BDO22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 65
Federal Circuit and Family Court of Australia
(DIVISION 2)
BDO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 65
File number: PEG 61 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 February 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 66, 347, 476, 477, 494B and 494C Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
CAV18 v Minister for Home Affairs [2020] FCA 17
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271
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
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & 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 & 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
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 3 February 2023 Place: Perth Applicant: The applicant appeared in person (via video link) Counsel for the First Respondent: Ms J Tran Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 61 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDO22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 3 February 2023) 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 Vietnam (Court Book (“CB”) 23). He first arrived in Australia in December 2014 as the holder of a Higher Education Sector (Class TU) (Subclass 573) visa (CB 30). The applicant departed from and returned to Australia multiple times (as the holder of that visa) in 2015 and 2016 and his visa ceased in August 2017 (CB 60).
The applicant was then granted two bridging visas in 2017 (CB 60) before applying for a Protection (Class XA) (Subclass 866) visa (the “visa”) on 17 October 2017 (CB 12-46). In that visa application, the applicant agreed to the Department of Home Affairs (the “Department”) communicating with him via email and provided the Department with an email address so that this could occur (the “first email address”) (CB 26).
On 1 December 2017, the Department acknowledged receipt of the visa application and asked the applicant to provide a “fully completed Part C of the visa application form” and a “[c]ertified copy of [his] current passport” (CB 47-55).
No response was received from or on behalf of the applicant.
On 11 October 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 60-68). The applicant was initially notified of the delegate’s decision by letter dated 11 October 2018 (CB 57-59). The notification letter was sent to the applicant via email to his first email address, together with a copy of the delegate’s decision (CB 56).
On 5 December 2018, the Department wrote to the applicant in relation to regularising his visa status (noting that he was in Australia without a valid visa) (CB 69-70).
On 17 March 2020, following “a court outcome for another person”, the Department determined that it was required to re-notify the applicant of his visa refusal and wrote to the applicant (via email sent to his first email address) asking him to confirm his email address (CB 71-72). Attached to that email was a Vietnamese translation of the information included in that correspondence (CB 73).
No response was received from or on behalf of the applicant.
On 30 May 2020, the Department re-notified the applicant of the delegate’s decision via email (CB 74-78). That correspondence was sent to the applicant at his first email address, being the email address included in his visa application (CB 82-83).
In relation to the applicant’s review rights, the notification letter (dated 30 May 2020) relevantly provided (CB 76):
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.
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).
On 7 January 2021, the applicant wrote to the Department (via email sent from a new email address (the “new email address”)) as follows (CB 79):
My name: [full name omitted]
Dob: [date of birth omitted]; passport: [passport number omitted]
File number: [file number omitted]
Please help me get a visa denial email, because I have never received an email denying the Immigration Department,
Any information please send to your email address:
[new email address omitted]
Thanks very much
With that email correspondence, the applicant provided a copy of his Vietnamese passport (CB 80).
On 8 January 2021, the Department provided a further copy of the delegate’s decision and notification letter (sent to the applicant on 30 May 2020) to the applicant via email (sent to his new email address) (CB 81).
On 25 January 2021, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 84-89). In that application, the applicant provided his new email address as his “[p]referred method for receiving correspondence” from the Tribunal (CB 85).
On 29 January 2021, the Tribunal invited the applicant to comment on the validity of the application for review (CB 91-92). The invitation letter noted that that the applicant’s application had been lodged outside of the legislative period within which to file the application with the Tribunal (CB 91). It was sent via email to the applicant’s new email address on 29 January 2021 (CB 90).
On 3 February 2021, the applicant sent a response to the Tribunal, via email (from his new email address), as follows (without alteration) (CB 93-94):
AAT
The Registrar
In reply to your mail, that mail from Department sent out date 30/May/2020. However, I do NOT known that I had never received your department mail. Please reconsider and accepting of my request and really appreciate.
Yours sincerely
[Applicant’s full name omitted]
On 9 March 2021, the Tribunal determined that it did not have jurisdiction in relation to the matter. Relevantly, the Tribunal was not satisfied that the application to the Tribunal had been filed within the prescribed 28-day period (CB 97-98).
The applicant was notified of the Tribunal’s decision by letter dated 10 March 2021 (sent via email to his new email address) (CB 95-96).
