CLY22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 759
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 759
File number: PEG 135 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 23 August 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal failed to consider the applicant’s reasons for filing his review application out of time – whether the Tribunal failed to comply with its procedural fairness obligations – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 412, 476, 494B, 494C & 494D and Division 4 of Part 7
Migration Regulations 1994 (Cth), regs 2.16 & 4.31
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
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
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
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
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 18 August 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 135 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLY22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
23 AUGUST 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 applicant is a citizen of Indonesia (Court Book (“CB”) 23, 29 & 42). He first arrived in Australia in September 2017 as the holder of an Entertainment (Class GG) (Subclass 408) visa. That visa ceased in October 2017 (CB 55).
On 12 January 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 13-41). In Part B of that visa application, the applicant answered “no” when asked (at question 5) if he had received assistance in completing the application form. He further asked (in response to question 9) that all written communications from the then Department of Immigration and Border Protection (the “Department”) be sent to him directly (and not to any “authorised recipient” or “migration agent”) (CB 18). The applicant also provided the Department with his email address (in Part C of his visa application) and consented to the Department corresponding with him via that email address (CB 25).
In his visa application, the applicant indicated that he feared harm on the basis of his faith. He claimed that he was a practicing member of the Islamic Ahmadiyya faith and that his religion is “different to any other [branch of] Islamic” faith. The applicant claimed that the Indonesian government wanted to “remove” all those belonging to the religion. He also claimed that he was the “leader of the city council” in Indonesia (CB 15). The applicant provided a copy of his Indonesian passport with his visa application (CB 42).
On 13 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 55-64).
The applicant was notified of the delegate’s refusal decision by letter dated 13 April 2018 (the “initial notification letter”) (CB 51-54). That initial notification letter was sent to the applicant (personally) via email (at the email address included by the applicant in his visa application) (CB 50-51).
Following the decisions of the Full Court of the Federal Court in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”) and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”), the Department determined that the applicant had not been properly notified of the delegate’s decision (by way of the initial notification letter) (CB 65).
On 18 March 2020, the Department wrote to the applicant (by email) to request confirmation of his email address (CB 65-66).
On 25 March 2020, the applicant provided the Department with a completed “Form 929 – Change of contact and/or passport details” form and a copy of his passport (CB 67-68). That document confirmed that the applicant’s email address was the same as that provided in his original visa application (CB 67).
The applicant was re-notified of the delegate’s refusal decision by letter dated 1 April 2020 (the “re-notification letter”) (CB 70-73). That notification letter was sent to the applicant via email (at the address the applicant had included in his visa application and confirmed was still his current email address) (CB 69-70).
The re-notification letter explained how the applicant could seek review of the delegate’s decision and, relevantly, provided as follows (CB 71):
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.
On 26 April 2022, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 74-81). In that application, the applicant again answered “no” when asked whether he had appointed an authorised representative to assist with his review application (CB 78).
On 27 April 2022, the Tribunal invited the applicant (via email) to comment on the validity of his review application (CB 82-84). In that invitation letter, the Tribunal advised as follows (CB 83):
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 1 April 2020 meaning that 1 April 2020 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 29 April 2020. As the application was not received until 26 April 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 11 May 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.
Later that same day (27 April 2022), the applicant replied to the Tribunal (by email) explaining the reasons for the delay in making his application. He wrote as follows (without alteration) (CB 85-86):
I am writing in relation to the application for review made by me in respect of a decision to refuse to grant a protection visa.
It appears that my application is not a valid application as it was not lodged within the relevant time limit. The reason it was happened because I got problem to open my email as I lost my phone and once I bought a new phone I was forgot my password for my email. Once I figured it out my password for that email, it’s already been late for me to lodge my application for review with the Tribunal.
I really hope the Members can consider about my situation and can give me chance to review my application. I am intend to stay here legally even my visa already refuse.
Thank you.
On 28 June 2022, the Tribunal found that it did not have jurisdiction in relation to the matter because the applicant’s review application had not been lodged within the requisite time period (CB 89-90).
On 13 July 2022, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-7). He also filed an affidavit in support of that application (affirmed on 11 July 2022 and annexing a copy of the Tribunal’s decision) (CB 8-12).
That application is brought pursuant to s 476 of the Migration Act 1958 (Cth). In order to obtain assistance from this Court, the applicant 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 set out the Tribunal’s decision in detail.
