BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 753
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 753
File number: MLG 766 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 23 August 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal incorrectly calculated the date by which the application for review ought to have been given to the Tribunal – whether the Tribunal failed to consider the applicant’s reasons for filing her review application out of time – whether the Tribunal erred by failing to invite the applicant to appear at a hearing – whether the Tribunal failed to comply with its procedural fairness obligations – whether the Tribunal was biased – whether the Tribunal ought to have considered the merits of the applicant’s case – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 66, 412, 425, 477, 494B, 494C & 494D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 2.05
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
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189
CAV18 v Minister for Home Affairs [2020] FCA 173
Craig v State of South Australia (1995) 184 CLR 163
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Jia Legeng (2001) 178 ALR 421
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
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 and Border Protection v EFX17 [2021] HCA 9
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
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 117 Date of hearing: 15 August 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 766 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAH21
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 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 1-3). She first arrived in Australia in February 2020 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 8).
On 4 May 2020, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-16). In that visa application, the applicant did not provide details of any “authorised recipient” for correspondence in relation to her visa. Instead, the applicant included her own email address for receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 5).
In her application, the applicant claimed that her son was not working because he was “suffering from mental illness”, the applicant needed to support her grandchildren and she wanted to “remain in Australia for a longer period to save enough money before returning” (CB 12 & 36).
On 28 January 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 35-37). The delegate found that the applicant’s protection claims did not relate to any of the reasons set out in s 5(J)(1)(a) of the Migration Act 1958 (Cth) (the “Act”). As such, the delegate was not satisfied that there was a real chance that the applicant would be persecuted if she returned to Malaysia (CB 36).
The applicant was notified of the delegate’s refusal decision by letter dated 28 January 2021 (the “notification letter”) (CB 31-34). That notification letter was sent to the applicant personally via email at the email address included in her visa application (CB 31 & 38-39). The notification letter explained how the applicant could apply for review of the delegate’s decision and, relevantly, explained as follows (CB 31-32):
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 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
Lodging an application for merits review
Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT) as provided below.
On 25 February 2021, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 40-45). In that application, the applicant provided the Tribunal with the same email address she had provided to the Department and nominated her daughter as her representative in relation to the review (CB 43-44).
On 26 February 2021, the Tribunal wrote to the applicant’s daughter requesting a contact mobile number for the applicant and copies of the delegate’s decision and the notification letter. A response was provided to the Tribunal that same day (being on 26 February 2021) (CB 47).
On 8 March 2021, the Tribunal invited the applicant (through her daughter) to comment on the validity of her review application (CB 48-51). In that correspondence, the Tribunal advised as follows (CB 50):
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 28 January 2021 meaning that 28 January 2021 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 24 February 2021. As the application was not received until 25 February 2021, 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 22 March 2021. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 9 March 2021, the applicant’s daughter replied to the Tribunal (via email) and explained the reasons for the delay in the applicant making her application, as follows (without alteration) (CB 52):
Regarding to the above letter of application,
I’m so sorry and apologize that I had overlooked the word “28 working day” instead of 28 calendar day” to appeal this refugee application.
I hope this appeal of the refugee application of review still can be process.
On 16 March 2021, the Tribunal found that it did not have jurisdiction in relation to the matter because the applicant’s review application had not been lodged within the requisite time period (CB 57-58).
Later that day (also on 16 March 2021), the applicant’s daughter wrote to the Tribunal (via email) requesting that the Tribunal reconsider reviewing the application (CB 59-60). Relevantly, the applicant’s daughter stated (without alteration) (CB 59):
Refer to the decision by the Tribunal that there is no jurisdiction on this matter, I’m seeking your kindness co-operation to review again the applicant’s refugee visa. The applicant can’t read or write in English. So even she received the letter from Immigration, she also not understand the notification of the 28 days to do the appeal.
Beside, all the application also done by me as the representative of my mum. So, this incident happen when I’m really overlooked the “28 calendar .day”. I’m not purposely want to delay the submission of this appeal, whereas I’m think I already do the submission early on 25 Feb 2021.
I hope and seeking your kindness to accept the appeal of the refugee visa processing.
