CJG22 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1087

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

CJG22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1087

File number:

MLG 1581 of 2022

Judgment of:

JUDGE BLAKE

Date of judgment:

25 October 2024

Catchwords:

MIGRATION - Where an email address in the Notice refusing to grant the visa was non-operational – where the Notice otherwise set out clearly a number of other methods by which the Applicant could review the decision – whether Notice was invalid – HELD in the circumstances that notice was valid, Applicant was not misled or prejudiced by the non-functioning email address  – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth) s 36(2)

Migration Act 1958 (Cth) ss 65, 66(2)(d), 66(2)(d)(iv), 412(1)(b), 494C

Migration Regulations 1994 (Cth) reg 4.31(2)

Cases cited:

BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995

Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612

DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492

SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129

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

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of hearing:

21 October 2024

Place:

Melbourne

Solicitor for the Applicant:

Self-represented litigant

Counsel for the Respondents:

Mr Bevan SC

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG 1581 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJG22

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	25 OCTOBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The Application filed on 7 July 2022 be dismissed.

3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:

INTRODUCTION

1. This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) (Court Book (‘CB’) 81). The Tribunal made its decision on 14 June 2022. In its decision, the Tribunal determined it did not have jurisdiction to review the decision of the delegate of the Minister (‘delegate’) because the Applicant had made her application for review to the Tribunal outside the periods prescribed by the Migration Act 1958 (Cth) (‘Act’) and the Migration Regulations 1994 (‘Regulations’).  

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is a Malaysian national (CB 1). The Applicant arrived in Australia on 30 September 2016 as the holder of a visitor visa (CB 8). On 15 November 2020, the Applicant applied for a Protection (subclass 866) visa (‘visa’) (CB 1-18).

4. On 26 April 2021, the delegate refused to grant the Applicant the visa (CB 40). The Applicant was notified of this in writing (‘Notice’). A copy of the delegate’s decision record was sent to the Applicant’s nominated email address.

5. On 11 October 2021, the Applicant applied to the Tribunal for review of the delegate’s decision (‘first application’) (CB 49-55). On 12 October 2021, the Tribunal invited the Applicant to comment on the validity of her application for review as it was not lodged within the relevant time limit (CB 57). The Applicant did not respond to the invitation.

6. On 31 January 2022, the Tribunal determined that it did not have jurisdiction to determine the first application.

7. On 25 February 2022, the Applicant applied to the Tribunal seeking to review the same decision of the delegate (‘second application’) (CB 65-71). On 1 March 2022, the Tribunal invited the Applicant to comment on the validity of her application for review, as like the first application, it was not lodged within the relevant time limit (CB 73). The Applicant did not respond.

8. On 14 June 2022, the Tribunal found that as the second application was not received by the Tribunal until 25 February 2022, the second application was not made in accordance with relevant legislation and the Tribunal therefore does not have jurisdiction (CB 82) (‘Decision’).

9. The Applicant filed an application to review the Decision in this Court on 7 July 2022 (‘Application’). The Application was accompanied by an affidavit of the Applicant also filed on 7 July 2022.

10. The Applicant appeared before me unrepresented. Despite procedural directions being made, she did not file any amended application or written submissions. Accordingly, the only documents upon which she relies are the Application, and her supporting affidavit filed in July 2022.

11. The Minister relied on his Amended Response filed 24 April 2024, a written outline of submissions dated 5 July 2024, an Admission filed 5 July 2024, the Court Book, an affidavit of Stephanie Wright affirmed 2 March 2023, the affidavits of Julian Pinder filed 5 July 2024 and 23 July 2024, and an affidavit of Nathan Stilbe (‘Mr Stilbe’) filed 15 July 2024. The Minister also relied on other documents tendered during the proceedings.

    THE DECISION OF THE TRIBUNAL

12. The decision of the Tribunal is of short compass. It is reproduced below:

    APPLICATION FOR REVIEW

    1.This is an application for review of a decision of a delegate of the Minister for Home Affairs on 26 April 2021 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 25 February 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

    2.As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

    3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 April 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

    4.On 1 March 2022, the Tribunal wrote to the applicant stating that it appeared her application was not a valid application as it was not lodged within the relevant time limit. In addition, the Tribunal’s correspondence noted that it also appeared that an application for review of the same delegate’s decision had previously been made to the Tribunal on 23 May 2021. The applicant was invited to respond to the Tribunal’s letter by 14 March 2022.

    5.Subsequent to the letter being sent to the applicant, she applied for an updated Medicare letter. She has not otherwise responded to the Tribunal’s correspondence.

    6.The Tribunal finds that the applicant is taken to have been notified of the decision on 26 April 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 23 May 2021.

    7.As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 24 May 2021: s 36(2) of the Acts Interpretation Act 1901 (Cth).

    8.As the application for review was not received by the Tribunal until 25 February 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

    9.        The Tribunal does not have jurisdiction in this matter.

    THE APPLICATION

    The Grounds of Review raised by the Applicant

13. The Grounds of Review in the Application are reproduced below:

    1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

    2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS

    3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

    4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABOUT THE TYPES OF HARM RELAVENT IN MY CASE

14. These Grounds of Review are unparticularised. That is a sufficient basis upon which they could be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

15. Given the Applicant’s unrepresented status, I asked her whether she wished to expand upon the Grounds of Review before me. She did not do so.

16. The Act provides that an application for review must be given to the Tribunal within the prescribed period, being a period not later than 28 days after the notification of the decision: section 412(1)(b). Regulation 4.31(2) of the Regulations relevantly provides that if an applicant is not in immigration detention on the day the applicant receives the notice of refusal of the visa, an application for review must be given to the Tribunal in 28 days, commencing on the day the applicant receives notification of the decision.

