Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 376
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 376
File number: SYG 2756 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the application to the Tribunal was filed out of time – whether the Tribunal erred when determining that it lacked jurisdiction – whether the applicant was validly notified – whether the applicant was afforded procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 347, 476, 494B, 494C and Part 5
Migration Regulations 1994 (Cth), reg 2.16(3) & 4.10(1), cl 500.217 in Schedule 2, PIC 4020 in Schedule 4
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Alam v Minister for Home Affairs [2019] FCA 389
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (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
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 4 May 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Lloyd Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 2756 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHI-CHANG LO
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:
20 MAY 2022
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
The background to this matter is outlined is detailed in written submissions filed in this Court on 27 April 2022 by the Minister for Immigration, Citizenship and Multicultural Affairs (the “Minister”) at [2]-[10]. The overview provided in the Minister’s submissions is accurate. The Court adopts the summary provided it as its own.
With minor amendments, the Minister’s overview provides as follows.
The applicant is a citizen of the Republic of China (Taiwan) (Court Book (“CB”) 22).
On 19 March 2018, the applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-16).
In that visa application, the applicant agreed to the Department of Home Affairs (the “Department”) communicating with him by email to [email address omitted] (CB 5).
On 6 July 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 40-43). The delegate was not satisfied that he met cl 500.217 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 43).
On the same date, the Department sent a letter to the applicant notifying him of the delegate’s decision (the “notification letter”) (CB 36-39). That letter was sent by email to his nominated email address (CB 35 and Page 6 of Affidavit of Alvin Sharma affirmed and filed on 27 April 2022 (the “Sharma Affidavit”)).
The notification letter relevantly provided as follows (CB 36-39):
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 Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
…
Receiving this Letter
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
On 16 August 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 44).
On 28 August 2018, the Tribunal invited the applicant to comment on the validity of his application for review (CB 54-55). In its letter, the Tribunal stated (CB 55):
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was email to you on 6 July 2018 and, on the basis that 6 July 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 27 July 2018. As the application was not received until 16 August 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to so, in writing, by 11 September 2018. …
The applicant did not respond to that invitation to comment.
On 17 September 2018, the Tribunal found that it did not have jurisdiction in the matter (CB 59). As discussed below, the Tribunal determined that the applicant had been notified of the delegate’s decision on 6 July 2018 (CB 60 at [3]-[5]). As such, the prescribed period within which to apply for review with the Tribunal ended on 27 July 2018 (CB 60 at [5]). As the application to the Tribunal had not been made until 16 August 2018, the application was not made in accordance with the legislative 21-day filing requirement (CB 60 at [6]).
On 27 September 2018, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is made pursuant to s 476 of Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is two pages long and spans seven paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 6 July 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 August 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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 6 July 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 28 August 2018 the applicant was invited to comment on the validity of the application for review but did not respond.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 6 July 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 27 July 2018.
6.As the application for review was not received by the Tribunal until 16 August 2018 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.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 27 September 2018 contains three grounds of review as follows (without alteration):
1.I am used to be an oversea student. Immigration refused my further student visa and send their notification to my junk mail.
2.I fell so innocent with this incident, and I am a victim of immigration's mistake.
3.It is unfair for AAT not to accept my review application, I wish federal court could give me a fair decision.
The application for judicial review also provides (under the heading “Final orders sought by applicant/s”) the following paragraphs:
1.I disagree with Immigration and AAT's decision. They did not consider that I have the genuine intention to apply for student visa application. They did not consider the fact that I had compelling reasons not to lodge my review application with AAT within 21 days. And I did try my best to seek help.
2.AAT did not give a good consideration as I had strong reasons which was out of my control for delaying my review application. Immigration sent their decision to my junk mail which led to my delay.
3.AAT should well consider my compelling circumstance and accept my review application to Allow me to continue my review with AAT.
On 24 January 2022, procedural orders were made by this Court which gave the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 27 September 2018, a Court Book numbering 60 pages (marked as Exhibit 1), the Sharma Affidavit and written submissions filed by the Minister on 27 April 2022.
