Malacad v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 639
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malacad v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 639
File number: PEG 133 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 20 July 2023 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal erred by failing to exercise its discretion to extend the time within which the applicant could seek review of the delegate’s decision – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z & 29
Migration Act 1958 (Cth), ss 66, 347, 348, 476, 494B, 494C, 494D and Division 5 of Part 5
Migration Regulations 1994 (Cth), regs 2.16 & 4.10 and cl 820.211 in Schedule 2
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BMY18 v Minister for Home Affairs [2019] FCAFC 189; Ali v Minister for Home Affairs [2019] FCA 1102
CAV18 v Minister for Home Affairs [2020] FCA 173
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271
Craig v State of South Australia (1995) 184 CLR 163
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kioa v West (1985) 159 CLR 550
Lestari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 373
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
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
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 and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
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
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of last submission: 8 June 2023 Date of hearing: 4 May 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 133 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMAY MALACAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
20 JULY 2023
THE COURfT 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 applicant is a citizen of the Philippines (Court Book (“CB”) 23-24 & 42). She first arrived in Australia in May 2014 (CB 27).
On 7 March 2019, the applicant applied for a Partner (Temporary) (class UK) (subclass 820)/ Partner (Residence) (class BS) (subclass 801) visa (the “visa”) (CB 22-38). The applicant listed her relationship status as “engaged” (with a date of intended marriage listed as 26 January 2021) (CB 23).
In her visa application, the applicant answered “no” when asked whether she authorised another person to receive written communication on her behalf (CB 25). However, the applicant did provide her email address and agreed to the Department of Home Affairs (the “Department”) communicating with her electronically (CB 25-26).
The applicant later provided the Department with a copy of her passport and a bundle of photographs (CB 42-102).
The applicant also provided further documents to the Department, including the applicant’s birth certificate, certificate of baptism, marriage certificate (noting that the applicant and the sponsor were married on 7 March 2020) and copies of her sponsor’s driver’s licence, certificate of baptism, confirmation certificate, visa grant notice and other supporting documents (CB 104-120).
On 12 November 2020, the Department requested that the applicant provide more information in relation to her visa application (CB 126-140).
In response, the applicant provided further documents and information in support of her visa application (CB 141-212).
On 1 December 2020, the applicant provided the Department with a completed “Form 929 Change of contact and/or passport details” form (CB 214-217). In that form, the applicant once again agreed to receive communications from the Department electronically and again provided the Department with her email address (CB 216).
On 9 February 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 224-268). The delegate was not satisfied that the applicant was the “spouse” or “de-facto partner” of the sponsor as that term is defined in the Migration Act 1958 (Cth) (the “Act”) and the Migration Regulations 1994 (Cth) (the “Regulations”). Accordingly, the applicant did not meet cl 820.211 of the Regulations. On that basis, the delegate refused to grant the applicant the visa (CB 227).
On 10 March 2022, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 271-278). In that review application, the applicant appointed a registered migration agent to act as her authorised recipient (CB 275).
On 14 March 2022, the Tribunal invited the applicant (through her authorised recipient) to comment on the validity of her application for review (CB 326-328). The invitation to comment letter relevantly stated (CB 328):
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 9 February 2022 and, on the basis that 9 February 2022 was the date on which you are taken to have been notified, the last day for lodging the application for review was 2 February 2022. As the application was not received until 10 March 2022, 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 28 March 2022. 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.
No response was received by or on behalf of the applicant.
On 6 June 2022, the Tribunal determined that it did not have jurisdiction in relation to the matter because the applicant’s review application had been filed outside of the legislated 21-day time period (CB 335-336).
On 11 July 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). 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 two pages long and spans eight paragraphs.
In full, the Tribunal’s decision provides (CB 336):
APPLICATION FOR REVIEW
1.On 10 March 2022, the applicant lodged an application for review of a decision of a delegate of the Minister for Home Affairs made on 9 February 2022 to refuse to grant her a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
3.Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (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.
4.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 9 February 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
5.On 14 March 2022, the Tribunal sent a letter to the applicant, by way of an email to the representative, inviting her to comment on the validity of the review. The letter requested any comments to be provided in writing by 28 March 2022.
