GVE24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 184
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GVE24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 184
File number: PEG 326 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 20 February 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the inclusion of a non-operational email address in the delegate’s notification letter rendered the notification letter defective – whether the Tribunal was correct in determining that it did not have jurisdiction – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25
Migration Act 1958 (Cth), ss 36, 66, 412, 476, 494B, 494C & 494D
Migration Regulations 1994 (Cth), regs 2.16, 4.31 & 4.31AA
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Ali v Minister for Home Affairs [2019] FCA 1102
Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594
Awon v Minister for Immigration & Border Protection [2015] FCA 846
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189
BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
CAV18 v Minister for Home Affairs [2020] FCA 173
CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271
CQP15 v Minister for Immigration & Border Protection [2017] FCA 854
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 141 Date of hearing: 3 February 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 326 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GVE24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 19 August 2024 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the applicant made an application to this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding.
Applicant’s migration history
The applicant is a citizen of India (Court Book (“CB”) 1-3). He arrived in Australia in April 2016 as the holder of a visitor visa (CB 12 & 50).
The applicant was detained at a detention centre from April 2019 until September 2019 (CB 7).
On 2 September 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-24). In that visa application, the applicant answered “no” when asked whether he authorised another person to receive communication on his behalf. The applicant also provided an email address (the “nominated email address”) for the receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 8).
On 2 September 2019, the Department acknowledged receipt of the applicant’s visa application (via email) and asked the applicant to provide a copy of his current passport (CB 25-33).
On 5 September 2019, the applicant was granted a Bridging E (Class WE) (Subclass 050) visa (CB 34-37) and was released from immigration detention (CB 61).
On 12 January 2021, the Department asked the applicant (by letter sent to him by email) to provide more information in relation to his visa application (CB 38-45). Relevantly, the Department noted that the applicant had claimed that he “was unable to return to India due to targeting relating to a family dispute between members of different castes” and asked the applicant to provide evidence in support of those claims. In particular, the Department sought information relating to (CB 44-45):
(a)criminal charges brought against the applicant (in Australia) by his sister;
(b)the applicant’s past employment in India;
(c)whether his fear of harm related to other areas in India (outside his home region); and
(d)why he would not be able to seek protection from the local authorities in India (at the state and central government levels).
The applicant did not provide any information to the Department in response to that request (CB 51).
On 9 March 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 50-53). The delegate did not accept that the applicant feared returning to India as a result of a family dispute (CB 52).
The applicant was notified of the delegate’s refusal decision by letter dated 9 March 2021 (sent to the applicant by email transmitted to his nominated email address) (CB 46-49).
In June 2024, the applicant was re-detained (CB 62 & 76).
On 1 August 2024, the applicant lodged an online application seeking review of the delegate’s decision by the Tribunal (CB 54-60). The applicant did not include details of an authorised representative in that review application (CB 58). He did, however, include an email address for receipt of correspondence from the Tribunal (CB 57). He also provided the Tribunal with a statutory declaration detailing why his review application was filed late (CB 61-62).
On 2 August 2024, the Tribunal invited the applicant to comment on the validity of his Tribunal review application (CB 71). The Tribunal’s invitation letter relevantly provided as follows:
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 working days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] - [46].
The primary decision was emailed to you on 9 March 2021 meaning that 9 March 2021 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 5 April 2021. As the application was not received until 1 August 2024, it appears to be out of time. However this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 16 August 2024. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 15 August 2024, the applicant wrote to the Tribunal (by email) again providing a copy of the statutory declaration he submitted with his review application (CB 72).
On 19 August 2024, the Tribunal determined that it did not have jurisdiction to review the matter (CB 75-78).
On 4 September 2024, the applicant applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to detail the Tribunal’s decision below.
The Tribunal’s decision (dated 19 August 2024) is four pages long and spans 13 paragraphs (CB 75-78).
