CDC23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 574
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDC23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 574
File number: PEG 186 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 28 June 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal that it had no jurisdiction in the matter – extension of time application – insignificant delay – inadequate explanation for delay provided – no prejudice to Minister if extension of time granted – 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 decision made by the Minister’s delegate was unreasonable – whether the Tribunal improperly applied relevant legislative provisions – whether the Tribunal should have invited the applicant to attend a hearing before it as per s 425(1) of the Migration Act 1958 (Cth) – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 65, 66, 411, 412, 425, 477, 477A, 494B, 494C & 494D
Migration Regulations 1994 (Cth), regs 2.16 & 4.31
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Ali v Minister for Home Affairs [2019] FCA 1102
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
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
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
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
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of hearing: 21 May 2024 & 12 June 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 186 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDC23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of China (Court Book (“CB”) 1-3). He first arrived in Australia in September 2018 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 10 & 51).
On 4 December 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-20). In that visa application, the applicant answered “no” when asked if he wished to authorise another person to receive communication about his visa application on his behalf. The applicant instead gave the Department of Home Affairs (the “Department”) authorisation to communicate with him via email and provided them with his email address (the “first nominated email address”) to allow them to do so (CB 7). He also provided the Department with a residential address in New South Wales (the “first nominated postal address”) (CB 6).
On 16 January 2019, the Department acknowledged receipt of the applicant’s visa application via email sent to the applicant’s nominated email address (CB 23-28).
On 21 June 2022, the Department asked the applicant for more information in relation to his visa application by sending two request letters (CB 29-36 & 37-43). Those request letters were sent to the applicant at the applicant’s first nominated email address (CB 29 & 37).
The email to the applicant (sent to the first nominated email address attaching the request letters) was returned as “undeliverable” (CB 45).
A copy of the letters was also sent to the applicant by post to the applicant’s first nominated postal address (also sent on 21 June 2022) (CB 44). The postal correspondence was marked “return to sender” and returned to the Department on 18 July 2022 (CB 46).
On 16 August 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-55).
Copies of the delegate’s decision were sent to the applicant’s first nominated email address (CB 47-50) and by registered post to the applicant’s first nominated postal address (CB 56-59 & 61). The copy sent by email was returned “undeliverable” (CB 60) and it appears that the copy sent by registered post was marked “return to sender” and returned to the Department (CB 62).
On 16 April 2023, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 63-68). In that Tribunal review application, the applicant asked that all correspondence be sent directly to him (CB 67). The applicant provided the Tribunal with another email address (the “second nominated email address”) and a residential address in Western Australia (the “second nominated postal address”) to allow them to do so (CB 66). The Tribunal review application indicates that the applicant also provided the Tribunal with a copy of the Department’s notification letter (CB 67).
On 17 April 2023, the Tribunal invited the applicant (by letter sent via email to the applicant’s second nominated email address) to comment on the validity of his Tribunal review application (CB 69-70). That invitation letter stated:
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 posted to you on 16 August 2022 meaning that 25 August 2022 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 21 September 2022. As the application was not received until 16 April 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 1 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.
In the covering email (sent to the applicant on 17 April 2023), the Tribunal also asked the applicant to provide the Tribunal with a copy of the delegate’s decision record “as soon as possible” (CB 69).
Later that same day (being on 17 April 2023), the applicant provided the Tribunal with a copy of the notification letter sent to him by registered post at his first nominated postal address (CB 71-76).
On 18 April 2023, the Tribunal wrote to the applicant again (via email sent to the applicant’s second nominated email address) notifying him that he had provided a copy of the notification letter and not the delegate’s decision record. The Tribunal again requested that the applicant provide a copy of the delegate’s decision record and provided him with the Department’s details (should he need to request a copy of the decision from them) (CB 82).
Later that same day (also on 18 April 2023), the applicant provided the Tribunal with a copy of both the delegate’s decision record and the Department’s notification letter (via email) (CB 82-85).
The applicant did not otherwise provide any substantive response to the Tribunal’s invitation to comment letter (CB 89).
On 21 June 2023, the Tribunal determined that it did not have jurisdiction in relation to the applicant’s review application because “the application for review was not received by the Tribunal until 16 April 2023” and the application for review was thus “not made in accordance with the relevant legislation” (the “first Tribunal decision”) (CB 88-89).