In full, the Tribunal’s decision provides (footnote included) (CB 90):
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Home Affairs on 13 April 2018 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 26 April 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 April 2020 and dispatched by email.[1] The letter set out the information required to determine the time period to make a review, under the heading ‘Review Rights’, and the Tribunal finds that it complied with s.66(2)(d)(ii). The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
3.The Tribunal finds that the applicant is taken to have been notified of the decision on 1 April 2020: s.494C of the Act.
4.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). Therefore the prescribed period to apply for review ended on 28 April 2020.
5.The Tribunal wrote to the applicant on 27 April 2022, advising of its preliminary view that the application was not valid, as it was not lodged within the prescribed period; and inviting comment.
6.On 27 April 2022, the applicant replied that he had lost his phone and no longer had the password for his email account. By the time he had recovered the password, it was already too late to make an application for review. He requests the Tribunal to consider his situation and accept the review application as valid.
7.The Tribunal notes these comments. However, the Act does not give it any discretion to treat as valid an application that does not meet the prescribed requirements.
8.As the application for review was not received by the Tribunal until 26 April 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.
[1] The Department of Home Affairs sent an email on 13 April 2018, but later determined that notification did not meet the Requirements of the Act, and re-notified the applicant on 1 April 2020.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 13 July 2022 contains five “grounds of review”, as follows (without alteration):
1.I came to Australia as a visitor visa holder and made an application for further visa and made and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application and The Tribunal has refused to accept my application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
2.I lodged my application for review with The Tribunal but they have refused to accept my application for review stating that they have no jurisdiction on this matter because the application for review had not been lodged within the required time limit.
3.I do not lodge my application for review with The Tribunal within the relevant time limit. The reason it happened was because I had a problem opening my email. I lost my mobile phone and after that when I replaced a new one I had a problem opening my email as I forgot my password for the email but once I figured it out, it’s been late for me to lodge my application for review with The Tribunal.
4.This is clear unfair treatment by The Tribunal to myself. The Tribunal has refusal letter from the Department and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
5.I would like to request to Federal Circuit Court to accept my application and have a fresh look on this matter and set a new orders and replace orders made by Administrative Appeals Tribunal. I would like to request to Federal Circuit Court to set aside old orders made by Administrative Appeals Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.
With the application for judicial review, the applicant also filed an affidavit (affirmed by him on 11 July 2022). That affidavit annexed a copy of the Tribunal’s decision but otherwise did not provide any additional information.
On 23 September 2022, procedural orders were made by Registrar Carney of this Court giving the applicant 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 applicant.
The matter first came before this Court on 27 June 2023. The applicant appeared at that first hearing without legal representation but with the assistance of an interpreter. Ms Scott appeared on behalf of the Minister. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Shortly prior to the hearing of this matter, Justice Markovic handed down the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). This Court determined that Sandor had implications for this matter.
Relevantly, as discussed further below, Sandor addresses what constitutes proper notification of a delegate’s decision – that is, whether the notification letter sent by the Department (to an applicant) advising of a delegate’s decision is “complete or clear”.
The Court discussed the decision in Sandor with the parties at the first hearing in this matter (on 27 June 2023) and asked the Minister to file additional submissions addressing its applicability or consequences for the matter the subject of this judgment. The Court also confirmed that it would give the applicant an opportunity to file any submissions in reply. Orders were made in this regard. The hearing in the matter was also adjourned to 18 August 2023.
The applicant expressed concerns with being able to return to Court and the costs of doing so, noting that he was on a limited income and would be away for work. To assist the applicant, the Court granted the applicant leave to appear at the hearing on 18 August 2023 via video link. The Minister did not object to this course of action and no issues arose in this regard.
Further written submissions (addressing the issues raised in Sandor) were filed on behalf of the Minister on 10 July 2023. No further documents were filed by or on behalf of the applicant.
The matter came before this Court again on 18 August 2023. The applicant appeared at that hearing (via video link) without legal representation and was again provided with the assistance of an interpreter. Ms Scott again appeared on behalf of the Minister. The Court confirmed that the applicant had received the Minister’s further submissions (that is, those submissions addressing the issues raised in Sandor).
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 13 July 2022, a Court Book numbering 90 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 20 April 2023, and the affidavit of service of Ms Madisen Anne Scott affirmed on 24 April 2023 and filed in this Court on 25 April 2023 and further written submissions filed on behalf of the Minister on 10 July 2023.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)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] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he 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 (“Wu Shan Liang”) at 272.
The Court also highlighted the concerns already raised by the applicant in his judicial review application (noting, in particular, that the applicant had said that he had some issues with his telephone and that the applicant thought that the Tribunal should have taken that into account).
