CSG21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 189
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSG21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 189
File number: PEG 166 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – inadequate explanation – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 66, 360, 379A, 411, 412, 477, 494B; Part 7
Migration Regulations 1994 (Cth), regs 2.16 and 4.31
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
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
Gallo v Dawson [1990] HCA 30
Haque v Minister for Immigration and Citizenship [2010] FCA 461
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Kioa v West (1985) 159 CLR 550
Manna v Minister for Immigration and Citizenship [2013] FCA 400
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
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Kim [2014] FCA 390
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sainju v Minister for Immigration and Citizenship 2010] FCA 461
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
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 and Multicultural and Indigenous Affairs [2003] FCA 327
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of last submission: 9 March 2022 Date of hearing: 28 February 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Shinnick Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 166 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSG21
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:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) 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
A detailed overview of the background relevant to this matter was provided in written submissions filed by the Minister in this Court on 9 February 2022. With minor alterations, that overview (which this Court adopts as its own) provides as follows.
The applicant is a citizen of the People's Republic of China. On 22 November 2017, the applicant lodged an application for a Protection (Class XA) (subclass 866) visa (the “visa”) (Court Book (“CB”) 17-33).
In that application, the applicant agreed to have the Minister's department communicate with her via email. She provided an email address so that this could occur (CB 22).
On 15 April 2019, a delegate of the Minister refused to grant the applicant the visa (CB 55-64).
A “refusal notification letter” was sent to the applicant's nominated email address (CB 50-54).
On 18 June 2020, the applicant lodged an application for merits review of the delegate's decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 65-66). In that application (under the heading “correspondence details”) the applicant provided an updated email address (CB 66).
On 19 June 2020, the Tribunal invited the applicant to comment on the validity of the application for review, noting that that the application had been filed “out of time” (CB 87-88). That invitation was sent by email to the applicant’s designated email address (CB 86) and invited the applicant to comment in writing by 3 July 2020 (CB 87).
On 20 July 2020, the applicant responded to the invitation to comment by return email (CB 89). She explained that she had been unable to log on to her previous email address and, as a result, she did receive the notification from the Department advising that her visa application had been refused.
On 30 November 2020, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision (CB 96-97) as the applicant’s application to the Tribunal had been filed “out of time”.
The applicant was notified of the Tribunal's decision by email. That email correspondence was sent to the applicant’s designated email address (CB 91-95).
On 9 August 2021, the applicant filed an application for judicial review in this Court (CB 1-6). That application was filed 218 days late. In that application, the applicant acknowledges the late filing and seeks an extension of time within which to file her substantive application for judicial review.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court concludes that an extension of time should not be granted.
CONSIDERATION - EXTENSION OF TIME
The materials before the Court include the applicant’s application for judicial review and supporting affidavit filed on 9 August 2021, a Court book numbering 97 pages (marked as Exhibit 2), written submissions filed by the Minister on 9 February 2022 and further written submissions filed by the Minister on 9 March 2022.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed.
At the hearing of this matter, the applicant appeared via video link and without legal representation. She was assisted by an interpreter in the Mandarin and English languages.
The applicant confirmed that she had received a copy of the Court Book and written submissions prior to the hearing but was “unable to access her emails” and could not access the Minister’s written submissions. The Court was satisfied that the Minister had adequately served a copy of those submissions on the applicant, both by post and by email. Correspondence was tendered by the Minister’s representative in that regard (marked as Exhibit 1). As discussed below, to assist the applicant in this regard, the Court asked Mr Shinnick for the Minister to provide a more detailed overview of the Minister’s written submissions than might ordinarily be the case. Mr Shinnick did so and the Court thanks him for his assistance in this regard.
Noting that the applicant was not legally represented, the Court explained to her that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 30 November 2020. The date by which the applicant was required to file her judicial review application in this Court was 4 January 2021. She did not do so until 9 August 2021. The delay here is thus 218 days.
The Court also explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”):
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided grounds stating why that extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to her that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay and prejudice;
(b)whether the explanation for the delay is adequate; and
(c)whether the proposed substantive application for judicial review has merit.
