ELM18 v Minister for Home Affairs & Anor
[2019] FCCA 2108
•2 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2108 |
| 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: Acts Interpretation Act 1901 (Cth), s.36 Migration Regulations 1994 (Cth), reg.4.31 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 | ||
| Applicant: | ELM18 | |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 450 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 17 June and 25 July 2019 |
| Date of Last Submission: | 25 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 2 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Perth |
PEG 450 of 2018
| ELM18 |
Applicant
And
| Minister for Home Affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 28 August 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 25 July 2018.
The Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the Minister for Home Affairs (the “Minister”) to refuse to grant a Protection visa (the “visa”) to the applicant. The Tribunal determined that 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. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court had before it the applicant’s originating application, an affidavit from the applicant dated 28 August 2018, a Court Book (“CB”) numbering 63 pages, the Minister’s written submissions dated 15 May 2019 and a set of supplementary written submissions filed by the Minister on 5 July 2019.
The applicant appeared before the Court on 17 June 2019 and 25 July 2019. He was unrepresented. He appeared with the assistance of a Malay interpreter. Ms Oliver appeared on behalf of the Minister. The Court thanks Ms Oliver for the clarity of her written and oral submissions and the assistance she provided the applicant and the Court generally.
Background
The Minister’s submissions (at [2]-[9]) accurately summarise the chronology relevant to this matter. The summary provided in those submissions was not disputed. It is accurate and not argumentative in nature. The Court adopts the Minister’s summary as its own. It provides, relevantly, as follows.
The applicant is a citizen of Malaysia. He arrived in Australia on 12 October 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.
On 12 January 2018, the applicant applied for a protection visa. Relevantly, in his application for that visa, the applicant:
a)requested that all written communications about the visa application be sent to him (CB 6, Q9); and
b)agreed to the Department communicating with him by email (CB 11, Q38). Thereafter, all communications from the Department to the applicant were sent by email (CB 28 and CB 33).
On 7 June 2018, a delegate refused the applicant’s application for the visa (CB 36-46). Notice of that decision (the “Notification Letter”) was sent to the applicant by email (CB 33- 35).
The Notification Letter is provided as Annexure A to these reasons for judgment.
The Notification Letter was dated 7 June 2018. That date appeared at the top of the letter.
The Notification Letter provided the following information in relation to the applicant’s rights to seek review of the delegate’s decision (CB 33-34):
Review Rights
The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision. 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.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
It further advised the applicant as follows (CB 35):
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.
On 7 July 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 47-49). His application was filed three days after the 28 day time period. The application was submitted using the Tribunal’s online system (see CB 47). In his application, the applicant specified that his email address should be used for all correspondence (CB 48).
On 9 July 2018, the Tribunal invited the applicant to comment on the validity of the application for review, noting that the application had been lodged outside the prescribed 28 day time period (CB 53-55). The applicant was advised that any comments were to be made by 23 July 2018 (CB 54). No response was received from the applicant (CB 59 at [4]).
On 27 July 2018, the Tribunal determined that it did not have jurisdiction to review the decision as the review application was filed outside of the prescribed 28 day time period (CB 58-59).
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
The Tribunal’s Decision
In full, the Tribunal’s decision provided:
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 7 June 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 7 July 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 June 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. By letter dated 7 July 2018, the Tribunal invited the applicant to make any submissions on the foregoing, with a response being due by 23 July 2018. As at the date of this decision, no submission has been received from the applicant in response to the Tribunal’s invitation.
5. The Tribunal finds that the applicant is taken to have been notified of the decision on 7 June 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 4 July 2018.
6. As the application for review was not received by the Tribunal until 7 July 2018 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.
It is to be noted that the Tribunal refers at [4] above to a letter dated 7 July 2018 inviting the applicant to comment on the validity of the application. This is incorrect. The correct date is 9 July 2018. Nothing turns on this error, be it typographical or factual.
It also serves to note that the application was lodged on 6 July 2018. The time the applicant lodged the application was at 12.21AM (AEST). This was, in fact, 10.21PM (AWST). The Minister, in oral submissions, accepted that this was the case. Again, nothing turns on this.
Proceedings in this Court
The applicant’s application for judicial review contains ten “grounds of review”, as follows:
1. I am bringing the application for judicial review of a decision of the Administrative appeals tribunal (‘the Tribunal’) made on 27 July 2018. That decision was that affirming no to grant the 866 Subclass (Protection visa) on complementary protection obligations.
2. I am a citizen of Malaysia but I am from SABAH, I have been tortured mentally by The Malaysian Government for we are fighting for Justice for Sabah Sarawak Independence movement.
