Lestari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 373
Federal Circuit and Family Court of Australia
(DIVISION 2)
Lestari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 373
File number: PEG 27 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 21 December 2021 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – where the Tribunal found it had no jurisdiction – whether the Tribunal had the power to extend the time for the applicant to make her application – whether the Notification complied with s 127(2)(b) of the Act – whether relief (if warranted) should be granted – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z, 25, 29, 42
Migration Act 1958 (Cth), ss 116, 127, 347, 388, 476 & Parts 5 and 7
Migration Regulations 1994 (Cth), regs 2.43, 2.46, 2.55, 4.10
Tribunals Amalgamation Act 2015 (Cth)Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
Commonwealth of Australia; ex parte Marks [2000] HCA 67
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Fahme v Minister for Home Affairs [2019] FCAFC 41
Herath v Minister for Immigration and Border Protection [2018] FCA 1273
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submission: 29 September 2021 Date of hearing: 30 July 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr T Goodwin Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 27 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GINI LESTARI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
21 DECEMBER 2021
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
A detailed overview of the background relevant to this matter was provided in written submissions filed by the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (the “Minister”) on 16 July 2021. The Court has reviewed the Court Book (“CB”) in detail and is satisfied that the summary provided is accurate. The Court adopts that summary as its own. With some minor additions and alterations, it relevantly provides as follows.
The applicant is a citizen of Indonesia (CB 1). On 27 March 2009, the applicant applied for a Student (Temporary) (Class TU) visa (the “visa”) (CB 1-10). She was granted the visa on 3 April 2009. The applicant subsequently arrived in Australia in April 2009 (CB 39).
On 28 September 2009, the applicant was sent a Notice of Intention to Consider Cancellation (the “NOICC”) (CB 11-12). The stipulated reason for the proposed cancellation (pursuant to ss 116(1)(b) and 116(3) of the Migration Act 1958 (Cth) (the “Act”), in conjunction with reg 2.43(2)(b) of the Migration Regulations 1994 (the “Regulations”)) was that the applicant had breached condition 8202(2)(a) of her visa (CB 11).
The applicant was invited to an interview before a delegate for the Minister to discuss the proposed cancellation (CB 12). The Applicant attended an interview on 30 September 2009. She was represented by a migration agent (CB 13-16).
On 1 October 2009, the delegate of the Minister cancelled the applicant’s visa and issued a Notification of Decision to Cancel the visa under s 116 of the Act (the “Notification”) (CB 17-19).
On the first page of the Notification (under item 6), the applicant was advised that she was “eligible to apply for review of this decision by the Migration Review Tribunal” (the “MRT”) and that “information on how to apply for review, and addresses and contact numbers of the MRT is on the reverse of this page” (CB 17). The Notification also advised the applicant that she needed to apply for review in the MRT within “7 working days after the day on which [she] received the notice” (being 12 October 2009). The “reverse of this page” referred to provided details about how an application could be lodged with the MRT, how to contact the MRT and the address and telephone details of the two relevant MRT registries: see affidavit of Georgina Roberta Ellis affirmed on 26 May 2021 and filed on 27 May 2021 (the “Ellis affidavit”) at page 4.
On 9 December 2020, some 11 years after the applicant was notified that her visa had been cancelled by the delegate, the newly named Administrative Appeals Tribunal (the “Tribunal”) received an application for review from the applicant (CB 20-30). Attached to that application was a copy of the applicant’s passport (CB 31-33).
On 10 December 2020, the Tribunal sent a letter to the applicant’s representative acknowledging receipt of the application (CB 34-36).
On 15 December 2020, the Tribunal sent a letter to the applicant’s representative inviting the applicant to comment on the validity of the application filed in the Tribunal (CB 37-38). That correspondence noted that the application to the Tribunal was not filed within 7 working days of the deemed receipt of the Notification (CB 38).
The applicant responded on 7 January 2021. She claimed, in effect, that the Tribunal had power to extend time within which the applicant could apply to the Tribunal and detailed concerns she had about the cancellation of her visa (CB 39-40).
On 14 January 2021, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision as it had no power to extend the time within which the applicant could lodge her application for review (CB 43-46).
On 16 February 2021, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. The application 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.
the Tribunal’s Decision
The Tribunal’s decision is 4 pages long and spans 13 paragraphs.
