CZI18 v Minister For Home Affairs & Anor
[2019] FCCA 2080
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZI18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2080 |
| Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – where notification letter advising of delegate’s decision sent via email – where application to Tribunal lodged outside of time limit – whether the applicant was validly notified – content and clarity of notification letter – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.66, 476, 477, 494B, 494C Migration Regulations 1994 (Cth), reg.4.31 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801 DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 |
| Applicant: | CZI18 |
| First Respondent: | Minister For Home Affairs |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | PEG 306 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 14 June 2019 |
| Date of Last Submission: | 14 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr P Hannan |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Compliance with r.44.05 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with pursuant to r.1.06 of the Federal Circuit Court Rules 2001 (Cth).
Time in which to bring the application for judicial review be extended to the date of filing pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Perth |
PEG 306 of 2018
| CZI18 |
Applicant
And
| Minister For Home Affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
By application filed in this Court on 7 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 30 April 2018.
The Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant a Protection visa (the “visa”) because the applicant had not filed his application for review within the time limit imposed by the legislation governing appeals to the Tribunal.
The applicant now seeks judicial review of the Tribunal’s decision pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicant must demonstrate jurisdictional error on the part of the Tribunal.
Factual background
Having reviewed the Court Book (“CB”) filed in these proceedings in detail, the Court concludes that the Minister’s written submissions filed on 16 May 2019 accurately summarise the background to this matter at [3]-[9]. That summary was not disputed. The submissions provided are not argumentative in nature and the Court adopts the summary contained therein as its own. It provides, relevantly, as follows.
The applicant is a citizen of Malaysia who was born on 29 March 1995 (CB 19). He arrived in Australia on 8 June 2016 on a UD-601 Electronic Travel Authority visa (CB 42).
On 5 April 2017, the applicant applied to the former Department of Immigration and Border Protection (the “Department”) for a protection visa (CB 1-17). In his application, the applicant provided a current residential address in Australia and an email address to receive communications from the Department (CB 4-5).
On 16 January 2018, a delegate of the Minister refused to grant the applicant the visa (CB 42-61). The applicant was notified of the delegate’s decision by letter from the Department dated 16 January 2018 (the “notification letter”). The notification letter was sent by email to the applicant’s email address (CB 37-47 and 87-88).
A copy of the notification letter from the delegate is attached to these reasons for judgment as Annexure A.
The notification letter is discussed in more detail below. Relevantly, however, it is noted here that the letter advised the applicant that he could apply to the Tribunal for review of the delegate’s decision, that an application for review had to be made within 28 days of the date he was taken to have been notified of the decision and that he was taken to have received the Department’s letter at the end of the day that the notification letter was transmitted (CB 38-40).
On 3 April 2018, the applicant lodged an application with the Tribunal for review of the delegate’s decision (CB 62-63).
On 6 April 2018, the Tribunal wrote to the applicant inviting him to comment on the validity of his application (CB 71-73). Relevantly, the applicant was advised that his application to the Tribunal had been filed outside of the 28 period for filing an appeal.
The applicant responded to the Tribunal’s letter on 23 April 2018 enclosing a statutory declaration dated 20 April 2018. The applicant claimed that his migration agent did not give him a copy of the notification letter and delegate’s decision or provide him with information about timeframes for review by the Tribunal (CB 78-81).
On 30 April 2018, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision because the application for review had not been filed on time (CB 84-86).
The applicant was advised of the Tribunal’s decision by letter dated 1 May 2018 which was sent by email to the applicant’s email address on that date (CB 82-83).
The Tribunal’s Decision
The Tribunal decision is short and can be provided in full here. It provides as follows.
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 16 January 2018 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 3 April 2018. 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. On 6 April 2018 a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit. The applicant was invited to comment on whether a valid application had been made.
4. On 23 April 2018 the applicant responded to the Tribunal’s letter by way of a statutory declaration dated 20 April 2018 in which he states:
• He came to Australia on a visitor visa and applied for a protection visa with the assistance of a migration agent;
• He paid $2,800 as a deposit and believed he had a valid visa;
• The agent asked him to pay more money and when that money was paid the agent sent him a copy of the visa;
• The visa had already expired and the agent didn’t give him a copy of the visa refusal or provide him with information about timeframes for review by the Tribunal.