The Tribunal explained that the applicant in this matter had sought review of a decision made by a delegate of the Minister on 9 March 2021 refusing to grant the applicant the visa. The Tribunal also explained that, because the applicant was not in immigration detention at the time of the delegate’s decision, any application for review needed to be made within 28 days (commencing on the day that the applicant was notified of the delegate’s decision: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the “Regulations”)). The Tribunal found that the applicant was taken to have been notified of the delegate’s decision on 9 March 2021 (by virtue of s 494C of the Act) and, as such, he needed to seek review of that decision by 5 April 2021. The Tribunal noted that the applicant had not lodged his review application with it until 1 August 2024 and, on 2 August 2021, the Tribunal had written to the applicant to advise that it appeared that his application was not valid as it had not been lodged within the requisite time period. The Tribunal explained that it had given the applicant until 16 August 2024 to provide any comment in that regard (at [1]-[5]).
The Tribunal continued:
6.On 15 August 2024, the applicant provided the Tribunal with a written response attaching a statutory declaration, declared by him on 31 July 2024. In his response the applicant requested the Tribunal to accept his request to proceed with his review application as it is [a] matter of life and death for my situation.
7. The applicant's statutory declaration may be summarised as follows:
•He has been in immigration detention at the [a detention centre] for the past two months.
•He was previously released from immigration detention in September 2019 on a bridging visa, after he applied for a protection visa. He was released into the community in Adelaide, South Australia.
•After staying with a friend for two weeks he was asked to leave and lived as a homeless person for the next five years until he was again placed in immigration detention in September 2024.
•A friend brought him a car and he was living in it is Adelaide in 2019 when he was attacked by a group of people intending to rob him. He was pulled out of his car by them and stuck his head a couple of time which caused him to fall to the ground.
•A nearby shop owner came to help him and called an ambulance which took him to hospital.
•The attack left him with nightmares which is likely the result of him suffering Post Traumatic Stress Disorder (PTSD). He is also suffering from memory loss which causes him to struggle to remember most of his past events.
•His attack was reported to the South Australian police and a detective from Port Adelaide Police Station has investigated the matter.
•While he was suffering from the grief of being attacked and injured, he wasn’t aware of his immigration matter and had no proper residential address or telephone at which he could be contacted.
•This was the reason for him missing the deadline for making his review application.
•He was notified of the decision to refuse him a protection application when he was re-detained on 24 June at the Court hearing regarding his assault case, where he was the victim.
•His case has strong meris and his life is in real risk of serious harm if he is returned to India.
The Tribunal accepted that the applicant had experienced considerable personal difficulties (including homelessness and an assault), however, the Tribunal found that there was no medical evidence before it to suggest that the applicant’s mental state and memory was such that he was unable to recall his protection visa application or the delegate’s refusal decision after the assault. The Tribunal acknowledged that the applicant had no residential address or telephone number at which the Department could have contacted him but noted that the applicant had provided the Department with an email address. Further, the Tribunal noted that Departmental records indicated that the delegate’s decision was successfully sent to the applicant at his email address and the applicant had not provided any evidence to suggest that he did not have a mobile phone or access to his email account at the time he was notified of the delegate’s decision (at [8]-[9]).
The Tribunal also noted that the applicant had applied for the protection visa after he had been assaulted and that he had not provided any explanation about how he was able to make such an application if his mental capacities were affected by the assault. Nor had the applicant provided an explanation about why he waited nearly three years to apply to the Tribunal for review of the delegate’s decision (at [10]).
The Tribunal was satisfied that he applicant had been notified of the delegate’s decision on 9 March 2021 and that, because the review application had not been received by the Tribunal until 1 August 2024, the application had not been made in accordance with the relevant legislation. The Tribunal ultimately determined that it did not have jurisdiction in this matter (at [11]-[13]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 4 September 2024) contains eight “grounds of review”. Although the grounds are numbered one to nine, there is, in fact, no ground “five”.
The grounds of review provide as follows (without alteration):
1.The Second respondent’s decision on 19 August 2024 be quashed.
2.The Second respondent decision was unreasonable.
3.The respondent took into account irrelevant considerations given the seriousness of my situation I am at real risk of death if my file is not accepted I would miss my chance of getting heard.
4.The respondent in making the decision denied procedural fairness based on the fact the stat dee provided explaining my circumstances which led to my homelessness.
6.The respondent failed to take into account relevant considerations.
