Liu v Minister for Immigration

[2020] FCCA 1913

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1913

Catchwords:
MIGRATION – application for review – Visitor (Tourist) (subclass 600) visa –notification of decision – fraud – allegation of stultifying process – failure to apply for review – no evidence – application without merit  

Legislation:

Migration Act 1958 (Cth), ss.66(2), 66(2)(d)(ii), 338(2), 347(1)(b), 494B(5), 494C(5), 500.

Migration Regulations 1994 (Cth), reg.4.10(1)(a)

Cases cited:

BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

Applicant: YU-TING LIU

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 953 of 2019

Judgment of: Judge Jarrett

Hearing date: 29 May 2020

Date of Last Submission: 29 May 2020

Delivered at: Brisbane

Delivered on: 15 July 2020

REPRESENTATION

The Applicant in person assisted by a Mandarin interpreter

Counsel for the First Respondent: Ms Hoiberg

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 5 November, 2019 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 953 of 2019

YU-TING LIU

Applicant

And

MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application for review the applicant challenges a decision of the second respondent to refuse to review a decision of a delegate of the first respondent which itself refused him a Visitor (Tourist) (subclass 600) visa.  The second respondent refused to deal with the applicant’s review application because it determined that it had no jurisdiction in the matter.  The application to review was made outside of the time limited for that purpose. 

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.  The first respondent has filed written submissions in accordance with the directions made by the court to do so.  The applicant has not.  I have had the benefit of an oral hearing at which the applicant appeared with the assistance of an interpreter in the Mandarin language.

Background

1. The background to the present application is usefully, and accurately, summarised in the written submissions for the first respondent.

2. On 7 October, 2018 the applicant applied for a Visitor (Tourist) (subclass 600) visa.  The visa application was made by the applicant personally.  She did not nominate an authorised recipient.

3. On 29 November, 2018 the applicant was requested by the first respondent’s Department to undergo a chest x-ray and medical examination.

4. On 28 December, 2018 the delegate wrote to the applicant advising that her visa had been refused.  The reason for the refusal was that, as of 28 December, 2018 no evidence had been received from the applicant to demonstrate she had undertaken, or made arrangements to undertake, a chest x-ray and medical examination.  As such, she had not demonstrated that she satisfied Public Interest Criterion 4005.

5. On 12 July, 2019 the applicant’s registered migration agent wrote to the then Department of Home Affairs advising that, following the decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, it appears that the notification letter dated 28 December, 2018 did not comply with s.66(2) of the Migration Act 1968 (Cth) and was therefore an invalid notification.

6. On 15 July, 2019 a representative of the first respondent’s Department responded by email asking for an explanation why the notification was deemed invalid.  No response was received to that correspondence.

7. On 19 July, 2019 the applicant lodged an application for review in the second respondent.

8. On 29 August, 2019 the second respondent wrote to the applicant advising of the second respondent’s view that her application was not valid because it was not lodged within the relevant time limit.  The applicant was invited to comment on whether a valid application had been made.

9. On 12 September, 2019 the applicant’s registered migration agent wrote to the second respondent providing the following comments (errors in original):

   Ms Liu’s previous agent did not properly advise her the outcome of her visitor visa application. Instead, the agent gave her a fraudulent visa grant letter and told her that her application was approved.

   Following the recent Federal Court decision at DFQ17 v Minister for Immigration (2019) FCAFC 64 (18 April 2019), it appears that the notification letter dated 28 December 2018 did not comply with s66(2) of the Migration Act 1954 and was therefore an invalid notification.

10. On 22 October, 2019 the second respondent made a decision that it did not have jurisdiction in this matter.  The second respondent found:

    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 21 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 28 December 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements

11. The second respondent considered the applicant’s submission that her previous migration agent did not fully inform her of the refusal decision and that the primary notification was affected by the errors identified in DFQ17.  The second respondent formed the view that the notification was not affected by such errors.  The second respondent was mindful that the applicant was notified of the decision by email and that the notification letter clearly specified the prescribed period for making the application for review.  The second respondent further found:

    4. In response to the Tribunal’s natural justice letter, the applicant explained that his previous migration agent did not fully inform him of the refusal decision and the applicant claims that the primary notification was affected by errors identified in DFQ17 v Minister for Immigration (2019) FCAFC 64. The Tribunal has considered that submission but has formed the view that the notification was not affected by such errors. The Tribunal is mindful that the applicant was notified of the decision by email and the notification letter clearly specified the prescribed period for making the application for review.

12. The second respondent found that the applicant was taken to have been notified of the decision on 28 December, 2018.  Therefore, the prescribed period to apply for review ended on 18 January, 2019.

13. As the application for review was not received by the second respondent until 19 July, 2019, the second respondent concluded that the application was not made in accordance with the relevant legislation and the second respondent has no jurisdiction.

The grounds of review

1. Ground 1 of the application for review before me is in the following terms:

   The AAT failed to consider my submission that my late application was due to my agent's fraudulent conduct.

2. This ground asserts an incorrect factual position.  Having regard to the second respondent’s reasons for decision, it can be quickly concluded that the second respondent considered the applicant’s submission that her previous migration agent did not fully inform her of the refusal decision.  The second respondent recorded that it considered the argument, but noted that the applicant had been notified of the decision by email.  The email address to which it was sent appears to be the same email address from which correspondence from the applicant was received by the first respondent’s Department before a decision on the Visa application was made.

