Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1913

Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1913 (30 June 2023)

Division:GENERAL DIVISION

File Number:2023/0551          

Re:Virender Kumar  

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:30 June 2023

Place:Brisbane

The Tribunal is satisfied the application has jurisdiction.

.......................[SGD]..........................
Senior Member Theodore Tavoularis

CATCHWORDS

PRACTICE AND PROCEDURE – Refusal to grant a Partner (Temporary) (Class UK) visa pursuant to s 501(1) of the Migration Act – where the Applicant has sought review outside of the legislative appeal period - whether the Applicant was notified in accordance with s 501G(2) of the Migration Act - whether the Tribunal has jurisdiction to review the application – Applications of the principles in Sandor – Tribunal found to have jurisdiction

LEGISLATION

Administration Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Lee v Minister for Home Affairs [2019] FCA 1669

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

Sandorv Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434

Turaga v Minister for Immigration and Border Protection [2017] FCA 58

SECONDARY MATERIALS

Second Reading Speech of Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

30 June 2023

BACKGROUND

1. The Applicant is a citizen of India and is currently detained in Villawood Immigration Detention Centre.

2. On 19 April 2018, a delegate of the Respondent Minister[1] exercised the discretion under subsection 501(1) of the Migration Act 1958 (Cth) (‘the Act’) to refuse the Applicant’s application for a Partner (Temporary) (Class UK) visa on the basis the delegate was not satisfied the Applicant passed the character test (‘Refusal Decision’).

   [1] At the time, the relevant Minister was the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. On 30 January 2023, the Applicant lodged an application to review the delegate’s abovementioned Refusal Decision made on 19 April 2018. The Applicant was represented by Mr Ehimudiamen from Lucky Iyare & Associates. The Respondent was represented by Ms Strugnell from Minter Ellison Lawyers.

4. The Tribunal has held several interlocutory listings across 7 February, 24 February and 3 April 2023 the instant application. A copy of the submissions and other relevant material before the Tribunal are recorded in the Exhibit Register found at Annexure A to these reasons.

5. The Applicant has resided in immigration detention since December 2018. The Tribunal also notes that there are references in the Applicant’s statement to an active appeal currently in the Federal Circuit Court of Australia to review a decision of the Migration and Refugee Division of this Tribunal to refuse his application for a Protection Visa.

   THE ISSUE

6. The specific jurisdictional issue in the subject application is whether the Applicant lodged an application with this Tribunal within the statutory timeframe. The Tribunal’s jurisdiction to consider Mr Kumar’s application turns on whether he was notified of the Refusal Decision in accordance with s 501G(1) of the Act.

7. In its initial written submissions, the Respondent canvassed the relevant milestones in this matter from the date the application to the Department for the Visa was lodged on 7 November 2013 and it culminates in the Respondent’s most recent provision of notification of the Refusal Decision to the Applicant’s then-representatives on 28 December 2018.[2] The three notification events occurred on 17 May 2018, 19 December 2018 and 28 December 2018.

   [2] See Exhibit 4, [2]-[14].

8. The general rule under the Administration Appeals Tribunal Act 1975 (‘AAT Act’) is that applications for review to the General Division must be made within 28 days of a person receiving a reviewable decision[3] and allows for the Tribunal to consider applications for an extension of time to this period.[4] The AAT Act however does enable the Tribunal’s review jurisdiction to be varied by the enactment under which a reviewable decision is made.[5]

   [3] Section 29(2) of the AAT Act.

   [4] Section 29(7) to (9) of the AAT Act.

   [5] Section 25(1) and (3) of the AAT Act.

9. The starting point is section 500(6B) of the Act:

   “If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.”

10. It is well settled that this Tribunal has no discretion to extend time by the operation of s 500(6B) of the Act.[6]

    [6] see Turaga v Minister for Immigration and Border Protection [2017] FCA 58 at [25]-[26].

11. If the Tribunal is satisfied the Applicant was properly notified, then the nine-day time limit imposed by s 500(6B) of the Act will have commenced from the date of notification. The subject application was not filed until January of this year, so if Mr Kumar was properly notified on any of the notification events then the application will have been lodged outside of the statutory timeframe and the Tribunal has no jurisdiction.