In relation to 22(c) above, it was also explained to the applicant that when making a determination about whether a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. An applicant need only identify an arguable case (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to address each of the factors outlined above and highlight anything else she considered relevant to her request for an extension of time. Her responses are discussed in the consideration that follows.
Following the hearing of this matter on 28 February 2022, the Court requested further written submissions from the parties in relation to an issue that the parties had not addressed at the hearing. That issue relates to “date or timing errors” in the Tribunal’s decision. Further written submissions were received from the Minister in this regard on 9 March 2022. No submissions were received from the applicant. The issues canvassed in the Minister’s submissions are also assessed below.
Length of delay and prejudice
An extension of time is not given as a matter of right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Limitation periods specified in the Act are the “general rule” and the grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
In this matter, the applicant filed her substantive application 218 days after the statutory period. This is an extraordinary delay and weighs heavily against the granting of an extension of time.
The Minister conceded (in written submissions filed by the Minister on 7 February 2022) that there is no prejudice to the Minister by the granting of an extension of time. This weighs in favour of granting an extension of time.
Explanation
As correctly noted by the Minister (in written submissions filed on 9 February 2022 at [15]), the longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J.
Here, the applicant’s “grounds” for an extension of time state:
1.I was not properly notified of the decision by the department, causing me to miss out the appeal period. This has led to my appeal not being reviewed fairly and properly by the AAT.
2.I was only made known later on that I have a right to appeal to the Federal Circuit Court regarding my case as I never have a lawyer to advise me on legal matters.
3.Meanwhile, originally I did not know that I could apply for the exemption of filing fee from the court due to financial hardship. I could not afford the filing fees of I did not apply for exemption.
In oral submissions before this Court, the applicant claimed that she had paid money to her lawyer or migration agent to “extend her visa” and that he had told her “everything was okay”. She stressed that she did not know that her “lawyer” had failed to apply “on time for [her]”. These submissions will be addressed below.
Although not entirely clear, the applicant seems to suggest that she was not notified of the Tribunal’s decision and, as such, she was not aware that she had a right to appeal that decision to this Court.
The applicant has not explained when she was, in fact, “made aware” of the Tribunal’s decision or her appeal rights and her right to seek an exemption from filing fees. Nor has she explained whether she did, in fact, ever receive the notification of the Tribunal’s decision dated 30 November 2020 (at CB 91-95).
The Court Book materials (at CB 91 & CB 92) show that the Tribunal advised the applicant on 30 November 2020 that her appeal had been unsuccessful. Relevantly, the letter also outlines the applicant’s appeal rights to this Court.
The Court notes that the Tribunal here notified the applicant of the Tribunal’s decision by transmitting the documents to her last known email address. This is a valid method of distribution specified under s 379A of the Act. Whilst dispatching by post is also a valid method of distribution pursuant to s 379A of the Act, the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship [2010] FCA 461 at [13] and [62] per Jacobson J.
Further, the transmission of the document by email refers to the “sending” of the documents and a person is taken to have received the document at the end of the day on which it was sent: Sainju v Minister for Immigration and Citizenship 2010] FCA 461 (“Sainju”) at [57] per Jacobson J.
Here, the notification was sent by email to the applicant via email at 8.01pm on 30 November 2020. The date relevant for the Court is the date upon which “the email was sent, not when it came to the attention of the addressee” (in this case the applicant): Sainju at [77]. The applicant is thus taken to have received the documents at close of business on 1 December 2020.
The applicant’s explanation for the delay in this regard is lacking.
To the extent that the applicant is saying that she did not file her application for judicial review because she was struggling financially, while the Court is sympathetic to the plight of all applicants in what are challenging times, the Court also notes that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application on time: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26] per Barker J. There is also no evidence that the applicant contacted the Court registry to discuss this issue or to seek assistance in this regard.