5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
6. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. The Tribunal has no power to extend the time limit and if an application is received outside the time period, the Tribunal has no jurisdiction.
7. The courts have held this is the case even where the applicant is not at fault in making a late application, including in circumstances where the applicant’s application is not lodged in time because of negligence on the part of his or her migration agent:
... [A]lthough it is a harsh outcome, the fact is that the agent’s negligence provides no basis to set aside the Tribunal’s decision. The terms of the Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application to the Tribunal. This is so regardless of the reasons for the delay.
8. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 January 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 February 2018.
9. As the application for review was not received by the Tribunal until 3 April 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
10. The Tribunal does not have jurisdiction in this matter.
(Citations omitted)
Proceedings in this Court
The applicant seeks the issue of constitutional writs setting aside the Tribunal’s decision. His application for judicial review contains seven “grounds of review”:
1. THE TRIBUNAL MEMBER WAS FAILED TO CONSIDER MY APPLICATION.
2. THE TRIBUNAL MEMBER WAS NOT GIVE ME TIME TO EXTEND.
3. THE TRIBUNAL MEMBER WAS NEVER GIVE A CHANCE TO REVIEW MY APPLICATION.
4. THE TRIBUNAL MEMBER WAS NOT CONSIDER MY APPLICATION.
5. THE TRIBUNAL MEMBER WAS NOT SATISFY MY LATE APPLICATION.BUT STILL I WAS EXPLAIN THE SITUATION TO MEMBER BY WRITING.
6. THE AGENT WAS CHEATING ME.AND I DO STATUTORY DECLEARATION FROM PERTH POLICE STATION TO PROVE THAT I WAS NOT RECEIVED THE DOCUMENT ON TIME.BUT THE MEMBER WAS DIDN’T GIVE ME A CHANCE TO REVIEW.
7. THE TRIBUNAL MEMBER WAS NO JURISDICTION ON MY MATTER
As the Minister pointed out, this Court has previously been presented with the same grounds by a different applicant: DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801. There have been significant jurisprudential developments since that case was heard and determined such that these grounds of review merit scrutiny here.
The applicant was afforded an opportunity by a Registrar of this Court (in orders dated 1 August 2018) to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
At the hearing, the applicant was unrepresented. He appeared with the assistance of a Tamil interpreter. The Minister was represented by Mr Hannan of Counsel.
The Court is grateful to Mr Hannan and the interpreter for their considerable assistance during the hearing of this matter. The patience and assistance displayed by Counsel, in particular, went far beyond what is normally expected of a model litigant and is much appreciated. The applicant arrived at the hearing without any documents. He confirmed, however, that he had been served with the Court Book and the Minister’s written submissions. Mr Hannan also confirmed that all documents relevant to this matter had been sent to the address for service provided by the applicant. Mr Hannan and his instructor provided the applicant with a copy of the Court Book and the Minister’s written submissions for the applicant to reference during the hearing. The interpreter then translated when asked to do so.
The Court is mindful that the subtleties of jurisdictional error are often difficult for the trained legal mind to navigate, let alone unrepresented applicants with limited English speaking skills.
To assist the applicant, the Court explained the Court’s role to the applicant and the meaning of “jurisdictional error”. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, 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 consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
e)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];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
g)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 to the applicant that this Court cannot review the merits of the Tribunal decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Court then had the interpreter translate to the applicant’s grounds of review so that he might better engage with the Court.
Against that background, the Court invited the applicant to explain what he thought the Tribunal “did wrong”. Although not entirely clear, in effect the applicant expressed concerns about the conduct of his migration agent. The Court will address this issue when considering grounds 5 and 6 below. Other than the comments made in relation to this issue, the applicant had nothing substantive to add in relation to his grounds of review.
Competence of Application and Extension of Time Request
It is noted that the applicant failed to file his judicial review application in this Court within the 35 day time period (ie, by 4 June 2018) specified in s.477(1) of the Act. It was two days late.
Without an order pursuant to s.477(2) of the Act, the Court lacks jurisdiction to review this matter.
The Court notes the Minister’s submissions concerning the competence of the judicial review application at [22]-[23]. Those submissions highlight that the applicant had not made an application in writing for an extension of time and had not otherwise indicated why it was necessary in the interests of the administration of justice to extend the time for filing (as is required under s.477(2)(a) of the Act). The applicant also failed to file an affidavit explaining the delay and explaining why it is necessary in the interests of the administration of justice for the Court to grant an extension (as is required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”)).
