Maunes v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 777
Federal Circuit and Family Court of Australia
(DIVISION 2)
Maunes v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 777
File number(s): ADG 463 of 2018 Judgment of: JUDGE BROWN Date of judgment: 16 September 2022 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – delegate of Minister declined visa application – applicant advised of decision and timeframe via email – time period to institute review proceedings 21 days – were review rights clearly stated – applicant lodged application one day out of time – no jurisdictional error established – application dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth) s 161
Migration Act 1958 (Cth) Pt 5, ss 66, 338, 347, 353, 474, 494B, 494C
Migration Regulations 1994 cl 836, 836.221, regs 1.15AA, 2.16(3), 4.10(1)(a)
Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Minister for Border Protection & Border Protection v Singh (2014) 308 ALR 280
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Monga v Minister for Immigration & Border Protection [2018] FCCA 1115
Monga v Minister for Immigration & Border Protection [2019] FCA 286
Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86
Singh v Minister for Immigration & Border Protection [2015] FCA 220
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
SZOBI v Minister for Immigration & Citizenship (No2) (2010) 119 ALD 233
Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 29 August 2022 Place: Adelaide Applicant: Applicant appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Ms Calabrese Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 463 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ISMAEL GENERALAO MAUNES
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
16 september 2022
THE COURT ORDERS THAT:
1.The application filed 12 November 2018 is dismissed
2.The applicant pay the first respondent’s costs fixed in the sum of THREE THOUSAND AND FIVE HUNDRED DOLLARS ($3,500.00).
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 BROWN:
INTRODUCTION
These reasons for judgment relate to the interrelationship between provisions in section 347(1) of the Migration Act 1958 (Cth)[1] and regulations made under the Act, which prescribe periods of time in which applications must be made for merits review, to the Administrative Appeals Tribunal,[2] in respect of administrative decisions made under the Act and how those time limits are to be calculated.
[1] Hereinafter referred to as “the Act”.
[2] Hereinafter referred to as “the AAT” or “the Tribunal”.
The applicant is Ismael Generalao Maunes. He is a citizen of the Philippines, where he was born on 22 September 1959. His father, Isaias Tarinque Maunes, born 4 September 1934 and his mother, Elberta Maunes born 16 March 1937, both live in Australia and are Australian citizens.
On 7 June 2017 the applicant and his wife, Marilou Maunes, born 20 June 1962, applied to the Department of Home Affairs for an Other Family (Residence) (Class BU) Carer (Sub-class 836) Visa pursuant to the provisions of the Act.
In summary, the applicant sought a visa, which would have also supported his wife, to enable him to provide care for his elderly father, who is in poor health. His mother suffers from Alzheimer’s disease and chronic obstructive pulmonary disease and is not in a position to provide the care which her husband requires.
The relevant visa is subject to the satisfaction of a number of criteria, which are set out in clause 836 of the Migration Regulations 1994.[3] Essentially, to be granted the relevant visa, the applicant must be an approved carer, of an Australia citizen, who is a resident in Australia.
[3] Hereinafter referred to as “the Regulations”.
The expression carer is defined in regulation 1.15AA of the Regulations. In brief terms, the person seeking the visa must be a relative of the relevant Australian resident, who due to a medical condition, requires assistance to meet the practical needs of daily life and significantly, in the present case, there is no relative of the person requiring care, who is entitled to be resident in Australia, available to provide the care required and, in addition, the care cannot be provided by a hospital, nursing home or related community service within Australia.
On 13 September 2018, a Delegate of the Minister declined to grant the relevant visa sought. The reasons for this were as follows:
On 12 April 2018, the applicant was requested to provide evidence to demonstrate that the required assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant did not address this in his response. However the applicant’s sister, Lobell M. Zilm stated that her father does not wish to be cared for by any care service provider due to culture and language barriers.
The fact that the sponsor’s family may have a preference for the applicant to be the full time carer does not negate the requirement for the family to investigate a range of other suitable care arrangements including residential facilities or a combination of family support and in-home assistance.
The applicant has not provided evidence to demonstrate that a genuine effort has been made to seek the required assistance in Australia, from welfare, hospital, nursing or community services in Australia.
To date, no evidence has been received from the applicant to demonstrate that the assistance required has been fully investigated and cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant does not meet regulation 1.15AA(1)(e)(ii).
As the applicant has not provided sufficient evidence to determine that the assistance cannot reasonably be provided by any other relative of the resident, or reasonably obtained from welfare, hospital, nursing or community services in Australia, the applicant has been assessed as not meeting regulation 1.15AA(1)(e)(i) and regulation 1.15AA(1)(e)(ii).[4]
[4] See Court Book at page 171-172.