On 18 March 2021, the Tribunal responded to the applicant’s daughter advising that it would not reopen the case (CB 61-62). Relevantly, the Tribunal noted that (CB 62):
We made our decision in this case on 16 March 2021. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
On 20 April 2021, the applicant sought judicial review of the Tribunal’s decision in this Court. She also filed an affidavit in support of that application (sworn on 9 April 2021 and annexing a copy of the Tribunal’s decision).
That judicial review application was filed at 4.43pm on 20 April 2021. As outlined in r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), any document received for filing after 4.30pm is taken to have been received on the next day the Registry is open for business (in this case, on 21 April 2021). The application filed by the applicant was thus filed one day outside of the requisite timeframe.
As will be discussed further below, the Minister ultimately agreed to the applicant being granted an extension of time (to 21 April 2021, pursuant to s 477(2) of the Act) within which to make her application.
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
In determining whether the Tribunal has fallen into error, it is useful to first set out the Tribunal’s decision.
In full, the Tribunal’s decision provides (CB 58):
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 28 January 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 25 February 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 28 January 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The Tribunal finds that the applicant is taken to have been notified of the decision on 28 January 2021 (s.494C of the Act) and so the prescribed period to apply for review ended on 24 February 2021.
5.The Tribunal sent a natural justice letter dated 8 March 2021. On 9 March 2021 the representative responded and stated:
Regarding to the above letter of application, I’m so sorry and apologize that I had overlooked the word “28 working day” instead of 28 calendar day” to appeal this refugee application. I hope this appeal of the refugee application of review still can be process.
6.However, the representative’s explanation does not show that the applicant had not been properly notified of the decision.
7.As the application for review was not received by the Tribunal until 25 February 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
8. The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 21 April 2021 contains three grounds of review, as follows (without alteration):
1.Tribunal should consider prescribed period to apply for review ended on 25 February 2021 and not 24 February 2021.There was exists jurisdiction error.
2.Tribunal member did not consider my case carefully and refuse me from me go to hearing. I had wrote to member that I had overlooked the work “28 working day” instead of 28 calendar day”.
3.Tribunal member handled my case with bias. The conclusion made by Tribunal is unfair in my case and should be reviewed again.
With the application for judicial review, the applicant also filed an affidavit (sworn by her on 9 April 2021). That affidavit provides as follows (without alteration):
1.My life will be in danger if i returned to Malaysia. I having financial hardship before and I also borrow a lot of money from shark loan. At first I did not have any harm but recently they looking for me and want me to pay the money.
2.I am 62 years old folks I could not take the risk going back to Malaysia and I need the protection from the Australia Government.
On 22 August 2022, procedural orders were made by Registrar Carney of this Court transferring the matter to the Perth Registry of the Court and giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 21 April 2021, a Court Book numbering 64 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 16 May 2023 and the affidavit of service of Benjamin Mayne affirmed on 19 May 2023 and filed in this Court on 22 May 2023.
The matter first came before this Court on 31 May 2023. The applicant appeared at that first hearing without legal representation but with the assistance of an interpreter. Ms Ellis appeared on behalf of the Minister. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
The Court noted that the application for judicial review had not sought an extension of time (noting the one day delay in filing the application explained above). Further, the application filed 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 was not properly invoked. The Court explained those oversights to the applicant and made orders amending the application for judicial review to include making an application for an extension of time and the seeking of a writ of mandamus. This is now the preferred approach in this Court in relation to unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 per Judge Given at [25]-[35].
Shortly prior to the hearing of this matter, Justice Markovic handed down the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). This Court determined that Sandor had implications for this matter.
Relevantly, as discussed further below, Sandor addresses what constitutes proper notification of a delegate’s decision – that is, whether the notification letter sent by the Department (to an applicant) advising of a delegate’s decision is “complete or clear”.
The Court discussed the decision in Sandor with the parties at the first hearing in this matter (on 31 May 2023) and asked the Minister to file additional submissions addressing its applicability or consequences for the matter the subject of this judgment. The Court also confirmed that the Court would give the applicant an opportunity to file any submissions in reply. Orders were made in this regard. The hearing of the application for an extension of time in the matter was also adjourned to 15 August 2023.
The Minister ultimately agreed that this matter should proceed to a final hearing as the substantive application had, in fact, been filed only 13 minutes late (as explained above).