6. To date, the Tribunal has not received a response.
7.The Tribunal finds that the applicant is taken to have been notified of the decision on 9 February 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 2 March 2022. As the application for review was not received by the Tribunal until 10 March 2022, 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
8. The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 11 July 2022 contains two grounds of review, as follows (without alteration) (CB 4-5):
1.The Tribunal erred when it failed to recognise or consider exercising its power under section 29(7)-(8) of the Administrative Appeals Tribunal Act 1975 (Cth) to review the decision of the Department of Home Affairs causing a denial of procedural fairness raises a question of law.
a.On or around 30 January 2022, there was a one In 20 – 50-year rainfall event in Broome which caused flooding and the closure of roads such as the Fitzroy Crossing for several days.
b.Then in late February 2022, there was tropical cyclone Anika which came through Broome.
c.Due to the above-mentioned weather events, I was distracted and As English first language, I believed that I had 21 days (excluding weekends) in which to lodge my merits review application.
d.My application was only a few days late.
e.The Tribunal should have used its discretion to extend the time in which I could have lodged my merits review application.
f.There is no prejudice against the Department of Home Affairs that would harm proceedings if the Tribunal used its discretion and reviewed my merits review application.
g.My husband, Nikko, and I will be separated due to the visa refusal decision and subsequent refusal of the Tribunal to review my visa refusal decision.
h.It is illogical and unreasonable to allow me the opportunity to not have my visa refusal decision reviewed by the Tribunal.
2. The Tribunal’s decision is otherwise illogical, unreasonable, and irrational.
a.The way the Tribunal disposed the matter in a hurry vitiated the principles of procedural fairness as enunciated and laid down by High Court in the case of Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (24 May 2012).
The applicant also filed an affidavit in support of her judicial review application (deposed on 9 July 2022) (CB 8-12). That affidavit, as well as setting out some of the procedural background of the matter, largely duplicated the particulars of ground 1 (outlined above).
On 30 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 11 July 2022, a Court Book numbering 339 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 20 April 2023 and the affidavit of service of Harry McLaurin affirmed and filed in this Court on 2 May 2023.
The matter came before this Court on 4 May 2023. The applicant appeared at that hearing, without legal assistance but with the assistance of a Filipino interpreter. Ms Mickle appeared on behalf of the Minister. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
As is now common practice in this Court, the Court explained to the applicant that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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 decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that she thought there were “two issues with [her] application”. Firstly, she now believed she “and her husband were wrong in seeking a de facto visa when it should have been a marriage visa”. Secondly, she did not think that she “had provided enough proof because, in 2017”, she had “an android mobile phone which broke down” and “she lost all of the proof” that she was required to provide to the Department and the Tribunal.
When asked by the Court if she had received any help from a migration agent when preparing her visa application, the applicant explained that she did not have any professional assistance and she and her husband had done the work themselves. Further, the applicant stressed that she did “not really know anything about the visa application process and they had done their best when completing the forms”.
Unfortunately, the applicant’s oral submissions do not raise any issue of jurisdictional error of the sort that this Court can address.
This leaves the Court to assess the applicant’s grounds of review without further assistance from the applicant. Noting, however, that the applicant does not have legal assistance, the Court will, in its duty to them as self-represented litigants, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Following the hearing of this matter, a decision was handed down by Justice Markovic in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). This Court determined that Sandor had implications for this matter. Relevantly, as discussed further below, Sandor addresses what constitutes proper notification of a delegate’s decision – that is, whether the notification letter sent by the Department advising of a delegate’s decision is “complete or clear”.
This Court wrote to the parties on 12 May 2023 to notify them of the decision in Sandor and to ask the Minister to file additional submissions addressing its applicability or consequences for the matter the subject of this judgment. The Court also confirmed that the applicant would be given an opportunity to file any submissions in reply.
Further written submissions addressing the issues raised in Sandor were filed on behalf of the Minister on 8 June 2023. No further documents were filed by or on behalf of the applicant.
CONSIDERATION
Sandor and its applicability to this matter
Notification letters post-Sandor
This Court recently provided a detailed overview of Sandor and the requirements for notification letters more broadly in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 (at [31]-[52]). The analysis provided in those judgments is repeated below (with minor amendments).
The Act and Regulations impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review may be made.