The relevant application is initiated through the completion of a pro forma document headed Application for migration to Australia by other family members.[5]In this document, under the heading: Your current residential address, the applicant has provided an address in suburban Adelaide. Under the heading Address for correspondence, he has indicated as above.
[5] See Court Book at page 21.
In addition, the applicant indicated Yes with a tick, which he entered in a box under the question Do you agree to the Department communicating with you by fax, email or other electronic means?[6]In this context, he has provided an email address at the provider Hotmail.
[6] See Court Book at page 23.
In response to another question regarding his language skills, the applicant indicated his main language to be Visayan and his level of proficiency in English to be Functional. The applicant also indicated that he had received assistance, from his sister, Lobell Zilm (“Mrs Zilm”), in completing the relevant application form. The applicant provided her address as his residential address in Australia.
Mrs Zilm also completed a form headed Advice by a migration agent/exempt person of providing immigration assistance.[7]She was described in this form, as an exempt person. Essentially, Mr Ismael Maunes, the applicant, appointed his sister, Lobell Zilm, as a person to provide him with assistance for the purposes of his application and in this context, in his relevant application, the applicant nominated her as his Option for receiving written communications from the Department.[8] By necessary and inevitable implication, this included the use of electronic means of communication.
[7] See Court Book at page 56.
[8] See Court Book at page 36
The appointment of Mrs Zilm, as the applicant’s exempt person was memorialised in an email from the Department to Mrs Zilm’s email address on 8 June 2017. This email included an acknowledgement of receipt of the applicant’s visa application together with other administrative information.
There is no controversy that the relevant decision of the Ministerial Delegate, dated 13 September 2018, was sent by email to Mrs Zilm’s email address, as the Exempt person nominated by the applicant.[9] In the letter, which was sent to the applicant, via Mrs Zilm’s email address, under the heading Review rights appears the following:
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 decisions. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you ate 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[10]
[9] See Court Book at page 162-173.
[10] See Court Book at page 162.
The letter was prefaced by a document addressed to Mrs Zilm, which confirmed that she had been authorised to receive correspondence on behalf of Mr and Mrs Maunes and this email and attachment(s) was sent to [email protected].[11]
[11] See Court Book at page 161
On 5 October 2018, the Tribunal acknowledged receipt of Mr and Mrs Maunes’ application for review of the Ministerial Delegate’s decision in the AAT. The relevant acknowledgement was provided to Mrs Zilm via emails formally addressed to each of Mr Maunes and Mrs Maunes dated 5 October 2018.[12] In the relevant application she had been indicated as the representative of the applicant.
[12] See Court Book at page 205.
On 5 October 2018, a representative of the Registrar of the AAT wrote to Mrs Zilm enclosing correspondence addressed to Mr and Mrs Maunes, which indicated a preliminary view that the relevant application to the AAT was one day out of time. The relevant portion of the correspondence read as follows:
The primary decisions were emailed to Mrs Marilou Valinte [Maunes] and Mr Ismael Generalao Maunes / your authorised recipient on 13 September 2018 and, on the basis that 13 September 2018 was the date on which Mrs Marilou Valinte [Maunes] and Mr Ismael Generalao Maunes are taken to have been notified, the last day for lodging the applicants for review was 4 October 2018. As the applications were not received until 5 October 2018, it appears to be out of time. However this is a matter which must be determined by a Member.[13]
[13] See Court Book at page 210.
In this context, Mr and Mrs Maunes were invited to provide any comments regarding the validity of their application, in writing, on or before 19 October 2008. Mr Maunes took up this opportunity, under cover of a letter dated 8 October 2018, which reads as follows:
Greetings to you and your good office, I Ismael Generalao Maunes and my wife Marilou V. Maunes writing to you providing our reason on why we got a day late lodging our application for review regarding refusal to grant other family (Residence) (Class BU visas 836.
Your honor please consider our late lodgement as we really have financial hardship as we also depends some money to our sponsored which is my father Mr. Isaias T. Maunes and at that time he was cancelled pension for four weeks my sister was only financially supporting and working to fix our parent’s Centrelink problem, we waited for the money till 5/10/18 when they finally they approved and reinstate the pension pay so we immediately travel to that office AAT to lodge. I enclosed my evidence of this matter. Thank you for your kind consideration, as this is so important purpose to appeal in order to give quality time caring my father.[14]
[14] See Court Book at page 214.
In support of the assertion regarding the cancellation of his father’s special benefit, a letter to this effect, dated 11 September 2018, from Centrelink, was provided. It is to be noted that Mr Maunes did not assert that the relevant notification letter had not been brought to his attention or otherwise formulate any complaint about the manner of its transmission or assert that it had been delayed in its transmission for any technical reason.
