LALI v Minister for Immigration - [2015] FCCA 3116

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3116

Catchwords:
MIGRATION – Migration Review Tribunal – tribunal considering that it did not have jurisdiction because application filed out of time – whether notice of delegate’s decision defective such that time had not commenced to run.

Legislation:
Migration Act 1958 ss.66(2)(d)(ii), 127(2)(d)(ii)

Cases cited:
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308, [2003] FCA 1292
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, (1982) 39 ALR 565, (1982) ATPR 40-272, (1982) 4 ALN No 64
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 23 ALR 480
SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129, (2010) 115 ALD 519, (2010) 269 ALR 343, [2010] FCAFC 79

Applicant:

UZAIR LALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1447 of 2014

Judgment of:

Judge Riley

Hearing date:

12 November 2015

Date of last submission:

12 November 2015

Delivered at:

Melbourne

Delivered on:

12 November 2015

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Carina Ford Immigration Lawyers

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 17 July 2014 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.
The name of the proceeding be changed so that the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1447 of 2014

UZAIR LALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”). The applicant was the holder of a student visa. The visa was cancelled by a delegate of the Minister in a decision dated 22 April 2014 on the grounds that the applicant had not been enrolled in a registered course for some time. The applicant told the delegate that he had not been enrolled in a registered course because he had been the victim of sexual assault.
The applicant was notified of the cancellation decision by email dated 22 April 2014. The applicant had seven working days to apply for review by the tribunal. The tribunal calculated that the time limit expired on 2 May 2014. The applicant applied for review online on

19 May 2014. The tribunal considered that it did not have jurisdiction in the matter because the applicant had not applied within the relevant time limit.
The applicant submitted that the notice of cancellation decision was invalid and therefore time had not begun to run and therefore the tribunal did have jurisdiction. The applicant said the notice was invalid because it did not comply with s.66(2)(d)(ii) of the Migration Act 1958 (“the Act”). That subparagraph requires a notice of visa refusal to state the time in which an application for review of the visa refusal may be made. In fact, the relevant provision is s.127(2)(d)(ii) of the Act, which is in the same terms but which applies to visa cancellations. In the course of oral submissions, the applicant accepted that s.127(2)(d)(ii) of the Act was the relevant provision.
In any event, the notice of the visa cancellation in this case stated:
You are entitled to apply to the Migration Review Tribunal for a review of this decision. An application for review of this decision must be given to the MRT within seven (7) working days after you are taken to have received this letter.
The applicant submitted that the details given in the notice for how a review application could be lodged confused the issue. The notice said that review applications could be lodged in person, by fax or by post. It then said:
Applications for review can also be lodged online from