3. Sulu people from Mindanao Philippines getting paid to attack Sabah which has been instigated on SABAH natives. Also I am involved with Sabah Sarawak Union-United Kingdom (SSU-UK) collecting sign petition, I just want Justice and it is hard to face the Malay torture. I do have threat back in Malaysia , also my Religion (Christian).
4. I have applied for 866 Subclass on complementary protections basis in Australia, visa has been refused by delegate then I had applied to the Tribunal for review of the Delegate’s decision, there is small misunderstanding on 28 days time frame, as I have thought that 28 days will start from next day of the decision, I did not know that 28 days time frame starts from decision day.
5. The sentence which is written in delegate decision has confused me lot, even when I approached the agents they have said 28 days will start from end of the that day when delegate has made a decision.
6. However, Tribunal did not consider my statement and comments given to the on my review application validity, I do have threat back in SABAH and Malaysia.
7. Also Tribunal has failed to prudently consider my risk, especially in assessing against my religion. If Christian countries don’t understand who may understand the problem, also my lack of knowledge in understanding the decision and time frame to lodge the review application.
8. Tribunal, the way it has treated my case was unfair and unreasonable and did not consider that I would not have opportunity lodge the onshore protection visa application again once it is refused.
9. I have faith on Christianity and always go to the church in Australia. Also I was involved in charity work in SABAH and AUSTRALIA as well. I can bring the reference and evidence if court requires so.
10. Above all these factors I did lost tribunal hearing opportunity and also tribunal made out it decision that tribunal doesn’t have jurisdiction, so that I believe that federal circuit court of Australia will have jurisdiction in this matter. Also I request honourable Judge examine the tribunal decision and kindly find if any mistake
(Without alteration)
In an affidavit filed in this Court and dated 28 August 2018, the applicant deposes:
1. I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations, within 35 days after the decision made administrative appeal tribunal on 27th July 2018.
2. Administrative Appeal tribunal has made a decision as Tribunal doesn’t have Jurisdiction in this matter. Because of I have lodged the review application one day late. I have understood that 28 days start from next day of the delegate decision, but I did not that 28 days’ time period starts from same day from the decision date.
3. I am from SABAH, involved in Sabah Sarawak Union-United Kingdom (SSU-UK) as a volunteer as there. Malay governmrnt and Malay people trying instigate attack, kidnapping on SABAH natives to stop our justice movement, as (SSU-UK) I can’t even live in Malaysia. My fear is genuine and I have well-founded fear persecution in my country, I wish god (Jesus Christ) will show me the way.
4. There is high risk for SABAH natives live in Malaysia, all my documents and claims submitted are genuine and authentic I will take full responsibility.
5. I am lodging my judicial review on my own, both decision records (home affairs and Tribunal) been enclosed with the application.
6. I have taken the legal advise but they saying differently to Tribunal decision, I went to solicitors they say that this case will have favourable decision at federal circuit court of Australia.
7. That is the reason I lodge the application first and then save the money to hire solicitor.
(Without alteration)
The applicant was afforded an opportunity by a Registrar of this Court (via orders dated 10 October 2018) to file an amended application, any affidavits and a written outline of submissions. No further materials were filed by the applicant. The Minister filed written submissions in accordance with those orders on 15 May 2019.
The matter first came before the Court on 17 June 2019. On that date the Court noted that the Minister had not made reference to the Full Court’s judgment in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”). The Court had previously determined (in its decision in CZI18 v Minister for Home Affairs & Anor [2019] FCCA 2080 (“CZI18”)) that the issues raised in DFQ17 were relevant to the types of issues raised here.
In response, Ms Oliver, as counsel for the Minister, provided oral submissions in relation to DFQ17 which clearly and capably explained the position of the Minister in relation to that case. Noting, however, that the applicant was unrepresented, the Court requested that Ms Oliver reduce her oral submissions to writing so that the applicant could have time to read them and seek assistance if he wished to do so. The applicant was also given an opportunity to file written submissions in response. He did not do so. The matter was adjourned for further hearing on 25 July 2019.
On 25 July 2019, the applicant again appeared before the Court without a legal representative. He was again assisted by a Malay interpreter.
Noting that the applicant was unrepresented, and noting the comments of Colvin J in in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)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];
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] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant what the Court can and cannot do. It was explained to him that this Court cannot undertake what is referred to as a merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the Court invited the applicant to explain what he thought the Tribunal “did wrong”. Although not entirely clear, the applicant explained that he had filed the application late because he did not speak English and this caused him some difficulty. He also indicated that that he had taken the delegate’s decision to a migration agent who left it until the last minute to file the application.
To the extent that the applicant’s oral submissions relate to his grounds of review or point to jurisdictional error generally, the Court will address his submissions below.
