Daksh v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 612

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

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

File number(s):

SYG 289 of 2023

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

12 July 2024

Catchwords:

MIGRATION – Where an email address in the Notice of Refusal was non-operational – Whether Notice of Refusal was defective – Where applicant was not misled by the defective email address – Where no jurisdictional error was made out – Application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 66, 347

Migration Regulations 1994 (Cth) sch 2, reg 4.10

Cases cited:

Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594

Chan Ta Strey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308

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

DQM18 v Minister for Home Affairs [2020] FCAFC 110

Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523

Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62

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

Zhan v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of hearing:

9 July 2024

Place:

Parramatta

Counsel for the Applicant:

Mr Bodisco

Solicitor for the Applicant:

Abu Legal

Counsel for the Respondents:

Mr Bevan SC & Mr Kaplan

Solicitor for the Respondents:

MinterEllison

ORDERS

SYG 289 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KAPILA DAKSH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	12 JULY 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $8,371.00.

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 D HUMPHREYS

INTRODUCTION AND BACKGROUND

1. The applicant is an Indian national who applied for a Temporary Graduate (Post Study Work Stream) (Class VC) (Subclass 485) visa (“the visa”) on 23 June 2021, having completed a Master of Business Analytics at the University of Wollongong on 11 May 2021.

2. The application for the visa was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) on 9 June 2022 on the basis that the applicant had not met the requirements contained in reg 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant had failed to provide evidence to the delegate proving he had undergone the necessary health examinations required for grant of the visa, thereby falling short of satisfying Public Interest Criterion 4005(1)(aa)(i). Due to this, his application could not be advanced and the visa was therefore denied.

3. On 21 November 2022, the applicant sought merits review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal found that it was unable to review the decision as it did not have jurisdiction to do so. It arrived at this determination on the basis that the applicant did not satisfy the requirements contained in reg 4.10 to the Regulations, as the application for review had been lodged outside the 21-day time limit.

4. The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, this application should be dismissed.

   THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

5. In its reasons, the Tribunal outlined the statutory framework contained in s 347(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and reg 4.10 to the Regulations, which provide that applications for review of a delegate’s decision must be lodged within 21 days of the applicant being notified of the decision.

6. The Tribunal stated that it was satisfied that the applicant had been given adequate notice of the delegate’s decision via a letter dated 9 June 2022 which was “dispatched by email to the email address provided with the application” [3]. As such, it noted that the final day the applicant could have sought to lodge a review application was 30 June 2022. It went on to note that the applicant’s review application was not received until 21 November 2022, outside the 21-day time limit.

7. The Tribunal stated that it wrote to the applicant on 8 December 2022 inviting him to comment on the validity of his visa application. The Tribunal received a response via email from the applicant’s legal representative (“representative”) on 21 December 2022. It summarised this correspondence as follows:

   (1)The representative conceded that the applicant had failed to attend two initial health examinations, as invited by the delegate, on 1 October 2022 and 7 February.

   (2)The applicant booked another health examination, and this was scheduled to occur on 10 November 2021. The representative claimed the examination on this date was cancelled by BUPA, the applicant’s health provider, due to the COVID-19 pandemic.

   (3)The representative noted that the applicant booked and attended a health examination on 14 July 2022. 

   (4)The applicant claimed he was not aware of the decision by the delegate to refuse him a visa until 19 November 2022, during the course of applying for a Bridging Visa B, which he was seeking in order to visit his parents in India. The applicant claimed that he had not read the decision earlier as it was in his junk mail folder.

   (5)The representative cited DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 to bolster his submission that the delegate had erred by not specifying a date in absolute terms in its visa refusal letter. The Tribunal, however, noted that the Court in the aforementioned case did not find that there was a requirement to state the date in the letter. The Tribunal therefore rejected that an error in notifying the applicant of the refusal had occurred in this regard.

   (6)The representative went on to refer to DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [109] and stated that the delegate had “an obligation to have an active intellectual [process] in making such decision where the delegate had the above information that BUPA services has been disrupted due to COVID-19 and delegate had the meaningful resources to check whether the applicant had an active booking to undergo the necessary health check at the time of the decision”. The Tribunal responded to this claim by stating that it was unable to evaluate whether there were any failures on the part of the delegate, as it did not have jurisdiction to review the delegate’s decision in this case.

8. The Tribunal reiterated that it was satisfied that the applicant is taken to have been notified of the decision on 9 June 2022 and that it had no jurisdiction to hear the matter, as the application fell outside the prescribed period in which the applicant could have applied for review.

