BUH23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 995
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995
File number: MLG 1237 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 8 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the inclusion of a non-operational email address in the delegate’s notification letter rendered the notification letter defective – whether the applicant was properly notified of the delegate’s decision as per the principles in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – whether the Tribunal failed to consider the applicant’s explanation for the delay in lodging her review application – whether the Tribunal should have invited the applicant to attend a hearing before it as required by s 425(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 425, 412, 476, 494B, 494C & 494D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.13
Migration Regulations 1994 (Cth), regs 2.16, 4.31 & 4.31AA
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
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189
CAV18 v Minister for Home Affairs [2020] FCA 173
CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199
Craig v State of South Australia (1995) 184 CLR 163
Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
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 and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
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
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
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 [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 30 September 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1237 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUH23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
8 OCTOBER 2024
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 the People’s Republic of China (Court Book (“CB”) 29-52). She arrived in Australia in March 2018 as the holder of a tourist visa (CB 15 & 53-54).
On 13 June 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-28). Included with that visa application were copies of the applicant’s passport (CB 29-52) and a statement outlining the applicant’s protection claims (CB 53-55). In that visa application, the applicant claimed to fear harm from the Chinese government and police on the basis of her religious beliefs. The applicant claimed that she had been detained by police when she was attending a “house gathering” for an underground Christian church and for reasons relating to her faith (CB 24-26 & 53-55). In her visa application, the applicant also included an email address for the receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 11).
On 4 July 2018, the Department acknowledged receipt of the applicant’s visa application (via email), notified the applicant of an appointment to provide her personal identifiers (scheduled for 10 July 2018) and requested further information in relation to the applicant’s claims regarding her religious beliefs (CB 56-65).
On 10 August 2021, the Department requested additional information from the applicant (via email) in relation to her visa application (CB 66-73). In particular, the Department asked the applicant to provide a digital photograph and fingerprints (CB 71-73).
No additional information was provided by the applicant (CB 80).
On 21 September 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 78-82). The delegate was not satisfied that the applicant was a member of the relevant church or that she had a profile that would be of adverse interest to the Chinese authorities (or to anyone else) in China upon her return. On that basis, the delegate did not accept that the applicant would face harm if she returned to China (CB 81).
On 6 May 2023, the applicant lodged an online application seeking review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 83-90). The applicant did not include details of an authorised recipient in that review application. She did, however, include an email address for receipt of correspondence from the Tribunal (CB 87).
On 15 May 2023, the Tribunal invited the applicant (via email) to comment on the validity of her Tribunal review application (CB 91-93).
The Tribunal’s invitation letter relevantly provided as follows (CB 92):
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 21 September 2021 meaning that 21 September 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 18 October 2021. As the application was not received until 6 May 2023, 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 29 May 2023. 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 16 May 2023, the applicant responded to the Tribunal’s invitation letter (via email), stating as follows (CB 94):
I believe I was not properly notified of the decision.
I even had to seek for FOI in order to retrieve my documents because I was not properly notified.
On 18 June 2023, the Tribunal determined that it did not have jurisdiction to review the matter (CB 98-99).
On 12 July 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to detail the Tribunal’s decision below.
The Tribunal’s decision (dated 18 June 2023) is two pages long and spans six 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 Home Affairs on 21 September 2021 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 6 May 2023. 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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 September 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 21 September 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 18 October 2021.
5.As the application for review was not received by the Tribunal until 6 May 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
6. The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The applicant’s application for judicial review (filed in this Court on 12 July 2023) contains two “grounds of review”, as follows (without alteration):
1.The findings of the AAT regarding their jurisdiction of my application contain errors. I was not notified of the decision in accordance with the statutory requirements. No form of notification was received, and I had to make a Freedom of Information (FOI) request to retrieve the said documents.
2.The AAT also ignored my explanation regarding my application. Such response was questionable and controversial as it violates my rights as an applicant. My application deserves a fair and square consideration.