7.The Decision was in breach of the as Australia’s Non Refoulement International Obligations as it were not properly considered in making the decision as I am real risk of torture and death upon return.
8.The application should be remitted back to tribunal and reconsidered and reinstated.
9.The second respondent put more weight on irrelevant consideration and facts in dismissing my application without properly considering the facts which put more weight in my favour rather than on relevant facts.
ALL THESE ABOVE-MENTIONED FACTORS AND CRITIRIAS WERE NOT CONSIDERED WHEN MAKING UP THE DECISION AND I SEROUSLY BELIEVE THAT THERE IS REAL RISK OF SIGNIFICANT HARM WOULD OCCUR TO ME UPON MY REPATRAITION.
By taking in consideration all the grounds stated above and using the sole applicant self represented. I highly believe that these grounds are reasonable to believe that this migration litigation has reasonable prospect for success.
The applicant also filed an affidavit in support of that judicial review application (deposed by him on 28 August 2024 and filed on 4 September 2024). That affidavit repeated the applicant’s grounds of review (set out above) and annexed copies of the Tribunal’s decision and associated notification letter.
On 14 October 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (in person) on 3 February 2025. He did so without legal representation. He was assisted at that hearing by an interpreter in the Punjabi language. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions. The applicant confirmed he received the documents but did not have copies with him. The Court provided the applicant with copies of those documents.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 4 September 2024 (the affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 79 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 20 January 2025 and an affidavit of service of Aatika Ismailjee affirmed and filed on 28 January 2025 (also taken as read and in evidence at the hearing of this matter).
Noting that the applicant was not represented (and noting the remarks of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline (orally) what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). Importantly, the Court cannot grant the applicant the visa that he seeks, even if the Court disagrees with the Tribunal’s ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that he “gave the Tribunal reasons for being late” with his review application but they “probably did not read it carefully”. The applicant explained to the Court that he “had written” that he “had been homeless since 2019 and [that he] had been in immigration detention and had been the victim of crime”. The applicant also told the Court that he should be “allowed to reapply for the visa” so that he “does not have to go back” to his home country.
The applicant’s oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Issue raised by the Minister
Before considering the applicant’s grounds of review, the Court will first address an issue raised by the Minister in his capacity as a model litigant (at [21]-[23] in written submissions filed in this Court on 20 January 2025).
That issue was relevantly identified by the Minister as follows:
21.In the delegate’s notification letter of 9 March 2021, the email address “[email protected]” was included as an address to which the applicant could send a Tribunal review application. That email address was inactive or non-functional between 23 February 2019 to 8 August 2023.
The Minister also submitted that, for the reasons set out by this Court in the decision of BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995 (“BUH23”) (citing Judge Humphreys in the decision of Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612 (“Daksh”)), the delegate’s notification letter in this matter “complied with s 66(2) of the Act and was not defective”.
Legislative provisions
As this Court previously did in BUH23, before providing an overview of the decision in Daksh, it is first useful to set out some relevant legislative provisions.
As explained in BUH23, the Act and Regulations impose time limits within which applications can be made to the Tribunal for review of certain decisions. Those relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
Section 412(1)(b) of the Act (as was in force at the time of the Tribunal’s decision) required that an application for review of a Part 7-reviewable decision must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”.
The relevant prescribed period where an applicant is not in immigration detention (as was the case in the present matter) was outlined in reg 4.31(2) of the Regulations, which relevantly provided as follows (emphasis added):
4.31 Time for lodgement of application with Tribunal
(1)For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
(a) the day the applicant is notified of the decision; or
(b)if that day is not a working day—the first working day after that day.
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Section 66(1) of the Act specified that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and provided as follows (emphasis added):
66 Notification of decision
…
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
If the Department’s notification letter does not meet the requirements set out in s 66 of the Act (outlined above), then there has not, legally, been any “notification of the decision” and, as such, the relevant 28-day time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 (“Parata”) at [58], [75]-[76], [78] & [103].