On 12 June 2023, the Court made orders (by consent) as follows:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (the “Act”), the time in which to file the applicant’s originating application for judicial review under s 476 of the Act be extended to 21 April 2021.
2.The extension of time hearing of this matter listed at 11.00am on 15 August 2023 be converted to a final hearing.
3.The time for the first respondent to comply with Order 3 of the orders of Judge Kendall dated 31 May 2023 be extended to 5 July 2023.
4.The time for the applicant to comply with Order 4 of the orders of Judge Kendall dated 31 May 2023 be extended to 2 August 2023.
Further written submissions (addressing the issues raised in Sandor) were filed on behalf of the Minister on 5 July 2023. No further documents were filed by or on behalf of the applicant.
The matter came before this Court again on 15 August 2023. The applicant appeared at that first hearing without legal representation and was again provided with the assistance of an interpreter. Ms Taggart of counsel appeared on behalf of the Minister. The Court confirmed that the applicant had received the Minister’s further submissions (ie, those addressing the issues raised in Sandor).
The Court noted that its recent decision in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (applying the principles from Sandor) had been appealed by the Minister on the basis that Sandor had been “wrongly decided” and “should not be followed” and that the appeal in that matter was yet to be heard or decided by the Full Court of the Federal Court of Australia. In the circumstances, the Court queried whether the hearing of this matter ought to be adjourned, pending the outcome of the appeal in Singh.
It did not seem necessary, and the Minister did not support, the matter being adjourned until the appeal of the decision in Singh is decided. Ms Taggart further explained that, as set out in the Minister’s written submissions addressing Sandor, the facts of this matter are distinguishable from Sandor and Singh.
On the basis of these submissions, and given that no determination has yet been made in relation to the appeal in Singh, the Court determined that it was appropriate to proceed with the hearing of this matter and did so.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
As is now common practice, to assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if 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 (“Wu Shan Liang”) at 272.
Against this background, the applicant initially seemed concerned that “they would not let her extend”. When asked if she was referencing extending her visa or extending the time within which she could seek review of the delegate’s decision by the Tribunal, the applicant seemed unwilling or unable to expand on those concerns or, indeed, to engage openly with the Court.
In the circumstances, the Court will (in its duty to assist self-represented litigants) read the applicant’s grounds of review and consider her oral submissions as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Sandor and its applicability to this matter
Notification letters post-Sandor
This Court recently provided a detailed overview of Sandor and the requirements for notification letters more broadly in Singh (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619. The analysis provided in those judgments is repeated (with minor amendments) below.
The Act and Migration Regulations 1994 (Cth) (the “Regulations”) impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is 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.
Section 412(1)(b) of the Act requires that an application for review 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 is outlined in reg 4.31(2) of the Regulations which provides (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
For that 28 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides 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.
The Department is permitted to communicate with an applicant by email pursuant to s 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires the Minister to give the authorised recipient (instead of the applicant) any documents that would otherwise have been given to the applicant. Further, where the Minister gives documents to the authorised recipient, the Minister is taken to have given the documents to the applicant: s 494D(2) of the Act. There is also no obligation for the Minister to provide a copy to the applicant directly (but the Minister is not prevented from doing so): s 494D(2) 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 document is sent to an applicant’s authorised recipient (who did not forward a copy of that correspondence to the applicant) or, if the applicant did not receive those documents for any other reason.
Further, by sending the document by one of the methods set out in ss 494B or 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.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”); Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh FCAFC”).
These cases clarify that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051. 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 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.
Sandor also addresses 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 clarifies the case law summarised above. Sandor considers this issue within the specific context of a notification letter that is sent to an appellant (or applicant) via his or her authorised recipient. Until Sandor was handed down, that variable had not been specifically addressed by the Courts.
In Sandor, Justice Markovic summarised the characteristics of the relevant notification letter in that matter, noting that (at [45]):
(a)the notification letter was dated in the top left-hand corner of the first page (13 February 2018);
(b)immediately under the date, the notification letter was addressed to the visa applicant, Mr Sandor, by his name;
(c)the first page of the notification letter stated “Transmission Method: Email sent to [email protected]”;
(d)also on the first page, under the heading “Review Rights” the notification letter stated that the decision can be reviewed and that: “[a]n application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to receive this letter”;
(e)on the third page, under the heading “Receiving this letter”, the notification letter stated “[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”; and
(f)at the end of the letter, the notification letter also stated:
The original of this letter including any attachments was sent to:
Karola SZECSKO
Ms Szeckso was Mr Sandor’s migration agent. Mr Sandor had identified her as being authorised to receive correspondence in connection with his visa application.