Further, to the extent that the applicant now states that her lawyer was negligent or otherwise did not properly advise her in relation to her visa status or provide adequate assistance to her (with the filing of her application for review with this Court), the Court notes that nowhere in the applicant’s visa application or Tribunal review material is it indicated that the applicant was represented by a migration agent or lawyer. At all times (both before the delegate and the Tribunal) the applicant indicated that she was applying for the visa on her own behalf and that she lodged the review application herself. There is, in effect, nothing in the evidence before the Court to suggest that the applicant was ever represented by a migration agent or a lawyer.
Even if the applicant did have a migration agent, the Court does not accept, on the evidence available, that there has been any fraud by that person of the sort contemplated in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
The Court does not consider the explanation for the delay in filing the application to be satisfactory.
This weighs against the granting of an extension of time.
Merits
Whether the proposed application for judicial review has any “arguable prospect of success”, assessed at an impressionistic level, is arguably the most critical factor for consideration when determining whether an application for an extension of time ought to be granted.
Tribunal’s decision
In order to determine whether the substantive application for judicial review has “merit”, it is useful to first outline the Tribunal’s decision.
The Tribunal’s decision spans seven paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 15 April 2019 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 18 June 2020. 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 15 April 2019 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 wrote a natural justice letter to the applicant on 19 June 2020, conveying its preliminary view that the application for review appeared to be invalid because it was not lodged within the relevant time limit. The Tribunal indicated that the primary decision was emailed to the applicant on 15 April 2019 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 6 May 2019. The letter noted the application for review was not received until 18 June 2020 and it appeared to be out of time. The Tribunal invited the applicant to submit any comments by 3 July 2020.
5. On 25 July 2020 the applicant provided the following response:
I did not receive the notification from the department.
It was until last month only I realize my visa is not in place, then only I find out that I had missed out the appeal period.
To add on, I was unable to log on to the previous email which cause me not receiving any notification from the department.
6.The Tribunal has considered the applicant’s response, however, finds that the applicant is taken to have been notified of the decision on 15 April 2020. Therefore, the prescribed period to apply for review ended on 6 May 2020. As the application for review was not received by the Tribunal until 18 June 2020 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.
Proposed application for Judicial Review
It is noted that the applicant’s application for judicial review provides three “grounds of review” as follows:
1.The Tribunal (AAT) had made jurisdictional errors in decisions regarding my appeal.
2.The AAT had incorrectly considered my comment regarding the validity of my application, where I explained that I did not receive the notification from the department.
3.Without considering my response properly, my appeal was not reviewed properly and I did not have a chance to explain my circumstances to the AAT.
Further, the applicant’s affidavit dated 6 August 2021 (and filed with this Court on 9 August 2021) states:
1.I was not notified properly by the department of the decision, and the Tribunal (AAT) incorrectly reviewed my comment regarding the validity of my appeal.
2.Therefore, unfairness existed in the decision made by the Tribunal (AAT) and my appeal was not properly considered. I was not given an opportunity to justify my circumstances.
Noting that the applicant was not legally represented, the Court gave her an opportunity to elaborate on the substantive grounds of review and to outline any other concerns she might have with the Tribunal’s decision: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision in determining whether there is an arguable case of error. 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 of “mistakes”:
(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 (“SZRUI”) 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].
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 whether there is an arguable case that 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.
Against this background, the applicant explained that she did not think that her visa “was treated with fairness”. She also, again, emphasised that she had paid money to her lawyer “but he did not do anything” and she did not know that her visa had expired or that she had overstayed her visa and that she was “also a victim”.
To the extent that these submissions have not been addressed above in relation to applicant’s explanation for the lengthy delay in this matter, they will be addressed below.
Proposed Ground 1
Proposed ground 1 simply states, without particulars, that an error has occurred.
Without more, it is unclear what “error” is being alleged.
Where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court will remain astute to the possibility of legal error in the Tribunal's decision and should raise any concerns in that regard with the Minister: MZAIB. Likewise, it is expected that the Minister, as a model litigant, will raise any issues of concern that might not be raised by an unrepresented applicant.
To the extent that anything is identified by this Court or the Minister, it will be discussed below.
Proposed Ground 2
Proposed ground 2 provides:
The AAT had incorrectly considered my comment regarding the validity of my application, where I explained that I did not receive the notification from the department.