The applicant appeared before this Court without legal representation. He was assisted by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received the materials before the Court.
The Court noted that the applicant’s application for judicial review only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicant “orally amending the application to rectify the oversight”. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include seeking a writ of mandamus.
Further, noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is 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 to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, 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) 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) 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 (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (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 that he 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.
Although not entirely clear, the applicant seemed to indicate (in oral submissions) that he had been unable to open his emails because his email account had been created by his migration agent and he did not have access to the relevant password. As such, the applicant claimed he did not know that that he had only 21 days within which to appeal the delegate’s decision.
CONSIDERATION
As noted above, the application for judicial review filed by the applicant contains three grounds of review which provide (without alteration):
1.I am used to be an oversea student. Immigration refused my further student visa and send their notification to my junk mail.
2.I fell so innocent with this incident, and I am a victim of immigration's mistake.
3.It is unfair for AAT not to accept my review application, I wish federal court could give me a fair decision.
The applicant also lists further “concerns” in three paragraphs under the heading “orders sought”, as follows:
1.I disagree with Immigration and AAT's decision. They did not consider that I have the genuine intention to apply for student visa application. They did not consider the fact that I had compelling reasons not to lodge my review application with AAT within 21 days. And I did try my best to seek help.
2.AAT did not give a good consideration as I had strong reasons which was out of my control for delaying my review application. Immigration sent their decision to my junk mail which led to my delay.
3.AAT should well consider my compelling circumstance and accept my review application to Allow me to continue my review with AAT.
In the written submission filed on 27 April 2022, the Minister submits:
14.The First Respondent notes that the Applicant has inserted three paragraphs in the section of the Application concerning final orders. Those paragraphs appear to echo the sentiments of the allegation outlined above. The First Respondent submits that the Court should interpret those paragraphs as substance to the allegation outlined above rather than a form of orders sought by the Applicant.
The Court agrees.
To some degree, the applicant’s grounds of review lack particulars and are somewhat unclear. This Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or understand, what is required of them, the Court will read the applicant’s grounds of review as broadly as possible and, further, remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. Likewise, it is expected that the Minister, as a model litigant, will raise any issues of concern that might not be raised by an applicant.
Read broadly, by the three grounds of review and the three paragraphs outlined above, the applicant appears to argue that the Tribunal:
(a)erred in finding that it lacked jurisdiction to hear the matter before it because he was not properly notified of the delegate’s decision (noting that he did not have access to the relevant email account); and
(b) failed to afford him procedural fairness.
Grounds 1 and 2 and Paragraphs 1, 2 and 3
Did the Tribunal err in determining that it lacked jurisdiction?
This Court has recently addressed the preferred approach and relevant jurisprudence in “jurisdictional decisions” of the sort seen here in the decisions of Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279 and Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281. The Court repeats the relevant statutory and jurisprudential analysis provided in these judgments below.
In Abbas v Minister for Home Affairs [2020] FCCA 1051 (“Abbas”) at [33], this Court provided a framework for assessing whether, in circumstances where an application for review is filed “out of time”, the Tribunal was correct in determining that it lacked jurisdiction.
Relevantly, in cases such as this, the Court should assess:
(a) whether (and how) an applicant was notified of the delegate’s decision;
(b) the content and clarity of the notification letter; and
(c) whether the application for review was, in fact, filed “late” or out of time.Applying this three tiered approach to the current matter, the Court finds as follows.
Was the applicant notified?
By grounds 1 and 2, the applicant claims that the notification of refusal letter was sent to a “junk” folder of his email inbox and that “he is a victim of immigration mistake”. The applicant repeats the same claim in paragraphs 1, 2, and 3 listed under the “orders sought” section of the application for judicial review. The applicant seemed to change his position in this regard in oral submissions to the Court when he explained that he could not access his emails because his migration agent had created the relevant account and he lacked the required password to access the account at the relevant time.