Justice Markovic first rejected Mr Sandor’s contention that the notification letter did not meet the requirements of s 66(2)(d)(ii) of the Act because the letter stated that it was sent to Mr Sandor when, in fact, it had been emailed to his authorised recipient: at [48]. As in Sandor, no issue in relation to s 66(2)(d)(ii) of the Act arises in this matter.
Her Honour then addressed a separate contention – that is, whether the notification letter was invalid because it was incomplete and unclear in 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: at [49]. Mr Sandor argued that, on that basis, the notification letter was invalid and, as such, the Tribunal had erred in finding that it had no jurisdiction because the time within which Mr Sandor could seek review had not begun to run.
The Minister submitted that the letter was clear, emphasising that the language reflected the terms of s 494D(2) of the Act. Relevantly, the Minister stressed that, in light of what was stated on page three (that Mr Sandor was “taken to have received it at the end of the day it was transmitted”) and page one (that it was transmitted to Mr Sandor’s authorised recipient) it was clear that the 21-day time period commenced from that date.
Justice Markovich rejected the Minister’s argument, determining as follows:
49.The second matter is whether the Notification Letter was incomplete and unclear in 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 explain the effect of s 494D(2) of the Act.
…
51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister’s submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister’s reading of the Notification Letter, the appellant must understand that the reference to “the day the letter was transmitted” requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
Is this matter distinguishable from Sandor?
The Minister submits (in further written submissions filed on 5 July 2023) that the matter the subject of this judgment is distinguishable from Sandor.
This Court agrees for the reasons that follow.
As outlined above, the issue in Sandor related to the contents of the notification letter sent by the Minister’s delegate and, in particular, whether the timeframe within which the applicant could seek merits review by the Tribunal was clearly set out in that notification letter.
The contents of the notification letter in this matter are as follows (CB 31-34):
(a)the letter was dated 28 January 2021 (on the first page – CB 31);
(b)the letter was addressed to the applicant (referencing her by name) at her residential address (on the first page – CB 31);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 31);
(d)under the heading “Review rights” (on pages 1 to 2, CB 31-32), the letter stated (emphasis added):
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)the letter was sent by email to the applicant on 28 January 2021 (CB 31 & 38-39).
The Court notes that, when the applicant applied to the Tribunal for review of the delegate’s decision, the applicant told the Tribunal that her daughter would act as her “authorised recipient” in relation to the Tribunal review (CB 44). The application to the Tribunal also included the same email address as the applicant had provided in her visa application (with that email address listed as both the applicant’s email address and the applicant’s daughter’s email address) (CB 43-44).
Further, as correctly noted by the Minister (in further written submissions filed in this Court on 5 July 2023 at [18]), in correspondence to the Tribunal (dated 16 March 2021), the applicant’s daughter told the Tribunal that (CB 59):
…all the application also done by me as the representative of my mum.
Despite the comments made by the applicant’s daughter to the Tribunal, there is no evidence before this Court to indicate that the applicant had formally appointed her daughter as her representative in relation to her visa application before the Department. The Court notes that the applicant answered “no” to the question of whether she “authorise[d] another person to receive communication about [her visa] application on [her] behalf” (CB 5). She also answered “no” to the question of whether she had “receive[d] assistance in completing [the visa application] form” (CB 16).
Whilst there may have been an informal agreement or understanding between the applicant and her daughter that the applicant’s daughter would provide assistance to her mother, that does not change the information that the Department was given in this regard. The information provided to the Department (through the applicant’s visa application form) indicated that the applicant had not appointed a representative to assist her with the visa application. In those circumstances, the Court is satisfied that the Department (correctly) notified the applicant of the visa refusal by sending an email to her (personally) using the email address provided by the applicant in relation to the visa application.
It is clear that the notification letter in this matter differs from the letter the subject of Justice Markovic’s decision in Sandor. The letter in this matter was sent to the applicant directly (via email sent to the applicant’s nominated email address). The notification letter in Sandor was sent (via email) to the applicant’s authorised recipient.