With that notification, the applicant was also provided with a “Fact Sheet” which contained information about Tribunal decisions and the applicant’s review rights (see the affidavit of Jonathon Papalia affirmed and filed on 20 January 2023 (the “Papalia affidavit”), pp 6-8). Relevantly, the “Fact Sheet” provided (Papalia affidavit, p 7):
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 29 March 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). Unfortunately, that application was filed nearly 12 months outside of the 35-day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”).
Accordingly, the applicant requires an extension of time to pursue this proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court concludes that an extension of time should not be granted.
Consideration – Extension of time
The materials before the Court include the application for an extension of time within which to make an application for judicial review and supporting affidavit filed by the applicant on 29 March 2022 (the affidavit being taken as read and in evidence at the hearing of this matter), a court book numbering 98 pages (marked as Exhibit 1), the Papalia affidavit (taken as read and in evidence at the hearing of this matter), written submissions filed by the Minister on 20 January 2023 and an affidavit of service of Jessica Minh Tran affirmed and filed on 27 January 2023 (also taken as read an in evidence at the hearing of this matter).
The Court notes that on 20 June 2022, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court without legal representation. He was assisted at the hearing by an interpreter in the Vietnamese language. The Court confirmed with him that he had received a copy of the Minister’s material outlined above.
The Court 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.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 9 March 2021. The date by which the applicant was required to file his judicial review application in this Court was 13 April 2021. He did not do so until 29 March 2022. The delay here is thus 350 days.
The Court also 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 he believes 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 him 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 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 explained to the applicant that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. That is, 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.
The Court invited the applicant to address each of the factors outlined above and highlight anything else he considered relevant to his request for an extension of time. His responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above, the application in this matter was filed 350 days late. This is an extraordinary delay (of almost a year) and weighs heavily against the granting of an extension of time.
Prejudice
The Minister does not claim any relevant prejudice due to the delay. While the lack of prejudice does not automatically entitle the applicant to an extension of time, it does weigh in favour of granting an extension.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
Here, the applicant’s “ground” for an extension of time provides (without alteration) (CB 4):
1.APPEALING FOR EXTENSION OF TIME, DUE TO MAINLY FINANCIAL DIFFICULTIES, FACING DAILY UN-NORMAL LIFE, ALSO DUE TO THE LONG HARD LOCKDOWN COVID-19, ALSO FACING OF MENTAL DISORDER.
Unfortunately, the applicant did not provide the Court with any evidence in relation to any of the matters raised above. The applicant did not, for example, provide any evidence to the Court relating to his financial capacity which, arguably, goes to the issue of whether the applicant had the financial capacity to pay the Court fees. There is also no evidence to suggest that the applicant contacted the Court at any time to ask about any reduction or waiver of any filing fees to assist him in this regard.
Further, no medical evidence was provided to support any claims the applicant appears to be making in relation to his mental health or any exacerbation of any underlying mental health issues because of COVID-19 and the lockdowns experienced during the time of the pandemic.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. This applicant does not appear to have done that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him or that he took any action at all in over a year (being the time between the Tribunal making its decision on 9 March 2021 and the applicant applying to this Court on 29 March 2022).
Before this Court, the applicant claimed that he had “an agent assisting him with his review” and that the “agency had set up the email address”. The applicant also claimed that he had “tried to contact the agent but was unable to do so” and that, as a result, he was “unable to access the email address” set up by that agent. He stated that in the circumstances, he was unaware of the Tribunal’s decision until “a few months ago”.
The Court notes that the applicant contacted the Department on 7 January 2021 using a new email address to request a copy of the delegate’s decision (CB 79). Further, in the application for review filed with the Tribunal on 25 January 2021, the applicant answered “[n]o” to the question “[d]o you have a representative?” (CB 86) and instead provided his new email address as the “[p]referred method for receiving correspondence” from the Tribunal in relation to the review application (CB 85). The applicant also responded to the Tribunal’s invitation to comment letter using that email address on 3 February 2021 and signed off on that email correspondence using his own name (CB 93). The Court considers it unlikely that the applicant, who appeared to have access to his email account (set up in his name) between January and February 2021, was then unable to access his email account between March 2021 (when the Tribunal made its decision) and March 2022 (when the applicant filed his application with this Court).