12. If, however, the Tribunal is satisfied that the Applicant was not properly notified of the Refusal Decision, then the nine-day time limit imposed by s 500(6B) of the Act will not have yet commenced and the application can be found to have jurisdiction.

13. Initially, the Applicant contended that the notification of the Refusal Decision did not comply with the statutory requirements under s 501G(2) of the Act and therefore the statutory timeframe to lodge his application has not yet commenced running in terms of the filing of an application for review. The Respondent’s primary contention is that the Applicant’s application for review was lodged with the Tribunal out of time, irrespective of compliance by the Minister with s 501G(2) of the Act.

14. Therefore, what remained for the Tribunal to determine was whether or not the Applicant was properly notified of the Refusal Decision in accordance with s 501G of the Act, and if so what date did notification properly occur.

15. Subsequent to the Tribunal reserving its decision, the Federal Court of Australia handed down its decision in Sandorv Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). The Tribunal accepts the parties’ submissions that it is bound by Sandor and that the notice appears to be affected by Sandor. I will firstly address the submissions regarding s 501G(2) of the Act before the application of Sandor.

    SECTION 501G OF THE ACT

16. Section 501G of the Act provides the following:

    1If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

    (a) refuse to grant a visa to a person; or

    (b) cancel a visa that has been granted to a person; or

    (ba) not revoke a decision to cancel a visa that has been granted to a person;

    the Minister must give the person a written notice that:

    (c) sets out the decision; and

    (d) specifies the provision under which the decision was made and sets out the effect of that provision; and

    (e) sets out the reasons (other than non-disclosable information) for the decision; and

    (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

    (i)    states that the decision can be reviewed by the Tribunal; and

    (ii)    states the time in which the application for review may be made; and

    (iii)   states who can apply to have the decision reviewed; and

    (iv)   states where the application for review can be made; and

    (v)    in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and

    (vi)   sets out such additional information (if any) as is prescribed.

    2If the decision referred to in subsection (1):

    (a) was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and

    (b) is reviewable by the Administrative Appeals Tribunal; and

    (c) relates to a person in the migration zone;

    the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

    (d) is in the delegate's possession or under the delegate's control; and

    (e) was relevant to the making of the decision; and

    (f) does not contain non-disclosable information.

    3A notice under subsection (1) must be given in the prescribed manner.

    4A failure to comply with this section in relation to a decision does not affect the validity of the decision.

17. The Respondent’s second written submissions[7] placed emphasis on the words ‘was notified of the decision in accordance with subsection 501G(1)’. The Respondent submits that the plain words of s 500(6B) of the Act mean that ‘proper notification’ requires only s 501G(1) of the Act to be met.[8] The Respondent’s position is that the requirements of s 501G(1)(c)-(f) of the Act have been met and therefore ‘proper notification’ of the Refusal Decision has been validly notified which, in turn, should be the end of the matter.[9]

    [7] Exhibit 6.

    [8] Exhibit 6, pages 2 and 3 [9].

    [9] Exhibit 6, page 3 [10].

18. It is not contended that a failure to comply with the notification regime of s 501G(1)(c)-(f) of the Act would be fatal to the Respondent being able to demonstrate proper notification. The Applicant however submits that non-compliance with the regime appearing in s 501G(2) of the Act can somehow infect the validity of the Respondent’s asserted compliance with s 501G(1) of the Act.

19. It seems to me that s 501G(1) of the Act contains the procedural elements the Respondent must meet at the time of notification. Speaking plainly, s 501G(1) of the Act states : ‘this is the decision about your visa and this is how you procedurally go about contesting it.’ Whereas s 501G(2) of the Act seems to indicate that: ‘this is the scope of the documents to be provided in duplicate by the Department accompanying notification of this decision.’