The applicant was notified of the first Tribunal decision by letter dated 22 June 2023 (sent to the applicant via email to the applicant’s second nominated email address that same day, being on 22 June 2023, together with a copy of the first Tribunal decision) (CB 86-87).
Also included with the notification of the first Tribunal decision was an information sheet containing “[i]nformation about decisions” (CB 90-92). That information sheet provided the applicant with information in relation to how he could seek review of the first Tribunal decision and, relevantly, provided (CB 91):
Applicants can apply to the Federal Circuit and Family 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 28 August 2023, the applicant applied to this Court for judicial review of the first Tribunal’s decision (dated 21 June 2023). The application was accompanied by an affidavit annexing a copy of that decision and the Tribunal’s notification letter (dated 22 June 2023). The affidavit also annexed a copy of a further decision made by the Tribunal on 28 June 2023 (the “second Tribunal decision”) and an associated notification letter (dated 29 June 2023). That second Tribunal decision explained that the Tribunal had already reviewed the delegate’s decision in this matter (by way of the first Tribunal decision) and, accordingly, the Tribunal no longer had jurisdiction in relation to that decision. The second Tribunal decision is not the subject of any review before this Court.
Unfortunately, the applicant’s judicial review application (in relation to the first Tribunal decision) was filed approximately 33 days 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 within which to pursue his substantive proceeding in this Court.
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.
PROCEDURES FOLLOWED IN THIS COURT
On 24 November 2023, procedural orders were made by Registrar Downing 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 matter was first listed for a hearing before this Court on 21 May 2024. The applicant asked to attend that initial hearing via video link. The Court allowed him to do so.
When the applicant came before this Court on 21 May 2024, he appeared via video link with the assistance of a Mandarin interpreter. Unfortunately, there were a number of technical issues affecting that initial hearing and, noting that there were also issues in the matter which might need to be interpreted to the applicant directly from the Court Book, the Court ultimately determined that it was appropriate to adjourn the matter so that the applicant could appear in person and sit next to a qualified interpreter.
The applicant subsequently appeared before this Court in person on 12 June 2024. He did so without legal representation. He was assisted at the hearing by a Mandarin interpreter.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The applicant did not bring the Court Book with him to the hearing and said that he could not recall receiving the Minister’s written submissions.
The Court noted that the applicant had confirmed receipt of both documents prior to the commencement of the initial hearing on 21 May 2024 and that the information annexed to the affidavit of service of Aatika Ismailjee (affirmed on 22 February 2024, filed in this Court on 23 February 2024 (the “Ismailjee affidavit”) and taken as read and in evidence at the hearing on 12 June 2024) confirmed that both the Court Book and the Minister’s submissions were properly served on the applicant. On that basis, the Court determined it was appropriate to proceed with the hearing on 12 June 2024 and arranged for the Minister’s representative, Mr Benjamin Mayne, to summarise the contents of the Minister’s submissions for the applicant during the course of the hearing (with the assistance of the interpreter).
The materials before the Court include the application for an extension of time and supporting affidavit (both filed by the applicant on 28 August 2023), a court book numbering 92 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 October 2023 and the Ismailjee affidavit.
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. It was further noted that, in this matter, the first Tribunal decision was dated 21 June 2024. The date by which the applicant was required to file his application in this Court was 26 July 2023. The Court explained that, unfortunately, the applicant did not file his substantive application in this Court until 28 August 2023. Hence, as explained to the applicant, the delay in this matter is 33 days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a “ground” explaining why 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, again, that the applicant appeared without any legal assistance, the Court outlined 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 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and highlight anything that he considered relevant to his request for an extension of time.
The applicant’s responses are discussed in the consideration that follows.
CONSIDERATION
Length of delay
As this Court has previously explained, 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 set out above (at [31]), the delay in this matter is 33 days and the Court does not consider this delay to be significant.
This weighs in favour of granting the extension of time.
Prejudice
In written submissions before this Court, the Minister conceded that there was no prejudice to him in granting an extension of time, “beyond the public interest in the finality of the administrative decision making” (citing Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67).
The Court agrees.
This also weighs in favour of granting the extension of time.
Explanation
The applicant’s sole “ground” in support of his application for an extension of time in this matter provides as follows (without alteration):
1.I did not get enough money to pay the application fee 3535, because 3535 is very big sum of money for me I need time to get it.
The applicant’s oral submissions before this Court largely echoed this ground (save for a minor discrepancy in the fee payable) with the applicant explaining to the Court that he had been unemployed and did not have the money to pay the “appeal fee” which was approximately $3,700. The applicant also stressed that he was never told that the Court’s application fee could be waived and that, if he knew that he could apply for a fee exemption, he would not have waited so long to lodge his application.
