CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 271

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271

File number:

PEG 156 of 2021

Judgment of:

JUDGE KENDALL

Date of judgment:

14 April 2022

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s response to the invitation to comment letter – whether the applicant received notification of the refusal decision – whether the applicant was invited to attend a hearing – whether the applicant was afforded common law natural justice – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1) and 17.05(2)

Migration Act 1958 (Cth), ss 36, 66, 347, 360, 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

Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27

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

CAV18 v Minister for Home Affairs [2020] FCA 173

Craig v State of South Australia (1995) 184 CLR 163

DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64

Kioa v West (1985) 159 CLR 550

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

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, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108

Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469

Division:

Division 2 General Federal Law

Number of paragraphs:

70

Date of hearing:

12 April 2022

Place:

Perth

Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore

ORDERS

PEG 156 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLV21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	14 APRIL 2022

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

1. The applicant is a citizen of China (Court Book (“CB”) 1). She first arrived in Australia in October 2018 as the holder of a Transit (Temporary) (Class TX) (Subclass 771) visa (CB 10).

2. On 12 October 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-21). In her application, she claimed to fear harm from land developers and “corrupt Chinese authorities” in relation to a dispute over her family’s land (CB 15-16). The applicant did not include details of any “authorised recipient” for correspondence in that application.  She did, however, include an email address for the receipt of electronic communications (CB 7).

3. On 2 February 2021, the Department of Home Affairs (the “Department”) asked the applicant to provide more information in relation to her visa application (CB 33-39).

4. No response was provided by the applicant.

5. On 11 March 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (the “refusal decision”) (CB 44-50).

6. The applicant was notified of the refusal decision via email on 11 March 2021 (CB 40-43). That notification was sent to the email address included in the applicant’s visa application.

7. On 24 May 2021, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 51-57). The applicant again failed to include the details of any appointed representative.  She did, however, provide another email address for the receipt of electronic communications (CB 54).

8. On 26 May 2021, the Tribunal invited the applicant to comment on the validity of her application (CB 58-60). Relevantly, the Tribunal advised as follows in that invitation to comment:

   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 11 March 2021 meaning that 11 March 2021 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 7 April 2021. As the application was not received until 24 May 2021, 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 9 June 2021. 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.

9. On 8 June 2021, the applicant responded to the invitation to comment (via email), as follows (CB 61-62):

   •I did not receive immigration refusal letter from “my immigration agent” (from Burwood, NSW) who helped me with the application. I was aware of overstaying my visa from my work place when they did their regular checking.

   •I was shocked and could not get in touch with my agent, later I was advised that my agent was arrested by the police and no one knows where the agent is. I have not received any immigration mails or letters myself.

   •I am totally a victim of this incident and the AAT review application is very important to my life.

   •I hope AAT can investigate and give me a more favourable consideration to my application.

10. On 30 June 2021, the Tribunal found that it had no jurisdiction in relation to the matter because the applicant’s review application had not been lodged within the requisite time period

    
    

    (CB 65-66).

11. On 27 July 2021, the applicant sought judicial review of the Tribunal’s decision in this Court. The applicant filed an affidavit (sworn by her on 27 July 2021 and annexing a copy of the Tribunal’s decision) in support of that application. The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

    TRIBUNAL’S DECISION

12. The Tribunal’s decision is two pages long and spans seven paragraphs. In full, it provides as follows:

    APPLICATION FOR REVIEW

    1.This is an application for review of a decision of a delegate of the Minister for Immigration on 11 March 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 24 May 2021. 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: r.4.31(2) of the Migration Regulations 1994.

    3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 11 March 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

    4.The Tribunal received an email in which the applicant stated she had not received correspondence from the department as it had not been forwarded by her agent who she was no longer able to locate or contact. The requirement to lodge applications within specified timeframes is not a matter in which the Tribunal has discretion.

    5.The Tribunal finds that the applicant is taken to have been notified of the decision on 11 March 2021 pursuant to s.494C of the Act, therefore the prescribed period to apply for review ended on 7 April 2021.

    6.As the application for review was not received by the Tribunal until 24 May 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    PROCEEDING IN THIS COURT

13. The applicant filed an application for judicial review in this Court on 27 July 2021. That application raises five unnumbered “grounds of review” as follows:

    •AAT did not give a reasonable consideration for my explanation to the specific reason of missing the deadline to respond to the tribunal hearing notice. Actually I have never been advised or informed by the agent I entrusted of the time of hearing until I was being notified by the tribunal of its decision made that they have no jurisdiction to the determine my application which means they cannot review the decision of the delegate of the Minister.