Even if the Court were to accept the other concerns raised by the applicant, the Court does not consider that they provide an adequate explanation for a delay of almost one year. The frustrations expressed by the applicant (financial difficulties and stress or anxiety brought about by an uncertain visa status) are difficulties which are shared by many applicants who appear before this Court. The Court notes, however, that most applicants are nonetheless able to file their application and documents well within the time prescribed time period.
Without more, the Court does not consider the explanations 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 ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success” (assessed at an impressionistic level only).
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on the substantive “ground of review” (set out in his application for judicial review) and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case 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 ignores relevant 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 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 he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he had used an agent to assist him (“who had been recommended by a few of his friends”) and that that agent had dealt with “all of the paperwork”. The applicant claimed that the agent had “disappeared” and he was “unable to get in contact with them”. The applicant also claimed that the “personal email address” he is using at the moment “was previously the email address used by the agent (or the person dealing with his paperwork)” and that he had only just retrieved that email address himself “a couple of months ago”.
The applicant further explained that his English is not very good. As such, whilst “he tried”, he “was unable to obtain any documents from the agent”. Further, “even if he had been able to access the emails regularly or retrieve any documentation”, his English “is just so limited” that he “could not understand the contents of any letter”.
The applicant explained to the Court that it was only recently that he had asked some acquaintances to assist him with retrieving the email account, translating the documents and re-applying for his visa.
These concerns, to the extent that they point to an arguable case of jurisdictional error, will be addressed 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 eight paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 11 October 2018 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 January 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 30 May 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 29 January 2021, the Tribunal invited the applicant to comment on the validity of their application for review. The Tribunal’s letter relevantly provided:
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 30 May 2020 meaning that 30 May 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 26 June 2020. As the application was not received until 25 January 2021, it appears to be out of time. However, this is a matter which must be determined by a Member.
5.On 3 February 2021, the applicant responded to the Tribunal’s letter. The applicant outlined that they never received mail from the Department sent out on 30 May 2020.
6.The Tribunal has reviewed the Department file and notes that the decision record and notification was sent to the applicant’s email address on record. As such, the Tribunal finds that the applicant is taken to have been notified of the decision on 30 May 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 26 June 2020.
7.As the application for review was not received by the Tribunal until 25 January 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.
Proposed application for judicial review
The application for judicial review filed by the applicant on 29 March 2022 contains one proposed “ground of review” as follows (without alteration) (CB 4):
1.APPEALS TO THE IMMIGRATION DEPARTMENT’S DECISION OF REFUSAL: MAINLY RETURNING BACK TO VIETNAM, HIGHLY RISKY OF PERSONAL LIFE SAFETY AS LIVING IN THE COMMUNIST COUNTRY, POSSIBLE JUDGEMENT ERROR, RELATE TO SECTION 65(1) AND CRITERIA S 36(2).
The applicant’s proposed ground of review does not appear to relate to the Tribunal’s decision. The concerns raised simply express disagreement with the delegate’s decision.
This Court has no jurisdiction in relation to the delegate’s decision: ss 476(2) and (4) of the Act. That decision is a primary decision (within the meaning of s 476(2)(a) of the Act). As such, it is not subject to judicial review by this Court: ss 476(2) and (4) of the Act.
Applicant’s oral submissions
Before this Court, the applicant claimed that he had used an agent to assist him with his application and that, because the notification in relation to the delegate’s decision had been sent to his agent (and because he did not have access to the relevant email account and his agent had “disappeared”), he was “unaware of the delegate’s decision”.
Was the applicant properly notified?
The Court will consider whether the applicant was properly notified of the delegate’s decision – that is, whether the notification of the delegate’s decision in this matter was validly made under the Act.
The Court notes that, in his visa application, the applicant answered “myself” when asked who “[a]ll written communications about this application should be sent” to (CB 19). The other options the applicant could have selected included an “authorised recipient” or “migration agent” (CB 19). Further, the applicant provided his first email address (in his visa application) and agreed for the Department to communicate with him electronically using that email address (CB 26).
Here, a delegate of the Minister refused to grant the applicant the visa on 11 October 2018. Once that decision had been made, the Department was required to notify the applicant of the decision “in a prescribed way” (see s 66(1) of the Act).
