CHH22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 237
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 237
File number: PEG 130 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 March 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicants’ special circumstances or failed to “give special consideration” to the COVID-19 pandemic – whether the Tribunal was correct to determine that it did not have jurisdiction in this matter – whether the applicants were afforded common law natural justice – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 36, 66, 412, 476, 494B and 494C Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
CAV18 v Minister for Home Affairs [2020] FCA 173
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 27
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
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Monga v Minister for Immigration and Border Protection [2019] FCA 286
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 22 March 2023 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms G Gutmann (via video link) Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 130 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHH22
First Applicant
CHI22
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first applicant and her daughter (the second applicant) are both citizens of Taiwan (Court Book (“CB”) 21-24 & 55-60). The first applicant arrived in Australia in September 2015 (CB 30). She subsequently left Australia but returned on multiple occasions (arriving in Australia on the last occasion in November 2019 as the holder of a student visa) (CB 115). The second applicant was born in Western Australia in 2017 (CB 57).
On 23 November 2021, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 21-54). The second applicant was included in that application as a member of the first applicant’s family unit (CB 25). In her visa application, the first applicant did not include details of any “authorised recipient” for correspondence in relation to her application. She did, however, include an email address for the receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 31). The first applicant also provided identity documents for herself and the second applicant and a statement outlining her protection claims (CB 55-62).
On 11 February 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 84-88). The delegate noted that the first applicant had claimed to fear for her safety due to the “current risk of war or military conflict between Taiwan and Mainland China” but did not claim to fear harm “because of her race, religion, nationality, political opinion or as a member of a particular social group”. On that basis, the delegate was not satisfied that the first applicant was a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) (the “Act”) (CB 87).
On 11 March 2022, the first applicant applied for review of the delegate’s decision (on behalf of herself and the second applicant) at the Administrative Appeals Tribunal (the “Tribunal”) (CB 89-97).
Later that day, the Tribunal invited the first applicant to comment on the validity of the applicants’ review application (CB 103-105). Relevantly, the Tribunal advised as follows (CB 104):
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].
The primary decision was emailed to you on 11 February 2022 meaning that 11 February 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 10 March 2022. As the application was not received until 11 March 2022, 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 25 March 2022 .Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 16 March 2022, the first applicant responded to the invitation to comment (via email), as follows (without alteration) (CB 106):
I am writing to you about about your email for explanation, I would like to inform AAT what has happened to and appreciate your kind understanding with my special situation.
Due to my limited English, I have to seek help from other people with my AAT review lodgement online, however I was initially planed to get someone on 8th march to lodge on line which is within the review time. however on 6th march after I got the booster done , i felt very uncomfortable and sick and had to stay in bed at home . I had very bad headache and body sour which led me mistake the time and date, after i got a little bit better on 11 th, I immediately lodged my AAT review, due to my mind was not clear, I still thought it was the last day of the review, after I received your email, I am very shocked, I hope you can understand my situation and accept my review as it is so important for my future life. I have enclosed my evidence for the booster for your kind consideration.
Thanks for your time and consideration
The first applicant also provided “vaccination details” for a COVID-19 vaccination with her reply (CB 107).
On 9 June 2022, the Tribunal found that it had no jurisdiction in relation to the matter because the applicants’ review application had not been lodged within the requisite time period (CB 114-116).
On 1 July 2022, the first applicant sought judicial review of the Tribunal’s decision in this Court (on her own behalf and on behalf of the second applicant) (CB 1-6). The first applicant also filed an affidavit (sworn on 1 July 2022 and annexing a copy of the Tribunal’s decision, notification letter and accompanying information sheets) (CB 7-11).
The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
In determining whether the Tribunal has fallen into error it is useful to first summarise the Tribunal’s decision.
In full, the Tribunal’s decision provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The [first applicant] is a 32-year-old woman from Taiwan. She arrived onshore [in] November 2019 holding a Student Visa. The [second applicant] is her daughter. The applicants lodged the Protection (XA 866) visa application on 23 November 2021. On 11 February 2022 the delegate refused to grant the protection visas.
3.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).