With her application for judicial review, the applicant also filed an affidavit (affirmed by her on 10 July 2023). That affidavit annexed a copy of the Tribunal’s Decision (together with the associated notification letter and information sheet) and repeated the grounds of review (outlined above).
On 20 July 2023, a response was filed on behalf of the Minister seeking summary dismissal of the application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Court’s Rules”).
On 15 April 2024, procedural orders were made by Registrar Downing of this Court programming the matter to a “hearing of the summary dismissal application on a date to be advised”.
On 7 May 2024, an amended response was filed on behalf of the Minister. By that amended response, the Minister withdrew the request for the matter to be summarily dismissed.
On 9 May 2024, a callover of the matter was held before Registrar Cummings of this Court. The applicant appeared at that callover by telephone and was assisted by a Mandarin interpreter. Ms Hsu from Sparke Helmore appeared by telephone on behalf of the Minister.
At that callover (on 9 May 2024), Registrar Cummings made orders transferring the matter to the Perth Registry of the Court (noting that the applicant had confirmed that she lived in Western Australia), vacating the orders made on 15 April 2024 by Registrar Downing and programming the matter to a “final hearing on a date to be advised”. The orders also gave 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 matter came before this Court on 30 September 2024. The applicant appeared at that hearing without legal representation but with the assistance of a Mandarin interpreter. Ms Ellis from Sparke Helmore 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 materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 12 July 2023 (with the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), the response and amended response filed on behalf of the Minister on 20 July 2023 and 7 May 2024 respectively, a Court Book numbering 99 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 21 August 2024 and the affidavit of service of Mr Benjamin Mayne affirmed and filed on 30 September 2024.
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 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s Jurisdiction Decision. Further, the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained to the applicant 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 at 272.
Against this background, the applicant told the Court that she “had not been provided an opportunity to comment on why [her] application, or which part of [her] application, was not compliant with the relevant requirements”.
The applicant’s oral submissions will be addressed by the Court below.
CONSIDERATION
Issue raised by Minister
As outlined above, the Minister initially sought summary dismissal of the application pursuant to r 13.13 of the Court’s Rules (by way of a response filed on 20 July 2023).
However, the Minister subsequently withdrew the request for the matter to be summarily dismissed (by way of an amended response filed in this Court on 7 May 2024).
In written submissions (filed on behalf of the Minister on 21 August 2024), Ms Ellis explained why the Minister had withdrawn that request, as follows:
29As noted above, the Minister withdrew his summary dismissal application because of an issue arising in a similar matter CJG22 – MLG1581/2022. That matter is still before this Court, differently constituted. However, in the intervening time, this Court (again differently constituted) has heard and determined the issue in the matter of Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612 (Daksh). The issue concerns the delegate’s notification letter providing a non-operational email address, being [email protected], as an address to which an applicant may send a Tribunal review application. The relevant part of the letter is extracted in these submissions at [11] above.
The Minister also submitted that, for the reasons set out by Judge Humphreys in the decision of Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612 (“Daksh”), the delegate’s notification letter in this matter complied with s 66(2) of the Act and “was not defective”.
Legislative provisions
Before providing an overview of the decision in Daksh, it is first useful to set out some relevant legislative provision.
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 of a Part 7-reviewable decision must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”.
The relevant prescribed period where an applicant is not in immigration detention (as was the case in the present matter) is outlined in reg 4.31(2) of the Regulations, which provides as follows (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
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 provides as follows (emphasis added):
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
…
If the Department’s notification letter does not meet the requirements set out in s 66 of the Act (outlined above), then there has not, legally, been any “notification of the decision” and, as such, the relevant 28-day 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].
Regulation 4.31AA of the Regulations details the methods by which an application for review must be given to the Tribunal and provides as follows:
4.31AA Giving application to the Tribunal
(1)An application for review by the Tribunal of a Part 7‑reviewable decision must be given to the Tribunal by:
(a)leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(b) sending it by pre‑paid post to a registry of the Tribunal; or
(c)having it delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(d)faxing it to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(e)transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
…
(5)An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.