    •I feel vulnerable in this accident because the email address tribunal used to deliver the hearing notice is not mine. Furthermore, it was not the one given in my authority and has nothing to do with my awareness or knowledge at all.

    •I have never been personally advised by the agent verbally or express in writing about the hearing notice.

    •I actually lost contact with the agent before the hearing and it perplexed me in tribunal's decision.

    •I feel innocent in the impact or consequences due to the failure of hearing notice receipt. I hope tribunal can investigate to ensure a fair, considerable and reasonable assessment is delivered.

14. In support of the application for review, the applicant swore an affidavit on 27 July 2021. That affidavit simply restated ground “four” in the application for judicial review and annexed a copy of the Tribunal’s decision.

15. The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.

16. The materials before the Court thus include the application for judicial review and supporting affidavit, both filed by the applicant on 27 July 2021, a Court Book numbering 66 pages (marked as Exhibit 2), an affidavit of Ashley David Burgess (affirmed on 9 February 2022 and filed on 10 February 2022) (the “Burgess Affidavit”) and written submissions filed by the Minister on 8 March 2022.

17. The matter was initially listed for a final hearing on 4 April 2022. The applicant did not appear at that hearing and the matter was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”). Following that hearing, however, the applicant contacted Chambers and explained that she had had difficulties connecting to the hearing electronically and was, as a result, unable to attend for that reason.

18. Noting that the applicant was not represented, the Court contacted the Minister’s representative to seek agreement to have the Court’s orders set aside so that the matter could be re-listed for a further hearing. The Minister agreed to this course of action.  In the circumstances, the Court set aside its orders made on 4 April 2022 (pursuant to r 17.05(2)(f) of the Rules) and re-listed the matter for a final hearing on 12 April 2022.

19. At that hearing (on 12 April 2022), the applicant appeared via video link.  No concerns were raised in this regard.  Nor did any arise.  The applicant was assisted at the hearing by an interpreter in the Mandarin and English languages. The Court confirmed with the applicant that she had received a copy of the Court Book, the Minister’s written submissions and the Burgess Affidavit. The applicant confirmed that she had received the material. The Court was provided with correspondence from the Minister’s representative regarding proof of service of the documents (marked as Exhibit 1) and the Court was satisfied that the applicant had been served with the relevant documents. The Court explained to the applicant that, to the extent that any material from the Court Book was referenced, the material would be translated by the interpreter for her. Further, the interpreter would also translate the summary of the Minister’s submissions provided at the hearing.

20. Noting that the applicant was unrepresented, the Court gave her an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

21. To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was explained 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: 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].

22. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

23. Against that background, the applicant stated that, when she had arrived in Australia, she had asked “a friend” to help her submit her visa application and that “all of the documentation” had been sent to her friend. The applicant also explained that her bridging visa had expired and she was no longer able to work legally in Australia. She stressed that she could not pay rent and was unable to return to China because of the COVID-19 pandemic. The applicant also asked the Court to grant her a further bridging visa.

24. To the extent that the applicant is seeking a further bridging visa, this Court is unable to assist and it was explained to the applicant at the hearing that the Court does not have those powers.

25. Although not entirely clear, the applicant asked the Court if her friend could attend and assist her with her evidence.  The Court did not allow this request. Any evidence provided by the applicant’s friend was not evidence which was provided to the Tribunal and is thus not relevant to the issues which can be addressed by the Court on review. Further, for the reasons set out below, the Court is satisfied that the applicant received notification of the delegate’s decision.

26. To the extent that the applicant was making a request for an adjournment, the Court declined to grant any such adjournment. Noting the principles articulated in Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44], the Court notes that this matter has been on foot since July 2021. The Court notes that the applicant did not file any additional evidence or submissions with the Court, even though she was given an opportunity to do so. Further, no indication was made in the lead up to the hearing that the applicant was seeking an adjournment of the matter.

27. Any remaining issues that arise from the applicant’s oral evidence will be addressed below.

    CONSIDERATION

    Grounds of review

28. For ease of reference, the applicant’s grounds of review state:

    •AAT did not give a reasonable consideration for my explanation to the specific reason of missing the deadline to respond to the tribunal hearing notice. Actually I have never been advised or informed by the agent I entrusted of the time of hearing until I was being notified by the tribunal of its decision made that they have no jurisdiction to the determine my application which means they cannot review the decision of the delegate of the Minister.