Regulation 4.31AA of the Regulations (as was in force at the time of the Tribunal’s decision) detailed the methods by which an application for review must be given to the Tribunal and provides as follows:
4.31AA Giving application to the Tribunal
(1)An application for review by the Tribunal of a Part 7‑reviewable decision must be given to the Tribunal by:
(a)leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(b) sending it by pre‑paid post to a registry of the Tribunal; or
(c)having it delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(d)faxing it to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(e)transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
…
(5)An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.
The Decision in Daksh
As explained previously by this Court in BUH23, in Daksh, Judge Humphreys explained that in that matter:
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 in Daksh alleged that the Department’s notification letter was erroneous because it “listed three emails where the applicant could submit an appeal”. However, “one of these emails [was] no longer in use”. Further, the applicant claimed that, by only providing those emails in the letter, the Minister had breached s 66(2)(d)(iv) of the Act which required that the applicant be notified of where an application for review could be lodged: Daksh at [13].
The applicant in Daksh also submitted that the notification letter was “infected” and “provided applicants with a ‘red herring’” – being an address and platform which were no longer in operation (citing Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594). The applicant further claimed that the “infection” rendered the notification letter “defective” and that the defect was “so fundamental as to constitute jurisdictional error” on the part of the Tribunal: Daksh at [22]-[23].
In response, the Minister submitted that, while one email address included in the notification letter was non-operable, the notification letter provided the applicant with information in relation to making an application online, by post, by fax or in person at one of the Tribunal registries. Further, the notification letter included a functioning email address (listed before the inoperable email address): Daksh at [26].
The Minister also submitted that the notification letter plainly complied with the requirement in s 66 of the Act that the letter “state” where a review application could be made and that there was no evidence to suggest that the applicant attempted to submit an application for review using the non-operable email address. Rather, the applicant had lodged his review application using the online portal and, as such, had not been “deprived of the realistic possibility of a successful outcome”: Daksh at [27] & [29].
The Minister also claimed that, in the event that the Court found any defect in the notification letter, the breach was not material as the applicant had not attempted to use the defective email address and, as such, had not suffered any prejudice.
Judge Humphreys ultimately found as follows:
34The 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.
35SZOFE 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”.
36Buchanan 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.
37In 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.
38Even 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.
Whether this matter can be distinguished from Daksh
In this matter, the applicant was notified of the refusal of his visa by letter from the Department (sent to him via email) on 9 March 2021 (CB 46-49). Relevantly, that notification letter provided the following information in relation to the lodging of an application for merits review with the Tribunal (CB 47):
As can be seen from the extract above, the notification letter to the applicant in this matter detailed that an application for review could be “lodged online, in person, faxed or posted to any Registry” of the Tribunal (as set out in the table above). A link was provided for the applicant to apply online ( and two email addresses were also provided ([email protected] and [email protected]).
The Minister (at [21] in written submissions filed in this Court on 20 January 2025 and detailed by the Court at [39] of this decision above) conceded that one of the email addresses (being [email protected]) was “inactive or non-functional between 23 February 2019 to 8 August 2023”. The Court notes, relevantly, that the email address was thus non-operational on 9 March 2021 (at the time that the notification letter was sent to the applicant in this matter). The same information was provided to the applicant in Daksh (see, for example, Daksh at [11], [26] & [31]).
There is no evidence before this Court to suggest that the applicant in the present matter attempted to use the defective email address. Instead, nearly 41 months later (being on 1 August 2024), the applicant filed an online application for review with the Tribunal (CB 54-60). These circumstances mirror those in Daksh (noting, however, a further – and lengthy – delay on the part of the applicant here when making his application to this Court): Daksh at [32].
The present matter cannot be distinguished from the factual circumstances in Daksh. There is no evidence before this Court to suggest that the applicant was misled by the defective email address. There is also no evidence before the Court to suggest that the applicant tried to use the email address (nor did the applicant make any such claims when he appeared before this Court on 3 February 2025). Rather, he applied using an online application (details of which were also set out in the notification letter): Daksh at [34].
It follows that the notification letter in the present matter is not defective because of the inclusion of a non-operational email address. The Court is satisfied that the letter provided “clear details via a number of means by which an application for review by the Tribunal could be lodged”: Daksh at [37]. It is also clear that the applicant accessed one of those means of communication and did so without prejudice.
