Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 54
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54
File number(s): SYG 882 of 2022 Judgment of: JUDGE LAING Date of judgment: 14 February 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal correctly found that it lacked jurisdiction in the matter – whether the applicant was validly notified of the Delegate’s decision – Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – application succeeds Legislation: Migration Act 1958 (Cth) ss 66, 347, 494C and 494D
Migration Regulations 1994 (Cth) reg 4.10
Cases cited: Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Division: General Number of paragraphs: 33 Date of hearing: 20 January 2025 Place: Sydney Applicant: In Person Solicitor for the First Respondent: Ms K Pieri, MinterEllison Second Respondent: Submitting notice, save as to costs ORDERS
SYG 882 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASWINDER KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 13 May 2022 in case number 2203196.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 LAING:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal found that it did not have jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Skill Shortage (Class GK) visa.
For the following reasons, the application before the Court succeeds.
BACKGROUND
The applicant applied for the visa on 11 October 2021. The Delegate refused the application on 14 February 2022.
On 7 March 2022, the applicant lodged an application seeking review of the Delegate’s decision.
On 13 May 2022, the Tribunal found that it did not have jurisdiction to determine the matter.
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for finding that it lacked jurisdiction:
3.Pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) and reg 4.10, and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 8 March 2022. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
4.On 25 March 2022, the Tribunal wrote to the applicant inviting him to comment on the validity of his application, noting that the application fee had not been paid. The applicant’s representative responded on 5 April 2022 stating that a system error must have occurred, and stating that an application could not be lodged without payment. The representative requested direction on how to pay the application fee immediately.
5.While the Tribunal appreciates the applicant’s willingness to pay the application fee, the regulations are prescriptive, and the Tribunal has no discretion to accept late payment, especially in circumstances where a fee reduction request has not been made.
6.The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
PROCEEDING BEFORE THIS COURT
The applicant filed an application with this Court on 20 June 2022, seeking an extension of time in which to seek judicial review of the Tribunal’s decision. The extension of time was granted, without objection, at the hearing on 20 January 2025. The following grounds of review were identified in the application:
1. That the Administrative Appeals Tribunal did not consider the material provided and error made by the delegate of the Minister.
2. The Tribunal did not consider technical error or glitch in the system as a error, so I (applicant) was not given procedural fairness chance
3.There is a jurisdictional error happened which is affecting my (applicant’s) whole life and career
I accept the Minister’s submissions as to why the stated grounds are unable to succeed.
The first misunderstands that the Tribunal was not obliged to conduct a review if it lacked jurisdiction. In relation to the second, the reason that payment was not requested appears to have been because the applicant’s representative lodged the wrong form (which was not identified by the Tribunal until the following day) rather than because of any technical “glitch” in the Tribunal’s system. In any event, if the Tribunal lacked jurisdiction, relevant error cannot be demonstrated simply because the Tribunal did not make a finding as to why the requisite payment had not been made. The third ground identifies no error, but describes the effect of the Tribunal’s decision on the applicant’s life.
At hearing, the applicant further suggested that her agent had been deficient in their dealings with her and that they had failed to keep her adequately informed. I have some sympathy for the applicant in relation to this submission. That said, I am unable see how what was submitted by the applicant is capable of demonstrating that the Tribunal relevantly erred in finding that it lacked jurisdiction.
As was acknowledged by the Minister, however, an issue still arises in this case as to whether the applicant was validly notified of the Delegate’s decision.
Relevant provisions and cases
Section 66 of the Migration Act 1958 (Cth) (Act) relevantly provided:
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(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:
(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…
The combined effect of s 347(1)(b) of the Act and reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) was that the time in which the application for review had to be made was within 21 days after notification of the Delegate’s decision had been received by the applicant.
Section 494C of the Act relevantly provided:
494C When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)…
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Section 494D of the Act provided:
494D Authorised recipient
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(3A) In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) The Minister need not comply with subsection (1) if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
The decision of Markovic J in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Sandor) is of particular relevance to this case. In that case, as in this one, the applicant had appointed an authorised recipient. The notification letter was sent to the authorised recipient by email. Pertinent details regarding the attached notification letter were set out at [45] of the judgment:
45 The Notification Letter:
(1) is dated 13 February 2018. On the first page it is addressed to the appellant at his address but also includes:
Transmission Method Email sent to [email protected]
(2) under the heading “Review rights”, on pages 1 to 2, includes:
We 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 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
(3) under the heading “Receiving this Letter”, on page 3, includes:
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.
(4) was emailed to the appellant’s authorised recipient on 13 February 2018.
Her Honour rejected submissions from the Minister as to why the notification was contended to have been sufficiently complete or clear as to have complied with s 66(2)(d)(ii) of the Act (at [50]-[53]). At [51]-[53], her Honour considered:
51The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister’s submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister’s reading of the Notification Letter, the appellant must understand that the reference to “the day the letter was transmitted” requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
53It was not in dispute between the parties that a failure to comply with any element of s 66(2) of the Act means that there has been no notification of the decision and time had not yet commenced to run. In other words the notice given by the Notification Letter is invalid: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [58], [75]-[76], [78] and [103].
In Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 (Park), the Minister contended that Sandor was wrongly decided as a question of law. The Full Court (Perram, Perry and Feutrill JJ) determined that this premise was founded upon a misconception, as the question at issue was a question of fact (at [19]-[32]). On the question of law, the Full Court considered:
22It is common ground that, on the proper construction of s 66(2)(d), the word ‘state’ means that the notification of the decision must set out the information in each of the subsections in a manner that is complete and clear: DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492 at [58] (Perram J, Rares and Farrell JJ agreeing); BMY18 v Minister for Home Affairs and Anor [2019] FCAFC 189; 271 FCR 517 at [30]-[37] (Reeves, Perram and Charlesworth JJ). Nonetheless, the relevant question remains whether notification of the decision meets the requirements of s 66(2)(d) to ‘state’ the matters referred to in that subsection. Therefore, considering ‘whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text’: Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] (Thawley J). The explanation of the meaning of the word ‘state’ in DFQ17 does not, of course, replace or supplant the statutory text. However, as the parties here evidently accept, it declares the meaning of the text of the provision, on its proper construction, as a matter of law and statutory interpretation…
28All these authorities merely illustrate that, depending upon the relevant objective facts and the form of the notification before the Court, the notification of the decision may or may not, as matter of fact, meet the requirements of s 66(2)(d). Further, notwithstanding that all the information to ascertain the time in which the application for review may be made can be distilled from the contents of the notice, the notification may nonetheless fail to crystallise that information with sufficient clarity to meet the requirement of s 66(2)(d)(ii). It follows that while other decisions of the Court concerning notifications of decisions to refuse visas may provide guidance and assistance in relation to the application of s 66(2)(d), they are not determinative of the facts before the Court in this appeal.
At [31], it was found that there was no legal error in the reasoning of Markovic J in Sandor. The Court then proceeded to consider whether, as a question of fact, the notification in Park stated the time in which the application for review was able to be made within the meaning of s 66(2)(d)(ii) of the Act. The Court found that it did not, reasoning at [39]:
39In this case, although the notification conveyed the information necessary to convey to a careful reader with knowledge of the date the email was transmitted to the authorised representative the time in which an application for review had to be made, the information was not conveyed in a sufficiently clear manner to ‘state … the time in which the application for review may be made’ for the purposes of s 66(2)(d)(ii) of the Act. Leaving to one side the question of whether the references to ‘you’ in the letter created confusion in circumstances where the letter was sent to the authorised representative and dealt with multiple visa applicants, there was no obvious or logical connection between the reference to the commencement of the 21-day period (the day on which the visa applicant is taken to have received the letter) under the heading ‘Review rights’ and the reference to the day on which the visa applicant was taken to have received the letter under the heading ‘Registries of the Administrative Appeals Tribunal’. The lack of clarity was compounded by the length of the letter, the remoteness of the references to the time of receipt of the letter from the references to the commencement of the 21-day period and by multiple references to the 21-day period for multiple visa applicants. While it might be thought that there was good reason for a single reference to the day on which the letter was taken to have been received for the commencement of the 21-day period for all visa applicants, unlike the letter in Singh, the purpose of that reference to the day on which the letter was taken to have been received was not expressed under a separate heading that made it obvious that the reference to the time of receipt of the letter was linked to earlier references in the letter to the 21-day periods.
Consideration
In the present case, the notification letter:
(a)is dated 14 February 2022. On the first page it is addressed to the applicant at her address but also includes:
Transmission Method Email sent to [the applicant’s authorised recipient]
(b)under the heading “Review rights”, on page 1, includes:
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 21 calendar days after the day on which 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…
[section carries over onto page 2].
(c)was emailed to the applicant’s authorised recipient on 14 February 2022.
The Minister contended that the facts of this case are sufficiently different to those in Sandor and that, in any event, Sandor is “limited to its very particular facts and cannot be applied further”. However, the Minister accepted that if his submissions were not accepted by the Court, then it would mean that the notice given to the applicant on 14 February 2022 was ineffective. If this were found, the Minister accepted that the Tribunal would have been incorrect in finding that it did not have jurisdiction to conduct the review.