28 January 2014.
The applicant submitted that that particular sentence gave the impression that a review application could be lodged online at any time from 28 January 2014.
The parties debated today whether the notice needed to express with absolute precision the time limit, as the applicant submitted, or whether the notice needed to convey with reasonable clarity the time limit, as the first respondent submitted.
The applicant’s argument was based on a decision of Gray J in the matter of Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308, [2003] FCA 1292, where his Honour said the following:
44. All of the provisions of the Migration Act and the Migration Regulations to which I have referred reflect a clear scheme. The scheme is that steps should be taken to notify a person of a decision relevant to that person. The result of those steps is to be a notification. Its effect is that the person is notified of the decision. The time limit for an application to review runs from the time of that notification. The time limit for the expiration of a bridging visa runs from the same time. There is an obvious relationship between the time limits on applications for review and the duration of a bridging visa. The intention of item 010.511(b)(ii) is to keep alive the bridging visa until after the time for making an application for review has expired. Item 010.511(b)(iii) then provides for a further extension of time until 28 days after the notification of the decision of the review authority, or of a subsequent review authority.
45. The evident purpose of the provisions in s.66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. A bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined.
The first respondent relied on a trade practices decision of the Full Court of the Federal Court in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, (1982) 39 ALR 565, (1982) ATPR 40-272, (1982) 4 ALN No 64, where the Full Court considered the requirements of a notice requiring the production of documents. The statutory provision in that case provided that a person who did not comply with the notice was liable to imprisonment for three months or a fine of $1,000.
The Full Court said in Pyneboard, notwithstanding the criminal penalty for failure to comply, that:
… the notice must convey with reasonable clarity to the recipient, what information he is required to furnish or what documents he is required to produce.
The Full Court referred to the decision of the High Court in the Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 23 ALR 480 in which the High Court said that:
To be valid a notice to produce documents … must of necessity identify with sufficient clarity the documents which are required to be produced.
The Full Court of the Federal Court in Pyneboard concluded that:
The requirement that a notice under s.155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion … Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meeting. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s.155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.
The parties in the present case also debated the consequences of the applicant making no submission, or advancing no evidence, that he had not in fact been misled. It was submitted on the applicant’s behalf that it was irrelevant whether or not he had in fact been misled. The respondent, on the other hand, noted the decision of the Full Federal Court in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129, (2010) 115 ALD 519, (2010) 269 ALR 343, [2010] FCAFC 79. In that case, a notice setting out review rights advised an applicant that he could lodge an application for review in Sydney or Melbourne but failed to tell him that he could also lodge an application for review in Perth, Brisbane or Adelaide. In SZOFE, the applicant did in fact lodge an application within time in Sydney. However, he subsequently said that the notice had been invalid because he had not been told in writing about the other options available to him. In SZOFE, at paragraph 28, Emmett J noted that there had been no suggestion that the applicant suffered any injustice by reason of the failure on the part of the Minister to state that an application for a review of the delegate’s decision could have been made at a registry of the Administrative Appeals Tribunal in Perth, Brisbane or Adelaide.
At paragraph 30, his Honour said:
… It is not possible to glean, from the language of the provisions in question, an intention on the part of the Parliament to invalidate a process simply because an applicant was not told that an application for review could be lodged at a place which was of no relevance or significance so far as that particular applicant was concerned. While the Parliament may be taken to have intended that compliance with the requirements of s.66(2) would discharge the Minister’s obligation with respect to the giving of timely and effective notice of a decision, 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. ...
The other members of the Full Court in that case, Buchanan and Nicholas JJ, noted at paragraph 65:
There is no doubt in the present case that there was a notification of the decision made by the delegate which was, in every practical sense, effective to put the applicant on notice of her rights of review as contemplated by s.66 of the Act. As a result of the notification, the applicant applied to the RRT in Sydney, at the address provided in the letter to her. Sydney is where she lived. Any failure to notify the applicant of the possibility that she might file an application for review at the AAT in Brisbane, Adelaide or Perth (as well as at the RRT in Sydney or Melbourne) had no adverse consequences for the applicant. The applicant’s argument can only succeed if the procedural direction in s.66(2)(d)(iv) is first interpreted as requiring notification of all possible places of lodgement (whether the RRT directly or through the AAT) to all potential applicants for review, regardless of where they reside. Furthermore, the argument can only succeed if such a requirement is seen as fundamental to the exercise of any jurisdiction by the RRT even if a potential applicant is effectively notified of a decision and, in response, files an application for review in the required manner and within the required time. Neither premise should be accepted. The reasons why neither premise should be accepted are interconnected.
The court went on to explain the reasons in paragraphs 66 and 67, as follows:
66. In the case of an administrative tribunal, it is frequently necessary to consider the consequences of a departure from a statutory (or other) requirement before concluding that jurisdictional error has been committed … The exercise of jurisdiction by the tribunal must be, in some way, “affected” by the error or failure alleged. Counsel for the applicant submitted that the principle had no application in the present case because the failure of which the applicant complained did not arise during the process set in train by her application to the RRT but, rather, prevented that process from being commenced. The failure to specify all places at which her application might be made was said to be fatal to any application by her even though there were no adverse consequences, procedural or otherwise, from the alleged failure. (citations omitted)
67. However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of “imperative obligations” under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s.66 is tested in that manner then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case.
It seems to me in the present case that what is required is reasonable clarity in the notice. The decision in Pyneboard was obviously in a different statutory context. The migration context is one where there can be extremely serious consequences for an applicant. The trade practices context is perhaps, in general, less serious. However, the particular provision in issue imposed criminal penalties, including up to three months in prison. In the circumstances, I consider that the Full Court’s decision in Pyneboard is relevant to the present statutory provisions. That is, the notice should not be examined in a spirit of “artificial dissection” or with a determination to find “latent ambiguities” when, as a matter of common sense, the meaning is reasonably clear.
It seems to me that the notice in this case said very clearly that an application for review of the decision must be given to the tribunal within seven working days after the recipient was taken to have received the letter.
The reference to the applications for review being lodged online from 28 January 2014 was in the context of a section of the notice which dealt with how review applications could be lodged. It did not deal with the question of time limits. It began by saying that:
Applications for review can be lodged in person, faxed or posted to any registry of the Migration Review Tribunal.
It went on to say:
Applications for review can also be lodged online from
28 January 2014.
The applicant submitted that this meant the application to the tribunal could be lodged at any time whatsoever in the future. The applicant submitted that there was an interpretation of the notice that was open that there was no time limit whatsoever on online applications. The applicant emphasised that all of his dealings with the department had been online and the online arrangements were what he would clearly have had in contemplation.
However, that argument seems to acknowledge that those who lodged in person, by fax or by post did not have the option of lodging their application at absolutely any time. It is extraordinary that the applicant could suggest that a lodgement by the online method would give an applicant carte blanche to lodge an application at any time when lodging in person, by fax or by post was subject to what would otherwise be a strict time limit. I cannot accept that the applicant’s interpretation of the sentence, ‘Applications for review can also be lodged online from 28 January 2014’ is open in any reasonable sense.
The other aspect of the notice that the applicant relied upon was the sentence immediately after the sentence which said:
An application for review of this decision must be given to the MRT within seven working days after you are taken to have received this letter.
The immediately following sentence was:
Please note this review period is prescribed in law and an application for merits review may not be accepted after this date.
There was considerable debate about what was meant by the words “may not”. The applicant said that those words left open the possibility of being able to lodge an application after that date.
It seems to me that that is not a tenable interpretation of that sentence. It seems to me, that reading the notice as a whole, it clearly meant that applications were not permitted to be accepted after that date.
The applicant said that other words could easily have been used. Instead of “may not”, the notice could have said “cannot”. That is entirely correct. However, I consider that, reading the notice as a whole, the meaning was abundantly clear. The words “may not be” in context clearly meant “is not permitted to be”.
There was also an acceptance by the applicant that the authorities provide that the brochure which accompanied the notice of the cancellation decision was also to be taken into account in determining the context of the advice given in the notice regarding time limits.
In this case, the brochure had a heading which said, in bold:
Time limits for making your application for review.
The brochure then said:
The decision letter sent by the department should state the time limit that applies to making an application to the tribunal.
If you are intending to apply to the tribunal, you should note that the tribunal cannot extend time limits or accept applications made outside a time limit. If you are lodging an application by post, you should ensure that you allow enough time for the application to be received before the expiry of the time limit.
The brochure had a further heading, which was in bold, as follows:
How to apply.
The brochure said under that heading:
To apply for review, you must complete and lodge an ‘Application for Review’ form … .
It said later:
Applications can be lodged in person or by post or fax. Details of the tribunal’s registries as well as the registries of the Administrative Appeals Tribunal where applications for review are accepted on behalf of the Migration Review Tribunal are set out at the end of this form.
Applications for review can also be lodged online from
28 January 2014. For further information, please see the ‘Method of lodgement and contacts’ section below.
The parties were in dispute about whether the brochure clarified the meaning of the notice or compounded the confusion. In my view, the brochure did clarify the notice. It said:
… you should note that the tribunal cannot extend time limits or accept applications made outside a time limit.