The Tribunal began by summarising the application for review and noting, relevantly, that the application had not been lodged until 9 December 2020 (at [1]).
The Tribunal then outlined the relevant Regulations, as follows:
2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 7 working days after the applicant was notified of the decision in accordance with the statutory requirements.
3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 October 2009 and dispatched by hand. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of r.2.55. Specifically, the Tribunal is satisfied that the letter and decision were given by to the applicant, as permitted by r.2.55(3)(d), and that the notification letter and decision complied with s.127(2) of the Act as they specified the criterion/provision upon which the visa was cancelled, gave written reasons, specified that the decision was reviewable by the Tribunal, specified the time in which the review application had to be lodged, specified who could apply for review, and specified where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.
The Tribunal noted that it wrote to the applicant on 15 December 2020 and advised her that the Tribunal had formed a preliminary view that her application had not been lodged within the required 7 day time period. The Tribunal further noted that the applicant had been notified of the delegate’s decision (the primary decision) by hand on 1 October 2009. Hence, applying the 7 day filing requirement, the application should have been filed on 12 October 2009. As the application was not received until 9 December 2020, the Tribunal determined, “it appeared to be out of time” (at [4]).
In the circumstances, the Tribunal invited the applicant to provide “any comments she wished the Tribunal to take in to account before making a determination about the validity of the review application” (at [4]).
The Tribunal explained that the applicant’s migration agent had submitted that the Tribunal had the power to extend the prescribed period in which to lodge a review application pursuant to s 347 of the Act and as per the decision in Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787.
The Tribunal continued:
5.…[the applicant’s migration agent] set out the applicant's immigration history, asserting that she arrived in Australia to study Horticulture at Swan Hill International College in regional Victoria in April 2009 and had her student visa cancelled on 1 October 2009 even though she was working more than 20 hours per week as permitted during a semester break. The agent submitted that the applicant was 'financial' with her college at the time, and that she was not provided with an Indonesian interpreter, but a Malay interpreter, during the discussion with the Department officer. It was asserted that the visa cancellation had caused the applicant severe financial hardship and adversely affected her career prospects. The Tribunal was asked to extend the prescribed period on this basis, and on the basis that the applicant was not made aware of her review rights at the time of the cancellation decision.
The Tribunal then explained that it was satisfied that the Notification “did clearly identify that the applicant had review rights, and specified the correct time frame of 7 working days in which they had to be exercised” (at [6]).
The Tribunal continued:
7. The Tribunal acknowledges the agent’s submissions that the applicant did not have an Indonesian interpreter (but had instead a Malaysian interpreter) and that she did not read and/or understand the written advice specifying her review rights. However, the effect of the ss.494B and 494C provisions is that receipt of Departmental correspondence is deemed to have occurred (even if it has not actually taken place), so long as the above provisions are complied with. The Tribunal finds that they were, as the Department handed the cancellation decision and notification to the applicant on 1 October 2009. There is no discretion within the Act or Regulations that enables the Tribunal to waive or extend the prescribed period in which a review application must be made to the Migration and Refugee Division of the Tribunal, even where there are compassionate and/or compelling circumstances in an applicant’s case: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, 14 December 2018.
The Tribunal acknowledged that in divisions other than the Migration and Refugee Division (the “MRD”) the Tribunal has the power to extend time limits. However, as explained by the Tribunal, in relation to the MRD, the Tribunal has no such power:
8.… the Full Federal Court in Beni expressly considered the provisions of the Administrative Appeals Act 1975 which permit the other divisions of the Tribunal to extend time limits and held that they do not extend to the MRD and confirmed that the MRD does not have the power to extend time limits. Consequently, where a review application is lodged outside of the relevant prescribed period, the MRD of the Tribunal will not have jurisdiction.
9. While the earlier case of Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 held otherwise for a period, it was a decision of an inferior court and the Tribunal must follow the Full Federal Court decision in Beni. As the FCAFC in Beni clearly found that the reasoning in Brown was incorrect, it follows that the approach in Brown cannot stand, and that it cannot and should not be applied in retrospect, even for the period before which the FFC decision in Beni was made.