4. The review application was lodged with the Tribunal on 11 March 2022.
5.The Tribunal wrote to the applicant on 11 March 2022 inviting her to comment on the validity of the review application. On 16 March 2022 the applicant submitted the following explanation for the delay in lodging her review application:
6.“[d]ue to my limited English , I have to seek help from other people with my AAT review lodgement online, however I was initially planed to get someone on 8th march to lodge on line which is within the review time. however on 6th march after I got the booster done , i felt very uncomfortable and sick and had to stay in bed at home . I had very bad headache and body sour which led me mistake the time and date , after i got a little bit better on 11 th , I immediately lodged my AAT review, due to my mind was not clear , I still thought it was the last day of the review , after I received your email, I am very shocked, I hope you can understand my situation and accept my review as it is so important for my future life . I have enclosed my evidence for the booster for your kind consideration.”
7.The applicant attached a ‘Vaccination Statement’ from [a pharmacy] stating a booster does was received by [the first applicant] on 6 March 2022.
8.For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
9.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 11 February 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
10.The Tribunal finds that the applicant is taken to have been notified of the decision on 11 February 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 10 March 2022.
11.The Tribunal has considered the explanation provided about why the review application was not lodged within the prescribed timeframe, however there is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018).
12.As the application for review was not received by the Tribunal until 11 March 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
13.The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the first applicant on 1 July 2022 contains three “grounds of review”, as follows (without alteration) (CB 4):
I disagree with AAT’s decision. AAT did not well consider my special situation and ignored my evidence for supporting my explanation.
AAT should give special consideration of the accident happened during COVID-19 outbreak as it was a disaster for people.
It is unfair not to accept my review application and simply ignored my evidence and facts I was very sick which caused the delay of my review. I was so innocent. I wish the court could give me a fair decision.
With the application for judicial review, the first applicant also filed an affidavit sworn by her on 1 July 2022 (CB 7-11). That affidavit repeats the grounds of review outlined above.
On 23 September 2022, procedural orders were made by Registrar Carney of this Court giving the applicants an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The matter first came before this Court on 8 March 2023. The first applicant appeared in person at that hearing, without legal assistance but with the assistance of a Mandarin interpreter. Ms Gutmann appeared via video link on behalf of the Minister. At the hearing, the Court noted the late filing of the Minister’s submissions and further materials. Relevantly, the Minister was required to file the materials 14 days prior to the hearing (being by 22 February 2023). The Minister did not file his materials until 12.30pm on 6 March 2023 (less than 48 hours prior to the originally scheduled hearing).
In the circumstances (noting that the first applicant did not have legal representation and that she required the assistance of an interpreter), the Court considered the Minister’s delay to be unsatisfactory. Given the limited time the first applicant had been given to review the Minister’s materials, the Court determined that it would not be procedurally fair for the hearing to proceed.
The Court adjourned the matter for two weeks (to 22 March 2023) to allow the first applicant sufficient time to review the materials before the Court.
When the matter came before the Court on 22 March 2023, the first applicant once again appeared in person and with the assistance of a Mandarin interpreter. Ms Gutmann appeared for the Minister via video link. The Court confirmed that the first applicant had access to, and had reviewed the Minister’s materials (comprising written submissions, affidavits and a list of authorities) and the Court Book.
The materials before the Court include the application for judicial review and supporting affidavit filed by the first applicant on 1 July 2022, a Court Book numbering 116 pages (marked as Exhibit 1), the Minister’s written submissions, the affidavits of Ms Gutmann and Mr McLaurin and a list of authorities, all filed on 6 March 2022.
Noting that the first applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant largely repeated her grounds of review. She explained that she had received the COVID-19 vaccination and was very unwell. She stressed that she did not mean to miss the deadline. The first applicant also said that her English was not good and that a friend had helped her with her application. She claimed that she had arranged with that friend for assistance with her Tribunal application at an earlier time but, because she was so unwell, she ultimately asked them not to come. The first applicant further explained that a friend had helped her as soon as she was well. The first applicant also claimed that she was unaware that her application was due to be filed by 10 March 2023.
The first applicant’s oral submissions, in so far as they raise the possibility of error on the part of the Tribunal, will be discussed further below (with the applicants’ grounds of review).
CONSIDERATION
As outlined above, the applicants’ grounds of review, as set out in their application for judicial review, provide as follows (without alteration) (CB 4):
I disagree with AAT’s decision. AAT did not well consider my special situation and ignored my evidence for supporting my explanation.
AAT should give special consideration of the accident happened during COVID-19 outbreak as it was a disaster for people.
It is unfair not to accept my review application and simply ignored my evidence and facts I was very sick which caused the delay of my review. I was so innocent. I wish the court could give me a fair decision.