20. It may be true that the plain wording of s 500(6B) of the Act only refers to notification/provision of documents ‘in accordance with subsection 501G(1)’. Can it be said that s 501G(1) of the Act operates in a jurisdictional vacuum in terms of proper notification/provision of a notification bundle to an adversely affected non-citizen? Section 501G(2) of the Act clearly and obviously is related to, and otherwise conditionalizes, the operative effect of s 501G(1) of the Act. The first three subsections[10] describe the circumstances in which its provisions are engaged. The chapeau to subsections 501G(2)(d) to (f) of the Act dictate the scope of the documents that attaches to the subject notice in duplicate.

    [10] Section 501G(2)(a), (b) and (c) of the Act.

21. This position is further supported by s 501G(3) of the Act which states that notice under s 501G(1) of the Act ‘must be given in the prescribed manner’. To my mind, this would be inclusive of the requirements within s 501G(2) of the Act. As indicated in s 501G(4) of the Act, a failure to comply would not affect the validity of the decision, but for present purposes would impact upon the period for which the Applicant could apply to the Tribunal for review.

22. I therefore find that compliance with s 501G(2) of the Act is also required to give effect to the ‘proper notification’ of the Refusal Decision pursuant to s 501G(1) of the Act. I will now deal with the Applicant’s submissions as to whether the requirements pursuant to s 501G(2) of the Act were met.

    Did notification of the Refusal Decision comply with s 501G(2) of the Act?

23. The Applicant has identified three referenced documents which have not been provided in duplicate and now submits that this failure invalidates the proper notification pursuant to s 501G(1) of the Act and the statutory timeframe to lodge with the Tribunal has not yet commenced. Those three documents can be categorised as follows:

    (a)A copy of Ministerial Direction 65;

    (b)“Visa Applicant Submission for Decision or Direction”;[11] and

    (c)Statement of Reasons.[12]

    [11] Material contained in Exhibit 5 at TB19-23

    [12] Material contained in Exhibit 5 at TB24-29.

24. I am satisfied that the decision was made by a delegate of the Minister under s 501(1) of the Act, and is reviewable by the Administrative Appeals Tribunal, and relates to a person within the Migration Zone.[13] I am also satisfied that none of the relevant material, or part of a document, contains any non-disclosable information.[14]

    [13] Section 501G(6)(a)-(c) of the Act.

    [14] Section 501G(2)(5) of the Act.

25. The remaining aspects of s 501G(2) of the Act that require further analysis are:

    “…the notice under subsection [501G(1) of the Act] that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

    (d) is in the delegate's possession or under the delegate's control; and

    (e) was relevant to the making of the decision; and”

    [my emphasis]

    Alleged First Defect: A copy of Ministerial Direction 65

26. It is not in contention that a copy of Ministerial Direction 65, in either singular or duplicate form, was not provided to the Applicant.

27. To my mind, the substantive argument in support that a copy of Ministerial Direction 65 should have been provided in duplicate with the s 501G of the Act is:[15]

    “The delegate of the Minister in the 19 April 2018 signed statement of reasons for refusal of a visa under subsection 501(1) at paragraph 5 wrote; “ In doing so, I was bound by Ministerial Direction No. 65 – Visa refusal and cancellation under s501 (“the Direction”). I determined whether, considering all the circumstances of the case, Mr Kumar presents an “unacceptable risk” to the Australian community. In deciding this, I bore in mind the Government’s commitment to protect the Australian community from harm and the principles set out at section 6.3 of the Direction”

    [15] Exhibit 2, page 8 [20].

28. The Respondent contends there is no requirement to include two copies (or indeed a single copy) of the prevailing Ministerial Direction as part of the suite of documents accompanying notification. The basis of the contention is that Direction 65 was not in the delegate’s possession or control that was relevant to the making of the decision as required by paragraphs 501G(2)(d) and 501G(2)(e) of the Act.[16]

    [16] Exhibit 6, page 4 [20].

29. Reliance for this submission is sought to be found in the terms of a second reading speech in support of the legislation facilitating introduction of s 501G of the Act - Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).[17] It is propounded, by reference to the text of that second reading speech, that insertion of s 501G into the Act was done in order to minimise the time the Tribunal spent ‘pursuing papers and documentation from the non-citizen and the Department‘.