The Tribunal then considered the facts before it. It noted that the applicant’s application for review was not received by the Tribunal until 9 December 2020. The Tribunal found that the application for review was not made in accordance with the legislative requirements and, as such, the Tribunal had no jurisdiction in relation to the matter before it (at [10]).
The Tribunal determined that the applicant was taken to have been notified of the decision on 1 October 2009 in accordance with reg 2.55 of the Regulations. The prescribed period to apply for review thus ended on 12 October 2009 (at [11]).
The Tribunal concluded as follows:
12.As the application for review was not received by the Tribunal until 9 December 2020, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
On the basis of the above, the Tribunal found that it did not have jurisdiction in the applicant’s matter (at [13]).
Proceedings in this Court
The applicant’s application for judicial review (dated 16 February 2021) provides three grounds of review, as follows:
1. I dispute the no jurisdiction decision handed down by the Administration Appeals Tribunal (AAT) on the 15th of January 2020 and argue that the AAT has failed to correctly implement the jurisdiction powers afforded to the AAT in accordance with s 347(l)(b) of the Migration Act 1958 (Cth), the power to extend the time for making an application for review of a decision. This power is conferred on the AAT under s 29(7), (8), (9) and (10) of the Administrative Appeals Act 1975 (Cth).
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
2. I request a writ of mandamus directed to the Minister to determine the jurisdictional errors made in cancellation of my Student visa.
3. I arrived in Australia in April 2009 and commenced my studies at Swan Hill International College on the 20th of April 2009.
During my first term school holiday break and completion of my first term, I undertook paid employment in Sale Victoria. During this period of employment I was located by the Department of Home Affairs compliance officers which led to the cancellation of my Student TU 572 visa on the 1/10/2009.
• At the time of visa cancellation I was not explained my rights to review
• At the time of visa cancellation I was appointed a Malay interpreter.
•At the time of visa cancellation and incorrdance with my visa conditions I was entitled to undertake unrestricted paid employment outside of school terms and in a holiday period
•At the time of cancellation I was financial with Swan Hill International College
•At the time of visa cancellation my absentee record at Swan Hill International College was 100%
•At the time of visa cancellation my course progression was satisfactory
I request a writ of mandamus directed to the Minister to determine how/ why my visa could be cancelled when I had adhered to all visa conditions and regulations associated with my visa and argue that that minister has made a jurisdiction and administration error in cancelling my visa
The cancellation of my student visa has resulted in severe financial hardship having borrowed money to undertake international studies abroad with the vision of seeking professional horticulture employment upon completion and return to my country of citizenship.
The cancellation of my visa was unjust and a gross misrepresentation of Migration laws and regulations being at the time of cancellation I was fully within my right to undertake employment.
I have been denied a fair and prejudice free assessment and/or review of this visa cancellation as I was not made aware of my legal rights to request a review at the time of cancellation.
The applicant also filed an affidavit which duplicates the grounds of review contained in the application for judicial review.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court include the application for judicial review dated
16 February 2021, a Court Book numbering 46 pages (marked as Exhibit 1), an affidavit of Georgina Roberta Ellis affirmed 26 May 2021 (annexing “Page 5 of Form 1099”) and an outline of written submissions filed by the Minister on 16 July 2021.
The applicant appeared before the Court without legal representation. The Court confirmed that she had a copy of the Court Book, the Minister’s written submissions and the affidavit of Georgina Roberta Ellis.
Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on, and further particularise, the grounds of review in her application for judicial review and to outline any other concerns she might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court 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] HCA 58; (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; (2005) 228 CLR 294 at [207]- [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Unfortunately, the applicant did not address her grounds of review. When asked by the Court, however, why she did not file her application at the Tribunal for more than 11 years after the delegate’s primary decision, the applicant seemed to suggest that she had had “problems” with her migration agents and was not aware that she needed to do anything in relation to the primary decision.
Following the hearing of this matter, the Court requested further written submission from the parties addressing the Tribunal’s powers on remittal. In this regard, the Minister filed further written submission on 15 September 2021. The applicant, in turn, provided further written submissions in the form of an affidavit (which was affirmed on 22 September 2021 and filed on 29 September 2021). Notably, as discussed further below, the applicant set out some of the factual background of the matter, included various extracts of sections of the Act and legal authorities and repeated her grounds of review. She also repeated what she had said in Court about the conduct of her migration agent, as follows (at [26]):
…
The delay in application has been documented and clarified and is a direct result of the injustice suffered by the applicant only weeks after arriving in Australia.