Against this background, the applicant explained that he had prepared his application himself (with a friend helping him). The applicant also said that, in relation to the telephone issue canvassed by the Court, “there was no issue” with his telephone at the time. The Court pointed out that this is not what the applicant had said in his review application (and again read out ground 3 of the judicial review application to the applicant). In response, the applicant confirmed that this was correct and that he “just realised that with the first email [he] had, [he] was not able to access the email any more at the time because [he] could not remember the password”.
The applicant’s concerns, to the extent that they point to any issue of jurisdictional error, will be addressed with the applicant’s grounds of review below.
CONSIDERATION
Sandor and its applicability to this matter
Notification letters post-Sandor
This Court recently provided a detailed overview of Sandor and the requirements for notification letters more broadly in its decision of Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (“AGS20”). The analysis provided in those judgments is repeated (with minor amendments) below.
The Act and Migration Regulations 1994 (Cth) (the “Regulations”) impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
Section 412(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”. The relevant prescribed period applicable in this matter is outlined in reg 4.31(2) of the Regulations which provides (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
For that 28 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides as follows:
66 Notification of decision
…
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(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; and
…
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
The Department is permitted to communicate with an applicant by email pursuant to s 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires the Minister to give the authorised recipient (instead of the applicant) any documents that would otherwise have been given to the applicant. Further, where the Minister gives documents to the authorised recipient, the Minister is taken to have given the documents to the applicant: s 494D(2) of the Act. There is also no obligation for the Minister to provide a copy to the applicant directly (but the Minister is not prevented from doing so): s 494D(2) of the Act.
By virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the document is sent to an applicant’s authorised recipient (who did not forward a copy of that correspondence to the applicant) or, if the applicant did not receive those documents for any other reason.
Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, the applicant 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.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s 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 a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17; 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 FCAFC”).
These cases clarify that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely and 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. In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court relies on and repeats its analysis in Abbas (at [78]-[79]). Relevantly, it is emphasised that the above cases make it clear 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 FCAFC;
(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 FCAFC; 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.
Sandor also addresses whether a notification letter sent by the Department advising of a delegate’s decision was a proper notification (that is, whether the time period within which the appellant – Mr Sandor – could seek review by the Tribunal was made clear to him by that notification letter) and clarifies the case law summarised above. Sandor considers this issue within the specific context of a notification letter that is sent to an appellant (or applicant) via his or her authorised recipient. Until Sandor was handed down, that variable had not been specifically addressed by the Courts.
In Sandor, Justice Markovic summarised the characteristics of the relevant notification letter in that matter, noting that (at [45]):
(a)the notification letter was dated in the top left-hand corner of the first page (13 February 2018);
(b)immediately under the date, the notification letter was addressed to the visa applicant, Mr Sandor, by his name;
(c)the first page of the notification letter stated “Transmission Method: Email sent to [email protected]”;
(d)also on the first page, under the heading “Review Rights” the notification letter stated that the decision can be reviewed and that: “[a]n application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to receive this letter”;
(e)on the third page, under the heading “Receiving this letter”, the notification letter stated “[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”; and
(f)at the end of the letter, the notification letter also stated:
The original of this letter including any attachments was sent to:
Karola SZECSKO
Ms Szeckso was Mr Sandor’s migration agent. Mr Sandor had identified her as being authorised to receive correspondence in connection with his visa application.
Justice Markovic first rejected Mr Sandor’s contention that the notification letter did not meet the requirements of s 66(2)(d)(ii) of the Act because the letter stated that it was sent to Mr Sandor when, in fact, it had been emailed to his authorised recipient: at [48]. As in Sandor, no issue in relation to s 66(2)(d)(ii) of the Act arises in this matter.
Her Honour then addressed a separate contention – that is, whether the notification letter was invalid because it was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient: at [49]. Mr Sandor argued that, on that basis, the notification letter was invalid and, as such, the Tribunal had erred in finding that it had no jurisdiction because the time within which Mr Sandor could seek review had not begun to run.
The Minister submitted that the letter was clear, emphasising that the language reflected the terms of s 494D(2) of the Act. Relevantly, the Minister stressed that, in light of what was stated on page three (that Mr Sandor was “taken to have received it at the end of the day it was transmitted”) and page one (that it was transmitted to Mr Sandor’s authorised recipient) it was clear that the 21-day time period commenced from that date.
Justice Markovich rejected the Minister’s argument, determining as follows:
49.The second matter is whether the Notification Letter was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the Notification Letter did not explain the effect of s 494D(2) of the Act.
