CEA20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1449
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEA20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1449
File number(s): SYG 1164 of 2020 Judgment of: JUDGE GIVEN Date of judgment: 10 September 2025 Catchwords: MIGRATION – Where Tribunal found it did not have jurisdiction in circumstances where application was made 1 day out of time Legislation: Acts Interpretations Act 1901 (Cth) s 36
Migration Act 1958 (Cth) ss 66, 411, 412, 476, 494B, 494C
Migration Regulations 1994 (Cth) rr 2.16, 4.31
Cases cited: ACS18 v Minister for Home Affairs [2019] FCA 111
Fahme v Minister for Home Affairs (2019) 268 FCR 394
Monga v Minister for Immigration and Border Protection [2019] FCA 286
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Division: General Federal Law Number of paragraphs: 32 Date of hearing: 17 June 2025 Place: Sydney Solicitor for the Applicant: Mr Kasi, Steady Lawyers Solicitor for the Respondents: Mr Pasas, Clayton Utz ORDERS
SYG 1164 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEA20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application made on 14 May 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act), by which the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 April 2020. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (Class XA)(subclass 866) visa (visa).
BACKGROUND
The following background is primarily derived from the written submissions of the first respondent and does not appear to be in dispute.
The applicant, a citizen of Fiji, applied for the visa on 3 February 2019 (CB 1 to 30). The delegate refused to grant the visa on 15 October 2019 (CB 55 to 56 and 59) which was notified to the applicant on the same date under cover of letter, sent by email, which stated that the applicant was entitled to apply to the Tribunal for review, and that:
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 applicant applied to the Tribunal for review on 12 November 2019 (CB 66 to 67).
On 20 December 2019, the Tribunal wrote to the applicant saying “it appears that your application is not a valid invitation as it was not lodged within the relevant time limit" (CB 72 to 73). That was because the 28-day period expired on 11 November 2019, and the application for review was made on 12 November 2019. The Tribunal invited the applicant to comment on the issue.
On 9 January 2020, the applicant responded as follows (CB 74 to 76):
(a)He had calculated the 28 days from 16 October 2019, being the "next day" from which he was given the decision (that day also being the day that he checked his email);
(b)he had researched the relevant case law which he said, supported his view that he was within time; and
(c)he was willing to complete a form seeking an extension of the time in which to apply for review.
On 17 April 2020, the Tribunal made a decision by which it:
(a)observed that the delegate's decision was made on 15 October 2019;
(b)was satisfied that the applicant had been notified of the delegate’s decision in accordance with the statutory requirements (CB 80 at [1], [3] and [5]);
(c)noted that an application for review of the decision had to be made within 28 days, which period expired on 11 November 2019 (CB 80 at [2] and [5]);
(d)observed that, by contrast, the application in question had not been made until 12 November 2019 (CB 80 at [6]); and
(e)therefore concluded that it did not have jurisdiction because the application for review was not made in accordance with the relevant legislation (CB 80 at [6] and [7]).
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed with the Court on 14 May 2020. The applicant was unrepresented at the time of their commencement. On 2 July 2020, a Registrar of the Court made timetabling orders, by consent, which included provision for the filing of a Court Book by the first respondent, a consequential opportunity for the applicant to amend, and for the parties to file evidence and submissions. The proceedings were to be listed administratively for a final hearing on a date to be fixed. Instead, on 29 November 2024, the parties came before a Registrar of the Court for callover. The applicant was again granted leave to amend, and orders were made for the parties to file evidence and written submissions referable to any eventual hearing date. The following notations were made to those orders:
A. The first respondent will send the applicant a courtesy copy of the court book by email within 7 days of the date of these Orders.
B. The applicant does not require an interpreter.
On 4 February 2025, the proceedings were docketed to me and I made orders listing them for hearing on 17 June 2025. A further timetable, including an additional grant of leave to amend, was made. The applicant and first respondent were ordered to file written submissions 28 and 14 days before the final hearing, respectively. The applicant did not file submissions as ordered. The first respondent filed written submissions on 3 June 2025, being the last date on which to do so.
On 19 May 2025, an Affidavit affirmed by the applicant on 17 May 2025 was filed. On 13 June 2025, the following documents were filed for the applicant:
(a)Notice of Address for Service which had the effect of appointing a legal representative for the applicant in the proceedings; and
(b)written outline of submissions prepared by the applicant’s legal representative.
Other than his originating application and the documents referred to at [10] above, the applicant has not filed any documents within time and has not at any time availed himself of the multiple grants of leave to amend his originating application.