    [17] Exhibit 6, page 4 [21]-[22].

30. The Respondent goes on to submit that Ministerial Direction 65, being the relevant Ministerial Direction at the time made under section 499 of the Act, was available in the public realm and therefore the contention that it was required to provide a copy to the applicant is not consistent with the intent of the legislation.

31. The submissions from the Respondent should, to my mind, be rejected on the following grounds:

    ·first, there is the acknowledged reality that the Ministerial Direction was not, in either singular or duplicate form, provided to the Applicant;

    ·second, proper notification and the mandatory requirement[18] to provide a full suite of documents in duplicate with that notice must surely overcome the contingencies of relative bulk and prolixity. It is better to over-notify than to under-notify;

    ·third, while (then-applicable) Ministerial Direction 65 was available in the public realm, it was nevertheless a document under the delegate’s possession and control. It is expressly referred to in the delegate’s decision.[19] An adversely affected non-citizen should not be arbitrarily compelled to, as it were, do their own research about high-level legislative instruments about which they know next to nothing and about which the Department knows everything. An adversely affected non-citizen (especially a self-represented one) would probably not even know of the existence of a Ministerial Direction let alone know how and where to find it;

    ·fourth, there is surely no cavilling with the proposition that Ministerial Direction 65 was relevant to the making of the delegate’s decision; and

    ·fifth, that it (i.e the Ministerial Direction) did not contain non-disclosable information if, for no other reason, than it was a publicly available document.

    [18] Section 501G(2) of the Act provides that ‘…the notice under subsection [501G(1)] that relates to the decision must be accompanied…’.

    [19] Exhibit 5, TB 26, [5].

32. I am therefore satisfied that the failure to provide to the Applicant a copy of Ministerial Direction 65 (in duplicate) accompanying the notice of the Refusal Decision is defective in terms of proper notification pursuant to s 501G of the Act.

    Alleged Second Defect: ‘Visa Applicant Submission for Decision or Direction’

33. It is not in contention that each of the notifications (on 17 May 2018, 19 December 2018 and 28 December 2018) was accompanied by only one copy of the titled ‘Visa Applicant Submission for Decision or Direction’.

34. The subject document is described by the Respondent to be ‘a briefing memorandum that formed the introductory part of the draft decision that was put to the delegate for consideration’, and that it was otherwise ‘in the nature of an internal document that functioned as an aide-memoire, by merely summarising other documents on the Minister’s Department file…’[20]

    [20] Exhibit 6, page 4 [16].

35. The Applicant’s position is as follows:

    “6. We submit that objectively looking at the document, it was relevant to the making of the decision.

    7. The delegate of the respondent gave one copy to the applicant because it was.

    8. The purpose of the document is clearly stated “To seek your consideration of visa refusal under s501 (1) of Mr Virender KUMAR’s application for a Partner (Temporary) (Class UK) visa” at (TB 19).

    9. We submit the Tribunal should not constrain the operation and meaning of the word “relevant” by requiring that the document must be evidence supplied by the applicant, or only to documents that were not only referenced but actually relied upon, specifically mentioned or specifically identified as and used by the delegate.

    10. We submit that the Tribunal can find that a document prepared for the purpose at hand, setting out various positions and summary to be considered by the decision maker is plainly relevant to the making of the decision.

    11. It can be said to be analogous to submissions provided to the Minister to consider or prepared submissions by officers of the Department.

    12. These submissions are clearly relevant to the making of the decision.

    13. Another factor that points to relevant nature of the document to making the decision, is it provides a link between the attachments and the statement of reasons.

    14. The document in (TB25) with the heading “EVIDENCE OR OTHER MATERIAL CONSIDERED IN THIS CASE” lists from Attachment A to W documentary material.

    15. However, the signed 19 April 2018 delegate of the respondent (TB26 – TB 29) “STATEMENT OF REASONS FOR REFUSSAL OF A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958 (the Act)” while clearly referencing these documentary materials for example his criminal convictions, remarks on sentence by judicial officers and other statements does not identify or refer specifically to the documents.