    •I feel vulnerable in this accident because the email address tribunal used to deliver the hearing notice is not mine. Furthermore, it was not the one given in my authority and has nothing to do with my awareness or knowledge at all.

    •I have never been personally advised by the agent verbally or express in writing about the hearing notice.

    •I actually lost contact with the agent before the hearing and it perplexed me in tribunal's decision.

    •I feel innocent in the impact or consequences due to the failure of hearing notice receipt. I hope tribunal can investigate to ensure a fair, considerable and reasonable assessment is delivered.

29. Insofar as the applicant references conduct of a migration agent or “friend”, the Court notes that at no time (before the Department or the Tribunal) did the applicant provide details of any registered migration agent or lawyer. In fact, in both her visa application and her application for review lodged with the Tribunal, the applicant answers “no” to those questions relevant to the appointment of a representative or an authorised recipient (CB 7 & 54). Further, the applicant provided both the Department and the Tribunal what appear to be email addresses that belong to her (CB 7 & 54).

1. The Court is unable to comment on or making findings in relation to the conduct of an agent in circumstances where there is no evidence of the involvement of any such agent in the matter.

2. Having reviewed the application for judicial review filed by the applicant and the material in the Court Book, the following issues appear to arise:

   (a)Issue 1 - Whether the Tribunal failed to consider the applicant’s response to the invitation to comment letter;

   (b)Issue 2 - Whether the applicant received notification of the refusal decision;

   (c)Issue 3 - Whether the applicant was invited to attend a hearing; and

   (d)Issue 4 - Whether the applicant was afforded common law natural justice.

3. These issues will be considered below.

   Issue 1 - Whether the Tribunal failed to consider the applicant’s response to the invitation to comment letter

4. To the extent that the applicant alleges that the Tribunal did not consider her explanation for “missing the deadline to respond”, this fails on a factual level.

5. As outlined above, the applicant was invited to comment on the validity of her Tribunal application on 26 May 2021 (CB 58-60).

6. The applicant responded to that invitation by email on 8 June 2021 as follows (CB 61-62):

   •I did not receive immigration refusal letter from “my immigration agent” (from Burwood, NSW) who helped me with the application. I was aware of overstaying my visa from my work place when they did their regular checking.

   •I was shocked and could not get in touch with my agent, later I was advised that my agent was arrested by the police and no one knows where the agent is. I have not received any immigration mails or letters myself

   •I am totally a victim of this incident and the AAT review application is very important to my life.

   •I hope AAT can investigate and give me a more favourable consideration to my application

7. The Tribunal considered the applicant’s response to the invitation to comment letter as follows:

   4.The Tribunal received an email in which the applicant stated she had not received correspondence from the department as it had not been forwarded by her agent who she was no longer able to locate or contact. The requirement to lodge applications within specified timeframes is not a matter in which the Tribunal has discretion.

8. As outlined above, the Tribunal acknowledged receipt of the applicant’s email and explanations.  However, the Tribunal simply did not have any discretion or any power to extend the time within which the applicant could file her 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.

9. No error arises in relation to issue 1.

   Issue 2 - Whether the applicant received notification of the refusal decision

10. The applicant claims not to have received notification of the refusal decision, alleging that her migration agent did not provide a copy of the refusal decision to her.

11. The Court notes that, in her visa application, the applicant answered “no” to the question of whether the applicant “authorise[d] another person to receive communication about [her] application on [her] behalf”. Further, the applicant provided an email address and agreed for the Department to communicate with her electronically using that email address (CB 7).

12. In this matter, a delegate of the Minister refused to grant the applicant the visa on 11 March 2021. The Department was required to notify the applicant of that decision “in a prescribed way” (see s 66(1) of the Act) as set out in s 66(2) of the Act.

13. The applicant was sent notification of the refusal decision (via email) sent to the email address included in her visa application on 11 March 2021 (the Burgess Affidavit, p 4). Attached to that email was a letter from the Department (addressed to the applicant) with notification of the refusal decision (CB 40-43) and a copy of the refusal decision (CB 44-50).

14. The notification letter in this matter satisfied the requirements set out in s 66(2) of the Act by:

    (a)stating that the applicant had not satisfied s 36(2) of the Act, being a criterion for the grant of the visa (CB 40);

    (b)referencing annexed written reasons which detailed that delegate was not satisfied that the applicant satisfied ss 36(2)(a) or 36(2)(aa) of the Act (CB 49): s 66(2)(a) of the Act;

    (c)annexing written reasons which outlined why the criterion was not satisfied: s 66(2)(c) of the Act;

    (d)detailing the applicant’s review rights as follows (CB 40-41):

    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 42) as per s 66(2)(d) of the Act.