The applicants Australian International study aspirations can only be described as a nightmare having firstly succumb to the injustice by the very authority the applicant thought would protect her rights in Australia and later by scrupulous agents whom have feed off the applicants vulnerability extracting thousands of dollars.
The Court notes, for completeness, that the applicant also states at [16] of her affidavit that she was “once more not provided with an interpreter with the first respondent confirming to the court no Indonesia interpreter was available” at the Court hearing on 30 July 2021. This is factually incorrect. An interpreter was provided by the Court and interpreter services were used throughout the Court hearing. The applicant answered all questions put to her by the Court through the interpreter and did not raise any issue with the quality of the services provided. The Court is satisfied that no issues arose in this regard.
Consideration
Grounds of review
Minister’s submissions regarding the grounds of review
On 16 July 2021, the Minister filed submissions addressing the applicant’s grounds of review and noted further, as a model litigant, that the notification in this matter might be “affected by the decision” in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 (“Parata”).
Whether or not this matter is affected by Parata will be addressed by the Court below.
In relation to ground 1 of the application for judicial review, the Minister’s submissions (found at [21] in the Minister’s written submissions) can be summarised as follows:
·It is clear that the Tribunal was correct to hold that it did not have discretion to extend time pursuant to s 347(1)(b) of the Act (which stated that applications for review had to be lodged within the prescribed period) or s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) (which allowed the Tribunal to extend time in certain cases).
·As highlighted in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (“Beni”) at [64], s 24Z(1) of the AAT Act excludes the operation of s 29 in relation to a proceeding in the Migration and Refugee Division.
·Further, the legislative history and extrinsic material indicates there was no legislative intention to permit extensions of time by the AAT in matters involving the Migration and Refugee Division: Beni at [66]-[82].
·Accordingly, the Tribunal had no discretion to extend time (see Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] (Charlesworth J)) and therefore had no jurisdiction to consider the application (see Fahme v Minister for Home Affairs [2019] FCAFC 41 at [12] (Rares J), [20]-[22] (Perram J), [25] (Farrell J agreeing); Herath v Minister for Immigration and Border Protection [2018] FCA 1273 at [33] (Kenny J)).
In relation to grounds 2 and 3, the Minister’s submissions (at [19.1]-[19.2]) can be summarised as follows:
·Ground 2 is a request for relief rather than a ground of review.
·In any event, mandamus is issued to compel the Tribunal to exercise its statutory task according to law, rather than for the Minister to determine whether jurisdictional error has occurred.
·Ground 3 is a recitation of the merits underlying the Notification and therefore not a proper ground of review.
·Those matters are more properly relevant to agitate before the Tribunal but fail to grapple with the fact that the Tribunal determined it did not have jurisdiction.
Ground 1
By ground 1, the applicant claims that the Tribunal was incorrect when it determined that it did not have jurisdiction to consider the application.
Here, the Tribunal identified that the applicant was notified of the visa cancellation on 1 October 2009 by hand (at [3]) and that the last day for the applicant to lodge her application for review with the Tribunal was 12 October 2009 (at [4]). The applicant lodged her application for review with the Tribunal on 9 December 2020 (at [4] and CB 20-30).
The applicant does not dispute the timeframe within which the she should have filed her application (being 7 working days after the day on which the notice is received as outlined in reg 4.10 of the Regulations). The applicant also does not appear to dispute that the application was filed outside of that specified time period.
Essentially, the applicant claims that the Tribunal had the power, under the AAT Act, to extend the time for the applicant to make her application.
In this regard, the applicant cites ss 29(7)-(10) of the AAT Act which, relevantly, provide:
29 Manner of applying for review
…
Tribunal may extend time for making application
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9)Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(10)If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
Unfortunately, the provisions in s 29 of the AAT Act do not apply to proceedings in the MRD of the Tribunal. This restriction is set out in s 24Z of the AAT Act, which provides:
24Z Scope of operation of this Part
(1)Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.
Note 1:For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.
Note 2:Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.
(2)The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:
(a) section 25;
(b) section 42.