On 22 October 2018, the AAT wrote to Mr and Mrs Maunes informing them of the decision of the AAT, which determined that it has no jurisdiction to determine their application and refunding the application fee of $882.00 to them. The relevant decision was as follows:
This is an application for review of a decision of a delegate of the Minister for Immigration on 13 September 2018 to refuse to grant Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 5 October 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 September 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal finds that the applicant is taken to have been notified of the decision on 13 September 2018: [s.494C of the Act or r.2.55 of the Regulations]. Therefore, the prescribed period to apply for review ended on 4 October 2018. The application was lodged on 5 October 2018. The applicant wrote to the Tribunal acknowledging that the application was lodged one day late.
As the application for review was not received by the Tribunal until 5 October 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.[15]
[15] See Court Book at page 228.
If the 21 days are calculated to commence on 14 September, it is clear that the time expires at midnight on 4 October 2018. The case is concerned with this modest delay.
APPLICATION FOR REVIEW
The applicant has prepared his own grounds for review, which were filed on 13 November 2018. They seek an order that the decision of the Tribunal be quashed and a writ of mandamus issue requiring the Tribunal to re-determine the application. The grounds of the application are as follows:
I believed that I was not given enough time to lodge as financial in hardship due to I only depend to my parents Centrelink income for a month and that time was cancelled.
Only 1 day delayed to lodge my appeal of which I had missed as my parents Centrelink special benefit resumed that day I brought my application to AAPT I thought it was 28 days also, I panic and so much worried due to it is all about statin and caring for my father, the tribunal never had said to remind me of my late lodgement, that accepted and provide me a file number on the following day. To be honest I am very worried that due to our financial circumstance, I and my parents had to suffered and fight for right in order to stay to care for the personal need and daily life of my chronic ill parents. Hoping for kind and empathy to accept our appeal to our visa 836 process consideration than you your Honor.
Please if possible to considered my application to tribunal appeal as I had never meant to lodge it late due to my miss calculation of date as 28 and money matter as explained.[16]
[16] See Application filed 12 November 2018.
Essentially, as I understand the grounds, it is the applicant’s position that he thought he had 28 days, in which to lodge his application and he was under significant financial hardship, at the time, due to the cancellation of his father’s special benefit. In many ways, his grounds of review, which essentially take the form of a letter, are essentially a plea for leniency in the application of the time limit to his application.
The application first came before a Registrar of this court on 30 January 2019. Procedural orders were made for the filing of a Court Book, which was ultimately filed on 15 April 2019. No formal date was fixed for the hearing of the case.
The matter then returned to court approximately three and a half years later, on 13 July 2022, when it was fixed for hearing before me on 29 August 2022. It is hard not to be struck by this lengthy delay in the context of the modest dereliction of the applicant in bringing his application for review.
legal principles applicable
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable to such a degree it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
The distinction was discussed by the Full Court of the Federal Court in Minister for Border Protection & Border Protection v Singh.[17]The Full Court characterised the latter type of legal unreasonableness as follows:
…legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. … [I]t has the character of a choice that is arbitrary, capricious or without “common sense”. … In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”… [This is] suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power.[18]
[17] Minister for Border Protection & Border Protection v Singh (2014) 308 ALR 280.
[18] Minister for Border Protection & Border Protection v Singh (2014) 308 ALR 280 at 289 [44].
Later, the Full Court indicated the following:
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.[19]
[19] Minister for Border Protection & Border Protection v Singh (2014) 308 ALR 280 at 290 [48].
What is striking about the present matter is that the applicant concerned is only one day out of time. In addition, it is evident that he does not enjoy any high degree of proficiency in the English language and had no professional assistance in the making of his application. Accordingly, in a general sense, as with many visa applicants, he was at some disadvantage in his dealings with both the Department and subsequently the AAT.
Finally, it is the applicant’s position that he was subject to financial constraints at the time the application for review was required to be instituted, which had implications for his capacity to pay the necessary filing fee and in addition, contrary to what was contained in the letter of 13 September 2018, was under the mistaken belief that the period of time applicable to the making of the application was 28 days.
In my view, the AAT did provide intelligible reasons for its decision to decline the application which were based on the deeming provisions in the legislation and the periods prescribed by it for the filing of any application for merits review to it. Its position being that it was not conferred with any direct discretion to extend time in the relevant legislation, regardless of any extenuating circumstances germane to the applicant personally.