No jurisdictional error arises in this regard.
The Court will separately determine (below) whether the applicant was otherwise properly notified of the delegate’s decision and, as a result, whether the Tribunal was correct in determining that it did not have jurisdiction in this matter.
Whether the Tribunal was correct in determining that it did not have jurisdiction in this matter and whether, as a result, the Tribunal was correct in determining that it had no jurisdiction in this matter
Noting the principles set out in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) (and the current practice of this Court to do what it can to assist unrepresented litigants and to remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision), the Court has considered whether the applicant was otherwise properly notified of the delegate’s decision and whether, as a result, the Tribunal was correct in determining that it had no jurisdiction in this matter.
This Court has provided a detailed overview of the core requirements for notification letters broadly in its decisions in CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 (“CBZ23”) (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (“Singh”) (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (“AGS20”)).
Those judgments also provide an overview of the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”).
The Court repeats the analysis provided in these cases (with some minor amendments and additions) below.
Sandor addressed whether a notification letter sent by the Department advising of a delegate’s decision was a proper notification (that is, whether the time period within which the appellant – Mr Sandor – could seek review by the Tribunal was made clear to him by that notification letter) and clarified the relevant case law in that regard. It is noted, however, that Sandor considered that issue within the specific context of a notification letter that was sent to an appellant (or applicant) via his or her authorised recipient (rather than being sent to the applicant directly).
There is no evidence before this Court that the applicant in this matter had nominated an authorised recipient to assist him with his application before the Department or the Tribunal. In those circumstances, it is unnecessary for the Court to consider or to address the decision in Sandor as it does not apply to the circumstances of this matter.
As previously explained by this Court in CBZ23, Singh and AGS20, the defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not “manifest”.
The notification letter in Sandor required the appellant to understand that he “was taken to have received” the letter on “the day the letter was transmitted” to his authorised recipient. However, the notification letter in the present matter did not require the applicant to do so.
The Court is satisfied that this matter is distinguishable from Sandor on its facts.
The analysis provided in the judgments referenced above (at [65]) in relation to the core requirements for notification letters is otherwise repeated (with some minor amendments and additions) below.
As outlined above, the Act and Regulations impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is properly notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
At the time of the delegate’s decision (being as at 9 March 2021), Section 412(1)(b) of the Act required that an application for review of a Part 7-reviewable decision must be lodged at the Tribunal within the prescribed period, being “a period ending not later than 28 days after the notification of the decision”. The relevant prescribed period applicable in this matter was (at the time of the delegate’s decision) outlined in reg 4.31(2) of the Regulations and (as set out above) provided that “an application for review of the decision must be given to the Tribunal by or for the applicant” within “28 days, commencing on the day the applicant is notified of the decision”.
For that 28-day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. As outlined by the Court above, if the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Parata at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
As outlined by the Court above, s 66(2) of the Act outlines how a visa applicant is to be notified of a decision.
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
In this matter, a delegate of the Minister refused to grant the applicant the visa on 9 March 2021 (CB 50-53). As outlined above, the Department was then required to notify the applicant of that decision “in a prescribed way” (see s 66(1) of the Act as set out in s 66(2) of the Act).
The applicant in this matter answered “no” to the question of whether he “authorise[d] another person to receive communication about [his] application on [his] behalf” in his visa application. Further, the applicant provided an email address and agreed for the Department to communicate with him electronically using that email address (CB 8).
The applicant was notified of the refusal decision by email on 9 March 2021 (CB 46-49). That email was sent to the applicant’s nominated email address (included in his visa application) (CB 8 & 46). The notification comprised a letter from the Department (addressed to the applicant) with notification of the delegate’s decision (CB 46-49) and a copy of that decision (CB 50-53).