Section 347(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period. The relevant prescribed period is outlined 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 decision in accordance with the requirements set out in s 66 of the Act. If the notification letter does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
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.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides as follows:
66 Notification of decision
…
(2) 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
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
The Department is permitted to communicate with an applicant by email pursuant to s 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires the Minister to give the authorised recipient (instead of the applicant) any documents that would otherwise have been given to the applicant. Further, where the Minister gives documents to the authorised recipient, the Minister is taken to have given the documents to the applicant: s 494D(2) of the Act. There is also no obligation for the Minister to provide a copy to the applicant directly (but the Minister is not prevented from doing so): s 494D(2) of the Act.
By virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the document is sent to an applicant’s authorised recipient (who did not forward a copy of that correspondence to the applicant) or, if the applicant did not receive those documents.
Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, 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.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”); BMY18 v Minister for Home Affairs [2019] FCAFC 189; Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
These cases clarify that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051. In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court repeats its assessment in Abbas (at [78]-[79]). Relevantly, the above cases make it clear that the following principles apply:
(a)where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
(b)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) this is sufficiently clear: Ali;
(c)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading “Receiving this Letter”), the notification is clear: Singh;
(d)the letter should be read as a whole. Hence, the fact that different pieces of information may be spread across a number of pages is not decisive in relation to the level of clarity: Ali. Where the layout is confusing, however (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and
(e)whether a notification is “clear” will turn upon the language and terms in which the notification is expressed when read as a whole by a person exercising a reasonable level of care: Singh; Ali. It is not significant that an applicant may not speak English as a first language. The question is whether the letter conveys the required information.
Sandor also addresses whether a notification letter sent by the Department advising of a delegate’s decision was a proper notification (that is, whether the time period within which the appellant – Mr Sandor – could seek review by the Tribunal was made clear to him by that notification letter) and clarifies the case law summarised above. Sandor considers this issue within the specific context of a notification letter that is sent to an appellant (or applicant) via his or her authorised recipient. Until Sandor was handed down, that variable had thus far not been specifically addressed by the Courts.
In Sandor, Justice Markovic summarised the characteristics of the relevant notification letter in that matter, noting that (at [45]):
(a)the notification letter was dated in the top left-hand corner of the first page (13 February 2018);
(b)immediately under the date, the notification letter was addressed to the visa applicant, Mr Sandor, by his name;
(c)the first page of the notification letter stated “Transmission Method: Email sent to [email protected]”;
(d)also on the first page, under the heading “Review Rights” the notification letter stated that the decision can be reviewed and that: “[a]n 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 receive this letter”;
(e)on the third page, under the heading “Receiving this letter”, the notification letter stated “[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”; and
(f)at the end of the letter, the notification letter also stated:
The original of this letter including any attachments was sent to:
Karola SZECSKO
Ms Szeckso was Mr Sandor’s migration agent. Mr Sandor had identified her as being authorised to receive correspondence in connection with his visa application.
Justice Markovic first rejected Mr Sandor’s contention that the notification letter did not meet the requirements of s 66(2)(d)(ii) of the Act because the letter stated that it was sent to Mr Sandor when, in fact, it had been emailed to his authorised recipient: at [48]. As in Sandor, no issue in relation to s 66(2)(d)(ii) of the Act arises in this matter.
Her Honour then addressed a separate contention – that is, whether the notification letter was invalid because it was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient: at [49]. Mr Sandor argued that, on that basis, the notification letter was invalid and, as such, the Tribunal had erred in finding that it had no jurisdiction because the time within which Mr Sandor could seek review had not begun to run.
The Minister submitted that the letter was clear, emphasising that the language reflected the terms of s 494D(2) of the Act. Relevantly, the Minister stressed that, in light of what was stated on page three (that Mr Sandor was “taken to have received it at the end of the day it was transmitted”) and page one (that it was transmitted to Mr Sandor's authorised recipient) it was clear that the 21-day time period commenced from that date.
Justice Markovich rejected the Minister’s argument, determining as follows:
49.The second matter is whether the Notification Letter was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the Notification Letter did not explain the effect of s 494D(2) of the Act.
…
51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister's submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister's reading of the Notification Letter, the appellant must understand that the reference to "the day the letter was transmitted" requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
Is this matter distinguishable from Sandor?
The Minister submits (in further written submissions filed on 8 June 2023) that matter before this Court is distinguishable from Sandor.