There is authority, which the Court does not dispute, that suggests that the application should be dismissed for incompetence on this basis alone: Sandan v Minister for Immigration & Border Protection (2015) 296 FLR 48 at [13]-[15].
However, noting that the applicant was unrepresented and had a poor grasp of the English language, the Court addressed the judicial review application as if an application for an extension had been made and was therefore “competent”. To the extent necessary, there will be an order dispensing with compliance of r.44.05(2)(c) of the Rules.
As to whether an extension of time should be granted, the Court notes that the delay in applying to this Court is minimal (two days). Hence, any prejudice to the Minister is minimal. Further, while no explanation for the delay has been provided (and for reasons articulated below), in light of the recent Full Court matter of DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”) there is at least an argument to be made in relation to the grounds of review in the judicial review application. Overall, the issues arising in this case are sufficient for it to be in the interests of the administration of justice for an extension to be granted pursuant to s.477(2).
For these reasons, the Court will grant the applicant an extension of time within which to file his application for judicial review.
Consideration
Grounds 1 to 4 and 7
1. THE TRIBUNAL MEMBER WAS FAILED TO CONSIDER MY APPLICATION.
2. THE TRIBUNAL MEMBER WAS NOT GIVE ME TIME TO EXTEND.
3. THE TRIBUNAL MEMBER WAS NEVER GIVE A CHANCE TO REVIEW MY APPLICATION.
4. THE TRIBUNAL MEMBER WAS NOT CONSIDER MY APPLICATION.
…
7. THE TRIBUNAL MEMBER WAS NO JURISDICTION ON MY MATTER
The Court agrees with the Minister that grounds 1 to 4 and 7 all relate to the same issue – ie, whether the Tribunal erred in determining whether it had jurisdiction to hear the application before it.
The relevant issue here turns upon whether the Tribunal was correct to determine it had no jurisdiction to consider the application. This requires the Court to determine:
a)if the content of the notification letter advising of the delegate’s decision complied with s.66 of the Act;
b)if the applicant was properly notified in accordance with the Act; and
c)whether the applicant’s application was, in fact, filed outside the time limit prescribed.
Notification
As noted above, a copy of the notification letter relevant to this matter (with the necessary redactions) is attached to these reasons as Annexure A.
An applicant for review of the delegate’s decision must bring an application within 28 days as indicated by s.412(1)(b) of the Act and proscribed by reg.4.31(2) of the Migration Regulations 1994 (Cth) (the “Regulations”).
For that 28 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements of 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 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
The Court notes that it asked the Minister whether, in light of the comments highlighted in DFQ17 at [47] (discussed below), the Minister maintained the position that, if the requirements of s.66(2) have not been met, the notification letter is “invalid”. The Minister maintained that position and the Court has proceeded on that basis.
DFQ17
The legislative provisions highlighted above as relevant to this matter have been extensively canvassed by Perram J in DFQ17. Counsel for the Minister argued that the facts in this case are distinguishable from the facts in DFQ17. As such, it is useful to analyse DFQ17 in detail.
DFQ17 concerned an appeal from the Administrative Appeals Tribunal. The Tribunal had been asked to review a decision of the delegate to refuse the appellant’s application for a protection visa. That refusal was communicated to the appellant by a letter dated 3 February 2017 (annexed to these reasons as Annexure B). That letter was sent to a post office box address the appellant had provided on her protection visa application.
Justice Perram explained that an appeal to the Tribunal must be brought within 28 days of the date upon which a visa applicant is taken to have received notification that the visa application has been refused. The Minister contended that the appellant was duly notified by the delegate that her application for the visa had been refused by means of the letter dated 3 February 2017. Consequently, she needed to lodge any review application by 13 March 2017. She did not do so until 28 March 2017. The Tribunal concluded that her application was out of time and could not be entertained.
His Honour noted, relevantly, that:
a)on the second page of the letter sent to the applicant under the heading ‘Review Rights’ the letter says:
‘An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days.’
b)on the third page of the letter under the heading ‘Financial or case worker assistance’ the letter says:
‘As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.’