The notification letter in this matter satisfied the requirements set out in s 66(2) of the Act by:
(a)stating that the applicant had not satisfied s 36(2) of the Act, being a criterion for the grant of the visa (CB 46);
(b)referencing annexed written reasons which detailed that delegate was not satisfied that the applicant satisfied ss 36(2)(a) or 36(2)(aa) of the Act (CB 46 & 50-53): s 66(2)(a) of the Act;
(c)annexing those written reasons which outlined why the visa criteria was not satisfied: s 66(2)(c) of the Act;
(d)detailing the applicant’s review rights as follows (CB 46-47):
Review Rights
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
(e)providing information about how to lodge an application for review with the Tribunal (CB 47) as per s 66(2)(d) of the Act.
As outlined above, the Department correctly sent the notification letter to the nominated email address included in the applicant’s visa application – being the last email address provided to the Department for the purpose of receiving documents: s 494B(5)(d) of the Act.
The Department is permitted to communicate with an applicant by email pursuant to s 494B(5)(b) of the Act and s 494B(5)(d) of the Act.
By virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the applicant did not receive those documents for any reason.
Further, by sending the document by one of the methods set out in s 494B or s 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
The applicant here is thus taken to have received that notification at the end of the day on 9 March 2021 (being the date on which it was transmitted to him by email) regardless of whether or not he actually received the documents.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189 (“BMY18”); Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh FCAFC”).
These cases clarify that in order to “state” a matter as required by the Act, the notification must do so clearly and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (“Abbas”). In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court relies on and repeats its analysis as provided in Abbas (at [78]-[79]).
Relevantly, the above cases make it clear that the following principles apply:
(a)where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
(b)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) this is sufficiently clear: Ali;
(c)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading “Receiving this Letter”), the notification is clear: Singh FCAFC;
(d)the letter should be read as a whole. Hence, the fact that different pieces of information may be spread across a number of pages is not decisive in relation to the level of clarity: Ali. Where the layout is confusing, however (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and
(e)whether a notification is “clear” will turn upon the language and terms in which the notification is expressed when read as a whole by a person exercising a reasonable level of care: Singh FCAFC; Ali. It is not significant that an applicant may not speak English as a first language. The question is whether the letter conveys the required information.
Here, under the heading “Review Rights”:
(a)the letter clearly states that “[an] application for merits review” must be given to the Tribunal “within the period of 28 calendar days, commencing on the day you are taken to have received this letter” (CB 46-47); and
(b)the letter goes on to state that “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” (CB 47).
Here, as in Abbas, the notification letter is clear. The layout is not confusing. A clear heading is used that provides an unambiguous “signpost” which allows the applicant to identify the information that he requires.
On the basis of the above, the Court is satisfied that the Minister’s notification letter in this matter satisfied the requirements of s 66(2)(d)(ii) of the Act.
Having been validly notified of the delegate’s decision (and that Minister’s notification letter having satisfied the requirements set out in s 66(2)(d)(ii) of the Act) on 9 March 2021, the time within which the applicant could seek review of the Tribunal’s decision “began running” on that date (being 9 March 2021).
The applicant was required to file his review application within 28 calendar days, commencing on the 9 March 2021 (being the date the notification of the delegate’s decision was deemed to have been received). The applicant was therefore required to file his review application with the Tribunal on or before 5 April 2021.
Here, the Tribunal review application was not lodged online by the applicant until 1 August 2024 (CB 54-60). The application was therefore lodged nearly 41 months out of time.
In circumstances where the application for review was lodged outside of the prescribed time period, the Tribunal was correct to find that it did not have jurisdiction in the matter: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 (“Calimoso ”) at [29] per Charlesworth J. Further, the Tribunal did not have any discretion or any power to extend the period for the lodging of a valid application for review once it is evident that the 28-day time period had not been complied with: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 (“Beni”) at [83]; Awon v Minister for Immigration & Border Protection [2015] FCA 846 (“Awon”) at [38]-[39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 (“CQP15”) at [43]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 (“NACG”) at [7] and Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460 (“ASE15”) at [48].
For the reasons set out above, the Court is satisfied that the applicant was properly notified of the delegate’s decision and that, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
No jurisdictional error arises in this regard.
Grounds of review
Grounds one and eight
As outlined above, grounds one and eight relevantly provide as follows:
1. The Second respondent’s decision on 19 August 2024 be quashed.
…
8.The application should be remitted back to tribunal and reconsidered and reinstated.