In these circumstances, this court needs to be careful not to inadvertently transform the proceedings into one in which it substitutes its judgment for that of the primary decision maker. In addition, if this court is satisfied that the AAT had no discretion to extend time, it cannot be said that a decision to up hold the relevant time frame is one which can be characterised as capricious, arbitrary or lacking in common sense.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
Section 66 of the Act specifies the protocol, which must be followed in order to provide any relevant visa applicant with formal notification of any migration decision pertaining to them. In brief, such notification must include the following:
·Details of any relevant criteria asserted to be unsatisfied in respect of the visa sought;
·Any legislative provision or regulation not satisfied in the relevant visa application;
·State the review rights in respect of such administrative decision; and
·Specifically, any time limits, which apply to any application for review.
There is no controversy, in the current matter that the Department was required to follow the provisions of section 66, following its decision not to grant Mr Maunes the relevant visa on 13 September 2018, which was sent to the applicant’s nominated email address.
This process requires the Department to state to a rejected applicant the nature and extent of his/her review rights. I will return to what is meant by the expression state in a subsequent portion of the judgment. It is a legal term with a precise meaning. At this point, it is sufficient to say that the requirement entails that the mandated notification is not only complete but clear in the exposition of its terms.[20]
[20] See DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 at [58].
In addition, section 66(1) requires, when the Minister refuses to grant a visa, that the applicant concerned is to be notified in the prescribed way. This mode of notification, in term, effects the calculation of any applicable time limitations in which an applicant is able to seek review.
Decisions of the Ministerial Delegate are amendable to administrative review, in the AAT, in its Migration and Refugee Division, pursuant to Part 5 of the Act. They are characterised as Part 5 – Reviewable Decisions. Different time limits apply to different types of decision.
Section 338 defines what is a Part 5-reviewable decision. Pursuant to section 338(9) a decision can be prescribed, for the purposes of this subsection as a Part 5-reviewable decision. Preceding subsections of the section more specifically define what is a Part 5-reviewable decision. Section 338(2)(a) & (b) designate as such decisions, application for visas which can be granted and applied for by non-citizens, within the migration zone of Australia. In this case, Mr Maunes applied for the visa in Australian and it could be granted whilst he remained in the country.
Section 347(1) provides the prescribed periods for various Part 5-reviewable decisions, which range from 28 days to 70 days. However, section 347(1)(b) indicates that any such application must be made within the prescribed period. Section 347(1)(b)(i) specifies a 28 day review period for decisions covered by section 338(2).
However, this is not the case given the fact the time frames can be modified by regulation. The relevant regulation is Regulation 4.10(1)(a), which reads as follows:
(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 Ali v Minister for Immigration & Anor (“Ali”)[21] Nicholson J indicated as follows:
By virtue of this regulation, the 28 day period specified in s 347(1)(b)(i) has been shortened to 21 days. Sub-section (5) of s 347 expressly authorises the making of a regulation having that effect. The relevant period in this case commenced with the notification of the Delegate’s decision and ended 21 days later.[22]
[21] Ali v Minister for Home Affairs [2019] FCA 1102.
[22] See Ali v Minister for Home Affairs [2019] FCA 1102 at [20].
Accordingly, if any applicant concerned wishes to follow for him/herself the regulatory time limits, independent of any written advice provided to him/her, it will be necessary for him/her examine the relevant regulations. It is not necessarily, in my view, an easy process. By way of example, a reading of only section 347(1)(b) would leave the impression that the time limit is 28 days, which is the period Mr Maunes has asserted he mistakenly believed was applicable to his case.
In this context, it is necessary for the court to examine whether the letter sent to Mr and Mrs Maunes on 13 September 2018 complied with the requirements of section 66(1) in the sense that it stated the time limit information both completely and clearly. Axiomatically, given his error, Mr Maunes misunderstood it.
It is the contention of counsel for the Minister, Ms Calabrese, that the letter sent to Mr and Mrs Maunes on 13 September 2018, complied with section 66(1) in that they were informed of the relevant criteria, required to be satisfied by them, in order to be granted the relevant carer’s visa (clause 836.221) and the reasons why the Ministerial Delegate was not satisfied that one criterion had not been satisfied, namely availability of a public source of care for Mr Maunes’ father as opposed to the applicant himself.
More significantly, she submits that their applicable review rights were clearly stated to each of them and how this could be done. In particular, the letter of 13 September 2018 indicated such applications could be lodged, in person or by post, at an AAT registry, of which the relevant addresses in each state, including South Australia, were provided; and by email or fax, with fax numbers and email address provided.
The letter on two distinct occasions indicated that any application seeking merits review of the relevant decision must be given to the AAT within 21 calendar days after that day on which you are taken to have received the decision. In this context, the letter also contained the following advice:
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.[23]
[23] See Court Book at page 165.