The Decision in Daksh
In Daksh, Judge Humphreys of this Court explained that in that matter:
11 A Statement of Agreed Facts was filed on 2 July 2024 in the following terms:
•During the relevant period [9 June 2022 to 30 June 2022], the email address “[email protected]” was inactive, and any email sent to that address was not received by the Administrative Appeals Tribunal, or anyone.
•Emails sent to the email address “[email protected]” during the relevant period resulted in an email being automatically returned to the sender indicating that the delivery of their email had not been successful (non-delivery notification).
The applicant in Daksh alleged that the Department’s notification letter was erroneous because it “listed three emails where the applicant could submit an appeal”. However, “one of these emails [was] no longer in use”. Further, the applicant claimed that, by only providing those emails in the letter, the Minister had breached s 66(2)(d)(iv) of the Act which required that the applicant be notified of where an application for review could be lodged: Daksh at [13].
The applicant in Daksh also submitted that the notification letter was “infected” and “provided applicants with a ‘red herring’” – being an address and platform which were no longer in operation (citing Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594). The applicant further claimed that the “infection” rendered the notification letter “defective” and that the defect was “so fundamental as to constitute jurisdictional error” on the part of the Tribunal: Daksh at [22]-[23].
In response, the Minister submitted that, while one email address included in the notification letter was non-operable, the notification letter provided the applicant with information in relation to making an application online, by post, by fax or in person at one of the Tribunal registries. Further, the notification letter included a functioning email address (listed before the inoperable email address): Daksh at [26].
The Minister also submitted that the notification letter plainly complied with the requirements in s 66 of the Act that the letter “state” where a review application could be made and that there was no evidence to suggest that the applicant attempted to submit an application for review using the non-operable email address. Rather, the applicant had lodged his review application using the online portal and, as such, had not been “deprived of the realistic possibility of a successful outcome”: Daksh at [27] & [29].
The Minister also claimed that, in the event that the Court found any defect in the notification letter, the breach was not material as the applicant had not attempted to use the defective email address and, as such, had not suffered any prejudice.
Judge Humphreys ultimately found as follows:
34The Court is satisfied that there is no evidence that the applicant was misled by the defective email address. There is no evidence that he tried to use it, rather he lodged the application via an online application which was set out in the Notice.
35SZOFE is authority that the Minister is not required to set every means by which an application could be lodged, that is by not providing every address of a Tribunal registry. Emmett J held at [30] that “it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure”.
36Buchanan and Nicholas JJ at [66] – [67] reasoned that it was necessary to consider the consequences of the alleged non-compliance in determining whether the duty in s 66(2) had not been performed.
37In the current circumstances, the Court is satisfied that the Notice was not defective. It provided clear details via a number of means by which an application for a review by the Tribunal could be lodged. The admitted error was in my view bordering on the trivial. No jurisdictional error arises.
38Even if the Court is wrong in this regard, in the present case there were no negative consequences to the applicant by the admitted defect. His application was made some 5 months out of time using an online application provided to him in the refusal letter. The applicant was not deprived of the possibility of a successful outcome.
Whether this matter can be distinguished from Daksh
In this matter, the applicant was notified of the refusal of her visa by letter from the Department (sent to her via email) on 21 September 2021 (CB 74-77). Relevantly, that notification letter provided the following information in relation to lodging an application for merits review with the Tribunal (CB 75):
As can be seen from the extract above, the notification letter to the applicant here explained that an application for review could be “lodged online, in person, faxed or posted to any Registry” of the Tribunal (as set out in the table above). A link was provided for the applicant to apply online ( and two email addresses were provided ([email protected] and [email protected]).
The Minister (in written submissions filed in this Court on 21 August 2024) conceded that one of those the email addresses (being [email protected]) was non-operational at the time that the notification letter was sent to the applicant. The same information was provided to the applicant in Daksh (see, for example, Daksh at [11], [26] & [31]).