On 17 June 2025, each of the parties was represented by their respective solicitors at the final hearing. The Court Book was tendered and marked as Exhibit “1R”. The applicant did not seek to read either of the Affidavits filed in the proceedings by him. The applicant’s solicitor sought leave to rely on the written submissions which had been filed outside of the time allowed by the Court. There being no objection to that leave by the first respondent, the Court granted it.
GROUNDS OF REVIEW
In the circumstances where the applicant has not availed himself of the opportunity to amend, notwithstanding three grants of leave in which to do so, the grounds which remain for consideration are those in the original application, which are as follows (errors and emphasis in original):
1.The Administrative Appeals Tribunal erred in not considering my application by advising that Tribunal had no Jurisdiction in my matter.
2.The Tribunal erred by counting the 28 day time from 15 October.
3.The Tribunal erred by stating that it found me to have been taken to have been notified by the Immigration decision on 15 October 2019 as per s.4.19 of the Act when this act or information was never supplied to me by Immigration. The Tribunal erred to conclude that the prescribed period to apply for review ended on 11 November 2019.
4.The Tribunal further erred by not accepting my review application which was received by Tribunal on 12th November, 2019 and concluding without justice that the application for review was not made in accordance with the relevant legislation and concluding that the Tribunal had no Jurisdiction in my matter. For these reasons I have not been given a fair go and have been deprived my Justice based on the initial Immigration department’s refusal letter which stated per below:
The department cannot consider your 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 Administrative Appeals Tribunal with the period of 28 Calendar days covering the day you are taken to have received the letter. As this letter was sent by email, you are taken to have received at the end of the day it was transmitted.
For me being an ordinary person without any legal background and without receiving any explanation on the 28 day time from Immigration for the s.4.19 of the act as mentioned has been confusing. Further confusing is the part which stated in my Immigration letter that “as the letter was sent by email, you are taken to have received the Immigration letter at the END of the DAY it was Transmitted”. If I am taken to have received the Immigration letter “at the end of the day” it was sent which was 15 October 2019 then my Natural calculation is based on calculating the 28 day time from 16th October 2019 which is also the day I checked my email and received the refusal letter. If I am taken to have received the Immigration letter at the end of the day it was transmitted/emailed which will mean the end of the day is 11:59pm on 15 October 2019 then I am denied my Natural Justice when the Tribunal has counted this as a full day because the time 12:00am 16 October is the day from when my time should be counted. The Tribunal erred by calculating my prescribed 28 day time ended on 11 November 2019 and should have provided Justice to calculate the 28 day prescribed day to be ended at end of 12 November 2019 which is the day I sent my review application to the Administrative Appeals Tribunal.
As will be observed, the grounds of review present in narrative form and are somewhat repetitive. Given the background to the matter, the issue for the Court is a narrow one. Based on the entirety of the aforementioned narrative, the applicant can be taken as making the following allegations:
(a)the Tribunal erred by commencing its calculation of the requisite 28 day period, from 15 October 2019. This was because the applicant was taken to have received the notification at the end of the day on 15 October 2019 (11:59pm) and, accordingly, time should begin running from 12:00am 16 October 2019. Therefore, the Tribunal erred in concluding that the prescribed period ended on 11 November 2019;
(b)the Tribunal erred by failing to notify the applicant of the effect of the timing and deeming provisions in the Migration Regulations 1994 (Cth) (Regulations); and
(c)take to an ordinary person, the wording of the notification letter was confusing and ambiguous, and failed to precisely state the prescribed time frame or the date the prescribed period would end.
Legislative framework
The following statutory provisions are relevant to the resolution of the application before the Court.
Section 66(1) of the Act requires the Minister to notify an applicant of a decision to grant or refuse to grant a visa "in the prescribed way". In this regard I note that the Tribunal was aware of the decision in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh) in which the Full Federal Court considered a notification letter in materially identical terms to the notification in the instant case and concluded that it complied with the statutory requirements.
Regulation 2.16(3) of the Regulations prescribes, for the purposes of s 66(1) of the Act, that a delegate's decision to refuse to grant a visa must be notified by a method specified in s 494B of the Act. As noted at [3] above, the applicant was provided with a copy of the delegate's decision by email sent on 15 October 2019, which is a valid method pursuant to s 494B(5) of the Act. Section 494C of the Act deems receipt dates for the purpose of s 494B of the Act. Specifically, s 494C(5) of the Act has the effect that an applicant is taken to have received the document at the end of the day on which the document is transmitted. As such, the Tribunal was correct to find that the applicant was notified of the delegate's refusal decision on 15 October 2019.
Section 412(1)(b) of the Act (as it applied at the time of the decisions of each of the delegate and the Tribunal) relevantly provided:
Application for review by the Refugee Review Tribunal
1. An application for review of an RRT-reviewable decision must:
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
A Part 7-reviewable decision is itself defined by s 411 of the Act. I am satisfied that the delegate’s decision was a Part-7 reviewable decision.