Consideration
The Court concludes that grounds 4, 5, 7 and 10 of the applicant’s judicial review application and paragraph 2 of the applicant’s affidavit are (broadly) directed to the central issue in this matter – that is, whether the Tribunal was correct to determine that it did not have jurisdiction.
As for the remaining grounds in the judicial review application the Court notes as follows:
a)ground 1 is a factual statement;
b)grounds 2, 3 and 9 seek impermissible merits review;
c)there is nothing in the materials in the Court Book or in any other evidence before Court that indicates that the applicant provided the Tribunal with a response to the invitation to comment on the validity of his review application (as alleged in ground 6); and
d)once the Tribunal determined that it did not have jurisdiction, there was no need for the Tribunal to consider that the applicant would not have an opportunity to apply for an onshore protection visa application if his application was refused (as suggested in ground 8).
None of these “grounds” give rise to jurisdictional error.
As for the applicant’s affidavit:
a)paragraph 1 is a factual statement;
b)paragraphs 3 and 4 seek impermissible merits review;
c)paragraph 5 simply annexes the Tribunal decision and the Notification Letter from the delegate; and
d)paragraphs 6-7 are irrelevant to the Court’s determination of whether there is any error in the Tribunal decision.
In light of the above the only issue in relation to the applicant’s grounds of review is whether the Tribunal was correct to determine it had no jurisdiction to consider the application. This requires the Court to assess:
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.
This Court has previously addressed the sorts of issues that arise in this case in its decision in CZI18. To the extent that the Court’s analysis in that case is relevant to this matter, the Court repeats that analysis here (albeit as relevant to the specific facts of this case).
Notification Letters – Requirements
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].
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 necessary 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’s Submissions
The written submissions prepared by Ms Oliver, as Counsel for the Minister, were of a particularly high calibre. Those submissions contended, relevantly as follows:
a)DFQ17 is distinguishable on its facts, and the Court ought to find that the letter in the present case did state, with sufficient clarity, the time in which a review application may be made;
b)a key difference between the present case and DFQ17 is that, in DFQ17, there was significant complexity in calculating the end date in which to seek review, due to the fact the notification was sent by post. Justice Perram in DFQ17 described the process of calculating the date for filing of the application for review as “not a straightforward exercise” (DFQ17 at [45]), noting that “Carefully read by a person skilled in reading Commonwealth regulations, the letter does disclose the information that the review application had to be made by 13 March 2017” (DFQ17 at [52]);
c)the calculation in DFQ17 was particularly complex due to the following factors:
i)section 494C(4)(a) applied in that case (but not in the present case). 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”. This meant that it was necessary to have regard to s.36(1) of the Acts Interpretation Act 1901 (Cth) to work out how to calculate the time, and resulted in one day having to be double-counted in DFQ17; and
ii)there was also the difference between the use of the term “days” in reg.4.31(2) and “working days” in s.494C(4)(a). As a result of the different terms used in those provisions, there was a material difference in what days were counted for the purpose of each provision. That is, the 7 day period was not inclusive of the first day, weekends and public holidays, whereas the 28 day period was inclusive of the first day, weekends and public holidays. In the present case, there is no reference to “working days”;
d)it is clear from Perram J’s judgment at [60] that the expectation that the applicant would know or remember to double-count 14 February 2017 (having regard to the different terms used in the different provisions, and the application of s.36(1) of the Acts Interpretation Act 1901 (Cth)), was a significant factor that led to the finding that the letter did not clearly convey the time in which the application for review is needed be made;
e)in the present case, because the notification was by email, it did not involve the same level of obscurity and confusion as in DFQ17. In the present case, the applicant was only required to calculate the 28 days from and including the date the email was actually sent;
f)it is clear that the present case simply does not have the complexities present in DFQ17 (as explained by Perram J) and thus distinguishable from DFQ17.
g)in the present case, the letter did clearly convey to the applicant the time in which the application for review was to be made. The fact that information was found in two parts of the Notification Letter did not lead to any lack of clarity or have the consequence that the notice of the matters referred to in s.66(2)(d)(ii) was “piecemeal, entirely obscure and essentially incomprehensible”.
h)in BUY18 v Minister for Immigration [2019] FCCA 1787 it was held that in a case where the notification was given by email, and the Notification Letter was in essentially the same terms as the notification in present case, the letter complied with s.66(2)(d)(ii) of the Act; and
i)other decisions have similarly distinguished DFQ17, including BMY18 v Minister for Home Affairs [2019] FCCA 1381 and BOQ15 v Minister for Immigration [2019] FCCA 1477.