In effect, the applicant contends that the Tribunal erred by not accepting her submission that she had not received notice of the delegate’s decision.
In this regard, the Court is assisted by the chronology and statutory overview summary provided by the Minister (at [22]-[26] in written submissions filed on 9 February 2022). That overview relevantly provides as follows.
The delegate's decision is a Part 7-reviewable decision as defined in s 411(1)(c) of the Act. Section 412(1)(b) of the Act states that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the prescribed period. Because the applicant was not in immigration detention, she had 28 days from the date she was notified of the decision to commence an application for review with the Tribunal: reg 4.31(2) of the Regulations.
The Tribunal does not have jurisdiction to hear an application for review lodged after the prescribed period and there is no power for the Tribunal to extend the time within which an application can be made: Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 (“Zhan”) at [66] per Allsop J.
Further, when the Minister (or his delegate) refuses to grant a visa, he or she must notify the applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act: reg 2.16(3) of the Regulations.
Subsection 494B(5) of the Act provides that the Minister may give notice by transmitting the notice via email to the last email address provided to the Minister for the purpose of receiving documents. Where the Minister gives a document by email, pursuant to s 494B(5) of the Act, the person is taken to have received the document at the end of the day on which the document is transmitted.
In relation to the facts of this matter, the Minister contends as follows:
25.On 15 April 2019, notice of the delegate's decision was sent by email to the applicant (CB 50-51) to the email address provided to the department in the applicant's protection visa application for the purpose of delivery of information and correspondence including ‘the outcome of [the] application’ (CB 22). There is no evidence that the applicant subsequently provided a different email address to the Minister. Accordingly, the applicant is taken to have received the notice at the end of the day on 15 April 2019, being the day it was transmitted to the applicant by email. There is no evidence that the notice was not effectively transmitted to the applicant's email address. In any event, the statutory regime deems receipt if the act of sending has occurred and transmit does not include receipt: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [43] per McKerracher, Reeves and Thawley JJ.
26.Even where there is no fault on the part of the applicant, the time limit for an application for review to the Tribunal is strictly applied: CQP15 v Minister for Immigration and Border Protection [2017] FCA 854 at [44] per Kenny J. The Minister submits that the applicant's stated inability to access her email account is not relevant to the question of whether notice was, in fact, transmitted under the Act. The Tribunal was therefore correct to find it lacked jurisdiction to hear the application for review …..
Having assessed the material in the Court Book, and having heard from the parties, on the facts of this case, the Tribunal made the only decision open to it. The delegate’s decision is deemed to have been received by the applicant on 15 April 2019. As such, the applicant was statutorily required to file her application at the Tribunal by 13 May 2019. The Court notes that the Tribunal references 6 May. This is an error that will be addressed below. The applicant did not file until 18 June 2020 – approximately 400 days late.
In the circumstances, the Tribunal lacked jurisdiction to hear the matter and dismissed the matter accordingly.
No jurisdictional error arises in this regard.
Proposed Ground 3
Proposed ground 3 states:
Without considering my response properly, my appeal was not reviewed properly and I did not have a chance to explain my circumstances to the AAT.
Arguably, the applicant takes issue with the fact that she was not invited to attend a hearing.
Whether or not the Tribunal is required to invite an applicant to a hearing or adhere or 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] to [87].
The Court’s analysis in WZAVO applies equally here and provides, relevantly, as follows.
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.
As outlined by the Federal Court in SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“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 notes its decision in WZAVO (at [83]) and again stresses 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 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
Here, as correctly outlined by the Minister (at [31] in written submissions filed on 9 February 2022):
(a)the applicant was duly notified of the delegate's decision and the timeframe for lodging her application for review (CB 50, 52);
(b)the applicant was invited on 19 June 2020 to comment on the validity of her application, by way of an email sent to her nominated email address (CB 86-87);
(c)the applicant responded to the Tribunal's invitation by email on 20 July 2020 explaining why she believed the Tribunal should exercise jurisdiction to review the delegate's decision (CB 89); and
(d)the Tribunal expressly considered the applicant's email of 20 July 2020 in its decision (at [5], CB 97).