9. In its concluding remarks at [11], the Tribunal noted the following:

   In respect of the submissions regarding the delegate proceeding to a decision in June 2022 before the health examination was undertaken, that the information before the Tribunal reflects that the requests for information sent to the applicant on 1 October 2021 and 7 February 2022 in respect of the Immigration health examinations specified that he had 90 days to comply with the request on both occasions. For the later request, the 90 day timeframe would have ended on 4 May 2022, which was two months prior to the date of the health examination. The applicant has not provided evidence that he did comply with these timeframes or evidence as to when the appointment was made. This information may be relevant if the applicant decides to pursue this matter.

   GROUND OF JUDICIAL REVIEW

10. The applicant pressed a single ground of review, as can be found in his Amended Initiating Application filed with the Court on 26 June 2024:

    •The Tribunal has failed to consider the full integers of the applicant’s claim.

    Particulars

    The Tribunal failed to consider the full integers of the Applicant’s claim in circumstances where it erroneously directed itself that it had no jurisdiction due to its failure to discern a breach of section 66(2)(d)(iv) in the delegate’s decision

    STATEMENT OF AGREED FACTS

11. A Statement of Agreed Facts was filed on 2 July 2024 in the following terms:

    ·     During the relevant period [9 June 2022 to 30 June 2022], the email address “[email protected]” was inactive, and any email sent to that address was not received by the Administrative Appeals Tribunal, or anyone.

    ·     Emails sent to the email address “[email protected]” during the relevant period resulted in an email being automatically returned to the sender indicating that the delivery of their email had not been successful (non-delivery notification).

    THE APPLICANT’S SUBMISSIONS

12. At [18] – [20] of his submissions, the applicant relied on ss 66 and 347 of the Act 1958 (Cth) to assert that it is the respondent’s obligation to notify the applicant of any decision made in relation to their matter.

13. At [22] – [23], the applicant claims the Notice of Refusal of the Minister’s decision was erroneous. This error being that the letter listed three emails where the applicant could submit an appeal. The applicant notes that one of these emails are no longer in use. The Notice at CB 79 provided that the application forms can be lodged online through by email to [email protected] and [email protected] by fax. By only providing these emails on the letter, the respondent breached s 66(2)(d)(iv) of the Act which requires the applicant to be notified of where an application for review can be lodged.

14. The applicant relied on Chan Ta Strey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308, whereby the Court noted that the purpose of s 66(2) of the Act is to ensure applicants have enough information to pursue the right to seek a review of their application.

15. Additionally, Allsop J in Zhan v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCA 327 (“Zhan”) held that s 66(2)(d)(iv) required direction as to the location where the making of an application might be done. In Zhan, the letter from the delegate did not specify at which registry of the Tribunal the application for review could be lodged.

16. The applicant referred to both Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523 (“Hasan”) and SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 (“SZOFE”) to assert that the distinction between those cases and this matter is “immaterial”.

17. Hasan factually concerned an applicant who filed an application for review five months after receiving a notification of the primary decision of the delegate. The Migration Review Tribunal, as it was then known, held that it did not have jurisdiction to deal with an application filed outside of the prescribed period. North J concluded at [29] in regard to s 66 (2)(d)(iv) of the Act:

    The regulation appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would comply with the requirement.

18. For this reason, North J highlighted that it was necessary to advise a potential application for review of all the places where an application might be made. His Honour was of the view that the failure to comply with this requirement meant that no notification was given to the applicant as required by the Act. North J concluded that no effective notice of the delegate’s decision had been given in that case.

19. In SZOFE, the applicant alleged that there was a failure to properly comply with the requirements of the Act and the Regulations as the notification of the delegate’s decision had provided her an address to apply at the Refugee Review Tribunal (“RRT”) in Sydney. Under the arrangement that existed between the RRT and the Tribunal, applications for review by the Tribunal could also be lodged at registries of the AAT that existed in Brisbane, Adelaide and Perth; (SZOFE at [57]). The applicant in that matter was not told that such a facility existed.

20. Although there was no prejudice suffered by the applicant from the failure to draw their attention to that possibility, the applicant in SZOFE relied on North J’s decision in Hasan to the effect that the failure to advise her of the available facilities for lodging a review application constituted a failure to comply with provision of the Act. The applicant contended that this was fatal to the jurisdiction of the RRT. The Court disagreed with North J to the extent that the case did not require a decision as to whether the failure to draw the potential applicant for review’s attention to the facilities of lodging an application would constitute a jurisdictional error.

21. Counsel for the applicant submits that the applicant’s case in this matter goes beyond arguments of formality advanced in SZOFE and Hasan. The Notice was infected and rather than failing to disclose all of the places where an application for review could be made, the Notice actually provided applicants with a “red herring”, being an address and platform which were no longer in operation; (see: Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594).