As discussed below, Justice Perram found that the letter in question was obscure and confusing. His Honour explained that the question for the Court was whether a letter which explains the date by which a review application must be lodged in an obscure manner ‘states’ the time within which such application must be lodged within the meaning of s.66(2)(d)(ii). If it does not, the visa applicant has not been notified of the refusal and the 28 day period in which to apply for a review has not yet commenced to run.
In assessing whether the time by which the application to the Tribunal was to be made was ‘stated’ in the letter of 3 February 2017, His Honour noted that s.66 of the Act requires the Minister to notify an applicant of a decision to refuse to grant a visa. Section 66(2)(d)(ii) relevantly provides:
Notification of decision
…
(2)Notification of a decision to refuse an application for a visa must:
…
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
…
(ii) the time in which the application for review may be made; and
…
His Honour then asked: what is the time in which a review application must be made and noted that if, as in DFQ17, the applicant is not in immigration detention the issue is governed by reg.4.31(2) of the Regulations which provides:
4.31Time for lodgement of application with Tribunal
…
(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.
His Honour explained that in light of these legislative provisions, an unsuccessful applicant must make any review application to the Tribunal within 28 days of the day the applicant is notified of the decision or, should that decision fall on a non-working day, the next working day.
His Honour then asked, “when is an applicant notified of a refusal decision” and noted that the answer to this question turns upon the mode of delivery by which the refusal is communicated. It was noted that in DFQ17, the decision was sent by pre-paid post. Accordingly, the matter was governed by s 494C(4) which provides:
494CWhen a person is taken to have received a document from the Minister
…
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
…
His Honour highlighted that the letter in DFQ17 was sent from an address in Sydney to a post office box in Sydney. Consequently, subclause (a) applied and the appellant was taken to have received the decision on 14 February 2017 – that being 7 working days after the date of the letter of 3 February 2017. Hence, if the letter of 3 February 2017 was an effective notification of the decision then the effect of reg.4.31(2) was that any review application with the Tribunal had to be made by the appellant within 28 days, i.e., 13 March 2017.
Having assessed the letter and the relevant legislative provisions, His Honour expressed concerns as follows:
45.Pausing here, it should be noted that the calculation of 13 March 2017 from 3 February 2017 is not a straightforward exercise. Section 494C(4)(a) uses the expression ‘7 working days… after the date of the document’ whereas reg 4.31(2) stipulates ‘28 days, commencing on the day the applicant is notified of the decision’. Applying s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(2) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)) and having regard to the difference between days and working days, the 7-day period is not inclusive of the first day, weekends and public holidays but the 28-day period is inclusive of the first day, weekends and public holidays. Accordingly, 14 February 2017 must be double-counted. Whilst previous decisions of this Court have accepted that the notification letter need not draw attention to the need to double-count the day a person is deemed to have been notified of the decision (see, for example, Cao v Minister for Immigration and Citizenship [2009] FCA 586; 176 FCR 396 per North J; 176 FCR 396; CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 per Allsop CJ), it does serve to highlight a certain need for clarity.
46.The first step in the Appellant’s argument is that s 66(2)(d)(ii) requires that a notification of a refusal decision must ‘state… the time in which the application for review may be made’. The second step is the factual contention that the letter annexed below is so obscure it cannot be said to state that time. The final step is that a decision which is sent to an unsuccessful applicant which does not state the time in which a review may be made to the Tribunal, has not been notified within the meaning of reg 4.31(2) so that the 28 day period has not yet begun to run.
47.As the appeal was conducted, this third step was not disputed by the Minister…
48.Attention may therefore be confined to the first two steps…
49.One starts with the meaning to be given the word ‘state’ in s 66(2)(d)(ii)….
….
58.I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete …. but clear as well. This required the letter of 3 February 2017 …. clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
59.Turning then to the letter of 3 February 2017, the question is whether it ‘states’ the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.
60.As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.
61.The Minister submitted that there was nothing misleading or erroneous about putting the statement as to the date on which the letter was taken to be received on a separate page because the period in which review may be sought was not the only matter in the letter that proceeded by reference to that date. Accordingly, it made logical drafting sense to express the deemed notification period separately from the explanation of the period in which review may be sought. Whilst that may explain the intent behind the drafting choices of the Minister, the present question is whether the letter clearly conveyed that the time in which the application for review may be made ended on 13 March 2017.