Having reviewed the applicants’ grounds of review as broadly as possible (as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391), the Court will assess the following potential issues:
(a)whether the Tribunal failed to consider the applicants’ “special situation” or failed to “give special consideration” to the COVID-19 pandemic;
(b)whether the Tribunal was correct to determine that it did not have jurisdiction in this matter; and
(c)whether the applicants were afforded common law natural justice.
Whether the Tribunal failed to consider the applicants’ “special situation” or failed to “give special consideration” to the COVID-19 pandemic
In so far as the first applicant claims that the Tribunal did not consider her explanation for failing to file the applicants’ review application within the prescribed time period or the evidence provided in support of the applicants’ “special situation”, this fails on a factual level.
As outlined above, the first applicant was invited to comment on the validity of the applicants’ Tribunal application on 11 March 2022 (CB 103-105).
The first applicant responded to that invitation via email on 16 March 2022 (CB 106).
The Tribunal considered the first applicant’s response to the invitation to comment letter in its written reasons, partially reproducing the first applicant’s email correspondence as follows:
6.“[d]ue to my limited English , I have to seek help from other people with my AAT review lodgement online, however I was initially planed to get someone on 8th march to lodge on line which is within the review time. however on 6th march after I got the booster done , i felt very uncomfortable and sick and had to stay in bed at home . I had very bad headache and body sour which led me mistake the time and date , after i got a little bit better on 11 th , I immediately lodged my AAT review, due to my mind was not clear , I still thought it was the last day of the review , after I received your email, I am very shocked, I hope you can understand my situation and accept my review as it is so important for my future life . I have enclosed my evidence for the booster for your kind consideration.”
The Tribunal continued:
7.The applicant attached a ‘Vaccination Statement’ from [a pharmacy] stating a booster does was received by [the first applicant] on 6 March 2022.
…
11.The Tribunal has considered the explanation provided about why the review application was not lodged within the prescribed timeframe, however there is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018).
The first applicant also provided details of her vaccination with that reply (CB 107).
On 9 June 2022, the Tribunal found that it had no jurisdiction in relation to the matter because the applicants’ review application had not been lodged within the requisite time period (CB 114-116).
As outlined above, the Tribunal acknowledged receipt of the first applicant’s email, explanation and supporting evidence provided with that email correspondence. However, the Tribunal simply did not have any discretion or any power to extend the time within which the applicants could file their application for review. As the application was filed outside of the prescribed period, the Tribunal had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
No error arises in this regard.
Whether the Tribunal was correct to determine that it did not have jurisdiction in this matter
In order to determine whether the Tribunal was correct to find that it had no jurisdiction, the Court must first consider whether the applicants were validly notified of the delegate’s decision.
In this matter, a delegate of the Minister refused to grant the applicants the visas on 11 February 2022 (CB 84-88). The Department was required to notify the applicants of that decision “in a prescribed way” (see s 66(1) of the Act) as set out in s 66(2) of the Act.
The Court notes that, as outlined above, the first applicant answered “no” to the question of whether she “authorise[d] another person to receive communication about [her] application on [her] behalf” in her visa application. Further, the first applicant provided an email address and agreed for the Department to communicate with her electronically using that email address (CB 31).
The first applicant was sent notification of the refusal decision via email on 11 February 2022. That email was sent to the email address included by the first applicant in her visa application (CB 79). Attached to that email was a letter from the Department (addressed to the first applicant) with notification of the delegate’s decision (CB 80-83) and a copy of that decision (CB 84-88).
The notification letter in this matter satisfied the requirements set out in s 66(2) of the Act by:
(a)stating that the applicants had not satisfied s 36(2) of the Act, being a criterion for the grant of the visa (CB 80);
(b)referencing annexed written reasons which detailed that delegate was not satisfied that the applicants satisfied ss 36(2)(a) or 36(2)(aa) of the Act (CB 49): s 66(2)(a) of the Act;
(c)annexing those written reasons which outlined why the visa criteria was not satisfied: s 66(2)(c) of the Act;
(d)detailing the applicant’s review rights as follows (CB 81):
Review rights
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
(e)providing information about how to lodge an application for review with the Tribunal (CB 81-82) as per s 66(2)(d) of the Act.
As outlined above, the Department correctly sent the notification letter to the address included in the visa application, being the last email address provided to the Department for the purpose of receiving documents: s 494B(5)(d) of the Act.
Where a document is provided by email (as was the case here), the person is taken to have received the document at the end of the day on which the document was transmitted: s 494C(5) of the Act. Here, the first applicant was thus taken to have received the notification on 11 February 2022. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, a person is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
The first applicant was thus taken to have received that notification at the end of the day on 11 February 2022 (regardless of whether or not she actually received the document).