    16. However, the document which is the visa applicant submissions does. This allows for a link to be seen.

    17. The document sets out the arguments and material to be considered by the decision maker.”

1. The submission from the Respondent is that it is an internal document and ‘not every document on the Minister’s Department file, or otherwise before the delegate, is ‘relevant to the making of the [delegate’s] decision’ as contemplated by paragraph 501G(2)(e)…’[21] Specifically, the Respondent contends that:

   “…the Minister submits that the document titled ‘Visa Applicant Submission for Decision or Direction’ was not itself ‘relevant’ to the making of the decision. Instead, this document merely summarised the documents that were in the delegate’s possession—that is, it was a summary of the documents to which paragraphs 501G(2)(d) and 501G(2)(e) applied (and which were provided in duplicate).”[22]

   [21] Exhibit 6, page 4 [15].

   [22] Exhibit 6, page 4 [14].

2. The Tribunal agrees with the Respondent’s position that the material appearing at TB19-23 document was not relevant to the making of the delegate’s decision, as is required pursuant to s 501G(2)(e) of the Act.

3. I am therefore satisfied that the failure to provide to the Applicant a second copy of the document titled ‘Visa Applicant Submission for Decision or Direction’ with the notice of the Refusal Decision was not defective in terms of proper notification pursuant to s 501G of the Act.

   Alleged Third Defect with notification: Statement of Reasons

4. It is first necessary to identify the relevant material appearing at TB24-29 of Exhibit 5 of which is now said to comprise this third alleged defect by not being provided in duplicate. They are:

   ·the short-form decision of the delegate (TB 24 to Exhibit 5);

   ·the index of relevant documents considered by the delegate (TB 25 to Exhibit 5); and

   ·the delegate’s statement of reasons (TB 26-29 to Exhibit 5).

5. As best as I understood this alleged defect, the Applicant contends that this material is captured by the componentry of the phrase ‘every document, or part of a document’ appearing at the chapeau to s 501G(2)(d)-(f) of the Act.

6. The Respondent disagrees on the basis that this material contains the actual ‘decision’, as indicated at s 501G(1)(e) of the Act:

   “…the Minister must give the person a written notice that:

   (e) sets out the reasons (other than non-disclosable information) for the decision; and…”

7. The Respondent develops this contention by suggesting that reference to ‘the notice’ appearing in the chapeau is in the singular and not in the duplicate/plural, so this third alleged defect must fail because only one copy of ‘the notice’ needed to be provided:

   “…There is nothing in section 501G that requires two copies of either the notice or the decision itself to be provided to the applicant. Indeed, the plain reading of subsections 501G)(1) and (2) Is that one copy of the notice (as defined in subsection 501G(1) needed to be accompanied by two copies of the documents set out in subsection 501G(2). The wording is not that two copies of the notice and all accompanying documents needed to be provided to the applicant.”

8. I accept the Respondent’s submissions that the short form decision[23] and the delegate’s statement of reasons[24] is captured by the written notice requirements of s 501G(1)(e) of the Act. It can be safely found that s 501G(2) of the Act only requires duplicate material to accompany the one notice under s 501G(1) of the Act and it was not necessary for a second copy to accompany the Refusal Decision for proper notification to be met.

   [23] Exhibit 5, TB24.

   [24] Exhibit 5, TB25-29.

9. In any event, I am satisfied that neither the short form decision[25] or the delegate’s statement of reasons[26] can be said to be in the delegate’s possession or under the delegate’s control and were relevant to the making of the decision as they are a result of the decision as opposed to have been used in the decision-making process.

   [25] Exhibit 5, TB24.

   [26] Exhibit 5, TB25-29.

10. In relation to the index of relevant documents considered by the delegate, the Respondent had provided a copy of the Departmental policy which suggests ‘Officers should, as a matter of procedure, prepare an index of the documents and include it with the notice of decision’. I accept that this document is the one appearing at TB25 of Exhibit 5 and was not relevant to the delegate’s decision.[27]

    [27] Of note is that the Respondent also makes note that this index does not make reference to the documents contained at TB19-23 of Exhibit 5 and therefore ‘the Tribunal should find that it was not relevant to the delegate’s decision.’: Exhibit 6, p 4 [18].