This was confirmed in Beni wherein the Full Court stated:
64.It is entirely unnecessary for the Act to make provision for s 29 of the AAT Act not to apply in respect of proceedings in the Division. This would be superfluous because s 24Z(1) of the AAT Act directly does that work by excluding, in relation to such proceedings, the operation of Pt IV, being the Part in which s 29 is located in the AAT Act. This is save for two provisions identified in s 24Z(2), neither of which is s 29. If s 29 was also to be saved, s 24Z(2) would have expressly included reference to s 29 as it did for s 25 and s 42.
Here, the applicant filed an application for review in the MRD of the Tribunal. As outlined above, s 29 of the AAT Act does not apply in relation to a proceeding in the MRD of the Tribunal. The Tribunal had no power to extend the time within which the applicant could make her application and thus did not have any jurisdiction in this matter.
Ground 1 is, accordingly, dismissed.
Ground 2
In ground 2, the applicant requests a writ of mandamus “directed to the Minister”.
As the Minister submits, this amounts to no more than a plea for relief and does not identify any jurisdictional error.
The applicant also seems to make reference the decision of the Minister. This Court does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act.
Ground 2 does not identify jurisdictional error on the part of the Tribunal and is, accordingly, dismissed.
Ground 3
Ground 3 is lengthy and, as the Minister submits, “is a recitation of the merits underlying the Notification”. It does not identify any jurisdictional error.
The issue before the Tribunal was whether the Tribunal could extend the time for the applicant to seek review of the delegate’s decision to cancel her visa. For the reasons outlined above, the Tribunal did not have power to extend the time within which the applicant could file her application for review with the Tribunal. In those circumstances, the Tribunal had no jurisdiction to review the delegate’s decision.
Ground 3 is, accordingly, dismissed.
Whether the notification was valid?
As outlined above, the Minister identified that the notification in this matter may be “affected by the decision” in Parata.
Parata
In Parata, a delegate of the Minister cancelled Mr Parata’s Special Category (Class TY) (Subclass 444) visa under s 116 of the Act on 20 September 2018. Mr Parata applied for review of that decision by the Tribunal on 1 October 2018.
The Tribunal found that it did not have jurisdiction to review the cancellation decision because the application for review made by Mr Parata “was not accompanied by a prescribed fee within the time prescribed” by the Act and the Regulations (see Parata at [3]).
On appeal, the Full Court of the Federal Court found that the notification given to Mr Parata did not comply with s 127(2) of the Act and was therefore invalid because of that non-compliance.
As a result of the notification being found to have been invalid, the Full Court determined that the Tribunal had erred in its decision that it did not have jurisdiction to review Mr Parata’s application.
It is useful to outline the provisions of s 127 of the Act which, relevantly, provide:
127 Notification of decision
(1)When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7; and
(c)if the former visa holder has a right to have the decision reviewed under Part 5 or 7—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.
(3)Failure to give notification of a decision does not affect the validity of the decision.
In Parata, the Full Court noted that the notice provided to Mr Parata on 21 September 2018 provided the following information (see Parata at [36]):
You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).
An application for merits review of this decision must be given to the AAT within the prescribed timeframe.
The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working 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 this letter at the end of the day it was transmitted.
The issue identified in relation to the notification in Parata was that it failed to specify whether the decision was “reviewable under Part 5 or 7” of the Act. As such, the notification did not satisfy the requirements of s 127(2)(b) of the Act.
The Minister in Parata submitted that, at the time of first enactment, there were different Tribunals to which an application for review could be submitted. The Minister stressed that the purpose of s 127 (2)(b) of the Act was to identify for the applicant the relevant Tribunal and that, upon amalgamation of the Tribunals, that purpose became redundant (see Parata at [39]).
