CGU21 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 536

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CGU21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 536

File number(s):

SYG 1355 of 2021

Judgment of:

JUDGE PAPADOPOULOS

Date of judgment:

14 April 2025

Catchwords:

MIGRATION – Judicial review – whether Tribunal erred in finding it did not have jurisdiction – whether delegate’s notification letter valid – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 66, 412(1)(b), 474, 476(2)(a), 494B(5) and 494C(5)

Migration Regulations 1994 (Cth) regs 2.16(3) and 4.31

Cases cited:

Ali v Minister for Home Affairs [2019] FCA 1102

Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228

BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189

DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64

DZAFH v Minister for Immigration and Border Protection [2017] FCA 984

DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387

Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23

VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of hearing:

14 April 2025

Place:

Sydney

Applicant:

In Person

Solicitor for the Respondents:

Mr J Pinder of Mills Oakley

ORDERS

SYG 1355 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGU21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE PAPADOPOULOS
DATE OF ORDER:	14 APRIL 2025

THE COURT ORDERS THAT:

1.The name of the second respondent is amended to ‘Administrative Review Tribunal’.

2.The application filed on 19 July 2021 is dismissed.

3.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the amount of $5,400.

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).

EX TEMPORE
REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court is an application filed on 19 July 2021, made under s 476 of the Migration Act 1968 (Cth) (Act), seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) made on 30 June 2021. By this decision, the Tribunal found that it did not have jurisdiction to review toa decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).

2. For the following reasons, the application is dismissed.

   BACKGROUND

3. The Minister helpfully summarised the background to the matter in written submissions filed on 8 April 2025, which I primarily adopt.

4. The applicant, a male national of the Philippines, applied for a protection visa on 26 July 2019 (Court Book (CB) 1–30).

   The visa application

5. In his protection visa application, the applicant made written claims that he wanted to stay in Australia because one of his daughters suffered from the blood disorder, alpha thalassemia, and he wanted to be able to provide for her financially. The applicant claimed that, if he were to return to the Philippines, he would suffer ‘emotional trauma being a father who cannot even help for the cure and treatment of [his] daughter’. The applicant also confirmed in his application form that he had not experienced harm in the Philippines and that he did not think he would be harmed or mistreated if he returned.

6. In the online application form, the applicant expressly consented to the Minister’s Department (Department) communicating with him electronically and nominated a Yahoo email address (nominated email address) for that purpose (CB 7). The applicant did not appoint an authorised recipient pursuant to s 494D of the Act (CB 6–7).

7. On 29 April 2021, the delegate made a decision in which they refused to grant the applicant a protection visa (CB 49–52). The delegate accepted the applicant’s daughter had been diagnosed with a blood disorder and found the applicant’s claimed fear of harm was based on economic hardship. The delegate was not satisfied that the applicant met s 36(2)(a) of the Act because his claimed fear of harm was not based on any of the reasons in s 5J(1)(a) of the Act. The delegate was also not satisfied that the applicant met s 36(2)(aa) of the Act because the harm feared by the applicant was not significant harm within the meaning of s 36(2A) of the Act.

8. The Minister’s Department notified the applicant of the delegate’s decision under the cover of a letter dated 29 April 2021 (notification) (CB 44–48). That notification and the delegate’s decision were sent by email to the nominated email address on 29 April 2021 (Affidavit of Edwin Jack Taylor, affirmed on 11 November 2021 (Taylor Affidavit)).

   The review application

9. On 13 June 2021, the applicant applied to the Tribunal for review of the delegate’s decision, attaching a copy of the notification and delegate’s decision (CB 53–59).

10. On 23 June 2021, the Tribunal sent a letter to the applicant to the email address provided in his review application inviting him to comment on the validity of his review application as it appeared it was lodged outside the prescribed time period (CB 68–70).

11. On the same date, the applicant responded by email (CB 71) and submitted that his review application was lodged out of time because the email address he had provided in his protection visa application form belonged to his sister in law and he did not have access to it ‘that time’. The applicant claimed he found out about the delegate’s decision when he ‘checked [his] Vevo’ on 13 June 2021.