Grounds one and eight simply attempt to outline the relief that the applicant is seeking by his application (being writs of certiorari and mandamus, quashing the decision of the Tribunal and remitting the matter to the ART for reconsideration according to law).
These grounds of review do not otherwise raise any issues of the sort that this Court can address.
No jurisdictional error arises in this regard.
Ground two
Ground two states:
2.The Second respondent decision was unreasonable.
To the extent that the applicant claims (by ground two) that the Tribunal’s decision is unreasonable, the Court disagrees for the reasons that follow.
As previously explained by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were clearly summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
As outlined above, the Court is satisfied that the applicant was properly notified of the delegate’s decision in this matter.
Having been validly notified of that decision (and that Minister’s notification letter having satisfied the requirements set out in s 66(2)(d)(ii) of the Act) on 9 March 2021, the timeframe within which the applicant could seek review of the Tribunal’s decision “began running” on that date (being 9 March 2021).
The applicant was thus required to file his review application within 28 calendar days, (commencing on the 9 March 2021, being the date that the notification of the delegate’s decision was deemed to have been received). The applicant was therefore required to file his review application with the Tribunal on or before 5 April 2021.
Unfortunately, the applicant did not lodge his review application with the Tribunal until 1 August 2024 (CB 54-60). That is, nearly 41 months out of time.
As detailed by the Court above, in circumstances where the applicant’s review application (filed with the Tribunal) was lodged outside of the legislatively mandated time period, the Tribunal was correct to find that it did not have jurisdiction in the matter: Calimoso at [29] per Charlesworth J.
Further, the Tribunal had no power to extend the period for the applicant to lodge a valid application for review once it is evident that the 28-day time period had not been complied with: Beni at [83]; Awon at [38]-[39]; CQP15 at [43]; NACG at [7] and ASE15 at [48].
For the reasons outlined above, the Court is satisfied that Tribunal made the only decision open to it in the circumstances and the Tribunal did not act unreasonably in doing so.
No jurisdictional error arises in this regard.
Grounds three, six, seven and nine
Grounds three, six, seven and nine provide as follows:
3.The respondent took into account irrelevant considerations given the seriousness of my situation I am at real risk of death if my file is not accepted I would miss my chance of getting heard.
…
6.The respondent failed to take into account relevant considerations.
7.The Decision was in breach of the as Australia’s Non Refoulement International Obligations as it were not properly considered in making the decision as I am real risk of torture and death upon return.
…
9.The second respondent put more weight on irrelevant consideration and facts in dismissing my application without properly considering the facts which put more weight in my favour rather than on relevant facts.
By grounds three, six, seven and nine, the applicant claims that the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations.
The applicant also appeared to raise similar concerns in oral submissions before this Court. The applicant essentially stated that he had given the Tribunal his reasons for being late with his application but they “probably did not read it carefully”.
The Court notes that, as outlined above, the application for review to the Tribunal in this matter was filed outside of the requisite time period. In those circumstances, there was no “valid” application for review before the Tribunal.
To the extent that the applicant suggests that the Tribunal failed to consider or take into account the applicant’s reasons for the delay in lodging his application for review with the Tribunal, this fails on a factual level.
The Tribunal expressly referenced the applicant’s response to its invitation to comment letter (and the information provided by the applicant in his statutory declaration) in its written reasons, as follows:
6.On 15 August 2024, the applicant provided the Tribunal with a written response attaching a statutory declaration, declared by him on 31 July 2024. In his response the applicant requested the Tribunal to accept his request to proceed with his review application as it is [a] matter of life and death for my situation.
7. The applicant's statutory declaration may be summarised as follows:
•He has been in immigration detention at [a detention centre] for the past two months.
•He was previously released from immigration detention in September 2019 on a bridging visa, after he applied for a protection visa. He was released into the community in Adelaide, South Australia.
•After staying with a friend for two weeks he was asked to leave and lived as a homeless person for the next five years until he was again placed in immigration detention in September 2024.
•A friend brought him a car and he was living in it is Adelaide in 2019 when he was attacked by a group of people intending to rob him. He was pulled out of his car by them and stuck his head a couple of time which caused him to fall to the ground.