Justices Charlesworth and Jackson relevantly found that:
40.Nothing in the Minister’s submissions discloses appealable error on the part of the primary judge as summarised earlier in these reasons. Most critically, if Parliament had intended that s 127(2)(b) refer only to review “by the Administrative Appeals Tribunal”, Parliament could reasonably have been expected to have used those words. But it did not; the section refers instead to review “under Part 5 or 7”. The words that Parliament did use must be given effect. There is no redundancy or absurdity in their use. As the primary judge said, following the merger of the former tribunals, there now exists in the Act distinct regimes for review contained in Pt 5 and Pt 7, each having differences that are not irrelevant. The differences include matters that may bear on the question of whether a review application has been “properly made” within the meaning of s 348 of the Act, including the correct form (as mandated by s 347(1)(a)) and the correct fee (as mandated by s 347(1)(c)). The purpose of including a requirement to state under s 127(2)(b) which of the alternate regimes applies is evident: it provides the prospective applicant with broad guidance as to which provisions of the Act and Regulations govern the manner of applying and so supplements the more specific statements required to be given under s 127(2)(c).
41.In these circumstances, it is not enough for the Minister merely to posit a reason why the distinction between Pt 5 and Pt 7 may not be as important as it once was, because the Tribunal with jurisdiction to conduct reviews under both Parts is the now the same body. The distinction is still a relevant one. The words of s 127(2)(b) — all of them — still serve an intelligible purpose.
Justice Burley agreed, explaining as follows:
106.I agree with the reasons given by Charlesworth and Jackson JJ that the failure on the part of the Minister to “state whether the decision is reviewable under Part 5 or 7” amounted to a failure to comply with the requirements of s 127(2)(b) of the Act and, accordingly, grounds 1 and 2 of the appeal should be dismissed.
Minister’s submissions in relation to this matter
The Minister submits that there are three main questions to be answered in the present matter, arguably similar to those raised in Parata, as follows:
(a)Has there been a non-compliance with s 127 of the Act?
(b)Does that non-compliance mean that the notification is invalid?
(c)Should relief be refused on discretionary grounds?
Non-compliance
The Minister submits that the Notification in the current matter is materially different to that which was of concern in Parata and that, on that basis, the Notification meets the requirements of s 127(2)(b) of the Act.
Relevantly, the Minister submits that the inclusion of the words “Migration Review Tribunal” in the Notification and the words “Review application to the MRT under Regulation 4.11” on the reverse side of the page made it quite clear that the applicant needed to contact the “Migration Review Tribunal” and, further, detailed how she could go about doing so.
The Minister further submits that, at the time of the relevant decision, s 388 of the Act referred to a decision reviewable under Part 5 of the Act as an “MRT-reviewable decision” and the applicant could only seek review in the MRT.
Invalidity
The Minister submits that, in the alternative, if the Notification did not comply with s 127(b)(2) of the Act, the Notification nonetheless remains valid.
In this regard, the Minister submits that the wording of the Notification (in particular its reference to the MRT) was such that the applicant could “comprehend not only the existence of the right of the review but also ascertain the conditions for a valid application” (referencing Parata at [52]). Further, the Minister submits, the applicant was “armed with the information necessary” for her to comply with her obligations under Part 5 of the Act (including the need to file the correct form and paying the correct fee) (as per Parata at [135]).
In the Minister’s submission, any degree of non-compliance in the present matter is “trivial” and does not invalidate the Notification (see Parata at [74]-[81]).
Discretionary relief
The Minister further submits that, should the Court find that the Notification is both non-compliant and invalid, the error is not material and relief should be refused on discretionary grounds.
In this regard, the Minister stresses that the delay of more than 11 years in this matter is “extraordinary”, the applicant was made well aware of her right of review in the MRT and no satisfactory explanation has been provided by the applicant for the delay in question.
The Notification in the present matter
On 1 October 2009, the applicant was provided with a Notification of Decision (CB 17-19). At [6] of that Notification, the applicant was notified of her review rights, as follows (CB 17):
6. Review rights
You are eligible to apply for review of this decision by the Migration Review Tribunal (MRT). Information on how to apply for review, and addresses and contact numbers of the MRT is on the reverse of this page. If you had a visa cancelled and you decide to make an application for review, you must apply while still in Australia within:
•two (2) working days after the day on which you received this notice, if you had a bridging visa cancelled and you are in immigration detention because of that cancellation, ie. by close of business on
•seven (7) working days after the day on which you received this notice, if you had a visa cancelled (unless you are in immigration detention because of the cancellation of a bridging visa), ie. by close of business on
•one (1) working day before the expiry of the time period specified above, if you are detained and you choose to give the application to an immigration officer at a detention centre or at an office at an airport, ie. the application must be given to that officer by close of business on
The reverse side of Notification (Ellis Affidavit at p 4) provided:
Review application to the MRT under Regulation 4.11
An application for review by the Tribunal must be given to the Tribunal:
(a)in the case of a primary decision relating to an applicant who is in immigration detention:
(i) at a registry of the Tribunal;
(A) by posting it to that registry; or
(B)by leaving it at that registry in a box designated for receiving applications; or
(C)by leaving it with an officer of the Tribunal at that registry; or
(D)by sending it to that registry by fax:
(E)by transmitting it to that registry by other electronic means specified in a direction given by the Principal Member under Section 343A of the Act; or
(ii)by giving it to an officer of Immigration at a detention centre, or at an office occupied by an officer of Immigration at an airport, at least one working day before the expiry of the period in which the application for review must be given to the Tribunal under regulation 4.10; or
(b)in any other case – at a registry of the Tribunal by any method set out in sub-paragraph (a), (i), (A), (B), (C), (D) or (E).