    The Tribunal’s decision

12. On 30 June 2021, the Tribunal found that it did not have jurisdiction to review the delegate’s decision. In considering whether it had jurisdiction, the Tribunal:

    (a)found that an application for review of the delegate’s decision had to be made within 28 days commencing on the date of notification of that decision as per subreg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations);

    (b)noted the material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 April 2021 and dispatched by email;

    (c)was satisfied that the applicant was notified of the decision in accordance with the statutory requirements on 29 April 2021, and therefore, the prescribed period to apply for review to the Tribunal ended on 26 May 2021;

    (d)noted the application for review was not lodged until June 2021;

    (e)considered the applicant’s response to its invitation to comment on 23 June 2021 but found it had no discretion to extend the time in which a valid application for review could be made;

    (f)concluded that as the review application was not made until 13 June 2021, it was not made in accordance with the relevant legislation and that the Tribunal had no jurisdiction to review the delegate’s decision.

    PROCEEDINGS IN THIS COURT

13. On 19 July 2021, the applicant filed an application for judicial review. The application contains the following three grounds of review (reproduced without alteration):

    The grounds pleaded in the application filed on 19 July 2021 (and repeated in the applicant’s affidavit affirmed on6 July 2021) are as follows:

    1. The decision made to refuse my Protection Visa application has a jurisdictional error.

    2. The decision maker's decision to refuse the applicant's Protection Visa application was only based on his/her personal opinion and not on any facts.

    3. The decision maker's claims that the applicant would not face harm when he returns to his home country is incorrect.

14. The Minister read and relies upon the Taylor Affidavit which contains an annexure of a screenshot of the Enterprise Correspondence Portal used by the Department of Home Affairs to send correspondence, including to visa applicants.

    CONSIDERATION

15. In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. This matter was explained to the applicant at hearing where he was afforded an opportunity to particularise his grounds and raise any further matters which indicated the Tribunal had erred in making its decision.

16. The applicant asked the Court to grant him a visa as he ‘wished to stay’. The applicant made further submissions that his family who currently reside in the Philippines, including his daughter who was diagnosed with the Alpha Thalassemia blood disorder, ‘need him for financial support’. It was explained to the applicant that the Court does not have the power to grant the applicant a visa.

17. The applicant further submitted that he ‘has a direct assault’ case in the Philippines which the applicant claims gives rise to fear returning to the Philippines. The applicant states that he did not raise this particular claim in his protection visa application because he was scared of how the Australian Government would ‘deal with that’.

18. The Minister correctly submits that this new protection claim cannot be reviewed, or indeed considered,. The Minister also correctly submits that this Court cannot decide whether the applicant is a refugee or entitled to complementary protection. On that basis, I agree that the Court cannot assist the applicant in relation to this new protection claim in the context of the present judicial review proceedings.

19. Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, am not persuaded that jurisdictional error arises.

    Ground 1

20. By ground one, the applicant makes a bare assertion that ‘the decision to refuse my Protection Visa application has a jurisdictional error’.

21. At hearing, when given an opportunity to expand on this ground, the applicant submitted he ‘missed giving the review when he got the refusal decision’ and ‘the Tribunal made no error’.

22. The Minister noted the applicant’s concession at hearing that he was unable to identify any jurisdictional error on the part of the Tribunal. Nevertheless, the Minister submits, and I accept, that this is not a proper ground of judicial review, and in the absence of particulars to make this complaint meaningful, it cannot succeed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J.

23. Accordingly, no jurisdictional error arises on this basis.

    Grounds 2 and 3

24. By grounds 2 and 3, the applicant takes issue with the ‘decision-maker’s’ findings regarding his protection claims.

25. If the references to the ‘decision maker’ are intended to refer to the delegate, the Court has no jurisdiction to review the delegate’s decision because it is a primary decision: see s 476(2)(a) of the Act.

26. If the references to the ‘decision maker’ are intended to refer to the Tribunal, these grounds are misconceived, as the Tribunal did not make any substantive findings about the applicant’s protection claims because it found that it did not have jurisdiction. That course was appropriate in circumstances where the Tribunal’s jurisdiction had not been enlivened.

27. Accordingly, no jurisdictional error arises on this basis.

    Validity of the notification of the delegate’s decision

28. Consistent with his duties as a model litigant, the Minister properly identified by way of written submissions that, as a consequence of the recent case law developments, it is necessary for the Court to examine the notification and determine whether it complies with s 66 of the Act.

29. The Minister submits the notification does not suffer from the deficiencies identified in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 (DFQ17) and BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189 (BMY18).