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 does not require the applicant to do so.
Section 66 of the Act does not require the notification letter to state a specific date by which an application for review must be filed with the Tribunal: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. The decision in Sandor also stops short of requiring any notification letter to do so. That is, the notification letter in this matter did not need to advise the applicant that she had until 24 February 2021 to file an application for review with the Tribunal. All that was required was that there be sufficient information, on the face of the notification letter, to permit the applicant to correctly determine the relevant period.
Here, the information on the face of the notification letter allowed the applicant to determine the period correctly. Relevantly, the notification letter:
(a)stated that the transmission method was by email;
(b)identified the applicant’s own email address;
(c)under a single heading titled “Review Rights” stated that:
(i)the application for review had to be given to the Tribunal within 28 days, commencing on the date that the applicant was taken to have received the letter; and
(ii)(in the very next line) the applicant was taken to have received it on the day the email was transmitted.
Importantly, the notification letter here explained that the applicant was taken to have received the letter at the end of the day it was transmitted to her (not to an authorised recipient).
On the basis of the above, the Court determines that the notification letter in this matter did comply with the requirements set out in s 66(2)(d)(i) of the Act and is thus distinguishable from the notification letter in Sandor.
The Court notes that the Minister in this matter contends (at [2] in written submissions filed in this Court on 5 July 2023) that the decision in Sandor was “wrongly decided”. As explained by this Court in Singh, that is a matter best dealt with on appeal to a higher court.
For the reasons set out above, the Court agrees that present matter distinguishable from Sandor.
There was, accordingly, no error in the Tribunal’s decision or its conclusion as to want of jurisdiction.
No jurisdictional error arises in this regard.
Grounds of review
Turning now to the applicant’s grounds of review as articulated, the Court determines as follows.
Ground 1
Ground 1 provides:
1.Tribunal should consider prescribed period to apply for review ended on 25 February 2021 and not 24 February 2021.There was exists jurisdiction error.
Here, the applicant claims that the Tribunal incorrectly calculated the 28 day time period within which an application needed to be given to the Tribunal. The Court disagrees.
As outlined above, an application for review must be lodged at the Tribunal within the prescribed period: s 412(1)(b) of the Act. Here, reg 4.31(2) of the Regulations outlines the prescribed period applicable in this matter and relevantly provides (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.
Here, the applicant was notified of the delegate’s decision via email on 28 January 2021. As the notification letter was sent to the applicant by email, the applicant was deemed to have received it at the end of the day on which it was transmitted (being at the end of the day on 28 January 2021): s 494C(5) of the Act.
The applicant therefore had 28 days (starting from and including 28 January 2021) within to apply to the Tribunal for review of the delegate’s decision. The Tribunal was therefore correct to determine that the last day for the applicant to seek review of the delegate’s decision was 24 January 2021. The applicant here did not apply to the Tribunal until 25 January 2021. On that basis, the Tribunal’s findings that the applicant’s review application had not been made within the requisite time period and that it (consequently) did not have jurisdiction in this matter were correct.
No error arises in relation to ground 1.
Ground 2
Ground 2 states:
2.Tribunal member did not consider my case carefully and refuse me from me go to hearing. I had wrote to member that I had overlooked the work “28 working day” instead of 28 calendar day”.
To the extent that the applicant claims that she misunderstood the time period within which she could seek review, the Court sympathises. Unfortunately, neither the Tribunal, nor this Court, have the power to extend the time period within which the applicant could seek review at the Tribunal: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [49].
The Tribunal acknowledged, in its written reasons (at [5]) that the applicant’s explanation for the delay was that she had misunderstood the wording. Unfortunately, this did not assist the applicant. As she had been properly notified of the delegate’s decision (as set out by this Court above), the time the applicant was required to file her application began to run on the day she was notified (being 28 January 2021). The applicant was thus required to make her application to the Tribunal by 24 February 2021.
She did not do so.
The Tribunal was therefore correct to determine that it had no jurisdiction in this matter.
The applicant also seems to suggest that she should have been invited to attend a hearing before the Tribunal.
The issue of whether the Tribunal is required to invite an applicant to a hearing or adhere or common law natural justice guarantees within the context of a “no jurisdiction” decision has recently been canvassed by this Court in WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 (“WZAVO”) at [82] to [87].