11. I am therefore satisfied that the failure to provide to the Applicant a second copy of the document titled ‘Visa Applicant Submission for Decision or Direction’ with the notice of the Refusal Decision was not defective in terms of proper notification pursuant to s 501G of the Act.

    Further notification on 19 and 28 December 2018

12. The Tribunal notes that the Applicant was provided one copy of the material referred to in the Second and Third alleged defects (being the material appearing at TB19 to TB29 of Exhibit 5) which should have been provided in duplication in order to give effect to proper notification pursuant to s 501G(2) of the Act. In this particular matter, in addition to the one copy of this material on the first notification event dated 17 May 2018 the Applicant was notified with a further copy on the of 19 December 2018 (on the Applicant, personally) and 28 December 2018 (on his then-new representative).

13. The Applicant’s submits that the provision of these subsequent notification packages should not be relied upon because they were only provided as ‘courtesy copies’.[28] The Tribunal does not accept this categorisation of the subsequent copies of the s 501G of the Act document provided on the second and third notification events, however in these particular circumstances the Tribunal would not be satisfied these subsequent copies would have been sufficient to be considered as having ‘accompanied’ the notice, as required by of s 501G(2) of the Act.

    [28] Exhibit 2, p 2 [5].

14. Ultimately, the issue of whether the copy of the material in the above-mentioned second and third defect provided at the subsequent notification events would be sufficient does not need to be answered in this matter.  The Tribunal is satisfied that these documents were not required to be lodged in duplicate.

    THE DECISION IN SANDOR

15. On the 9 June 2023, the Tribunal advised the parties that it intended to publish these reasons on Monday, 12 June 2023. In response, the Respondent provided the following:

    “The respondent has reviewed the matter in advance of the publication of the decision and, pursuant to our obligation to advise the Tribunal of relevant developments in the jurisprudence, wishes to bring to the Tribunal and applicant's attention that the notice appears to be affected by the decision of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.”

16. In Sandor, the Federal Court of Australia found that the notification letter in question, which was sent to an authorised recipient, did not comply with s 66(2)(d)(ii) of the Act as it did not allow the applicant [in Sandor] to effectively calculate the time period in which a review application must be made. As the notice was found to be defective, the time period for review had not commenced and the applicant [in Sandor] was not out of time in making their review application.

17. No further submissions were received from the Respondent on the matter of Sandor, however the Applicant’s representative provided their own submissions on 16 June 2023. I will provide these submissions in their entirety:[29]

    [29] Exhibit 7.

    We submit that the 17 May 2018 notification letter issued by the delegate of the respondent under s 501G(1) of the Migration Act 1958 (Cth) (‘the Act’) in respect of the applicant visa refusal is invalid. This is following the decision of the Court in Sandor.

    The notification letter was sent by email to Mr Arch the applicant’s representative as was the facts in the case of Sandor at [45].

    The notice in Sandor issued by the delegate of the respondent was dated 13 February 2018.

    The 17 May 2018 issued to the applicant is invalid because it does not as a notification letter set out in a complete and clear way the time in which the application for review can be made.1

    The decision of the Court in Sandor binds the Tribunal.

    The 17 May 2018 notice replicating the facts in Sandor was sent by email to Mr Ach by the respondent relying on s 494D(2) of the Migration Act 1958 (Cth).2

    As in Sandor, the 17 May 2018 notification letter in this matter, at page 2 also stated

    “When you are taken to have received this notice

    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.”

    In Sandor the Court found per Markovic J at [51]–[52] that the notification letter in question did not comply with the requirement under s 66(2)(d)(ii) of the Act because;

    “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”.

    While the decision in Sandor considers the provision in s 66(2)(d)(ii) of the Act which provides;

    “(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”

    The same language appear in s 501G(1)(f)(ii) of the Act applicable in this matter which provides;

    “(ii) states the time in which the application for review may be made; and”

    Following Sandor where the Court at [53] held 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]”.

