.
Later that same day (30 October 2024), my chambers contacted the parties (via email) to advise that the matter had been listed for a further directions hearing before a judge at 3.00pm (AEDT) / 12.00pm (AWST) on 1 November 2024 (by video link using Microsoft Teams).
When the matter came before this Court for that further directions hearing (on 1 November 2024), the applicant appeared by video link (with the assistance of an interpreter) and Ms Sassine appeared (also by video link) on behalf of the Minister.
The Court confirmed the correspondence before it, including the correspondence between HWL Ebsworth Lawyers and the Court regarding the listing of the directions hearings (outlined above), which was tendered and referenced as Exhibit 1.
A copy of the Court Book (filed on behalf of the Minister on 1 October 2024) was tendered and referenced as Exhibit 2.
The Ravindran affidavit was also taken as read and in evidence.
With the assistance of the interpreter, the Court explained to the applicant that the Minister had identified an error and the matter would be remitted to the ART for reconsideration.
The Court has reviewed the materials contained in Exhibits 1 and 2 and the Ravindran affidavit. The Court is satisfied that there was a jurisdictional error (as identified by the Minister) on the part of the Tribunal. The Court is also satisfied that it is appropriate for the matter to be remitted to the ART for reconsideration.
Relevantly, the Court notes that the applicant was purportedly notified of the decision made by a delegate of the Minister on 1 November 2017. That notification letter informed the applicant that she could seek review of the delegate’s decision by the Tribunal. However, the notification letter did not clearly state the time within which that application to the Tribunal needed to be made (as required by s 66(2)(d)(ii) of the Act). The notification letter stated that an application needed to be made within 28 days from the date the applicant “was taken to have been notified” of the delegate’s decision but did not explain to the applicant that, because the notification was sent to the applicant by email, she was taken to have received it at the end of the day on which it was sent to her (being at the end of the day on 1 November 2017): s 441C of the Act.
In those circumstances, the notification letter sent to the applicant did not comply 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].
On the basis of the above, the Court is satisfied that the Tribunal erred in determining that it did not have jurisdiction in this matter.
CONCLUSION
In the circumstances, the Court made orders remitting the matter to the ART for reconsideration (and noting the details of the jurisdictional error on the part of the Tribunal) (as outlined at [2] and [3] above).
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 November 2024
0
3
2