15. As outlined above, the notification of the refusal decision was sent to the email address included in the applicant’s visa application (Burgess Affidavit p 4). 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.

16. 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 applicant was thus taken to have received the notification on 11 March 2021. 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 (“SZNZL”) at [36] per Barker J.

17. The applicant was thus taken to have received that notification at the end of the day on 11 March 2021 (regardless of whether or not the applicant actually received the document).

18. 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; CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).

19. Section 347(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 accord 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].

20. 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.

21. 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 above at [47]. 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.

22. 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 was, in fact, “validly notified”, the Court must forensically assess the content and clarity of the notification letter.

23. This Court has derived a number of core principles from the cases cited at [47] 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.

24. Here, under the heading “Review Rights”,:

    (a)the letter clearly states that “any application for merits review” must be lodged with the Tribunal “within the period of 28 calendar days, commencing on the day you are taken to have received this letter” (CB 40-41); 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”.

25. Here, as in Abbas, the notification letter is clear. The layout is not confusing. Clear headings are used that provide unambiguous “signposts” which allow the applicant to identify the information she requires. 

26. 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.

27. No error arises in relation to issue 2.

    Issue 3 - Whether the applicant was invited to attend a hearing

28. The applicant makes multiple references to not receiving a hearing notification from her “agent”. The applicant seems to be concerned that she was not given an opportunity to attend a hearing before the Tribunal.

29. The issue of whether the Tribunal is required to invite an applicant to a hearing within the context of a “no jurisdiction” decision has recently been considered by this Court in WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 (“WZAVO”) at [82] to [87].

30. The Court’s analysis in WZAVO applies equally here and relevantly provides as follows.

31. Section 360 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments. However, there is no requirement to do so where there is no “valid” application before the Tribunal.

32. As outlined by the Federal Court in SZNZL at [46]:

    46.The Minister contends that the Tribunal has obligations of procedural fairness in the course of conducting a review, which are exhaustively codified by the Act in Div 4 of Pt 7; but no review is commenced unless an application is made which engages the Tribunal’s jurisdiction. While the Tribunal needs to form a view about whether it has jurisdiction in each case, it cannot conclusively determine its own jurisdiction and its opinion on the issue has no legal force in itself. Thus no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction. The issue before the Court is simply whether the Tribunal’s conclusion was right, not how it arrived at that conclusion.

33. Here, as was the case in WZAVO, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the application was filed outside of the prescribed time period, the Tribunal lacked a “valid” application about which any further determinations could be made.  Hence, as per SZNZL, no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it had jurisdiction.  The only issue is whether the Tribunal’s conclusion was right – not how it arrived at that conclusion. Here, for the reasons detailed above, the Tribunal’s decision in relation to whether it had jurisdiction was correct.

34. No jurisdictional error arises in relation to issue 3.

    Issue 4 - Whether the applicant was afforded common law natural justice

35. As outlined above in relation to issue 3, no issues of procedural fairness arise in relation to the Tribunal’s findings on jurisdiction.

36. In relation to the question of common law guarantees of natural justice, more broadly, the Court again references its recent decision in WZAVO (at [83]) and highlights that the common law rules of procedural fairness simply require that the Tribunal bring to the 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.

37. Here:

    (a)the applicant was notified of the refusal decision and the timeframe for lodging her application for review (CB 40-43);

    (b)the applicant was invited (on 26 May 2021), by way of an email sent to her nominated email address, to comment on the validity of her Tribunal application (CB 58-60);

    (c)the applicant responded to that invitation by email on 8 June 2021, explaining why she was of the view that the Tribunal should proceed to review the delegate’s decision (CB 61-62); and

    (d)

    the Tribunal expressly considered the applicant’s email response in its decision

    
    

    (at [4], CB 66).

38. Here (as was the case in WZAVO), it cannot be said that the applicant was denied the right to present her case. Further, even if the Tribunal had invited the applicant to attend a hearing (where the applicant had already been asked to comment on the critical issue before the Tribunal and did so) this would not have assisted the applicant. As detailed above, the Tribunal did not have the power to extend the time within which the applicant could file her application with the Tribunal.

39. No error arises in relation to issue 4.

    CONCLUSION

40. The application for judicial review filed by the applicant on 27 July 2021 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.

41. The application is, accordingly, dismissed.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       14 April 2022