Here, as in WZAVO, it cannot be said that the applicant was denied the right to participate in or to otherwise present her case. Further, even if the applicant had been invited to a hearing (in circumstances where the applicant had already been asked to comment and did so) this would not have assisted the applicant where (as detailed above) the Tribunal had no power to extend the time within which the applicant could lodge an application with the Tribunal and where the application in this matter had clearly been filed out of time.
Proposed ground 3 raises no arguable case of error on the part of the Tribunal.
Other
Is the notification letter valid?
It is noted that in her affidavit dated 6 August 2021 (and filed on 9 August 2021), the applicant suggests that she was not “properly notified” of the (delegate’s) decision.
Assuming that the applicant is referencing the delegate’s decision, the use of the word “properly” in this regard requires the Court to assess whether the notification of the delegate's decision was validly made under the Act.
Section 347(1)(b) of the Act requires an application for review of the delegate's decision to 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 does not commence: Zhan at [62].
Important for the purposes of this matter is paragraph 66(2)(d) of the Act which provides that notification of a decision to refuse an application for a visa must state:
(a)that the 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 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 DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”); Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 (“CAV18”); Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
These cases make it clear that in order to state a matter as required by the Act, the notification must do so clearly and completely, in a way that the receiver will reasonably understand.
A lengthy overview of the principles outlined in these cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“Abbas”). The Court will not repeat here what is provided in that matter, other than to repeat its conclusion that, when assessing whether s 66 of the Act has been complied with, what is clear from the relevant case law is that, when assessing whether an applicant was, in fact, “validly notified”, the Court must scrutinise the content and clarity of the notification letter.
As summarised by the Minister, the notification letter sent to the applicant in this matter (dated 15 April 2019) stated as follows:
[CB 51]
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 refusal decision must be given to the AAT within the…
[CB 52]
prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
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Your Immigration status
When this application for a Protection (subclass 866) visa was lodged, you were granted a bridging visa to allow you to remain in Australia lawfully during the processing of the application. The details and conditions of this bridging visa were included in the VISA Application Summary or Bridging Visa Grant Notice previously provided to you. You can also check your current visa details online using Visa Entitlement Verification Online…
[CB 53]
(VEVO) at immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions
Your bridging visa will cease 35 calendar days after the date of the decision, unless you are eligible to apply and make a valid application for, merits review of this decision.
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Receiving 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 important issue here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
Despite the jurisprudential complexity, the Court has derived a number of core principles from the cases cited at [83] above. In this regard, the Court repeats its conclusions 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.
Turning to the circumstances of this case, the Minister submits that the notification letter here was in the same form as the letter scrutinised in Singh. On that basis, it is argued, the notification letter was “clear” and satisfies the requirements of s 66(2)(d)(ii) of the Act. Relevantly, the Minister contends:
38.In particular the Minister observes that under the clear heading 'Review rights', the letter sets out that the decision can be reviewed. The relevant review body is then identified as the Tribunal. The letter stated that an application for review of the refusal decision needed be given to the Tribunal within 28 days of notification of the decision to the applicant.
39.The text under that heading ‘Receiving this letter’ stated ‘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’. This statement was both correct and clear. The heading ‘Receiving this Letter’ was clear and relevant.
40.… the Tribunal was correct to find that the applicant had been notified of the decision and that her application was lodged outside of the statutory period. It follows that the Tribunal was right to conclude that it did not have jurisdiction to hear the application for review.
The Court agrees.
Here:
(a)under the heading “Review Rights” it is made clear that that the review must be lodged “within 28 calendar days after the day on which you are taken to have received this letter” (CB 23-24); and
(b)under the heading “Receiving this Letter” it states “[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”. The heading directly encompasses the language of the statement referring to the time limit. A person reading the letter as a whole would be sufficiently alert to this and would be able to identify and determine the relevant information.
As in Abbas, the notification letter in this matter 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.
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.