62.I have no doubt that in this case the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application.
Applying DFQ17 to the facts of this case
The Minister submitted that, as the applicant in this case was sent the notification letter at Annexure A by email (unlike the applicant in DFQ17, who was sent the notification letter by post), it was easier for the applicant to determine the time in which he had to lodge the application with the Tribunal.
While the Minister conceded that the letter in this case was not as “clear as it could have been”, it was “clear enough” and was certainly not “essentially incomprehensible”.
The Court questioned whether DFQ17 implied, or stood for the proposition, that the notification letter should expressly state the date by which the applicant has to apply for the Tribunal to review the delegate’s decision.
The Minister submitted that DFQ17 did not stand for that proposition. Rather, DFQ17 simply requires that the notification letter be expressed with clarity sufficient for a person to “calculate” the filing date required. The individual still has the responsibility to determine when the review is to be lodged but must not be hindered in that regard by a letter whose content is obscure and essentially incomprehensible.
The Court agrees. Reading the entirety of Perram J’s decision in DFQ17, it cannot be said that the decision stands for the proposition that the filing date must be expressly provided. While doing so might be preferable(and arguably straightforward as an administrative exercise), this approach is not legally required.
In light of the above, the Court now turns its attention to a determination of whether the “level of clarity” contained in the notification letter in this case was sufficient to “state” the time in which the applicant had to file his application for review before the Tribunal.
Did the notification letter “state” the time in which to file an application for review?
In this case, and with reference to Annexure A, it is noted that the notification letter spans 4 pages. Relevantly:
a)at the top of page 1 the date of the decision is provided (that being 16 January 2018);
b)at the top of page 2, under the heading “Review Rights” (which was on the base of page 1), is a reference to the 28 day time period the applicant has to file a review application; and
c)on page 3, under the heading “Financial or Case Worker Assistance”, the following paragraph appears:
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 Minister agreed with the Court that this information could have been “better placed”. It is odd, for example, that the information on page 3 (that reads “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”) appears under the heading “Financial or Case Worker Assistance”. Arguably, that information would be better placed on page 1.
Nonetheless, the Minister maintained that the fact the notification letter here was sent via email made it easier (hence, clearer) for the applicant to calculate the time within which any review was to be filed with the Tribunal.
The Court agrees.
It is noted that the notification letter in DFQ17 (with reference to Annexure B to these reasons for judgment) provided information to the applicant in those proceedings as follows:
a)the date of the decision (that being 3 February 2017) appears at the top of page 1
b)on the top of page 2, under the heading “Review Rights” (which was on the base of page 1) is a reference to the 28 day time period within which the applicant is required to file a review application; and
c)on page 3, under the heading “Financial or caseworker assistance” the following paragraph appears:
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.
Counsel for the Minister contended that in DFQ17 it was the paragraph at point (c) above that was found to be the most problematic and the most likely to cause confusion on the part of a legally unsophisticated applicant. It was argued that that paragraph is obscure and incomprehensible and lacked the “level of clarity” required to sufficiently “state” what was required of an applicant for review (as per s.66(2)(d)(ii) of the Act).
The Court agrees.
In this case, and unlike in DFQ17, the applicant was not required to calculate the 7 working day period while also remembering to ‘double-count’ a particular date. Rather, he only required two pieces of information:
a)the 28 day time limit; and
b)the date of receipt of the email that attached the notification letter.
The Court considers that here, the notification letter is “clear enough”. In DFQ17, there was the added complexity that the applicant had to consider the additional seven day working period in which she was deemed to have received the notification, while remembering to double count (as she had received the notification letter by post). Here, the applicant received the notification by email. Hence, the required calculation was limited to determining the 28 day period from the date of the email – a date clearly noted at the top of the notification letter.
Here, there was no need (as there was in DFQ17) to determine a new date from which to gage when the time period started (ie, seven days after the date of notification not including weekends or public holidays) and then count 28 days (which period included weekends and public holidays). Here, the applicant had all the information needed in the notification. He was not faced with differing definitions of what was a day or required to undertake two separate calculations. Rather, there was one straightforward calculation relevant to the 28 day period.
While the information was spread across three separate pages (and arguably, could have been provided on one page) this “piecemeal” provision of the relevant information does not render the notification letter as a whole invalid. As noted in Ali v Minister for Home Affairs [2019] FCA 1102 at [28]-[30] the letter must be read as a whole and the mere fact that various pieces of information appear on different pages does not mean that the information is not clearly conveyed.
