Nwakor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 240
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nwakor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 240
File number(s): CAG 9 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa – whether the Registrar of the AAT can decide pre-hearing matters and whether these decisions can be conveyed by email – whether the Registrar can delegate authority to a Registry Officer to act on behalf of the Registrar – whether there was a constructive failure to determine the question of jurisdiction – whether the Tribunal is estopped from deciding the matter of jurisdiction again having assumed jurisdiction - whether the Member erred in not inviting the Applicants for an oral hearing or to comment and whether the decision is procedurally unfair – whether there is jurisdictional error – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 347 Cases cited: BMY18 v Minister for Home Affairs [2019] FCAFC 189
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
ALN19 v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 1592
Cheng v Minister for Immigration and Citizenship [2011] FCA 1290
Saroj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 51
Asaad v Minister for Home Affairs(No 2) [2019] FCAFC 214
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 11 November 2021 Date of hearing: 21 October 2021 Place: Sydney Counsel for the Applicants: The First and Second Applicant appeared in person. Counsel for the Applicants: Mr Swan. ORDERS
CAG 9 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHINEDU VITALIS NWAKOR
First Applicant
AMUCHE EUPHEMIA NWAKOR
Second Applicant
BRENDA SOMTOCHUKWU NWAKOR (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
10 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First and Second Applicants are to jointly and severally pay the First Respondent’s costs fixed in the amount of $9000.00.
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 HUMPHREYS
INTRODUCTION
The first applicant is the husband of the second applicant and the father of the third and fourth applicants. On 12 August 2016, the first applicant lodged an application for a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa. The second, third and fourth applicants were included as part of a family unit.
On 21 November 2017, the application of the first applicant’s employer, Hartley Lifecare, to sponsor the applicant was refused. The applicant’s employer sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). The first applicant, however, did not immediately lodge any application for merits review with the Tribunal, following the refusal of the family’s visa application by a delegate of the Minister for Immigration (“the delegate”) on 10 January 2018. The first applicant claims that he was unaware of the need for him to separately lodge an application for review as he assumed that any review of his visa application was part and parcel of the review application lodged by his sponsor employer.
A review application, however, was lodged by the first applicant to the Tribunal on 1 July 2019. The Tribunal wrote to the applicant on 9 October 2019, outlining concerns that the application was lodged out of time. The relevant time frame for the lodging of a valid application for review was 21 days after the decision of the delegate of 10 January 2018.
The case was assessed by the Tribunal at the end of 2019. In light of the judgement in BMY18 v Minister for Home Affairs [2019] FCAFC 189, the first applicant was advised that it “appeared” that the Tribunal had jurisdiction to accept the applicants’ review application.
The matter was again assessed by the Tribunal March 2020, following the decision of Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (“Singh”). The Tribunal then wrote to the first applicant advising him that in the view of the Tribunal, his application for review was lodged out of time and requested their submissions on this point.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. After setting out the unfortunate history of the matter, the Tribunal noted at paragraph 9 of its decision that no member of the Tribunal had made a finding that the Tribunal had jurisdiction to hear the matter. Essentially, the first applicant argued that the Tribunal was estopped from determining that it did not have jurisdiction, in light of earlier advice from a Registry officer contained in a letter of 23 December 2019.
At paragraph 10 of its decision, the Tribunal stated that an email from the Tribunal’s registry was not a “decision” for the purposes of determining whether not jurisdiction exists. Once the matter was allocated to a Tribunal member, the Tribunal was obliged to again look at the live issue of jurisdiction. In this respect, the Tribunal must have regard to the law as it exists at the time of its decision. The Tribunal also noted that the text of the letter from the registry officer indicated that there “appeared” to be jurisdiction. The Registry officer did not have the delegated authority to make a decision as to jurisdiction and there was no substance in the estoppel argument.
Whilst noting some sympathy for the applicants, the Tribunal found that it was bound by the decision of the Full Federal Court in Singh. The Tribunal found that the first applicant was taken to have been notified of the decision of the delegate on 10 January 2018. The prescribed period by which the applicants could apply for merits review at the Tribunal thus expired on 31 January 2018. As the application for review was not received by the Tribunal until 1 July 2019, the Tribunal found that the application for a review was made out of time and the Tribunal had no jurisdiction to hear the matter.
GROUNDS OF JUDICIAL REVIEW
The applicants are self-represented. The purported grounds of judicial review initially relied upon, are contained in an Initiating Application lodged with the Court on 26 March 2021. An amended application was filed with the Court on 21 September 2021.
The amended grounds of the application are framed as a series of questions rather than in proper form as allegations of jurisdictional error. Purported extensive particulars are then provided in relation to each question which are more in the form of submissions, noting that no written submissions had been provided to the Court in support of the application. The questions posed by the applicant are as follows verbatim:
Ground One
Can the Registrar and tribunal registry officers, in consultation with a Member decide a pre-hearing question on jurisdiction and inform parties to a merits review via email?