Arguably, the applicant’s concern in this regard is that he was not “validly notified” of the delegate’s decision to refuse him the visa and, as such, he could not lodge his application with the Tribunal “on time”.
In written submissions filed on 27 April 2022, the Minister responds to this specific issue as follows:
13.To the extent that the Applicant is alleging that he has not been correctly notified of the delegate's decision because the notification letter was received in his junk email box, the First Respondent submits:
(a)that the Applicant does not provide independent and /or documentary evidence to substantiate that allegation;
(b)for the reasons set out at 20 - 27 below, the Applicant was validly notified of the delegate's decision;
(c)the fact that the Applicant's application to the Tribunal attached the notification letter and decision record supports an inference that the documents were in fact received by the Applicant (CB 46-53); and
(d)that receipt of the delegate's decision via the Applicant’s junk email box would be, in any event, sufficient for the Applicant to have received the notification of the delegate’s decision: DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 at [23] per Allsop CJ.
For the reasons that follow, the Court agrees with the Minister in this regard.
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”. The prescribed period is found in reg 4.10(1)(a) of the Regulations, which provides (emphasis added):
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a)if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;
For that 21 day period to commence, the delegate (or the Department) must notify the applicant of the delegate’s decision in accordance with the requirements set out in s 66 of the Act. If the notification does not meet these requirements, then there has been no valid “notification” of the decision and the time period within which an application to the Tribunal can be made does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
A copy of the “notification of refusal” letter relevant to this matter is provided in the Court Book (at 36-39). Having assessed the contents of that letter, the Court notes as follows.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant via email.
The applicant here claims either that:
(a)this email was received in the junk folder of the inbox of his email address; and/or
(b)he could not access the email because he lacked the required password for the email account.
There is simply no evidence before the Court to demonstrate that the applicant either had issues with the “junk mail” folder of this computer or that he had “password issues” caused by his agent.
There is, however, evidence in the form of a record from the Department’s content management system, the “Enterprise Correspondence Portal”, showing that the Department sent the notification letter by email to the applicant on 6 July 2018 (Sharma Affidavit, p 6).
This is significant. In DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521, Chief Justice Allsop stressed that he had:
23.… taken judicial notice of the proposition that junk mail is not received via a different email address but is rather filtered away from the main inbox associated with the same email address. In other words, it is still received by that email address.
That is, even if the notification letter in this matter was received in the junk folder of the applicant’s inbox, it was nonetheless “received” by the applicant as it was sent to the email address provided to the Department by the applicant (CB 35, Sharma Affidavit, p 6).
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the email address he provided to the Department. That is, at the end of the day on 6 July 2018. This is so even if the applicant had “computer access” difficulties. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act (in this case, to a valid nominated email address), the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
The Court is satisfied that applicant was validly notified of the decision to refuse to grant him the visa.
Was the notification letter “clear”?
Section 66(2) of the Act provides that the notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa, specify that provision; and
(c)unless subsection (3) applies to the application, give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(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
(ii) who can apply for the review; and
(iv) where the application for review can be made.
Here, the notification letter and decision record clearly identified that the visa was refused because the applicant did not meet PIC 4020(1)(b) in Schedule 4 of the Regulations and that, as such, the delegate was not satisfied that the applicant met cl 500.217(1) in Schedule 2 of the Regulations (CB 43). Furthermore, the delegate provided written reasons explaining why the criteria in cl 500.217(1) in Schedule 2 of the Regulations were not met (CB 40-43).
Hence, the requirements outlined in ss 66(2)(a)-(c) of the Act were satisfied.
Section 66(2)(d) of the Act requires that the notification letter contain specific information about an applicant’s right of review. Here, the Court is satisfied that:
(a)having stated expressly that “[t]he decision can be reviewed” and having advised the applicant that he was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 36-37);
(b)having indicated that, if he sought a review, the applicant must be “physically present in Australia” (as required by s 347(3) of the Act), the notification satisfied s 66(2)(d)(iii) of the Act (CB 36); and
(c)in providing a large table indicating the address for each of the Tribunal’s registries and providing the national email and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 38).