The Court is satisfied that the notification letter indicated the applicant’s review rights “clearly enough”. The notification does not suffer the same deficiencies evident in DFQ17. The facts relevant to this applicant are quite different.
On the basis of the above, the Court concludes that the notification letter here satisfies the requirements of s.66(2) of the Act. The applicant is found to have received the relevant notification on 16 January 2018.
Was the applicant “notified”?
In his visa application form the applicant provided his own email address in response to the following information:
The Department prefers to communicate electronically as this provides a faster method of communication and delivery of information. Correspondence, including the outcome of this application, may be sent to you (the applicant) at this email address.
While the Court notes that this information indicates that correspondence “may” be sent to the applicant at his email address, and here the applicant had also provided his residential address, it was open to the Department to use any one of the methods provided for under s.494B: Haque v Minister for Immigration & Citizenship [2010] FCA 346 at [64]. Section 494B(5)(b) of the Act provides that transmission by email of the delegate’s decision is a “prescribed way” of communicating the notice.
The delegate’s decision was sent via email to the applicant on the day the decision was made (that is, on 16 January 2018). By virtue of s.494C of the Act, the applicant is taken to have received the document at the end of the day on which the document is transmitted.
The Court is satisfied that the applicant was notified of the delegate’s decision in accordance with the requirements stipulated in the Act and the Regulations.
Was the application lodged out of time?
Having determined that the applicant received the delegate’s decision on 16 January 2018, the applicant had 28 days to apply for a review at the Tribunal. He did not do so until 3 April 2018 (relevantly, 50 days after the prescribed time period had lapsed).
The Tribunal had no discretion, nor any power, to extend the time in which the applicant could lodge his review application. Having lodged the application outside of the statutory time limit prescribed by the Regulations, the Tribunal had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
Grounds 1-4 and 7, evidence no jurisdictional error on the part of the Tribunal and must, accordingly, be dismissed.
Ground 5 and 6
5. THE TRIBUNAL MEMBER WAS NOT SATISFY MY LATE APPLICATION.BUT STILL I WAS EXPLAIN THE SITUATION TO MEMBER BY WRITING.
6. THE AGENT WAS CHEATING ME.AND I DO STATUTORY DECLEARATION FROM PERTH POLICE STATION TO PROVE THAT I WAS NOT RECEIVED THE DOCUMENT ON TIME.BUT THE MEMBER WAS DIDN’T GIVE ME A CHANCE TO REVIEW.
Turning briefly to grounds 5 and 6, the applicant’s concerns in this regard are not entirely clear.
There is no credible evidence before the Court that the applicant was, in fact, ever represented by a migration agent. What is clear is that the applicant was sent the notification letter to the email address he provided to the Tribunal.
To the extent that any concerns arise in relation to a migration agent, the evidence also shows that the Tribunal addressed this issue at [4] and [7] in its written reasons. Noting the decision in SZRHA v Minister for Immigration & Anor [2013] FMCA 131, the Tribunal correctly concluded that even where there is negligence on the part of another, in circumstances where an applicant has been notified of what is required of him, he is deemed to have received hat letter and is expected to comply with the time requirements stipulated in the legislation. This is so even if a mistake made by another results in the application being filed late.
There is no error evident in this approach. The time limit for an application for review to the Tribunal is strictly applied once it is clear that the relevant documentation has been sent to the correct address: CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [44]. The last email address the applicant provided was the email address the notification was sent to. On the material before the Department this was the address provided by the applicant for that correspondence and the Department was required to send it to that address: Cheng v Minister for Immigration & Citizenship (2011) 198 FCR 559 at [46]-[47]. It did so. In those circumstances, the applicant is deemed to have received the notification letter and was required to adhere to the time limits detailed in the letter.
If the applicant does, in any way, feel aggrieved by the actions of a migration agent, the Court suggests he contact the Office of the Migration Agents Registration Authority – an agency that is well suited to address concerns of the sort raised here.
Ground 5 and 6 do not identify any jurisdictional error on the part of the Tribunal and must, accordingly, fail.
Conclusion
There is no jurisdictional error demonstrated by the grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 31 July 2019
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