17. In this matter, the Tribunal correctly observed that the Applicant’s application to it was filed outside the applicable time limit. The Applicant was invited to comment on the validity of her application to the Tribunal but declined to do so. Accordingly, there was no error in the Tribunal proceeding as it did. The Grounds of Review filed by the Applicant do not disclose any error on the part of the Tribunal.

    The Validity of the Notice sent by the Department

18. The Department notified the Applicant of its decision to refuse her the visa on 26 April 2021. The Minister, consistent with his obligations as a model litigant, has identified an issue giving rise to an arguable jurisdictional error that was not identified by the Applicant. The issue is whether the Notice complied with section 66(2)(d)(iv) of the Act.

19. The Notice relevantly contained the following information:

    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.

    Lodging an application for merits review

    Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT) as provided below.

    Online

    of the Administrative Appeals Tribunal

Australian Capital Territory	New South Wales	Northern Territory
Level 8 14 Moore Street Canberra City ACT 2601	Level 6 83 Clarence Street Sydney NSW 2000	Applications made by residents of the Northern Territory are managed by the South Australia registry
Queensland	South Australia	Tasmania
Level 6 295 Ann Street Brisbane Qld. 4000	Level 2 1 King William Street Adelaide SA 5000	Edward Braddon Building Commonwealth Law Courts 39-41 Davey Street Hobart Tas. 7000
Victoria	Western Australia	Norfolk Island
Level 4 15 William Street Melbourne Vic 3000	Level 13 111 St Georges Terrace Perth WA 6000	Supreme Court of Norfolk Island Kingston Norfolk Island 2899

Alternatively, review application forms can be lodged online through by email to [email protected], [email protected] or by fax to:

Australian Capital Territory Fax: [phone]	New South Wales Fax: [phone]	Northern Territory Fax: [phone]
Queensland Fax: [phone]	South Australia Fax: [phone]	Tasmania Fax: [phone]
Victoria Fax: [phone]	Western Australia Fax: [phone]

Make sure to include a copy of this letter and the attached decision record when lodging any application for review.

Further information about the merits review process is available from the AAT on the Tribunal website or by telephoning 1800 228 333.

1. On 5 July 2024, the Minister filed an admission stating that:

   The first respondent admits, for the purpose of this proceeding only, that between 26 April 2021 and 24 May 2021, the email address [email protected] was inactive, and any email sent to that address was not received by the Administrative Appeals Tribunal, or anyone.

2. It can be seen from the above that the Minister admits one of the email addresses in the Notice ([email protected]) was not functioning. According to the evidence of Mr Stilbe which I accept, an email sent to that address would have resulted in the sender of the email receiving a non-delivery notification indicating that their email had not been successfully delivered.

3. The question that arises is whether the inclusion of the non-functioning email address rendered the Notice invalid. If the Notice is not valid, then the Minister has not complied with section 66 of the Act, and notification has not been given to the Applicant. In that situation, the time period in which the Applicant has to file an application for review to the Tribunal, being 28 days, (section 412(1)(b) of the Act, regulation 4.31(2) of the Regulations) has not expired.

4. Section 66(2)(d) of the Act relevantly provides as follows:

   Notification of a decision to refuse an application for a visa must:

   …

   (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 …

5. Section 66(2)(d) of the Act, in terms, requires the Minister to ‘state’ where the application for review can be made. To ‘state’ a matter involves setting it out in a way which is complete and clear: DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 at [57]-[58] [ (Perram J, Rares J and Farrell J agreeing). Furthermore, as noted in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129, compliance with section 66(2)(d)(iv) does not depend on listing in a notice every place where an application for review can be made, but rather ensuring that the applicant has been put on notice of the review rights in the circumstances of the case: see Emmett J at [27]-[32]; Buchanan and Nicholas JJ at [64]-[68].

6. The issue that confronts the Court in this matter with respect to the identified non-functioning email address is the same issue that recently confronted Judge Humphreys in Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612, and Judge Kendall in BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995. In both of the above matters, the Court determined that the relevant notices were not defective.

7. In the present matter, the Notice set out a number of ways in which the Applicant could apply for review. That included information about how to lodge an application online, in person at various tribunal registries, at an alternate (functioning) email address, and by fax. The Notice set out these options clearly. The Notice satisfied the requirement to ‘state’ where an application for review could be made. It was not invalid. The inclusion of the non-functioning email address amounts to nothing more than a trivial oversight and does not give rise to any jurisdictional error, particularly given the other methods available to the Applicant to commence a review.

8. Furthermore, there is no evidence before the Court to suggest that the Applicant was misled or prejudiced by the inclusion of the non-functioning email address. There is no evidence that she attempted to lodge an application for review by email to the non-functioning email address. Her application for review was ultimately made, albeit approximately 278 days out of time. The inclusion of the non-functioning email address therefore did not deprive the Applicant of the opportunity to file an application for review. She therefore was also not materially affected by the inclusion of the non-functioning email address.

   CONCLUSION

9. In all the circumstances, the Court is of the view that no jurisdictional error arises. The Tribunal did not have jurisdiction to entertain the Applicant’s application for review because she lodged that application out of time. The Notice given to her by the Department was valid. The Applicant’s grounds of review do not advance her claims. In all the circumstances, the only appropriate course is to dismiss the Application.

10. The Minister sought costs of $8,371.30. These costs are sought on the basis of the scale of costs applicable in this jurisdiction. Given the Application has been dismissed, and the Minister has been entirely successful, I will award costs to the Minister in the amount of $8,371.30.  

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       25 October 2024