22. The applicant submits that the extension of time required for his application is valid. The applicant relied on the error in the respondent’s Notice, asserting that this now “infected” letter makes the Notice “defective”. The applicant also provided a copy of a medical check-up dated 14 July 2022 and relevant medical reports submitted by BUPA to the Department of Home Affairs to substantiate his inability to respond to the delegate’s decision within the set timeframe.

23. The applicant submits that the defect in the Notice is so fundamental as to constitute jurisdictional error on behalf of the Tribunal.

    THE FIRST RESPONDENT’S SUBMISSIONS

24. The respondent notes that the relevant time frame for the lodgement of an application for review by the Tribunal is not later than 28 days from the date of notification of the decision (s 347(1)(b)(i)) of the Act.

25. Reg 4.10(1)(a) of the Regulations specifies that for the purposes of s 347(1)(b) of the Act, the period in which an application for review for a Part 5 decision ends 21 days after the date of which the notification of the decision is received.

26. While it is conceded that the email address ‘[email protected]’, which was contained within the notification letter, was non operable, the notification letter in the current matter provided information for making a review application online, by post, fax or in person at one of the Tribunal registries. The notification letter also provided first a functioning email address, being ‘[email protected]’, before the inoperable email address.

27. It was submitted the notification letter plainly complied with the requirement to ‘state’ where the application for review could be made pursuant to s 66(1)(d)(iv) of the Act. The requirement to ‘state’ where an application for review could be made does not entail listing every place where an application for review may be made. In Zhan, Allsop J referred to a situation where a leaflet was not included in the notification letter which was said to include the addresses where the application could be lodged. His Honour at [67] concluded that “s 66(2)(d)(iv) requires some direction to a location where the act of making the application may be done”.

28. In Maroun v Minister for Immigration and Citizenship (2009) [2009] FCA 1284 at [21], Jagot J observed that s 66(2)(iv) “does not say that the notice must identify all places where an application for review can be made”. Her Honour went on to state that it was not the case that “any breach of [that provision], no matter how trivial, would operate to invalidate a notice”.

29. In the current case, there is no evidence that the applicant attempted to submit an application for review to the non-operational email address. The applicant lodged his application for review using the online portal, information about which was available online during the relevant period. The applicant was not thus deprived of the realistic possibility of a successful outcome.

30. Finally, even if the Court found the Notice to be defective (which is not conceded) the breach is not material as the applicant did not attempt to use the defective email address and has suffered no prejudice. Thus, any breach is not material.

    CONSIDERATION

31. The issue for determination is whether the Notice is defective, such that time for the lodgement of the application for review by the Tribunal did not begin to run. The agreed defect is that the Notice contained a single email address that was non-operational.

32. It is a common ground between the parties that the applicant did not use the defective email address. Rather, some five months after receiving the Notice, the applicant used an online application that was provided to him in the Notice letter to lodge his application. It is agreed that there is no evidence to support the proposition that the applicant tried to use the defective email address.

33. The work of s 66(1) of the Act is to impose a duty on the Minister “to notify the applicant of the decision in the prescribed way”. Section 66(2)(d)(iv) of the Act requires the Minister to notify the applicant of “where the application for review can be made”. In this case that notification included various details of how to lodge an application via an online application, via hard form at the various registries of the Tribunal, (details of which were provided), via fax at registries or online with three separate email addresses being provided, only one of which was defective.

34. The Court is satisfied that there is no evidence that the applicant was misled by the defective email address. There is no evidence that he tried to use it, rather he lodged the application via an online application which was set out in the Notice.

35. SZOFE is authority that the Minister is not required to set every means by which an application could be lodged, that is by not providing every address of a Tribunal registry. Emmett J held at [30] that “it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure”.

36. Buchanan and Nicholas JJ at [66] – [67] reasoned that it was necessary to consider the consequences of the alleged non-compliance in determining whether the duty in s 66(2) had not been performed.

37. In the current circumstances, the Court is satisfied that the Notice was not defective. It provided clear details via a number of means by which an application for a review by the Tribunal could be lodged. The admitted error was in my view bordering on the trivial. No jurisdictional error arises.

1. Even if the Court is wrong in this regard, in the present case there were no negative consequences to the applicant by the admitted defect. His application was made some 5 months out of time using an online application provided to him in the refusal letter. The applicant was not deprived of the possibility of a successful outcome.

2. The breach, if there be one, is not and was not, in the facts of this case, material. Materiality must be a consideration in considering the consequences of any breach; ( see: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [123] per Burley J).

3. As the breach was not material, jurisdictional error does not arise. The application should be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated: 12 July 2024