“Date” and “calculation” errors in the Tribunal’s decision
On 3 March 2022, following the hearing of this matter, the Court wrote to the parties highlighting what appeared to be “calculation errors” in the Tribunals reasons for decision. The Court advised the parties as follows:
Having now reviewed the matter, [the Court] has identified a number of issues which were not addressed by the parties.
These issues are as follows:
1.The Tribunal appears to have incorrectly calculated the date upon which the applicant should have filed her application for review with the Tribunal. The notification of refusal letter which was sent from the Department to the Applicant (dated 15 April 2019) notes that the applicant has 28 days within which to apply for review (that is, by 13 May 2019). However, the Tribunal, both in its invitation to comment letter (sent to the applicant on 19 June 2020 (CB 87)) and at [4] and [6] of its reasons (CB 97) incorrectly states that the last day for the applicant to have lodged her review application was 6 May 2019 (and 2020 at [6] of its reasons as outlined below);
2.The Tribunal, at [5] of its reasons, references a date of 25 July 2020 as the date upon which the applicant provided her response to the invitation to comment letter. The email from the applicant provided in the Court Book appears to have been sent by the applicant on 20 July 2020 (CB 89); and
3.The Tribunal, at [6] of its reasons, incorrectly references the year in two of the dates (15 April 2020 instead of 15 April 2019 in line 2 and 6 May 2020 instead of 6 May 2019 in line 3).
It is noted that these errors were not referenced by the Minister, either in written submissions filed with this Court on 9 February 2022 or in oral submissions at the hearing of this matter on 28 February 2022.
The Court queries whether what is outlined above points to an arguable case of jurisdictional error on the part of the Tribunal.
Further written submissions were filed by the Minister on 9 March 2022. No response was filed by the applicant.
In effect, the Minister contends that, although these errors are “unfortunate”, they do not (either individually or cumulatively) raise an arguable case of jurisdictional error and an extension of time to bring this application for judicial review should be refused.
The Minister’s written submissions in this regard are forensic and clear. Relevantly, the Minister categorises the errors identified above as falling into two categories: “typographical errors” and an “error in the calculation of the 28 day period”. In summary, the Minister’s submissions (at [7]-[21] in further written submissions filed on 9 March 2022) are as follows:
Typographical errors
•The Tribunal has made unfortunate errors in the preparation of its reasons. However, some of these errors are best characterised as typographical errors and the Tribunal may deliver reasons for decision without complete proofreading: Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 (“Foroghi”) at [48] per Marshall J. The existence of typographical errors does not necessarily demonstrate an error in the Tribunal's jurisdiction: Foroghi at [48].
•At [5] the Tribunal refers to the applicant providing a response to the Tribunal's correspondence on 25 July 2020 (CB 97). There is no evidence that the applicant sent any correspondence to the Tribunal on 25 July 2020. Rather, the applicant responded to the Tribunal on 20 July 2020 (CB 89). Despite referencing an erroneous date, the Tribunal reproduced, and considered, the applicant's correspondence dated 20 July 2020 at [5] of its reasons (CB 97).
•In circumstances where there was only one relevant response from the applicant, the difference between the date cited by the Tribunal and the actual date differed by only one character (a “5” instead of a “0”) and the Tribunal correctly reproduced and had regard to the content of the actual response, the error at [5] of the Tribunal's reasons is merely typographical in nature and, in any event, was immaterial in circumstances where the Tribunal did, in fact, consider the correspondence received.
•At [6] the Tribunal incorrectly referenced the following dates (CB 97):
(a)15 April 2020, as the date on which the applicant was taken to have been notified of the delegate's decision. This ought to have been a reference to 15 April 2019; and
(b)6 May 2020, as the date on which the prescribed period for the applicant to seek review of the delegate's decision ended. This ought to have been a reference to 13 May 2019.
•It appears that each of the dates has erroneously been adjusted from 2019 to 2020. The reference to 6 May appears to follow the Tribunal's erroneous calculation of the 28 day period. The Minister observes that the Tribunal referred to the correct date of 15 April 2019 at [1], [3] and [4] of its reasons. The Tribunal also referred to the date of 6 May 2019 at [4] of its reasons, although admittedly this also involved an error in the Tribunal's calculation of the 28 day period.