The applicant was initially sent notification of the refusal decision (via email) sent to the email address included in his visa application on 11 October 2018 (CB 56). Attached to that email was a letter from the Department (addressed to the applicant) with notification of the refusal decision (CB 57-59) and a copy of the refusal decision (CB 60-68).
On 17 March 2020, following “a court outcome for another person”, the Department determined that it was necessary to re-notify the applicant of his visa outcome and wrote to the applicant (via email sent to his first email address) asking him to confirm his email address (CB 71-72). Attached to that email was a Vietnamese translation of the information included in that correspondence (CB 73).
On 30 May 2020, the Department re-notified the applicant of the delegate’s decision via email (CB 74-78). That correspondence was sent to the applicant at his first email address, being the email address included in his visa application (CB 82-83).
There is no evidence before this Court to suggest that the applicant ever notified the Department of any change to his contact details or provided any new email address for correspondence (prior to contacting the Department on 7 January 2021 (CB 79), as discussed below).
In the circumstances, the Department correctly sent the notification letter to the applicant’s first email address (the email address included in the visa application) – being the last email address provided to the Department for the purpose of receiving documents: s 494B(5)(d) of the Act.
Where a document is provided by email (as was the case here), the person is taken to have received the document at the end of the day on which the document was transmitted: s 494C(5) of the Act. In the circumstances, the applicant was thus taken to have received the notification on 30 May 2020. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, a person 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 at [36] per Barker J.
The applicant was thus taken to have received that notification at the end of the day on 30 May 2020 (regardless of whether or not the applicant actually received the document or accessed his email account on that date).
The Court has also considered whether the notification letter in this matter has complied with s 66(2)(d)(ii) of the Act as required by the jurisprudence clearly laid out in 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 17; Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
As outlined by this Court in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271, s 347(1)(b) of the Act requires an application for review of the delegate's decision to be lodged with the Tribunal within the prescribed period. For that period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with s 66 of the Act. If the notification does not comply with these requirements, then there has been no notification of the decision and the time period does not commence: Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 at [62].
Important for the purposes of this matter is paragraph 66(2)(d) of the Act which 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.
The cases set out at [71] above make it clear that in order to state a matter, as required by the Act, the notification must do so clearly and completely, in a way that the receiver will reasonably understand.
A lengthy overview of the principles outlined in these cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“Abbas”). The Court will not repeat that overview here, other than to set out its conclusion. Relevantly, when assessing whether s 66 of the Act has been complied with, what is clear from the relevant case law is that, when determining whether an applicant was, in fact, “validly notified”, the Court must scrutinise the content and clarity of the notification letter.
As outlined above, the notification letter in this matter was sent to the applicant via email on 30 May 2020. That notification letter stated (CB 76):
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.
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).
The issue for the Court to consider here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
Despite what is arguably jurisprudentially complex, the Court has derived a number of core principles from the cases cited at [70] above. In this regard, the Court repeats its conclusions set out in Abbas (at [78]-[79]) 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;
(d)the letter should be read as a whole. That is, 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. However, where the layout is confusing (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; Ali. It is not significant that an applicant may not speak English as a first language. The question which must be answered is whether the letter conveys the required information.
In this matter:
(a)under the heading “Review Rights” it is made clear that that the review must be lodged “within the period of 28 calendar days, commencing on the day an applicant is taken to have received this letter” (CB 76); and
(b)under that same heading and immediately following information regarding the time period in which an application for review must be made, it states “[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
(c)also under the heading of “Review Rights”, it is made clear that the relevant time period “is prescribed by law and cannot be extended”.
As in Abbas, the notification letter here is clear. The layout is not confusing. The information is set out in one place under a clear heading which provides an unambiguous “signpost”, allowing the applicant to identify the information he requires.
On the basis of the above, the Court is satisfied that the notification letter in this matter meets the requirements of s 66(2)(d)(ii) of the Act and that the applicant was validly notified of the delegate’s decision.
Conclusion regarding merits of the substantive application
The applicant’s “ground of review” does not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the applicant’s oral submissions before this Court do not raise any arguable grounds of error of the sort of this Court can address.
This weighs heavily against granting an extension of time.
Conclusion
The lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time (as amended on 3 February 2023) is, accordingly, refused.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 February 2023
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