The letter in question is one of five pages in length. It is reasonably dense in its content and has multiple headings. It has two heading in the same terms: Review rights on the first and second pages. The time limit is expressed under each heading in the same terms with the use of the verb must. Mechanical issues, including relevant addresses are included under another heading Lodging an application for merits review. It is under this heading that the deeming provision regarding receipt by electronic transmission, outlined above, falls.
In these circumstances, it is necessary to detail the legislative and regulatory regimes dealing with the provision of migration decisions to the applicants affected by them. As previously indicated, pursuant to section 66 of the Act, when the Minister refuses to grant a visa to any applicant issuable under the Act, the Minister is required to notify that applicant of the decision arising in the prescribed way.
Regulation 2.16(3) of the Migration Regulations provides as follows:
The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B, in general terms, provides the following methods by which decisions of the Ministerial Delegate may be provided to any person affected by them. They can be summarised as follows:
·Providing by hand;
·Personal service at the last residential or business address of the applicant concerned;
·Prepaid post;
·Transmission by fax, email or other electronic means;
·Provision to a specific online account; and
·Provision to a carer of a person, who is a minor.
Thereafter, section 494C provides the statutory circumstances in which a person is taken to have received a document from the Ministerial Delegate, in the case of each mode of service. As previously indicated, this was the expression used in the letter sent to Mr Maunes of 13 September 2018. In particular, section 494C(5) deals with service by electronic means and reads as follows:
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
In Calimoso v Minister for Immigration & Border Protection (“Calimoso”)[24] Charlesworth J considered the section 494C(5) created a statutory fiction in the sense that transmission in electronic form was taken to have been effected at the end of the day on which the document was transmitted regardless of the actual time of its transmission.[25]
[24] Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335.
[25] Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335 at [19].
It is in this regulatory context that Ms Calabrese invites the court to examine the letter of 13 September 2018, which was sent to the applicant. It is her submission that the letter unequivocally indicated that the Ministerial decision, regarding the refusal of the carer’s visa, was able to be reviewed and more significantly, it specifically indicated that any such application had to be made to the AAT within 21 calendar days after the date on which you are taken to have received this letter and how the relevant period was to be calculated.
Ms Calabrese formally submits that the Department was entitled to forward its decision to the applicant in the manner in which it did, given the manner in which he had completed his application form. In addition, the notification also included the salient information regarding the applicable time limits to any AAT review.
She submits that the intent of this letter was to engage the provisions of section 494B and 494C of the Act, which prescribe the methods by which the Ministerial Delegate may dispatch a document to an applicant seeking a visa under the Act and more significantly, when such an applicant is taken to have received such a document. In these circumstances, she submits that the applicant can demonstrate no jurisdictional error and thus this court has no authority to intervene in the relevant decision of the AAT to decline Mr Maunes’ application.
As was observed by Stone & Jagot JJ in SZOBI v Minister for Immigration & Citizenship (No2)[26] provisions such as those contained in section 494B & 494C are not to do with the receipt of documents by an applicant concerned but are concerned solely with mechanisms for dispatch and the establishment of dispatch.
[26] See SZOBI v Minister for Immigration & Citizenship (No2) (2010) 119 ALD 233 at [18].
Accordingly, if dispatch is established, by virtue of provisions such as section 494C, receipt is deemed by the person, who is the intended recipient of the relevant document. As a consequence, the Tribunal is not required to satisfy itself that the intended recipient has indeed received the relevant notification letter.
In addition, as a consequence of such deeming provisions, it will not affect the exercise of the jurisdiction concerned, if the applicant concerned later contends that he or she did not in fact physically receive the notification in question.
Jacobson J considered the application of analogous deeming provisions, created by regulations made under the Act, in Sainju v Minister for Immigration & Citizenship (“Sainju”).[27] He said as follows:
What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.
The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
…
It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved.
…
The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility. (citations removed)[28]
[27] Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86.
[28] See Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at [51] – [53], [55] –[56] & [58].
Section 494C is part of a statutory scheme to provide a regime for the clear determination of when the receipt of specified documents relating to migration decisions occurs. This aim is reflected in the relevant Explanatory Memorandum, to which Jacobson J referred in Sainju.[29]The emphasis in the legislation is when a notice was either transmitted, despatched or physically deposited by the decision maker concerned not on whether its intended recipient received it or understood it.
[29] Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at [66] – [67].
The Full Court of the Federal Court took a similar view in Tay v Minister for Immigration & Citizenship (“Tay”).[30] This case was concerned, as is this one, with section 494C(5), the deeming provision applicable to the dispatch of documents by electronic means. In Tay the Full Court was expressly called upon to consider the validity of an earlier decision Xie v Minister for Immigration & Multicultural & Indigenous Affairs (“Xie”),[31] which dealt with section 494C(4).