A further, important, issue in matters of this sort is whether the notification letter satisfies s 66(2)(d)(ii) of the Act. In this regard, the Court must consider the content and structure of the notification letter as a whole in determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
Assessing the notification letter in this matter, the Court notes as follows:
(a)under the heading “Review Rights” (at page 1 of the letter), it is made clear that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 36). That heading and the advice beneath it directly encompasses the language of a statement referring to the time limit; and
(b)under the heading “Receiving this Letter” (at page 3 of the letter), it is made clear that “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” (CB 38).
A person reading the letter “as a whole” (as explained by the Full Court in Singh) would be “sufficiently alert to this” and would be able to identify and determine that they were required to lodge their application within 21 days after the date the letter was emailed: Ali v Minister for Home Affairs [2019] FCA 1102.
The notification letter in this matter was clear. Clear headings and language were used that provided effective “signposts” for the applicant to identify the information he needed in order to lodge a valid application for review.
Was the application for review, in fact, filed late?
The Court notes that the applicant does not appear to dispute the fact that his application for review to the Tribunal was lodged late.
In its decision (at [2]), the Tribunal correctly observed that the time in which the applicant had to lodge an application for review of the delegate’s decision was 21 days from the date on which he was notified: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations.
The 21 day time period commenced on 6 July 2018 and ended on 27 July 2018. The applicant lodged his application with the Tribunal on 16 August 2018. The application was, therefore, 20 days out of time.
Did the Tribunal err?
The Tribunal was correct to find that it did not have jurisdiction. The applicant was validly notified of the delegate’s decision and was correctly informed of his rights of review. He failed to lodge his application for review within the requisite time period.
In the circumstances, the Tribunal had no jurisdiction to assess the application for review and made the only determination open to it.
No error arises in this regard.
Was the applicant denied procedural fairness?
In circumstances where a Tribunal determines that it has no jurisdiction, such as it did in this case, “it is well settled” that the natural justice requirements in Part 5 of the Act do not apply: Alam v Minister for Home Affairs [2019] FCA 389 (“Alam”) at [29]. The applicant is thus not “entitled” to attend a hearing once the Tribunal determines that no valid application exists upon which a substantive determination can be made.
However, procedural fairness obligations do apply to the Tribunal’s consideration of whether it has jurisdiction: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [36]-[38] and affirmed in Alam at [29]-[30].
In this case, procedural fairness required the Tribunal to give the applicant a “reasonable opportunity” to deal with the adverse information relating to the validity of the application for review: SZEYK at [37].
The applicant seems to suggest that he was denied this right. For the reason that follow, the Court disagrees.
On 28 August 2018, the Tribunal sent a letter to the applicant by email inviting him to comment on the validity of his application for review (CB 54-55). That letter set out the details of the information before the Tribunal as follows (CB 55):
INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – MR CHI-CHANG LO
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 6 July 2018 and, on the basis that 6 July 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 27 July 2018. As the application was not received until 16 August 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 11 September 2018. Upon receipt of your response, your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
The applicant did not respond to the Tribunal’s invitation to comment.
This letter gave the applicant an opportunity to comment on, and respond to, adverse information before the Tribunal relating to the validity of his application for review. He did not take advantage of that opportunity.
The Court notes that in the three paragraphs appearing in the orders section of his application, the applicant claims that the Tribunal should have considered “compelling reasons” that were “out of his control” that led to the late lodgement of his application with the Tribunal.
Unfortunately, where an applicant lodges an application outside of the prescribed time limit, the Tribunal has no discretion to extend time: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228. The Tribunal had no power to do anything other than find that it could not review the delegate’s decision. It arrived at the only decision that was open to it. It could not take into account the applicant’s “compassionate” circumstances, however compelling those circumstances might be.
The applicant was afforded procedural fairness to the extent required in circumstances where the Tribunal was required to determine whether it lacked jurisdiction.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 27 September 2018 fails to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any errors in the Tribunal’s decision.
The application for judicial review is dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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