•When the Tribunal's reasons are read as a whole, and particularly when it is observed that the Tribunal referred to the correct year repeatedly at other parts of its decision record, the errors in [6] of the Tribunal's reasons, by which the Tribunal referred to the wrong year, are merely typographical and did not take the Tribunal outside of its jurisdiction. This is not a case in which the application would have been made within time, had the Tribunal referred to the correct year. The application to the Tribunal was, in fact, made more than a year out of time. Indeed, if the Tribunal had referred to the correct dates, this would only have made the application for review even more out of time.
Error in the Tribunal's calculation of the 28 day period
•On 19 June 2020, the Tribunal wrote to the applicant noting that her application appeared to be invalid because it was not lodged within the relevant time limit (CB 87). The Tribunal correctly set out the legal principles and observed that the application for review needed to be lodged within 28 days, commencing on the date the applicant was taken to have been notified of the delegate's decision. The Tribunal referred to the applicant having been taken to have been notified of the delegates' decision on 15 April 2019.
•Regrettably, the Tribunal stated that the last day for the applicant to lodge an application for review was 6 May 2019. This reference was erroneous as 28 days from 15 April 2019 was in fact 13 May 2019. This same error was again made in the Tribunal's reasons at [4] and [6] in which the 6 May date is referenced erroneously as the last day for the applicant to lodge an application for review of the delegate's decision.
•In respect to the Tribunal's letter dated 19 June 2020, although the incorrect date of 6 May 2019 was referenced, the applicant was not denied a meaningful opportunity to address the lateness of her application. The Tribunal correctly identified that the applicant was taken to have been notified of the delegate's decision on 15 April 2019, and that the applicant had 28 days from this date to lodge a valid application for review. The Tribunal was correct when it stated that 'as the application was not received until 18 June 2020, it appears to be out of time.' Indeed the applicant responded to this letter with a meaningful explanation for the delay on 20 July 2020, and that explanation was expressly considered by the Tribunal.
•In these circumstances the Tribunal's erroneous reference in its letter dated 19 June 2020, although unfortunate, does not disclose an error affecting the Tribunal's jurisdiction.
•In respect to the Tribunal's reasons dated 30 November 2020, the Minister accepts the Tribunal has again referenced the erroneous date of 6 May 2019, and has also mistakenly referred to 6 May 2020, although this appears to be a typographical error (as addressed above).
•The existence of an application made within the prescribed period is a precondition to the Tribunal's jurisdiction to hear and to determine the application for review: NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173 at [7]–[8] per Stone J (Madgwick and Dowsett JJ agreeing). The Act does not permit any extension or variation of the prescribed 28 day period: Minister for Immigration and Border Protection v ASE15 (2016) 237 FCR 460; [2016] FCAFC 37 at [48] per North, Barker and Mortimer JJ.
•The Tribunal was required to ask itself whether the application for review had been lodged within 28 days of the date on which notice of the delegate's decision was given to the applicant. As noted above, the applicant did not lodge an application for review with the Tribunal until 18 June 2020 (CB 65–66). At that stage, her application for review was in excess of 400 days out of time. The Tribunal determined that the application was filed outside of the specified time period and therefore the Tribunal lacked jurisdiction to deal with the application. Notwithstanding the unfortunate error in Tribunal's reckoning of the date, the Tribunals conclusion on the question before it was correct and should not be disturbed on review. The Minister submits that this is not a case where the Tribunal's error in referring to 6 May 2019, as opposed to 13 May 2019, has caused it to ask the wrong question or to act unreasonably in determining the matter: cf. SZIFI v Minister for Immigration & Multicultural and Indigenous Affairs (2007) 238 ALR 611; [2007] FCA 63 at [43] per Greenwood J.
•The Tribunal's errors in calculating the 28 day period although regrettable are not in the nature of jurisdictional error.
The Court agrees with the Minister in this regard. The “date errors” at [5] and [6] in the Tribunal’s decision are typographical in nature and not errors of the sort this Court can address. It is clear from the remainder of the Tribunal’s decision (when read as a whole) that the Tribunal was aware of the correct dates.