There is no evidence before this Court to suggest that the applicant in the present matter attempted to use the defective email address. Instead, more than 19 months later (being on 6 May 2023), the applicant filed an online application for review with the Tribunal (CB 83-90). These circumstances mirror those in Daksh (noting, however, a further delay on the part of the applicant here when making her application to this Court): Daksh at [32].
The Court considers that the present matter cannot be distinguished from the factual circumstances in Daksh. There is no evidence here to suggest that the applicant was misled by the defective email address. There is no evidence before the Court to suggest that she tried to use the email address. Rather, she applied using an online application (details of which were also set out in the notification letter): Daksh at [34].
It follows then that the notification letter in the present matter is not defective on account of the inclusion of a non-operational email address because the letter provided “clear details via a number of means by which an application for review by the Tribunal could be lodged”: Daksh at [37]. It is also clear that the applicant accessed one of those means of communication and did so without prejudice.
No jurisdictional error arises in this regard.
The Court will separately determine (in relation to its consideration of ground one) whether the applicant was otherwise properly notified of the delegate’s decision (below).
Grounds of review
Ground one
As outlined above, ground one relevantly provides as follows:
1.The findings of the AAT regarding their jurisdiction of my application contain errors. I was not notified of the decision in accordance with the statutory requirements. No form of notification was received, and I had to make a Freedom of Information (FOI) request to retrieve the said documents.
Noting that the applicant appeared without legal assistance, the Court will consider whether the applicant was properly notified of the delegate’s decision and whether, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
The relevant jurisprudential authority in this regard is Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”).
This Court provided a detailed overview of the decision in Sandor and the requirements for notification letters more broadly in its decisions in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]) and CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 (citing AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (“AGS20”)).
The analysis provided in the above judgments is repeated here (albeit with minor amendments).
The Court has outlined above (at [35]-[41]) the relevant legislative provisions in relation to the requirement to notify an applicant of a visa refusal in the prescribed way (by virtue of s 66 of the Act).
In addition to those provisions, reg 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 post (pursuant to s 494B(4) of the Act) or by email (pursuant to ss 494B(5)(b) and 494B(5)(d) of the Act).
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires that the Minister 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.
If a document is sent by email, 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: s 494C(5) of the Act.
Further, by sending the document by one of the methods set out in s 494B or s 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [36] per Barker J.
As previously explained by this Court, 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”).
As previously detailed by this Court, these cases clarify that in order to “state” a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“Abbas”). In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court relies on and repeats its analysis in Abbas (at [78]-[79]) as follows.
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.
As previously explained by this Court, 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.
As previously noted by this Court, 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?
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 applicant in this matter was sent a notification letter by email to the applicant’s nominated email address on 21 September 2021 (CB 74-77).
The contents of the notification letter in this matter are as follows (CB 74-75):
(a)the letter was dated 21 September 2021 (on the first page – CB 74);
(b)the letter was addressed to the applicant (referencing her by name) at her postal address (a post office box) (on the first page – CB 74);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 74);
(d)under the heading “Review rights” (on the first and second pages, CB 74-75), 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 21 September 2021 (CB 74).
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.
As previously explained by this Court in Singh and AGS20, the defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not “manifest”.
The notification letter in Sandor required the appellant to understand that he “was taken to have received” the letter on “the day the letter was transmitted” to his authorised recipient. However, the notification letter in this matter does not require the applicant to do so.
As previously explained by this Court, 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 18 October 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 time 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 nominated 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 that the email was transmitted.
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 prescribed period within which the applicant was required to apply to the Tribunal thus ended on 18 October 2021 (being 28 days after the date upon which she was deemed to have been notified of the delegate’s decision). The applicant did not apply within the prescribed time period. Instead, she submitted her review application to the Tribunal on 6 May 2023 (CB 83-90).
The Tribunal did not have the power to extend the time period within which the applicant could seek review by the Tribunal: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (“Beni”) at [49].
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.