…
51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister’s submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister’s reading of the Notification Letter, the appellant must understand that the reference to “the day the letter was transmitted” requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
Is this matter distinguishable from Sandor?
The Minister submits (in further written submissions filed on 10 July 2023) that the matter before this Court is distinguishable from Sandor.
This Court agrees for the reasons that follow.
As outlined above, the issue in Sandor related to the contents of the notification letter sent by the Minister’s delegate and, in particular, whether the timeframe within which the applicant could seek merits review by the Tribunal was clearly set out in that notification letter.
The contents of the re-notification letter in this matter are as follows (CB 70-73):
(a)the letter was dated 1 April 2020 (on the first page – CB 70);
(b)the letter was addressed to the applicant (referencing him by name) at his residential address (on the first page – CB 70);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 70);
(d)under the heading “Review rights” (on the second page, CB 71), the letter stated (emphasis added):
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)the letter was sent by email to the applicant on 1 April 2020 (CB 69-70).
It is clear that the notification letter in this matter differs from the letter the subject of Justice Markovic’s decision in Sandor. The letter in this matter was sent to the applicant directly (via email sent to the applicant’s nominated email address). The notification letter in Sandor was sent (via email) to the applicant’s authorised recipient.
As previously explained by this Court in Singh and AGS20, the defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not “manifest”.
The notification letter in Sandor required the appellant to understand that he “was taken to have received” the letter on “the day the letter was transmitted” to his authorised recipient. However, the notification letter in this matter does not require the applicant to do so.
Section 66 of the Act does not require the notification letter to state a specific date by which an application for review must be filed with the Tribunal: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. The decision in Sandor also stops short of requiring any notification letter to do so. That is, the notification letter in this matter did not need to advise the applicant that he had until 28 April 2020 to file an application for review with the Tribunal. All that was required was that there be sufficient information, on the face of the notification letter, to permit the applicant to correctly determine the relevant period.
Here, the information on the face of the notification letter allowed the applicant to determine the period correctly. Relevantly, the notification letter:
(a)stated that the transmission method was by email;
(b)identified the applicant’s own email address;
(c)under a single heading titled “Review Rights” stated that:
(i)the application for review had to be given to the Tribunal within 28 days, commencing on the date that the applicant was taken to have received the letter; and
(ii)(in the very next line) the applicant was taken to have received it on the day the email was transmitted.
Importantly, the notification letter here explained that the applicant was taken to have received the letter at the end of the day it was transmitted to him (not to an authorised recipient).
On the basis of the above, the Court determines that the notification letter in this matter did comply with the requirements set out in s 66(2)(d)(i) of the Act and is thus distinguishable from the notification letter in Sandor.
The Court notes that the Minister in this matter contends (at [11] in written submissions filed in this Court on 10 July 2023) that the decision in Sandor was “wrongly decided”. As explained by this Court in Singh, that is a matter best dealt with on appeal to a higher court.
For the reasons set out above, the Court agrees that present matter distinguishable from Sandor.
There was, accordingly, no error in the Tribunal’s decision or its conclusion as to want of jurisdiction.
No jurisdictional error arises in this regard.
Grounds of review
Turning now to the applicant’s grounds of review, as set out in the application for judicial review, the Court determines as follows.
Grounds 1 and 2
Grounds 1 and 2 provide as follows:
1.I came to Australia as a visitor visa holder and made an application for further visa and made and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application and The Tribunal has refused to accept my application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
2.I lodged my application for review with The Tribunal but they have refused to accept my application for review stating that they have no jurisdiction on this matter because the application for review had not been lodged within the required time limit.
Grounds 1 and 2 simply outline the applicant’s immigration history and the procedural background of this matter. Ground 2 also summarises the Tribunal’s findings. As correctly submitted by the Minister (at footnote 1 in paragraph [19] of written submissions filed in this Court on 20 April 2023), the applicant actually arrived in Australia as the holder of an entertainment visa. This does not have any bearing on the matters currently before the Court.
Grounds 1 and 2 otherwise do not raise any issue of the sort that this Court can address.
No error arises in this regard.
Grounds 3 and 5
Grounds 3 and 5 state:
3.I do not lodge my application for review with The Tribunal within the relevant time limit. The reason it happened was because I had a problem opening my email. I lost my mobile phone and after that when I replaced a new one I had a problem opening my email as I forgot my password for the email but once I figured it out, it’s been late for me to lodge my application for review with The Tribunal.
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5.I would like to request to Federal Circuit Court to accept my application and have a fresh look on this matter and set a new orders and replace orders made by Administrative Appeals Tribunal. I would like to request to Federal Circuit Court to set aside old orders made by Administrative Appeals Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.