The effect of reg 4.31(2) of the Regulations was that the requisite period for application commenced "on the day the applicant is notified of the decision" pursuant s 494C(5) of the Act.
Consideration
The aforementioned legislative framework is relevantly identical to that which was considered in ACS18 v Minister for Home Affairs [2019] FCA 111 (ACS18) at [5] per Jagot J in which decision her Honour went on to say the following at [6] to [9]:
6. The Tribunal applied this framework. It observed that the applicants received the delegate’s decision by an email transmitted to them on 29 June 2017, which the applicants conceded in the Court below, so that by operation of s 494C(5) they must be taken to have received the decision, and thus to have been notified of it, at the end of 29 June 2017. By operation of r 4.31(2) the prescribed period of 28 days commenced on that date. Importantly, there is no definition of “day” prescribed by the regulations to suggest “day” means anything other than an ordinary calendar day. A period of 28 days commencing on 29 June ends on 26 July. The Tribunal found that the prescribed period ended on 26 July.
7. The applicants told the Tribunal they applied to it for review on 27 July 2017 because they counted 28 days based on 24-hour periods starting at the time they received the email, such that the 28th “day” began during 26 July and ended during 27 July.
8. The timing of the period was prescribed by law. It ended on 26 July. The Tribunal was correct in its understanding that it has no independent power prescribed by law to waive this period or to consider an application filed after the period to file a valid application had lapsed: VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 at [33].
9. Thus, the basis for the Tribunal’s decision is sound and its conclusion was correct. The primary judge could not have decided otherwise. It follows that there would be no utility in granting an extension of time because any appeal would be doomed to fail.
The decision in ACS18 is relevantly indistinguishable from the facts of the present case.
The 28 day period in the instant case commenced from, and included, 15 October 2019: see ACS18 at [6]. As the Tribunal correctly observed, this meant that the 28-day period expired on 11 November 2019.
Despite submissions made for the applicant at hearing before me, I am satisfied that the decision of the Tribunal in the instant case was correct and for the same reasons as discussed in ACS18 and not satisfied there is any error on the part of the Tribunal in its finding that it lacked jurisdiction.
To the extent the applicant’s solicitor submitted that I should find that ACS18 was wrongly decided, because its application to his client’s case was deleterious, I reject that submission. Even if that were a basis to distinguish a decision, and it clearly is not, the decision of her Honour Jagot J is a decision of the Federal Court of Australia by which this Court is bound. Even if I were of the view that her Honour was plainly wrong, and I most certainly am not of that view, I remain bound.
Further, submissions were made on the basis of s 36 of the Acts Interpretations Act 1901 (Cth) that if a person receives notice within a time frame, this time frame should begin from the next calendar day rather than the day the notice was received such that the applicant’s application was within time. These submissions were entirely misguided and I reject them.
To the extent that much was sought to be made of the applicant’s subjective circumstances, and that compassion was urged on the Court with a view to the proceedings being remitted irrespective of error, those submissions must also be rejected.
The Tribunal has no discretion to extend, alter or waive the 28-day application period: see ACS18 (supra) at [8]. As such, explanations given by the applicant as to why his application was late, including what he says were good faith efforts to comply with the prescribed timeframes, were irrelevant because they were not capable of affecting the objective existence of Tribunal's jurisdiction: see Monga v Minister for Immigration and Border Protection [2019] FCA 286 at [24] per Charlesworth J.
To the extent that submissions were made for the applicant that he was unrepresented before the Tribunal, has minimal education and did not have the capacity to fully comprehend the unclear, complex language used in the Tribunal’s decision letter, again such subjective matters do not form part of the relevant considerations of error, much less having regard to the observations made at [16] above in respect of the decision of Singh (supra).
The applicant claimed that, without legal expertise or representation, he found it difficult to deduce the correct review period making it unreasonable to expect precise compliance. The applicant continued saying the Tribunal’s inability to provide clear and accessible communication deprived the applicant of a fair opportunity to exercise his right to review, and the lack of transparency constituted a fundamental procedural error that infringed on his rights. The applicant’s feelings in that regard are understandable. However, I am satisfied that because he made his application on 12 November 2019, the Tribunal was correct to conclude that it did not have jurisdiction to consider the application, and was prohibited from doing so: see Fahme v Minister for Home Affairs (2019) 268 FCR 394 at [20] to [23] per Rares, Perram and Farrell JJ.
CONCLUSION
The applicant has not succeeded in establishing error as alleged. I am satisfied that the decision of the Tribunal is free from error. As such it is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 10 September 2025
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