3. I accept the first respondent’s submission that this finding was open to the second respondent because:

   a)the applicant had not nominated an authorised representative when she lodged her visa application;

   b)the notification letter was sent to the applicant’s personal email address; and

   c)the applicant did not explain how a migration agent could have fraudulently provided her with a visa grant letter when she had not nominated a migration agent to represent her in her dealings with the Department.

4. Further, the applicant did not suggest to the second respondent, nor to this Court, that she did not receive the notification of refusal of the visa at the email address nominated by her.

5. The first respondent accepts that is a matter of principle, a decision of the second respondent may be set aside on the basis that it is affected by a fraud perpetrated on the second respondent by a third party.  But the applicant bears the onus of proving she was the innocent victim of a third party fraud which stultified a process or processes under the Migration Act.  However, as the first respondent submits, the applicant adduced no evidence before the second respondent and has presented no evidence before this Court, which could support a finding that the applicant was the innocent victim of a fraud committed by a third party.

6. Ground 2 of the application for review is in the following terms (errors in original):

   2. The AAT also failed to find that the Department's notification letter was affected by judicial error identified in DFQ17 v Minister for Immigration (2019)FCAFC64.

7. DFQ17 was concerned with the requirement in s.66(2)(d)(ii) of the Migration Act that the letter notifying the result of the visa application state “the time in which the application for review may be made”. That case was concerned with whether the notification of the decision in that case met the requirement in s.66(2)(d)(ii) of the Migration Act for the notification to “state … the time in which the application for review may be made”.

8. By s.66(2) of the Migration Act, when the first respondent grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Where the applicant has a right to have the decision reviewed under Part 5 or 7 or s.500 of the Migration Act, the notification of a decision to refuse an application for a visa must state, amongst other things:

   a)that the decision can be reviewed;

   b)the time in which the application for review may be made;

   c)who can apply for the review; and

   d)where the application for review can be made.

9. Regulation 4.10 of the Migration Regulations 1994 (Cth) prescribes, for s.347(1)(b) of the Migration Act, the period in which an application for review of a Part 5 reviewable decision must be given to the second respondent. For a decision mentioned in s.338(2) of the Migration Act (such as the decision in the present case), reg.4.10(1)(a) provides that the period starts when the applicant receives notice of the decision and ends at the end of twenty-one days after the day on which the notice is received.

10. Further, if the first respondent gives the notice to the applicant by email in accordance with s.494B(5) of the Migration Act, the applicant is taken to have received the document at the end of the day on which the document was transmitted: s.494C(5).

11. As the first respondent submits, cases in which there is an allegation that s.66(2)(d)(ii) has not been met, hinge upon a simple factual inquiry into whether or not the notification letter states the time within which the application for review may be made. That question is to be resolved by examining the particular terms of the relevant notification letter: Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [23].

12. Here, the notification letter was in the following terms:

    [p 1]

    Review rights

    The decision can be reviewed.

    We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals second respondent (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

    You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

    …

    [p 2]

    This review period is prescribed in law and an application for merits review may not be accepted after that date.

    …

    Lodging an application for merits review

    Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals second respondent (AAT).

    …

    [p 3]

    Online

    of the Administrative Appeals second respondent

    [The letter included a table setting out the addresses of the registries.]

    Alternatively, review application forms can be lodged by email to [email protected] or by fax to 02 9276 5599 or 03 9454 6999 or 07 3052 3069. Make sure to include a copy of this letter and the attached decision record when lodging any application for review.

    Further information about the merits review process is available from the AAT on the second respondent website or by telephoning 1800 228 333.

    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.

13. I accept that the letter extracted above stated the time in which the application for review may be made for the purposes of the Migration Act.  Under the heading “Review rights”, the letter stated that an application for review must be made within twenty-one calendar days after the day on which the applicant is taken to have received the letter.  On page 3, the letter stated that as it was sent by email the applicant is taken to have received it at the end of the day it was transmitted. Taken together, these two statements set out the time in which the application for review must be made.

14. I accept the first respondent’s argument that the fact that the information was spread across different pages and under different headings does not make the notification unclear.  Singh (above) involved a notification letter in very similar terms.  That the relevant information was spread across different pages did not trouble the court in that case: Singh at [15]. The statement as to when the applicant was taken to have received the letter was located under the heading “Registries of the Administrative Appeals second respondent”. This heading, along with the heading “Online”, ought properly to be seen as subheadings to the heading “Lodging an application for merits review”.

15. I accept the first respondent submission that the information was contained under a sensible heading and in a section of the letter addressing the exercise of review rights.  That can be contrasted with the notification letters that were considered by the court in DFQ17 at [62] and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [35]. There, the information as to when the notification was taken to have been received was located under the incorrect heading “Financial or caseworker assistance”. In each case, the Court held that the location of the relevant information rendered statement about “the time in which the application for review may be made” unclear and not in conformity with the Migration Act: e.g. DFQ17 at [62] and BMY18 at [35].

16. The first respondent further argues that, even if the notification did not comply with the requirements of s.66 of the Migration Act, this error was not material because compliance could not realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]–[47]. The applicant does not submit that her failure to apply for review within the prescribed time period is attributable to the notification letter; for example, because the applicant was misled by the letter, or because the twenty-one day time limit was not apparent from the terms of the letter. The applicant’s application for review was some six months out of time. The reason for this seems to have been attributed to the alleged fraudulent conduct of her previous migration agent and not because of any misapprehension of the time frame for review.

17. However, I am not persuaded that this argument is entirely correct.  But, it is unnecessary to make a determination about it because the first respondent’s principal argument is correct.

Conclusion

1. The present application is without merit.  The application for review must be dismissed with costs

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 July, 2020.

Associate: 

Date: 15 July 2020