Further, as highlighted by the Minister, any error in this regard is not material to the Tribunal’s ultimate conclusion as to jurisdiction. This is not a case in which the application would have been made within time had the Tribunal referred to the correct year. The application to the Tribunal was made more than a year out of time and, had the Tribunal referenced the correct dates, this would have done nothing more than strengthen the Tribunal’s ultimate determination.
While unfortunate, these typographical “oversights” do not point to an arguable case of jurisdictional error (or errors) of the sort that effect the correctness of the Tribunal’s approach and ultimate conclusions as to jurisdiction.
No arguable case of error arises in this regard.
In relation to the “calculation errors”, as accurately summarised by the Minister above, the Tribunal does indeed say that the last day for the applicant to lodge an application for review was 6 May 2019. This is incorrect because 28 days from 15 April 2019 is 13 May 2019. The same mistake is also made at [4] and [6] in the Tribunal’s decision (in which the 6 May date is referred to as the last day for the applicant to lodge an application for review with the Tribunal).
While it is indeed perplexing that so many “mistakes” arise in a decision that is otherwise relatively brief, the Court agrees with the Minister that these errors, while most unfortunate, do not point to an arguable case of jurisdictional error on the part of the Tribunal.
In relation to the Tribunal's letter to the applicant dated 19 June 2020, although the incorrect date of 6 May 2019 is referred to, the Minister is correct when he asserts that the letter was nonetheless correct when it stressed that “as the application was not received until 18 June 2020, it appears to be out of time”. The applicant responded accordingly and it cannot be said that the Tribunal’s calculation error denied the applicant an opportunity to present her case. Her application had indeed been filed late and she offered an explanation as to why that was the case – an explanation which, as the Minister accurately argues, was assessed by the Tribunal.
In relation to the Tribunal's reasons dated 30 November 2020, the Tribunal has indeed again referenced the incorrect date of 6 May 2019. Again, however, this error in not jurisdictional in nature as it does not alter the fact that, regardless of the Tribunal’s calculation, the fact remains that the applicant did not file her application within the requisite 28 period – a statutory requirements that cannot be waived. As again highlighted by the Minister, “notwithstanding the unfortunate error in Tribunal's reckoning of the date, the Tribunals conclusion on the question before it was correct and should not be disturbed on review”. The “mistake” here was no more than erroneous and not “lethal” to the applicant’s case as a whole. The error, while most unfortunate, has not caused the Tribunal “to ask the wrong question or to act unreasonably in determining the matter.
No arguable case of jurisdictional error arises in this regard.
Further, and for completeness, if the Court is incorrect in this regard and the errors addressed above are arguably jurisdictional in nature (rather than typographical or erroneous), these errors are not material to the Tribunal’s ultimate finding that it lacked jurisdictional and, in any event, remittal to the Tribunal would prove futile and the Tribunal would have no choice but to again find that it lacked jurisdiction. The use of incorrect dates aside, the fact remains that the applicant’s application was approximately 400 days late (a fact she herself concedes and was given an opportunity to address). In those circumstances, no re-assessment of the applicant’s case (with or without correct date referencing) could assist her. The Tribunal would, in effect, have no choice but to again find that it lacked jurisdiction.
Conclusion regarding merits of the substantive application
The applicant’s grounds of review do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also, in its duty to the self-represented litigant, remained astute and alert to the possibility of jurisdictional error in the Tribunal’s decision and asked the parties to address its concerns in this regard: MZAIB. The Court cannot identify any arguable grounds of error of the sort of this Court can address. Further, and in any event, any errors that do arise are not material. They do not affect the Tribunal’s ultimate determination that it lacked jurisdiction. Further, any remittal on the basis of mere calculation or typographical errors in the Tribunal’s decision would be futile. The Tribunal would, on the facts of this case, have no choice but to again find that it lacked jurisdiction.
This weighs significantly against granting an extension of time.
CONCLUSION
The extraordinary delay in filing, the lack of a satisfactory explanation for that delay and the lack of an arguable case of jurisdictional error on the part of the Tribunal (judged impressionistically) are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2022
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