HOW TO CONTACT THE MIGRATION REVIEW TRIBUNAL
The Tribunal’s offices are open from 9.00am to 4.30am on week days. If you live in New South Wales, the Australian Capital Territory, Queensland or the Northern Territory you should contact the New South Wales registry. If you live in Victoria, South Australia, Western Australia or Tasmania you should contact the Victoria registry. If you are not proficient in English, the Tribunal will use a telephone interpreter to assist with your enquiry.
Further information is available on the Tribunal’s website
Did the Notification comply with s. 127 of the Act?
As outlined above, the notification in Parata simply stated that the applicant could make an application for review with the “Administrative Appeals Tribunal”.
The Full Court found that this was insufficient. The additional requirement under s 127(2)(b) of the Act that the Notification include “which of the alternate regimes applies” was found by the Full Court to be imperative because, following the merger of the former tribunals, the Act contains “distinct regimes for review” as set out in Part 5 and Part 7 of the Act. The Full Court noted that the differences inherent in Part 5 and Part 7 applications may affect whether a valid application for review has been made (that is, whether the correct form has been used and whether, for example, the correct fee has been paid).
Here, the Notification was given to the applicant on 1 October 2009. This was before the commencement of the Tribunals Amalgamation Act 2015 (which merged the Administrative Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal). At the time of the notification, those Tribunals were distinct.
This is different to the situation canvassed in Parata, where the effect of the legislative and administrative consolidation or merger of the previously separate tribunals meant that the use of the term “Administrative Appeals Tribunal” lacked clarity and did not offer guidance about what an applicant should do when appealing the delegate’s decision. In effect, the reference to making an application to the “Administrative Appeals Tribunal” lacked clarity in terms of the applicant’s specific review rights and obligations.
In the present matter, however, the Notification identified that an application could be made to the MRT. At the time of that Notification (being 1 October 2009), a decision which was reviewable under part 5 of the Act was only reviewable by the MRT and was referred to in the Act as an “MRT-reviewable decision”.
Specifically, at the time of Notification in the present matter, s 338 of the Act relevantly provided:
338 Decisions reviewable by Migration Review Tribunal
(1)A decision is an MRT‑reviewable decision if this section so provides, unless:
(a)the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is an RRT‑reviewable decision; or
(c)the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
…
(3)A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is an MRT‑reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b)is made at a time when the non‑citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501.
…
(4) The following decisions are MRT‑reviewable decisions:
(a)a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;
(b)a decision to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.
In this matter, the decision to cancel the applicant’s visa (held by a non-citizen who was in the migration zone at the time of cancellation), was thus an MRT-reviewable decision.
The Court does not consider that Parata is authority for the proposition that the exact words used in s 127 of the Act must be replicated in a notice for it to be valid. The decision is not that inflexible. Rather, Parata requires that each Notification be clear and provide each applicant with certainty about his or her review rights.
Context matters. In Parata, reference to review in the “Administrative Appeals Tribunal” did not provide Mr Parata with clarity. He did not know whether he should make his application to the MRD or any other division of the Tribunal or indeed which part of the Act applied to his decision. This was the critical focus and concern addressed in Parata. Contextually, each “Part” of the Act detailed different requirements (including the fee payable – a central issue in that matter).