[30] Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163.
[31] Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172.
This is the section which deals with the provision of documents by prepaid post and when such documents are deemed to have been received. In Xie Spender J indicated that there was nothing in section 494C(4) to indicate that its operation was subject by any implied condition in terms of until the contrary is proved.
In Tay, the Full Court said as follows:
…we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.[32]
[32] Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163 at [19].
The Full Court approved both Tay and Sainju in Beni v Minister for Immigration & Border Protection.[33]This was a case in which the applicant concerned had been electronically notified of a decision and asserted that the relevant notice had not appeared in her inbox until a few days after it had been sent. Essentially the transmission had been lost in cyberspace. As a consequence the applicant submitted that the relevant notice had not been transmitted to her, until she was able to access it on her computer. In this context, it is necessary to point out that this scenario is not the applicant’s contention.
[33] Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15.
The Full Court rejected this contention on the basis that such a construction did not provide the level of administrative certainly which was the obvious contextual import of the legislative regime. It found that the proposition propounded by Ms Beni would lead to an incipient level of uncertainty, in respect of when time limits ran, which was contrary to the intention of the legislation. It held as follows:
The formulation of the regime reflected in the Regulations, as with s 494C of the Act, is all directed to the ability for the Minister to know the date of notification so that the Minister knows what to put on the notification document as the date by which any review must be sought. These dates depend on which method of giving the notification is chosen. Deeming is essential in those migration decisions as visa holders may have changed contact address several times from the last known physical address or email address. If receipt had to be proven by the Minister, the Minister would not know what date to insert on the notification document because the date the notice was received could not be known by the Minister.[34]
[34] Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15 at 32 [50].
In the present case, Mr Maunes has not asserted that Mrs Zilm’s email account did not receive the letter on 13 September 2013. His contention appears to be that he thought he had a further seven days available to him and, at the relevant time, lacked the funds to pay the lodging fee. I have not been provided with proof that the email of 13 September 2013 was transmitted in electronic form, from the Department, on the date it bears.
In a case regarding time limit issues and the provision of notification by electronic means, which came before me on 1 May 2018 Monga v Minister for Immigration & Border Protection[35] I was provided with a screenshot of the relevant from the relevant departmental computer data base to prove transmission of the email. In the context of issues regarding whether this was sufficient to prove the transmission, I said as follows:
Issues of this kind were discussed by Perry J in Singh v Minister for Immigration & Border Protection ([2015] FCA 220). In the case, Her Honour said as follows, in respect of when there was sufficient evidence to establish dispatch:
“… it would be preferable for such evidence in the future to be annexed to an affidavit by a deponent with relevant knowledge who can explain the printout, how it was generated, and verify the facts evidenced by the printout. The care required in interpreting the technical evidence provided by a stand-alone computer printout, as demonstrated by these reasons, highlights the importance of this, particularly where the individual is unrepresented, does not speak English as his or her language and may have no background in interpreting such documents.”
However, in the case before her, Perry J did accept that, what she described as a computer printout, did prove notification under section 66 of the Act. In this context, she noted that the AAT, as a consequence of section 353 of the Act was not to be bound by technicalities, legal forms or rules of evidence. In addition, Her Honour relied on section 161 of the Evidence Act 1995 (Cth), which creates a rebuttable presumption regarding the sending of electronic communications.[36]
This decision was subject to unsuccessful appeal, in the Federal Court, before Charlesworth J.[37]
[35] Monga v Minister for Immigration & Border Protection [2018] FCCA 1115.
[36] Monga v Minister for Immigration & Border Protection [2018] FCCA 1115 at [58].
[37] Monga v Minister for Immigration & Border Protection [2019] FCA 286
In any event, the applicant has not sought to ventilate this point and, as a consequence no such printout has been provided. In the absence of any contention to the contrary, I consider that I am bound by the decision of Singh[38] and the provisions of section 161 of the Evidence Act in conjunction with section 494C of the Act and must assume that Mr Maures, via his authorised representative, Mrs Zilm is deemed to have received the relevant notification at the end of the day on which the Ministerial Delegate asserts it was transmitted. In Calimoso Charlesworth J summarised the effect of these provisions in the following manner:
The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. However, that harsh consequence is one brought about not so much by s 494C(5) of the Act, but rather by s 347(1)(b)(iii) and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame.[39]
[38] Singh v Minister for Immigration & Border Protection [2015] FCA 220.
[39] Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335 at [29].
Charlesworth J alludes to a further issue, which might be said to amount to some species of jurisdictional error relating to a level of fundamental unfairness, namely the AAT did not consider whether it had any inherent jurisdiction to grant an extension and in the context of the denial to Mr & Mrs Maunes of their right of merits review, they have been subject to a level of procedural unfairness which is sufficient to vitiate the decision.