In ground 3, the applicant repeats the reasons for the delay in lodging his application for review with the Tribunal. To the extent that the applicant is suggesting that the Tribunal failed to consider those reasons, this fails on a factual level.
The Tribunal specifically references the applicant’s response to its invitation to comment letter as follows:
6.On 27 April 2022, the applicant replied that he had lost his phone and no longer had the password for his email account. By the time he had recovered the password, it was already too late to make an application for review. He requests the Tribunal to consider his situation and accept the review application as valid.
7.The Tribunal notes these comments. However, the Act does not give it any discretion to treat as valid an application that does not meet the prescribed requirements.
As set out above, the Tribunal acknowledged the reasons provided by the applicant. Unfortunately, this could not assist him. The applicant in this matter had been properly notified of the delegate’s decision (by way of the re-notification letter dated 1 April 2020) and the time period within which he was required to file his review application began to run on the day he was re-notified (being on 1 April 2020). The applicant was thus required to file his application with the Tribunal by 28 April 2020. He did not do so.
The Tribunal was thus correct when it concluded that it did not have jurisdiction in this matter.
Insofar as the applicant may be suggesting that, having considered the applicant’s reasons for the delay in applying to the Tribunal, the Tribunal should have extended the time period within which the applicant could seek review (or that the Court could somehow accept his review application), the Court disagrees.
While the Tribunal did consider the applicant’s reasons for the delay in making that application (as outlined above), the Tribunal simply did not have the power to extend the time period within which the applicant could seek review at the Tribunal: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [49]. Similarly, the Court also does not any power to do so (or to direct the Tribunal to do so).
No jurisdictional error arises in this regard.
Ground 4
Ground 4 provides:
4.This is clear unfair treatment by The Tribunal to myself. The Tribunal has refusal letter from the Department and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
The applicant here seems to suggest that he was not afforded procedural fairness or that the Tribunal failed to consider the “sensitivity” of his matter or his protection claims.
Insofar as the applicant suggests that the Tribunal should have considered his protection claims or the reasons he claims he cannot return to his home country, the Court disagrees.
Once the Tribunal had determined that the review application before it was invalid, the Tribunal could not go on to assess the merits of the applicant’s matter.
As outlined above, the Court is also unable to review the merits of the applicant’s protection claims or to consider whether the applicant ought to have been granted the visa: Wu Shan Liang at [31].
To the extent that the applicant claims that he was not afforded common law natural justice or procedural fairness, the Court also disagrees.
The issue of whether the Tribunal is required to adhere to common law natural justice guarantees within the context of a “no jurisdiction” decision has recently been canvassed 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]-[87].
That analysis applies equally here and relevantly provides as follows.
The Tribunal’s procedural fairness obligations in conducting a review are set out in Division 4 of Part 7 of the Act. However, those obligations are not enlivened where there is no “valid” application before the Tribunal.
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.
Here, as in WZAVO, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the application was filed late, 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.
In relation to the common law guarantees of natural justice, the Court again relies on its decision in WZAVO (at [83]) and notes that, to the extent that it is argued that the applicant was entitled to the common law guarantees of natural justice, the common law rules of procedural fairness only require that the Tribunal draw to the applicant’s attention the critical issue upon which a decision is likely to turn and provide the applicant with an opportunity to respond accordingly: Kioa v West (1985) 159 CLR 550 at 584 & 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
Here:
(a)the applicant was properly notified of the delegate’s decision (by way of the Department’s re-notification letter) and the timeframe for lodging his application for review (CB 70-73);
(b)the applicant was invited (on 27 April 2022, by email sent to the applicant’s nominated email address) to comment on the validity of his application (CB 82-84);
(c)the applicant responded to the Tribunal’s invitation by email that same day (being on 27 April 2022, explaining that he had lost his phone and consequently was unable to access his emails) (CB 85-86); and
(d)the Tribunal expressly considered that response in its decision (at [6]-[7], CB 90).
Here, as in WZAVO, it cannot be said that the applicant was denied the right to participate in or otherwise present his case. Further, even if the applicant had been invited to attend a hearing or had otherwise been allowed further opportunities to comment on his application (in circumstances where the applicant had already been asked to comment and did so) this would not have assisted him. As explained by the Court (above), the Tribunal had no power to extend the time within which the applicant could lodge a review application with the Tribunal and the application in this matter had clearly been filed out of time.
No jurisdictional error arises in relation to ground 4.
CONCLUSION
The application for judicial review filed by the applicant on 13 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 one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 August 2023
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