In the present matter, the Notification provides the clarity lacking in Parata. Indeed, it could not have been clearer, given the then relevant statutory context. Here, the Notification provides the applicant with details outlining the grounds for the cancellation (being that she had breached condition 8202(2)(a) of her visa and that her visa was thus being mandatorily cancelled under ss 116(1)(b) and (3) of the Act and reg 2.46(2)(b) of the Regulations). The Notification confirmed that that the applicant was eligible to apply for review of the decision, advised that she needed to apply for review by close of business on 12 October 2009 and detailed, unequivocally, where the application for review could be made. Importantly, the Notification detailed that the applicant could apply for review of the delegate’s decision by the MRT and provided the details for two MRT registries.
Noting that at the time the Notification was given the MRT had not been amalgamated with the Administrative Appeals Tribunal, any reference to “Part 5 or Part 7” was not needed as a sign post or roadmap. Indeed, in context, the reference to the MRT provided the applicant with more clarity than she might have received had the Notification simply stated that the decision was “reviewable under Part 5” (which would not necessarily provide a self-represented litigant with sufficient information necessary to seek review of a decision).
Further, as outlined above, at the time of the Notification in this matter, s 388 of the Act referenced decisions under Part 5 of the Act as “MRT-reviewable decisions”. The applicant was therefore not able to seek review in the Administrative Appeals Tribunal (as it was at the time of the Notification) in any event.
Here, there was no ambiguity in the Notification. Further, the applicant’s review rights were clearly outlined in the Notification. This is what Parata requires. On that basis, the Notification in this matter complied with s 127(2)(b) of the Act.
Validity
In circumstances where the Court has determined that the Notification complied with the requirements of s 127(2)(b) of the Act, it is not necessary to consider whether the Notification was “valid”.
Discretionary relief
Lest the Court be wrong in this regard, even if the Notification did not comply with s 127(2)(b) of the Act, the Court would not grant relief for the reasons that follow.
In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, the High Court noted that relief can be refused in certain circumstances (at [400]) (emphasis added):
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.
The delay in this matter (11 years) is indeed extraordinary (and arguably unprecedented).
When asked by the Court to provide an explanation for the delay, the applicant claimed that the delay was “a result of her migration agent”. Although not entirely clear, the applicant seemed to suggest she had been told that her visa had been cancelled but that her agent would “redo or reapply for the visa for [her]”. She then “relaxed” and “didn’t think much about it” or “take any action” in relation to her visa status – for 11 years.
The applicant did not provide any evidence of any communications with her migration agent or any advice provided to her. She also did not provide any evidence of any attempts throughout an 11 year period to follow up with her migration agent and query why nothing had been done in relation to her visa status. Further, there is no evidence that the applicant sought further legal advice or contacted the Department to obtain any information or advice with a view to regularising her migration status in Australia.
The delay here, and the lack of any reasonable explanation for that delay, is entirely unacceptable. In context, the applicant is “guilty of unwarrantable delay”. This falls in favour of refusing discretionary relief.
Consideration must also be given to the prejudice to the Minister and the public interest.
In the circumstances of this matter, it cannot be said that there would be no prejudice to the Minister were the matter remitted after an 11 year delay caused almost solely by the applicant’s failure to do what might reasonably be expected of her. The entire statutory infrastructure has now well and truly shifted. Indeed, it is even questionable whether the visa the applicant seeks can now be given to her and what, if anything, the Tribunal could do to assist her.
With respect to the public interest, the Court notes that in Commonwealth of Australia; ex parte Marks [2000] HCA 67 (at [15]), McHugh J observed that constitutional writs “are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions”. The delay in this matter is, as noted above, extraordinary. What could have been finalised expeditiously has now been drawn out because of what is perhaps best described as the applicant’s cavalier approach to the visa process and a visa system which, while far from perfect, seeks to ensure that decisions are made fairly and without delay. That objective would be defeated if the applicant in this matter were allowed to do what she could (and should) have done quite some time ago.
Having had regard to the extraordinary delay in this matter (and the less than satisfactory explanation for that delay), the prejudice to the Minister and the need to protect the public interest, this Court considers that relief (if warranted) would be refused.
Conclusion
The application for judicial review filed by the applicant on 16 February 2021 has failed to identify any jurisdictional error. This Court is also unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 December 2021
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