•A nearby shop owner came to help him and called an ambulance which took him to hospital.
•The attack left him with nightmares which is likely the result of him suffering Post Traumatic Stress Disorder (PTSD). He is also suffering from memory loss which causes him to struggle to remember most of his past events.
•His attack was reported to the South Australian police and a detective from Port Adelaide Police Station has investigated the matter.
•While he was suffering from the grief of being attacked and injured, he wasn’t aware of his immigration matter and had no proper residential address or telephone at which he could be contacted.
•This was the reason for him missing the deadline for making his review application.
•He was notified of the decision to refuse him a protection application when he was re-detained on 24 June at the Court hearing regarding his assault case, where he was the victim.
•His case has strong meris and his life is in real risk of serious harm if he is returned to India.
As summarised by the Court above, the Tribunal accepted that the applicant had experienced considerable personal difficulties (including homelessness and an assault), however, this could not assist him.
The Tribunal was satisfied that the applicant in this matter had been properly notified of the delegate’s decision on 9 March 2021 (at [11] in its written reasons) and that the time period within which he was required to lodge his review application with the Tribunal began to run on that date (being on 9 March 2021).
While the Tribunal did consider the applicant’s reasons for the delay in making his application to it (as outlined above), the Tribunal simply did not have the power to extend the time period within which the applicant could seek review at the Tribunal: Beni at [49]. Similarly, the Court also does not have any power to do so (or any power to direct the Tribunal to do so).
No jurisdictional error arises in this regard.
To the extent that the applicant suggests that the Tribunal should have considered his protection claims or failed to consider or have regard to his fear of harm should he be returned to his home country, the Court disagrees.
Once the Tribunal had determined that there was no valid review application before it, the Tribunal could not go on to assess the merits of the applicant’s matter. The Court is also unable to review the merits of the applicant’s protection claims or to consider whether the applicant met the criteria for the grant of the visa: Wu Shan Liang.
The only question before the Tribunal in this matter was whether the review application was made within the requisite time period. Having determined that the application had been made outside of the requisite time period and there was no “valid” review application before it, the Tribunal simply had no jurisdiction to determine the matter.
No jurisdictional error arises in this regard.
Ground four
Ground four states:
4.The respondent in making the decision denied procedural fairness based on the fact the stat dee provided explaining my circumstances which led to my homelessness.
To the extent that the applicant suggests that the Tribunal failed to consider the information contained in his statutory declaration, this has been addressed by the Court above.
Insofar as the applicant claims that he was denied procedural fairness, the Court disagrees for the reasons that follow.
This Court has previously considered whether any common law guarantees of natural justice arise in matters of this sort in its decision in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271 (“CLV21”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) at [83]). The Court again stresses that the common law rules of procedural fairness only require that the Tribunal bring to an applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
In this matter:
(a)the delegate refused to grant the applicant the visa on 9 March 2021 (CB 50-53);
(b)the applicant was notified of the delegate’s decision by way of letter sent to the applicant via email on 9 March 2021 (CB 46-49);
(c)the applicant sought review of that decision by filing a review application with the Tribunal on 1 August 2024 (CB 54-60);
(d)the applicant was invited (on 2 August 2024) to comment on the validity of his review application filed with the Tribunal. (CB 71);
(e)the applicant responded to that invitation by providing a statutory declaration to the Tribunal (by email) on 15 August 2024, explaining why he was of the view that the Tribunal ought to proceed to review the delegate’s decision (CB 72); and
(f)the Tribunal expressly considered the applicant’s response (at [6]-[7] in its written reasons and outlined above) (CB 76-77).
Here (as was the case in CLV21 and WZAVO), it cannot be said that the applicant was denied the right to present his case. Further, even if the Tribunal had invited the applicant to attend a hearing (where the applicant had already been asked to comment on the critical issue before the Tribunal and did so), this would not have assisted the applicant. As detailed above, the Tribunal did not have the power to extend the time within which the applicant could file his application with the Tribunal.
No error jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 4 September 2024 and the oral submissions made by the applicant before this Court have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2025
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