That was abundantly clear. The brochure reiterated that applications for review could be lodged online from 28 January 2014. However, as stated previously, I do not consider that that sentence can reasonably be interpreted as meaning that applications could be lodged at absolutely anytime after 28 January 2014.
There was also some debate about the use of the words in the legislation, notice and brochure of the words “giving”, “making” and “lodging”. The applicant submitted that the various uses of these words added to the uncertainty.
I do not accept that argument. There was obviously an effort to use plain English language in the brochure and notice. The meaning of those words is quite obvious. The parties seemed to agree in oral submissions today that “giving” connotes some sort of physical transfer whereas “making” suggests the legal consequence of giving the appropriate documents.
In any event, it seems to me that the debate is without any substance. Ultimately, I have no doubt that the notice was clear.
The applicant has given no evidence that he himself was confused. It seems to me that, although this case differs from SZOFE in that, in this case the applicant did not lodge the application within time, the matters set out in SZOFE nevertheless apply. That is, it is necessary to look at the circumstances of the case.
The circumstances of this case are that the applicant has not alleged that he was misled. He did file late but he did not say that that was because of anything set out in the notice or the brochure. The applicant said it is irrelevant that he was not misled. I do not accept that.

The situation may have been different if the applicant had stated convincingly that he was misled. However, it seems to me that, on the authorities as they stand, the notice and brochure in this case were abundantly clear and more than satisfy the test in Pyneboard.
For these reasons, the application must be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 20 November 2015