The Minister submitted that the notification letter in this case clearly stated the time in which an application for review may be made. In this regard, the Minister submitted that:
(a)the letter correctly set out relevant information necessary for the reader to understand the time in which an application for review had to be made;
(b)the letter was sent to the email address nominated by the applicant for communications (through her authorised recipient);
(c)in this matter, unlike in Sandor, the relevant statements were entirely included on page 1 of the letter under the heading “Review rights’” and were directly after each other;
(d)the terms of the statements that together informed the reader of the period in which an application for review may be made contained similar language regarding the concept of when the letter was “taken to have [been] received” such that the reader would reasonably understand that the two statements should be read together;
(e)a reasonable person who has appointed an authorised representative is on notice that all notifications will be sent to their authorised representative and would understand that the information - “[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” - meant the end of the day it was transmitted to the authorised recipient. This was said to be supported in this case by the fact that the application was lodged within the requisite period, although the requisite fee was not paid within it;
(f)the Department sent a number of letters to the representative’s email address, including a letter requesting more information dated 16 October 2021 to which the applicant responded by providing more evidence. This was said to support an inference that it was sufficiently clear to the applicant that the phrase “you are taken to have received” the letter meant the day the letter was transmitted to the authorised recipient; and
(g)the visa application form stated that all correspondence, including notification of the outcome of the application, would be sent to the email address provided (which was the representative’s email address). This was submitted to further support an inference that a reasonable person would understand that reference to receipt on the day of transmission meant the end of the day it was transmitted to the authorised recipient.
The Minister contended that insofar as Sandor may be taken to have held that an applicant must not be required to “piece together the facts which would allow him to know the time in which an application for review may be made” (at [51]), that is inconsistent with the decision in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh), which held that the requirement in s 66(2)(d) to “state” is a question of fact and may be determined by an examination of whether the notification is capable of being understood by a person exercising reasonable care: [10] to [12] per Thawley J, with whom Flick and Bromwich JJ agreed.
I perceive no inconsistency between Sandor and Singh. I do not understand Markovic J at [51] of Sandor to have held that any combination of facts required to understand a notification would render the notification invalid. Rather, her Honour found that the requirement upon the reader to “piece together” the particular combination of facts in that case rendered the notification insufficiently complete or clear and, therefore, invalid. Specifically, her Honour observed that the letter in that case required the recipient to understand the reference to “the day the letter was transmitted”, which would require him to “identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made” (Sandor at [51]). This was in circumstances where the effect of s 494D(2) of the Act had not clearly been explained.
For similar reasons, I find that the notification in this case did not comply with s 66(2)(d)(ii) of the Act. As in Sandor, it required the reader to piece together information about the identity of the person to whom the letter was transmitted by reference to other aspects of the letter, and then put together pieces of information to enable calculation of the time in which the application for review needed to be made. This was in circumstances where the letter was addressed to the applicant, sent to the authorised recipient, conveyed the deadline by reference to when the letter had been sent to a person described as “you” and the effect of s 494D(2) of the Act was not clearly explained. Taking these matters together, I find that the information was not conveyed in a sufficiently clear manner to “state … the time in which the application for review may be made” for the purposes of s 66(2)(d)(ii) of the Act.
I am not persuaded by the Minister’s submission that it was clear that the information in the letter - “[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” - meant the end of the day it was transmitted to the authorised recipient. This was not explained in the letter and the “you” to whom the letter was addressed included the applicant’s personal details. There was at least some potential for confusion in this referencing, given the potential for the letter to be subsequently forwarded to the applicant by email.
I am not persuaded that a subjective understanding of what the letter intended should be attributed to the applicant personally, simply because the application was partially made within time (through lodgement of a form without payment of the requisite fee). Nor am I persuaded that the notification was clear (whether subjectively or objectively) because the representative had previously engaged in correspondence with the Tribunal. Although such correspondence may have indicated that the applicant and her representative were aware that an authorised recipient had been appointed, it did not confirm understanding on the part of the applicant of the particular effect of s 494D(2) of the Act, nor how this translated in terms of the subsequent correspondence.
Whilst the Minister observed in written submissions that the applicant had not asserted that she did not understand the relevant time frame, I am not persuaded that evidence to this effect is required. The visa applicants in Sandor and Park were not required to demonstrate that they were subjectively unable to understand the correspondence. The question, rather, is whether the notification stated the time in which the application for review was able to be made for the purposes of s 66(2)(d)(ii) of the Act.
I am also not persuaded that a different outcome should result in this case to in Sandor, simply because the information about when the letter was taken to have been received was included under the same heading “Review rights”, rather than under a separate heading on another page entitled “Receiving this Letter”. The latter heading does not appear to have been the essential source of the difficulty in Sandor (and a comparable heading was considered “clear and relevant” in Singh at [15]).
The letter in the present case still required the reader to piece together various information, including information regarding the operation of s 494D(2) of the Act. This was not remedied by indications in the visa application, an entirely separate document, that correspondence would be sent to the authorised recipient.
CONCLUSION
For the above reasons, the application before the Court succeeds.
The Minister submitted that, in the event that this was found, the usual order regarding mandamus requiring the Administrative Review Tribunal to reconsider and determine the matter according to law would be appropriate. This is notwithstanding the fact that it is presently unclear whether the relevant fee has been paid. It is in circumstances where the Administrative Review Tribunal, upon remittal, would first be required to determine whether it has before it a valid application. The Minister acknowledged that this will depend upon whether the applicant attends to payment of the relevant fee.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 14 February 2025
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