To the extent that the applicant claims that he did not file his application for judicial review in this Court because he was having financial difficulties and did not have the means to do so, the Court sympathises and acknowledges that many of the applicants that appear before this Court do so in similar circumstances and face similar challenges. However, it is well settled that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application within the prescribed time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] per Barker J.
Further, there is no evidence before the Court to indicate that the applicant contacted the Court’s registry team to discuss the issue of the filing fee or seek any fee reduction or waiver in this regard.
The Court does not consider that the explanation provided by the applicant is satisfactory.
This weighs against the granting of an extension of time.
Merits
Arguably, the most critical factor for the Court’s consideration when determining whether an extension of time ought to be granted is whether the proposed application for judicial review has any “prospect of success” (viewed impressionistically only).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court of Australia (the “Federal Court”) in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the first Tribunal decision or grant the applicant the visa that he now seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he was not invited to attend a hearing and everything was simply done by email.
The applicant’s oral submissions, to the extent that they point to any arguable case of error, will be addressed below.
The first Tribunal decision
In order to determine whether the substantive application for judicial review has any “merit”, it is useful to first set out the first Tribunal decision.
The first Tribunal decision (dated 21 June 2023) is two pages long and spans seven 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 16 August 2022 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 16 April 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). The material before the Tribunal indicates the applicant was notified of the decision by letter dated 16 August 2022 and dispatched by post. The Tribunal is satisfied the applicant was notified of the decision in accordance with the statutory requirements.
3.By letter of 17 April 2023 (dispatched by email), the Tribunal wrote to the applicant and advised it appeared his application was 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].
4.The primary decision was posted to the applicant on 16 August 2022 meaning that 25 August 2022 was the date on which he was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 21 September 2022. As the application was not received until 16 April 2023, it appeared to be out of time. The applicant was invited to comment in writing by 1 May 2023. However, at the time and date of this decision, no material response had been lodged with the Tribunal.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 25 August 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 21 September 2022.
6.As the application for review was not received by the Tribunal until 16 April 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
Proposed application for judicial review
The application for judicial review filed by the applicant on 19 January 2021 contains two grounds of review, as follows (without alteration):
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s 494C, s 65 of Migration Act 1958, reg 4.31(2), r 4.31(2) of Migration Act 1994 properly to assess my case.
Whether the applicant was properly notified of the delegate’s decision
Noting that the applicant appeared before this Court without legal assistance, the Court has, in its duty to the applicant as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remained astute and alert to the possibility of jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In this regard, the Court has considered for itself 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 of 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 those judgments is repeated (with minor amendments) below.
The Act and Migration Regulations 1994 (Cth) (the “Regulations”) impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
Section 412(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”. The relevant prescribed period applicable in this matter is outlined in reg 4.31(2) of the Regulations which provides (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
For that 28 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides as follows:
66 Notification of decision
…
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
The Department is permitted to communicate with an applicant by 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 post (from a place in Australia to an address in Australia), an applicant is deemed to have received a document seven working days after the date of the document: s 494C(4)(a) 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 ss 494B or 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”); Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh FCAFC”).
These cases clarify that in order to “state” a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“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]).
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.
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.
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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 Court notes that the applicant in this matter was sent two notification letters. The first notification letter was sent by email to the applicant’s first nominated email address (CB 47-50). The second was sent to the applicant’s first nominated postal address (CB 56-59). Given that the Tribunal relied upon the letter sent by post (and that is the version that was sent to the Tribunal by the applicant) the Court will reference that version of the notification letter in these reasons (though the Court notes that, save for the method of transmission, the letters otherwise appear to be identical).
The contents of the notification letter in this matter are as follows (CB 56-59):
(a)the letter was dated 16 August 2022 (on the first page – CB 56);
(b)the letter was addressed to the applicant (referencing him by name) at his residential address (on the first page – CB 56);
(c)the letter indicated that the “transmission method” was via post sent to the applicant’s first nominated postal address (on the first page – CB 56);
(d)under the heading “Review rights” (on the first and second pages, CB 56-57), 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 (MT) 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 mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
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 (prepaid) registered post to the applicant on 16 August 2022 (CB 61).