This Court agrees for the reasons that follow.
As outlined above, the issue in Sandor related to the contents of the notification letter sent by the Minister’s delegate and, in particular, whether the timeframe within which the applicant could seek merits review by the Tribunal was clearly set out in that notification letter.
The contents of the notification letter in this matter are as follows (CB 220-223):
(a)the letter was dated 9 February 2022 (on the first page – CB 220);
(b)the letter was addressed to the applicant (referencing her by name) at her residential address (on the first page – CB 220);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s nominated email address (on the first page – CB 220);
(d)under the heading “Review rights” (on pages 1 to 2 – CB 220-221), the letter stated (emphasis added):
The Department 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.
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.
The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time the application for merits review is made.
(a)the letter was sent by email to the applicant on 9 February 2022 (CB 219-220).
The notification letter in this matter differs from the letter the subject of Justice Markovic’s decision in Sandor. The letter in this matter was sent to the applicant directly (via email sent to the applicant’s nominated email address). The notification letter in Sandor was sent (via email) to the applicant’s authorised recipient.
The defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not ‘manifest’.
The notification letter in Sandor required the appellant to understand that he “was taken to have received” the letter on “the day the letter was transmitted” to his authorised recipient. However, the notification letter in this matter does not require the applicant to do so.
Section 66 of the Act does not require the notification letter to state a specific date by which an application for review must be filed with the Tribunal: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. The decision in Sandor also stops short of requiring any notification letter to do so. That is, the notification letter in this matter did not need to advise the applicant that she had until 2 March 2022 to file an application for review with the Tribunal. All that was required was that there be sufficient information, on the face of the notification letter, to permit the applicant to correctly determine the relevant period.
Here, the information on the face of the notification letter allowed the applicant to determine the period correctly. Relevantly, the notification letter:
(a)stated that the transmission method was by email;
(b)identified the applicant’s own email address;
(c)under a single heading titled “Review Rights” stated that:
(i)the application for review had to be given to the Tribunal within 21 days, commencing on the date that the applicant was taken to have received the letter; and
(ii)(in the very next line) the applicant was taken to have received it on the day the email was transmitted.
Importantly, the notification letter here explained that the applicant was taken to have received the letter at the end of the day it was transmitted to her (not to an authorised recipient).
On the basis of the above, the Court determines that the notification letter in this matter did comply with the requirements set out in s 66(2)(d)(i) of the Act and is thus distinguishable from the notification letter in Sandor.
The present matter distinguishable from Sandor.
There was, accordingly, no error in the Tribunal’s decision or its conclusion as to want of jurisdiction.
No jurisdictional error arises in this regard.
Grounds of review
Turning now to the applicant’s ground of review as articulated, the Court determines as follows.
Ground 1
Ground 1 provides:
1.The Tribunal erred when it failed to recognise or consider exercising its power under section 29(7)-(8) of the Administrative Appeals Tribunal Act 1975 (Cth) to review the decision of the Department of Home Affairs causing a denial of procedural fairness raises a question of law.
a.On or around 30 January 2022, there was a one In 20 – 50-year rainfall event in Broome which caused flooding and the closure of roads such as the Fitzroy Crossing for several days.
b.Then in late February 2022, there was tropical cyclone Anika which came through Broome.
c.Due to the above-mentioned weather events, I was distracted and As English first language, I believed that I had 21 days (excluding weekends) in which to lodge my merits review application.
d.My application was only a few days late.
e.The Tribunal should have used its discretion to extend the time in which I could have lodged my merits review application.
f.There is no prejudice against the Department of Home Affairs that would harm proceedings if the Tribunal used its discretion and reviewed my merits review application.
g.My husband, Nikko, and I will be separated due to the visa refusal decision and subsequent refusal of the Tribunal to review my visa refusal decision.
h.It is illogical and unreasonable to allow me the opportunity to not have my visa refusal decision reviewed by the Tribunal.
By ground 1, the applicant claims that the Tribunal was incorrect to determine that it did not have jurisdiction in this matter because it had the power, under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”), to extend the time for the applicant to make her application.
The issue of whether the Tribunal can extend time under the AAT Act was considered by this Court in Lestari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 373 (at [46]-[50]). That analysis applies here and is set out below.