To the extent that the applicant suggests that she had to make a Freedom of Information request (“FOI request”) to obtain a copy of the delegate’s decision, the Court notes that there is no evidence in the Court Book (or otherwise before it) to suggest that the applicant made any FOI request in this matter to obtain a copy of the delegate’s decision.
Further, for the reasons outlined above, the Court is satisfied that the applicant was properly notified of the delegate’s decision via email (being one of the methods set out in s 484B (5) of the Act). As outlined above, where a document is sent by one of the methods set out in s 494B or s 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL at [36] per Barker J. Where a document is sent by email, an applicant is deemed to have received that 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: s 494C(5) of the Act.
Here, the notification letter was sent to the applicant via email on 21 September 2021 (CB 74). The applicant was therefore deemed to have received the notification letter at the end of the day on 21 September 2021, regardless of whether the document was actually received: SZNZL at [36] per Barker J.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2.The AAT also ignored my explanation regarding my application. Such response was questionable and controversial as it violates my rights as an applicant. My application deserves a fair and square consideration.
By ground two, the applicant suggests that the Tribunal failed to consider her explanation in relation to why her application to the Tribunal for merits review was filed late.
The applicant’s explanation in that regard is as follows (CB 94):
I believe I was not properly notified of the decision.
I even had to seek for FOI in order to retrieve my documents because I was not properly notified.
The Court acknowledges that the Tribunal did not expressly reference the applicant’s explanation for why she did not file her Tribunal application within the requisite time period in its written reasons.
However, the Court notes that the Tribunal is not required to refer to every piece of evidence before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 per French, Sackville and Hely JJ at [46]. The Tribunal was only required to refer to the pieces of evidence that it found “germane” to its reasoning: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [67]-[68], [73]-[74], [77], [89] and [91].
Further, for the reasons outlined above, the Court is satisfied that the applicant was properly notified of the delegate’s decision via email and, by virtue of the provisions set out in s 494C of the Act, the applicant is taken to have received that notification at the end of the day it was transmitted (being on 21 September 2021), regardless of whether the document was actually received: SZNZL at [36] per Barker J.
The Court also notes that the applicant’s explanation could not have changed the outcome. For the reasons set out above, the Court is satisfied that the Tribunal was correct to determine it did not have jurisdiction in this matter because the applicant’s review application as not made within the requisite time period. As explained above, the Tribunal did not have the power to extend time timeframe within which the applicant could seek review by the Tribunal (regardless of the applicant’s reasons for the delay): Beni at [49].
No jurisdictional error arises in relation to ground two.
Oral submissions
As outlined above, in oral submissions before this Court, the applicant claimed that she had not been provided an opportunity to comment on why her application, or which part of her application, was not compliant with the relevant requirements.
Insofar as the applicant takes issue with the Tribunal’s failure to expressly reference (in its written reasons) the applicant’s explanation for the delay in lodging her application for review with the Tribunal, this has been addressed by the Court above (in relation to ground two).
To the extent that the applicant suggests that the Tribunal ought to have invited her to attend a hearing before it (as required by s 425(1) of the Act), the Court disagrees for the reasons that follow.
As this Court has previously outlined in Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640 and WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108), the issue of whether or not the Tribunal is under any obligation to invite an applicant to attend a hearing in matters such as this (where the Tribunal has correctly determined that it has no jurisdiction to review the matter) has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”).
In Benissa, the Federal Court relevantly determined as follows:
28.In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29.Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30.The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31.The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32.In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33.First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34.Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35.Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36.Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
In this matter, as in Benissa, the issues arising related to whether the Tribunal had jurisdiction in the matter and not in relation to the decision under review itself (that is, whether or not the applicant should have been granted the visa).
In the circumstances, the Court is satisfied that the applicant suffered no practical injustice arising from the Tribunal denying him a hearing concerning jurisdiction. The Court is also satisfied that there was no obligation arising from the requirements of procedural fairness in s 425(1) of the Act for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 12 July 2023 and the applicant’s oral submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 October 2024
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