For completeness, the Court has also considered whether the notification letter in this matter complied with s 66(2)(d)(ii) of the Act as required by 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”).
Section 412(1)(b) of the Act requires that an application for review of the refusal decision be lodged with the Tribunal within the prescribed period. For that period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with s 66 of the Act. If the notification does not comply with these requirements, then there has been no notification of the decision and the time period (within which to lodge a Tribunal application) does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Important, for the purposes of this matter, is paragraph 66(2)(d) of the Act which provides that notification of a decision to refuse an application for a visa must state:
(a)that the refusal 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 the notification letter in this matter states that which is outlined above, the Court is guided by the considerable judicial analysis provided in relation to this issue in the cases cited at [45] above. These cases make it clear that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely, in a way that the receiver will reasonably understand.
A 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”). The Court will not reproduce that analysis here, other than to repeat its finding that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when assessing whether an applicant has been “validly notified”, the Court must forensically assess the content and clarity of the notification letter.
This Court has derived a number of core principles from the cases cited at [45] above. In this regard, the Court repeats its findings in Abbas (at [78]-[79]) that the following principles apply:
(a)where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
(b)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) this is sufficiently clear: Ali;
(c)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading “Receiving this Letter”), the notification is clear: Singh;
(d)the letter should be read as a whole. 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; 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.
Here, under the heading “Review Rights”,:
(a)the letter clearly states that “[an] application for merits review” must be given to the Tribunal “within the period of 28 calendar days, commencing on the day you are taken to have received this letter” (CB 81); and
(b)the letter goes on to state that “[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” (CB 81).
Here, as in Abbas, the notification letter is clear. The layout is not confusing. A clear heading is used that provides an unambiguous “signpost” which allows the applicants to identify the information that they require.
On the basis of the analysis above, the Court is satisfied that the notification letter in this matter satisfies the requirements of s 66(2)(d)(ii) of the Act.
Having been validly notified of the delegate’s decision (and that notification letter having satisfied the requirements set out in s 66(2)(d)(ii) of the Act) on 11 February 2022, the time period within which the applicants could seek review of the Tribunal’s decision “began running” on that date (being 11 February 2022).
The applicants were required to file their review application within 28 calendar days, commencing on the 11 February 2022 (being the date the notification of the delegate’s decision was deemed to have been received). The applicants were therefore required to file their review application with the Tribunal on or before 10 March 2022.
Here, the application for review was lodged online by the first applicant on 11 March 2022 (CB 89-97). The application was therefore lodged one day out of time.
As correctly submitted by the Minister (at [29] in written submissions filed in this Court on 6 March 2023), in circumstances where the application for review was lodged outside of the prescribed time period, the Tribunal was correct to find that it did not have jurisdiction in the matter: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] per Charlesworth J.
Further, the impact of the COVID-19 pandemic and the applicants’ reasons for delay were not capable of affecting the objective existence of the Tribunal’s jurisdiction: Monga v Minister for Immigration and Border Protection [2019] FCA 286 at [24] per Charlesworth J.
No jurisdictional error arises in this regard.
Whether the applicants were afforded common law natural justice
In relation to the question of any common law guarantee of natural justice more broadly, the Court references its recent decision in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271 (“CLV21”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) at [83]) and reiterates that common law rules of procedural fairness only require that the Tribunal bring to an applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
In this matter:
(a)the first applicant was notified of the delegate’s decision and the timeframe within which her application for review could be lodged with the Tribunal (CB 80-83);
(b)the first applicant was invited (on 11 March 2022, by email sent to her nominated email address) to comment on the validity of the applicants’ Tribunal application (CB 103-105);
(c)the first applicant responded to that invitation via email on 16 March 2022, outlining why she was of the view that the Tribunal should proceed to review the delegate’s decision in this matter (CB 106-108); and
(d)the Tribunal expressly considered the first applicant’s email response and the evidence provided in its written reasons (at [6]-[7] & [11]).
Here (as was the case in CLV21 and WZAVO), it cannot be said that the first applicant was denied the right to present her case. Further, even if the Tribunal had invited the applicants to attend a hearing (where the first applicant had already been asked to comment on the critical issue before the Tribunal and did so) this would not have assisted the applicants.
As detailed by the Court above, the Tribunal did not have the power to extend the time within which the first applicant could file an application for review with the Tribunal.
No error jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the first applicant on 1 July 2022 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 March 2023
0
27
0