Section 29 of the AAT Act outlines the circumstances in which the Tribunal may extend time for the making of an application and relevantly provides:
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 Migration and Review Division of the Tribunal (the “MRD”). This restriction is set out in s 24Z of the AAT Act, which relevantly 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 also confirmed in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 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 (CB 271-278). 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.
No jurisdictional error arises in this regard.
To the extent that the applicant claims that the Tribunal denied her procedural fairness, the Court disagrees.
Where an application for review of a Part 5-reviewable decision is properly made, s 348 of the Act requires the Tribunal to review that decision. Section 348 of the Act relevantly provides:
348 Tribunal to review Part 5‑reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
…
In order for an application for review (of a Part 5-reviewable decision) to be properly made, that application must be made in accordance with the requirements set out in s 347 of the act, which relevantly provides:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i)if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii)if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii)if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
…
(5)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
As outlined above (in s 347(5) of the Act), the Regulations set out different time periods within which an application for review must be made in different circumstances. Relevant here is reg 4.10(1)(a) of the Regulations.
Regulation 4.10 relevantly provides:
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.
…
In the circumstances of this matter, an application for review was required to have been made within 21 days of the date the applicant was notified of the delegate’s decision: reg 4.10(1)(a) of the Regulations.
Here, the applicant was notified of the delegate’s decision on 9 February 2022 (CB 220). Any application for review to the Tribunal needed to have been made by 2 March 2022.
The applicant did not file an application for review with the Tribunal until 10 March 2022. Hence, that application was made outside of the requisite time period. In those circumstances, the review application filed with the Tribunal did not meet the requirements set out in s 347 of the Act for a properly made application.
On that basis, no valid application for review was lodged and the Tribunal was therefore not required to comply with the procedural fairness obligations set out in Division 5 of Part 5 of the Act.
In relation to the question of any common law guarantee of procedural fairness or natural justice more broadly, the Court references its decision in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271 (“CLV21”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) at [83]) and reiterates that the common law rules of procedural fairness only require that the Tribunal bring to an applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
In this matter:
(a)the applicant was notified of the delegate’s decision and the timeframe within which her application for review could be lodged with the Tribunal (CB 220-223);
(b)the applicant was invited (on 14 March 2022, by email sent to her authorised recipient) to comment on the validity of her Tribunal application (CB 326-328); and
(c)no response to that invitation was received by or on behalf of the applicant (CB 336).
Here (as was the case in CLV21 and WZAVO), it cannot be said that the applicant was denied the right to present her case. Further, even if the Tribunal had invited the applicant to attend a hearing (where the applicant had already been asked to comment on the critical issue before the Tribunal and chose not to do so) this would not have assisted her.
As detailed by the Court above, the Tribunal did not have the power to extend the time within which the applicant could file an application for review with the Tribunal.
No jurisdictional error arises in this regard.
Insofar as the applicant claims that it was illogical and unreasonable for the Tribunal to have denied the applicant the opportunity to have her decision reviewed, this issue will be considered below with Ground 2.
Ground 2
Grounds 2 provides:
2. The Tribunal’s decision is otherwise illogical, unreasonable, and irrational.
a.The way the Tribunal disposed the matter in a hurry vitiated the principles of procedural fairness as enunciated and laid down by High Court in the case of Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (24 May 2012).
To the extent that the applicant claims that she was not afforded procedural fairness, this issue has been addressed above in relation to ground 1.
Insofar as the applicant suggests that the Tribunal acted illogically, irrationally or unreasonably in relation to this matter, the Court disagrees for the reasons that follow.
Instead, the Court considers that the Tribunal’s decision was the only decision open to it and cannot be seen as illogical, irrational or unreasonable. As articulated by the High Court in SZMDS at [130]-[131], the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In the circumstances of this case, there was nothing unreasonable, illogical or irrational in relation to the Tribunal’s assessment that it did not have jurisdiction in this matter.
As outlined above, the applicant filed her application for review outside of the requisite timeframe. Further, the Tribunal did not have any discretion or any power to extend the time within which the applicant could seek review of the delegate’s decision.
In those circumstances, the Tribunal was required to find that it did not have jurisdiction to consider the matter and the Tribunal’s decision was not illogical, irrational or unreasonable.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 11 July 2022 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 July 2023
0
31
0