Section 353 of the Act indicates that the Tribunal is not bound by technicalities, legal forms or rules of evidence and further it is directed to act according to substantial justice and the merits of the case. In Minister for Immigration & Citizenship v Li[40] the High Court held that this section does not import common law procedural fairness requirements and, as a consequence, cannot be utilised as the basis for any claim of jurisdictional error.
[40] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225.
In Beni The Full Court rejected the contention that a merits review, under the Act, could be characterised as a fundamental right rather it was to be regarded as something which is made available subject to the time limitations specified in the legislation.[41]In this context, it approved Charlesworth J’s observation that the AAT did not have an inherent jurisdiction to extend time and thus a failure to consider adjourn proceedings was incapable of founding a jurisdictional error posited on procedural unreasonableness.
[41] See Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15 at 32 [48].
Further, in Beni, the Full Court held that provisions within the Administrative Appeals Tribunal Act 1975 (Cth) did not authorise the AAT to extend time given the other deeming provisions contained in Part 5 of the Act regarding receipt of documents following transmission and despatch. The Full Court said as follows:
The Act works on the principle, as reflected in this section, that Part 5 and Part 7 reviewable decisions are subject to prescribed periods within which a review can be instituted. If s 29(7) of the AAT Act allowed for an extension of time within the Tribunal’s discretion, this would cause uncertainty as to when decisions that have not been the subject of review applications are “finally determined”. That uncertainty would undermine the working of several provisions in the Act … It is highly improbable that Parliament intended to allow important removal powers to be able to be defeated by removing fixed periods within which persons can seek merits review.
The Tribunal, as held by the Federal Circuit Court, was correct to conclude that ss 29(7), 29(8), 29(9) and 29(10) of the AAT Act did not apply to the proceeding which was before it by virtue of s 24Z of the AAT Act. No part of s 25 of the AAT Act or other sections had the effect of applying s 29 to such proceedings. [42]
I am bound by this authority. The AAT did not have jurisdiction to extend time once it was satisfied that the application for merits review had been lodged out of time. No jurisdictional error can be established in this context.
[42] See Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15 at 32 [82] – [83].
Finally, it is necessary to determine whether the correspondence of 13 September 2018 complied with the provisions of section 66(2) in its statement of the applicant’s review rights in the sense that those rights were both completely and clearly expressed. Again, in this context, although Mr Maures has indicated that he made a mistake about the timeframe applicable, he has not specifically asserted that the letter sent to him was unclear or incomplete in some essential particular.
In DFQ17 v Minister for Immigration & Border Protection[43] the relevant review letter alluded to the applicable timeframe running from a deemed receipt calculated to be seven working days after the date of this letter in circumstances in which a working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.[44]In addition these review rights were delineated over two pages of the relevant correspondence and under what were found to be confusing headings.
[43] DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64.
[44] See DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 at [18].
In these circumstances, the Full Court described this notification as being essentially incomprehensible and thus in breach of section 66(2) in that it had not stated with sufficient clarity the time in which the review application should be made. In a later case, BMY18 v Minister for Home Affairs (“BMY18”)[45] the Full Court accepted that a different formulation of review rights was clearly stated as:
It is possible to determine the time within which the review application may be brought. The layout is not confusing. The complexity which exists is not the fault of the author of the letter but is a result of the terms of the statute itself. Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state ‘the time in which the application for review may be made’. This is a reference to a period and not a date.[46]
[45] BMY18 v Minister for Home Affairs [2019] FCAFC 189.
[46] BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [19].
These comments are apposite to the current matter, which also specifies a period as running from the date on which the applicant is taken to have received the letter. There is a specified period of 21 days. It does not allude to anything other than calendar days and raises no complexities regarding to receipt following postage. In addition it appears under the heading Review rights.
Necessarily, different situations will require different process by which unsuccessful applicant are to be informed of their review rights. What is required is that there be both clarity and correctness in the nomination of a cut-off date. It should not require some form of detective work on the part of the recipient concerned. In this context, in BMY18 the Full Court somewhat self-deprecatingly said as follows:
Although what the regulation requires by way of time limits is very poorly drafted, we would not hold that an accurate statement of what the regulations require is unclear just because the regulation itself is. Nor would we hold that the obligation can only be discharged by nominating an actual date although this would certainly be a far better outcome for all concerned. But we would emphasise that clarity is not demonstrated just because the reader can put all the pieces together and arrive at the correct answer. Another way of putting this is the standard of clarity is not achieved merely because the letter is formally correct: a document may be correct without being clear, as anyone who reads the output of ultimate appellate courts will attest. For example, if a notification informs its recipient of the time within which a review application must be made by means of integers of correct information scattered in a disconnected manner over several pages but which can be assembled into the correct answer, then the notification will be clear in the way that a jig-saw puzzle is. So too, where the correct information is included under a heading which is apt to suggest that the information following it has nothing to do with review rights then this will be confusing. It is trivial that that which is confusing is not clear.[47]
[47] BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [37].