Did the notification letter “state” the time in which to file an application for review?
The central issue here is 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.
For the reasons that follow, the Court finds that the Notification Letter here was sufficiently clear to satisfy the requirements of s.66(2) of the Act.
In this case, and with reference to Annexure A, it is noted that the Notification Letter spans 3 pages. Relevantly:
a)at the top of page 1 the date of the decision is provided (that being 7 June 2018);
b)at the bottom of page 1, under the heading “Review Rights” 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.
As noted by this Court in CZI18, this information could have been “better placed”. It is odd, for example, that the information on page 3 (which 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 situated on page 1.
Nonetheless, the Court agrees with the Minister 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.
It is noted that the notification letter in DFQ17 (with reference to Annexure B to these reasons for judgment) provided information to the applicant 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.
As in CZI18, Counsel here 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 the paragraph is obscure and incomprehensible and lacks the “level of clarity” required to sufficiently “state” what is 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, as in CZI18, 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. 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 here is located on two separate pages (and arguably, could have been provided on one page) this “piecemeal” provision of the relevant information does not render the Notification Letter “unclear”, hence invalid.
As noted in Ali v Minister for Home Affairs [2019] FCA 1102 at [28]-[30] letters of this sort 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. As Justice Nicholas, who appeared to be considering a letter formatted similarly to the letter here explained:
28 The first of the emphasised statements appears on page 1 of the letter whereas the second appears on page 3. But the letter must be read as a whole and the fact that these statements appear on different pages does not mean that the relevant information is not clearly conveyed.
29 A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review: Zhan at [66]
The Court is satisfied that the Notification Letter in this matter 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 7 June 2018.
Was the applicant properly “notified” and was his application filed late?
The applicant in this matter appears to have been unrepresented before the Tribunal. There is no evidence before the Court that a migration agent acted on his behalf. In any event, it is clear that the applicant asked that all communications be sent to him directly via his email address (CB 6, Q9).
In response to question 38 of the application form the applicant ticked “yes” – such that he agreed to receive communications from the Department by email (CB 11).
It is irrelevant that the applicant also provided his residential address. The applicant agreed to receiving correspondence by email, it was indicated on the application form that this was the preferred method of communication and s.494B(5)(b) of the Act provides that transmission by email is a “prescribed way” of communicating. In those circumstances it was open to the Department to use any one of the methods provided for under s.494B – and, in particular, its preferred transmission method in circumstances where the applicant agreed to that approach: Haque v Minister for Immigration & Citizenship [2010] FCA 346 at [64].
The delegate’s decision (and Notification Letter) was sent via email to the applicant on the day the decision was made (that is, on 7 June 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.
Having been deemed to have received the delegate’s decision on 7 June 2018, the applicant had 28 days to apply for a review at the Tribunal. The applicant therefore had until 4 July 2018 to lodge an application for review with the Tribunal. He did not do so until 6 July 2018. The application was, therefore, out of time, albeit only by 3 days.
The applicant was invited to comment on the validity of the application and he did not do so. The Tribunal then determined that it had no jurisdiction. It was correct to do so.
Having found that the application was lodged outside of the statutory time limit prescribed by the Regulations, the Tribunal was correct in determining that it had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
It does not matter that the applicant was confused or did not understand how to calculate the time frame. As determined above, the information was clearly conveyed and comprehensible. Here, the applicant was simply mistaken.
The Court is not unsympathetic to the concerns the applicant raises in relation to “confusion” on his part. At the hearing of this matter, the applicant indicated that he was unable to read English (even though his visa application indicates that he can speak, read and write English (CB 41, Q26)).
There is no legal requirement that the Notification Letter be produced in the applicant’s native language and no obligation on the part of the delegate to ensure that the Notification Letter is provided in a language which the applicant could understand: SZGWH v Minister for Immigration & Citizenship [2007] FCA 543 at [12].
While the confusion here is understandable, it cannot be said that the confusion arose because of a lack of clarity in relation to the contents of the Notification Letter.
The applicant also seemed to indicate that a migration agent provided him incorrect advice.
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. It was addressed to him personally, sent to the email address he provided to the Tribunal and clearly spelt out what was required of him.
To the extent that the applicant suggests some sort of negligence on the part of a migration agent, as per the decision SZRHA v Minister for Immigration & Anor [2013] FMCA 131, 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 that 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.
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 Letter 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.
Overall, 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 and that his application was indeed filed late.
Conclusion
For the reasons outlined above, and noting the particular circumstances of this case, the Court concludes that there is no jurisdictional error evident in the Tribunal’s decision. The Tribunal was correct in determining that it did not have jurisdiction.
The application is, accordingly, dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 August 2019
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