That analysis applies equally here and relevantly provides as follows.
Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments. However, there is no requirement to do so where there is no “valid” application before the Tribunal.
As outlined by the Federal Court in SZNZL at [46]:
46.The Minister contends that the Tribunal has obligations of procedural fairness in the course of conducting a review, which are exhaustively codified by the Act in Div 4 of Pt 7; but no review is commenced unless an application is made which engages the Tribunal’s jurisdiction. While the Tribunal needs to form a view about whether it has jurisdiction in each case, it cannot conclusively determine its own jurisdiction and its opinion on the issue has no legal force in itself. Thus no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction. The issue before the Court is simply whether the Tribunal’s conclusion was right, not how it arrived at that conclusion.
Here, as in WZAVO, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the application was filed late, the Tribunal lacked a “valid” application about which any further determinations could be made. Hence, as per SZNZL, no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it had jurisdiction. The only issue is whether the Tribunal’s conclusion was right – not how it arrived at that conclusion. Here, for the reasons detailed above, the Tribunal’s decision in relation to whether it had jurisdiction was correct.
In relation to the common law guarantees of natural justice, the Court again relies on its decision in WZAVO (at [83]) and notes that, to the extent that it is argued that the applicant was entitled to the common law guarantees of natural justice, the common law rules of procedural fairness only require that the Tribunal draw to the applicant’s attention the critical issue upon which a decision is likely to turn and provide the applicant with an opportunity to respond accordingly: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
Here:
(a)the applicant was properly notified of the delegate’s decision and the timeframe for lodging her application for review (CB 31-34);
(b)the applicant was invited (on 8 March 2021, by email sent to her daughter who had been appointed as her representative in relation to the Tribunal review) to comment on the validity of her application (CB 48-51);
(c)the applicant’s daughter responded to the Tribunal’s invitation by email on 9 March 2021 explaining that there had been some confusion about the 28 day period (and whether that was working days or calendar days) (CB 52-53); and
(d)the Tribunal expressly considered that response in its decision (at [5], CB 58).
Here, as in WZAVO, it cannot be said that the applicant was denied the right to participate in or to otherwise present her case. Further, even if the applicant had been invited to attend a hearing (in circumstances where the applicant had already been asked to comment and did so) this would not have assisted the applicant. As explained by the Court (above), the Tribunal had no power to extend the time within which the applicant could lodge an application with the Tribunal and the application in this matter had clearly been filed out of time.
No jurisdictional error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.Tribunal member handled my case with bias. The conclusion made by Tribunal is unfair in my case and should be reviewed again.
In relation to any concerns about bias, it is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
As outlined above, the Court is satisfied that the applicant was properly notified of the delegate’s decision and that the Tribunal was correct to find that the application for review had been filed outside of the requisite time period. The Court is also satisfied that the Tribunal complied with the common law rules of procedural fairness. Further, the Tribunal had no power or discretion to extend the timeframe within which the applicant could seek review of the delegate’s decision.
In those circumstances, there was only one decision open to the Tribunal and that was to determine that it did not have jurisdiction in the matter.
No allegation of bias can be made out where there was only one decision open to the Tribunal on the material before it.
No jurisdictional error arises in relation to ground 3.
Applicant’s affidavit
As outlined above, the applicant filed an affidavit (sworn by her on 9 April 2021) in support of her judicial review application. That affidavit provides as follows (without alteration):
1.My life will be in danger if i returned to Malaysia. I having financial hardship before and I also borrow a lot of money from shark loan. At first I did not have any harm but recently they looking for me and want me to pay the money.
2.I am 62 years old folks I could not take the risk going back to Malaysia and I need the protection from the Australia Government.
The comments made by the applicant in her affidavit appear to relate to new protection claims or expand upon the protection claims made in her visa application.
To the extent that the applicant suggests that the Tribunal should have considered these claims, the Court disagrees. As outlined above, once the Tribunal had determined that there was no valid review application before it, the Tribunal could not go on to assess the merits of the applicant’s matter.
The Court is also unable to review the merits of the applicant’s protection claims or to consider whether the applicant met the criteria for the grant of the visa: Wu Shan Liang at [31].
No error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 21 April 2021 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 August 2023
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