Considerations of this kind led it to the conclusion that there could be no one fits all approach to how the goal of clear exposition was to be achieved. Rather it was to be approached as a common sense question. In this context, the Full Court acknowledged that the regulatory regime was potentially complex, which rendered the task of clear explanation complex. But in its view, this was the drafter’s problem, not that of the recipient who was affected by the relevant notice.
Nicholas J applied these principles in respect of a notification letter, which contained an identical statement to the one in the current matter, namely any 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 in Ali.[48]
[48] Ali v Minister for Immigration & Anor [2019] FCA 1102 at [26].
The letter with which Nicholas J was concerned (as was the case here) also contained the following precise statement regarding the deeming provisions, in the section of the letter regarding the lodging of applications:
As this letter was sent to you by email, you are taken to have received it at the end of the day on which it was transmitted.
Nicholas J determined as follows:
A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review.[49]
[49] Ali v Minister for Immigration & Anor [2019] FCA 1102 at [29].
As a consequence, he further concluded that the letter in question did not present any undue level of complexity as when any application for review was required to be made, it being sufficiently apparent that such an application was required to be within 21 day of the date on which the email had been transmitted.
Nicholson J was unconcerned that the first intimation of the time for review (as in the present matter) was on the first page of the document, whereas the mechanics of application (again as in this case) appeared on a subsequent page. He determined that the document needed to be read as whole. In my view this is a common sense approach.
I am bound by Ali. It is congruent with the circumstances prevailing in this case. Although the outcome is undoubtedly harsh from Mr & Mrs Maunes’ perspective, I find that the information conveyed to them in the letter of 13 September 2018, regarding the availability of review, was conveyed to them with sufficient clarity to satisfy the requirements of section 66(2)(d) of the Act.
Conclusions
Mr Maunes is not legally qualified. His grounds for review, in my assessment, do not articulate any obvious basis on which jurisdictional error can be founded. This, of itself, is grounds for the dismissal of his application. [50]
[50] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
However, it is apparent to me that Mr Maunes is aggrieved that the AAT did not accept his application and overlook the extremely short period of dereliction relating to its late filing. I can well understand why he would feel that such a decision has an arbitrary or capricious quality which renders it questionable. However for the reasons outlined above, I am satisfied that the AAT had no jurisdiction to entertain his application.
The Ministerial Delegate advised Mr Maunes of this fact, which has been characterised as one of a jurisdictional nature, in the letter of 13 September 2018, when it wrote as follows:
This review period is prescribed by law and an application for merits review may not be accepted after that date.[51]
I note the use of the modal verb may which suggests at least the possibility that a late acceptance of an application might occur.
[51] See Court Book at page 164.
Mr Maunes has not made submissions in respect of this issue nor has he (as previously indicated) raised any issue concerning evidence of the electronic transmission of the relevant correspondence. It is not the responsibility of the court to search out possible grounds of review or make a case for any particular applicant concerned.
In this context, I bear in mind the oft quoted admonitions of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind. In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.[52]
[52] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
In particular, I must be careful not to become bogged down in arcane considerations of semantics of my own making. In any event, in my view, in any common sense reading of the document as a whole, the paragraph can have no implications for the overall clarity of its contents, namely the Delegate was satisfied that the applicant had not satisfied the prerequisite criteria for the grant of the relevant visa and any merits review had to be made within 21 days of the date on which the email had been electronically transmitted to the email address nominated by him.
In addition, in the absence of any contention to the contrary, that the relevant letter was transmitted on the date it bears and is taken to have been received by Mr Maunes at the end of 13 September 2018 and therefore the relevant days are to be calculated for 14 September onwards.
In all these circumstances, I am satisfied that the Tribunal was legally correct to conclude that it did not have jurisdiction to review the Delegate’s decision for the reasons which it provided and there has been no procedural unfairness accorded to Mr Maunes of sufficient legal unreasonableness to warrant the intervention of the court.
The application for judicial review is dismissed. Costs follow the event. The Minister seeks costs in a fixed amount. The amount allowable pursuant to relevant scale is $7,853.00. In my view the submissions of the Minister were not extensive and the matter, although controversial, not unduly complex, in these circumstances I am of the view the amount of $3,500.00 is an appropriate amount for costs.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 16 September 2022
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