    With respect to the respondent’s 22 Feb 2023 submissions at paragraph [6] that “the Minister maintains that the giving of the notification package to the applicant on 19 December 2018, and to his new representative on 28 December 2018, would also have met the notification requirements in subsection 501G(1)”.

    We submit that these purported re-notification do assist the Minister. It does the opposite and compounds the non-compliance with the s 501G requirement. This basis for this was also stated in the applicant’s 15 Feburary 2023 submissions to the Tribunal at paragraphs [22] to [23] which relied on the formulation in EFX17 cited by the Court in Sandor.”

    [errors in original]

18. Sandor involved the refusal of a Student Visa on the basis the delegate of the Minister was not satisfied that Mr Sandor intended “genuinely to stay temporarily in Australia” as required by the Migration Regulations 1994 (Cth). I am satisfied that the wording in s 66(2)(d)(ii) of the Act, as was applicable in Sandor, is similar to the wording in s 501G(1)(f)(ii) of the Act.

19. As noted by the Applicant, the notification letter dated 17 May 2018 was provided to the Applicant’s authorised representative. In that notification letter, the following was included:

    When you are taken to have received this notice

    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.

    Review rights

    You can apply to have the decision to refuse to grant you a Partner (Temporary) (Class UK) visa reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed, you must lodge an application for review with the AAT within nine calendar days after the day on which you were notified of the decision to refuse your application under s501(1) of the Act. You were notified of the decision when you were taken to have received this notice (see the subheading ‘When you are taken to have received this notice’).

20. I am satisfied that this wording contains the same pro-forma words that were in the matter of Sandor. At [51]-[53], Markovic J said the following:

    “[51 The 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.

    [52] It 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.

    [53] It 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].”

21. The Tribunal therefore finds, pursuant to the principles in Sandor, that the Refusal Decision’s notification letter dated 17 May 2018 failed to comply with s501G(1)(f)(ii) of the Act.

    CONCLUSION

22. Subsection 42A(4) of the AAT Act provides that the Tribunal ‘may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal’.

23. The Tribunal has found that the Refusal Decision was not properly notified pursuant to  
    s 501G of the Act, and the nine-day time frame prescribed by s 500(6B) of the Act for an application to be lodged has not yet commenced. The Tribunal is therefore satisfied that the Refusal Decision is reviewable by this Tribunal.

24. Section 500(6L) of the Act requires the Tribunal to make a decision on an application to review the Refusal Decision within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Act. Should the Tribunal fail to reach a decision by this expedited due date, the Tribunal will be taken to have affirmed the Refusal Decision and the Applicant will have no recourse to appeal that deemed decision.

25. In the circumstances where the Tribunal is satisfied that the Applicant was not properly notified pursuant to s 501G of the Act, the statutory 84 day period will not have yet commenced. Noting that the Applicant is currently being held in immigration detention, the Tribunal will now proceed to hear the application in an expedited manner.

    DECISION

26. The Tribunal is satisfied that it does have jurisdiction in this application.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.................[SGD].................

Associate

Dated: 30 June 2023

Dates of hearing:

Last submission received:

7 and 24 February and 3 April 2023

16 June 2023

Solicitor for the Applicant:

Iyare Lucky Ehimudiamen (Principal Solicitor)

Lucky Iyare & Associates

Solicitor for the Respondent:

Jennifer Strugnell (Senior Associate)

Minter Ellison Lawyers

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
Exhibit 1	Applicant’s submissions on jurisdiction (3 pages)	7 February 2023	6 February 2023
Exhibit 2	Applicant’s further submissions on jurisdiction (10 pages)	15 February 2023	15 February 2023
Exhibit 3	Applicant’s statement (3 pages)	15 February 2023	15 February 2023
Exhibit 4	Respondent’s submissions on jurisdiction (4 pages)	6 February 2023	6 February 2023
Exhibit 5	Respondent’s Bundle of relevant documents	Various	6 February 2023
Exhibit 6	Respondent’s further submissions on jurisdiction (6 pages)	22 February 2023	22 February 2023
Exhibit 7	Applicant’s submissions on Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (4 pages)	16 June 2023	16 June 2023