It is clear that the notification letter in this matter differs from the letter the subject of Justice Markovic’s decision in Sandor. The letter in this matter was sent to the applicant directly (via registered post sent to the applicant’s first nominated postal 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. It clearly indicates to the applicant that he is taken to have received the letter seven working days after the date of the letter and further explains that a working day does not include weekends or public holidays.
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 he had until 21 September 2022 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 post;
(b)identified the applicant’s own first nominated postal 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 seven working days after the date of the letter.
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. Further, the Court is satisfied that the applicant was taken to have been validly notified of the delegate’s decision in this matter seven days after the date of the letter (being on 25 August 2022).
The prescribed period within which the applicant was required to apply to the Tribunal thus ended on 21 September 2022 (being 28 days after the date upon which he was deemed to have been notified of the delegate’s decision). The applicant did not apply within the prescribed time period. He submitted his review application to the Tribunal on 16 April 2023 (CB 63-68).
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 arguable case of jurisdictional error arises in this regard.
Proposed grounds of review
Proposed ground one
Proposed ground one relevantly provides as follows:
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
By this proposed ground, the applicant appears to claim that the decision made by the Minister’s delegate was unreasonable. Unfortunately, the Court has no jurisdiction to review that decision: ss 476(2) and (4) of the Act.
No arguable case of jurisdictional error arises in this regard.
Proposed ground two
Proposed ground two relevantly provides as follows:
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s 494C, s 65 of Migration Act 1958, reg 4.31(2), r 4.31(2) of Migration Act 1994 properly to assess my case.
To the extent that the applicant references any error in the application of the law by the Minister’s delegate, this Court has no jurisdiction (as outlined above in relation to proposed ground one).
The Court has addressed compliance in relation to s 494C of the Act above.
Insofar as the applicant suggests that the Tribunal erred in its application of s 65 of the Act or reg 4.31 of the Regulations, the Court disagrees for the reasons that follow.
Section 65 of the Act requires that, except in particular circumstances not applicable in this matter, where a valid application for a visa is made, the Minister must either grant the visa (if he is satisfied that the applicant satisfies the criteria for the grant of the visa) or refuse to grant the visa.
As outlined above, the applicant in this matter applied for the visa the subject of this proceeding (being a protection visa) on 4 December 2018 (CB 1-20).
On 16 August 2022, a delegate of the Minister refused to grant the applicant the visa (pursuant to s 65 of the Act) (CB 51-55).
A decision to refuse to grant an applicant a protection visa is a “Part 7-reviewable decision” and is thus reviewable by the Tribunal: s 411(1)(c) of the Act.
Section 412 of the Act outlines what is required in order for a valid application for review to be made and relevantly provides as follows:
412 Application for review of Part 7‑reviewable decisions
(1) An application for review of a Part 7‑reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
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The prescribed time period referred to in s 412(1)(b) of the Act (outlined above) is detailed in reg 4.31 of the Migration Regulations 1994 (Cth) (the “Regulations”), which relevantly provides as follows:
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
The applicant in this matter was not in immigration detention at the time of the delegate’s decision. The applicant was thus required to make an application for review of the delegate’s decision within 28 days from the day he was notified of the delegate’s decision.
As set out above, the Court is satisfied that the applicant was validly notified of the delegate’s decision in this matter seven days after the date of the letter (being on 25 August 2022).
The prescribed period within which the applicant was required to apply to the Tribunal thus ended on 21 September 2022 (being 28 days after the date upon which he was deemed to have been notified of the delegate’s decision). The applicant did not apply within the prescribed time period. He submitted his review application to the Tribunal on 16 April 2023 (CB 63-68).
On that basis, the applicant’s review application filed with the Tribunal was not a valid application as it was not given to the Tribunal within the prescribed time period: s 412(1)(b) of the Act.
As explained above, the Tribunal did not have the power to extend the time period within which the applicant could seek review by the Tribunal: Beni at [49].
The Court is satisfied that the Tribunal properly applied the relevant legislative provisions in this matter and no arguable case of jurisdictional error arises in this regard.
Oral submissions
In oral submissions before this Court, the applicant appeared to take issue with the Tribunal not inviting him to attend a hearing and, instead, “doing everything by email”.
To the extent that the applicant suggests that the Tribunal should have invited him 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 (citing 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 arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s proposed “grounds of review” and oral submissions, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable grounds of error on the part of the Tribunal.
This weighs heavily against granting an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the delay in filing and lack of any 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 Cout to grant an extension of time in this matter.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 June 2024
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