30. On pages 2 and 3, directly under the heading ‘Review Rights’, the notification stated:

    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.

31. The Minister contends the notification in the present matter was even clearer about time limits than the notifications in Ali v Minister for Home Affairs [2019] FCA 1102 (Ali) and Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh) and, for the same reasons identified in those cases, the present notification was distinguishable from the letters in DFQ17 and BMY18. The Minister submits the notification is clearer as even though, in Ali and Singh, the calculation of the prescribed period needed to be done in the same way, references to when an applicant was taken to have received the letter was under a different heading, however in the present case all relevant information was situated under the ‘Review rights’ heading.

32. The Minister submits, and I agree, that a person taking reasonable care in reading the notification would have only needed to go to the ‘Review rights’ heading to be able to read the information beneath that heading in order to calculate the period within which an application for review to the Tribunal had to be made.

33. I am of the view that the notification letter was ‘clear’ in its statement of the requisite matters in s 66(2)(d)(ii) of the Act, and the applicant was plainly on notice of the relevant time period to lodge his application for review with the Tribunal. I am also of the view that the notification met the remainder of the requirements in s 66(2) of the Act. In particular, the notification was valid as it:

    (a)specified the criterion the applicant did not satisfy as required by s 66(2)(a);

    (b)gave written reasons for its decision that the criterion was not satisfied in accordance with s 66(2)(c); and

    (c)stated that the decision could be reviewed; who could apply for the review; and where the application for review could be made in accordance with s 66(2)(d)(i), (iii) and (iv).

34. Accordingly, no jurisdictional error arises on Tribunal’s part in relation to a failure to comply with s 66(2) of the Act.

35. A further question arises as to whether the Tribunal was correct to find it did not have jurisdiction to review the delegate’s decision on the basis of a failure to comply with s 66(1) of the Act.

36. The Department’s Enterprise Correspondence Records, as annexed to the Taylor Affidavit, indicate the delegate’s decision and notification were successfully sent by email to the applicant’s nominated email address at 10.32 am on 29 April 2021. Accordingly, the Minister submits the Tribunal had no jurisdiction, for the same reasons given by the Tribunal, as follows:

    (a)The delegate’s notification letter complied with s 66(1) of the Act as it was sent to the applicant in accordance with s 494B(5) of the Act and subreg 2.16(3) of the Regulations.

    (a)Pursuant to s 494C(5) of the Act, the applicant was deemed to have received the notification at the end of the day on which the notification was electronically transmitted to his last known email address: see DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387 at [44]–[46] per Judge Jarrett, upheld on appeal in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 and the deemed receipt of the notification is not rebuttable: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13]–[14] per Spender, Kiefel and Dowsett JJ; Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 at [19] per Dowsett, Stone and Bennett JJ.

    (b)In accordance with s 412(1)(b) of the Act and reg 4.31 of the Regulations, the Tribunal correctly found that the period in which the applicant could validly lodge an application for review to the Tribunal was 28 days after he was notified of the decision; that is, the prescribed period ended on 26 May 2021.

    (c)The applicant did not lodge his review application until 13 June 2021, that being 18 days after the prescribed period had ended.

    (d)There is no provision in the Act that allows the Tribunal, or a Court, to override or to extend the time limit set by s 412(1)(b) of the Act, or any jurisdiction to entertain an application that was not made within that time: see s 412(1)(b) and sub-reg 4.31(2); Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228.

    (e)The filing of an application with the Tribunal within that time limit is a prerequisite to the existence of the Tribunal’s jurisdiction: see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324 at [49]–[50] per Dowsett, Finkelstein and Heerey JJ; VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [32]–[33] per Gray, Whitlam and Mansfield JJ.

37. I agree with the Minister’s submissions and find that the notification and delegate’s decision were sent by the Minister’s Department to the correct email address, being the email address the applicant had provided to the Department for the sending of correspondence to him.

38. Accordingly, no jurisdictional error arises on Tribunal’s part in relation to a failure to comply with s 66(1) of the Act.

    CONCLUSION

39. Therefore, for the above reasons, the application before this Court is dismissed.

40. It should also be noted that as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’. I will so order.

41. I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant fixed in the sum of $5,400. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions as well as preparation for and appearance at the hearing. I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $5,400.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

Associate:

Dated:       14 April 2025