Ground Two
Can tribunal registry officers act on behalf of a Member and the Registrar in dealing with prehearing questions on jurisdiction?
Ground Three
Was there a constructive failure to determine the question of jurisdiction by the Member?
Ground Four
Was the Tribunal procedurally unfair in declining jurisdiction on the basis of Singh which did not overrule BMY18 and DFQ17 and ignoring the latter ALN19 decision?
Ground Five
Did the Member err in not inviting the Applicants for an oral hearing or to comment, after forming deciding to re-visit the question of jurisdiction and was this decision procedurally unfair?
THE APPLICANTS’ SUBMISSIONS
The first applicant’s particulars, which are lengthy, have been treated as submissions.
In relation to the first question, the first applicant takes issue with the statement in paragraph 9 of the Tribunal’s decision that “the Tribunal notes that no member has previously made a finding that the Tribunal had jurisdiction to hear the matter”. The first applicant submitted that the letters that he received constituted a decision of the Tribunal. It is argued that the Tribunal’s letter of 23 December 2019 which stated that the decisions of DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 V Minister for Home Affairs [2019] FCAFC 189 had identified problems with the validity of the notification letter issued by the Department of Home Affairs (“the Department”) for failing to clearly state the time period within which an application for review was made. The Tribunal noted the following, “your case has been reassessed in the light of this judgement and it would appear that the tribunal has jurisdiction to accept your review application”.
The first applicant submitted that to hold that the letter was not a decision of the Tribunal would be to invalidate the statutory authority conferred on Registrars and the delegates. It was also submitted that would also amount to an invalidation of all invitations sent to comment before the members decision of 3 March 2021, and consequently that this was another specie of procedural unfairness.
In relation to question two, the first applicant submitted that delegation instruments currently exist, delegating Registry offices to act for the Registrar. It was submitted that the member erred, as they sought to betray the Registry officer as acting on their own and not the Tribunal in the letter of 23 December 2019, which assumed jurisdiction.
In relation to question three, the first applicant submitted that the Tribunal failed to constructively engage with the merits of the matter, in that the Tribunal failed to follow ALN19 v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 1592 (“ALN19”). It was also submitted that there are issues relating to materiality and the role of ministerial intervention.
In relation to question four, the first applicant submitted that the Tribunal’s letter 23 December 2019 assuming jurisdiction resulted in the Department restoring the applicant’s Bridging visas. There was no justifiable reason for the Tribunal to renege on its already assumed jurisdiction. It was submitted that there was an issue of res judicata in the Tribunal as well as issue estoppel, meaning that the Member should have abided by the Tribunal’s 23 December 2019 letter (which is referred to as a decision by the applicant) assuming jurisdiction in the absence of any defect.
In relation to question five, the first applicant submitted that the relevant statutory framework informs what procedural fairness is required of each circumstance. In Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 the Court commented that if jurisdiction was an issue, there may be some circumstances, such as where there is a genuine dispute as to the facts, in which an opportunity to be heard may have some utility. It was submitted that it was the Tribunal who alerted the applicants to the decision in Singh, asking for comment. When ALN19 was decided, which is alleged was favourable to the applicant’s position, it was incumbent on the Tribunal to invite the applicants to further comment. By not doing so, the Tribunal showed apprehended bias and was procedurally unfair. It was submitted that the member’s decision was procedurally unfair based on its push to retrospectively apply Singh, which was decided after the Tribunal had already assumed jurisdiction in the case. It was submitted that it was manifestly unjust to apply Singh retrospectively and that the case should only apply to decisions made regarding refusal notices effective from 28 February 2020, the date that Singh was handed down.
The Court asked the applicant in what manner the Tribunal’s letter in his case was different from that in Singh, such that there was a jurisdictional error. Leave was granted for the applicant to file further submissions on this point. The submissions received were lengthy and went well beyond this point. It complained that the headings and information in relation to merits review were not grouped together in the notification letter and was spread across three pages. The applicants claim that the information within the letter was not clear and that because of this the letter was defective.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent submitted that the Tribunal’s decision was plainly correct. Whether or not the Tribunal has the jurisdiction to conduct a review is a jurisdictional fact to be determined by this Court: (see; SZQVV v Minister for Immigration and Citizenship (2012) 262 FCR 575 at [55]).
The first applicant was notified of the delegate’s decision, by email, on 10 January 2018. This is not contested. Any application for review by the Tribunal then had to be filed within 21 days after the date of notification, that is, by 31 January 2018: (see; s 347(1)(b) of the Migration Act 1958 (Cth) (“the Act”)). There is no power to extend time: (see; Saroj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 51 at [21]-[25]). The application for review by the Tribunal was not lodged until 1 July 2019.
The legal representative for the first respondent submitted that there was no substance in the applicant’s contention, made to the Tribunal and this Court, that the applicant was not validly notified of the delegate’s decision, such that the time never began to run. The delegate’s letter to the applicant clearly set out under the heading “Review Rights” that the decision could be reviewed by the Tribunal, and that an application must be given within 21 days “after the day on which you are taken to have received this letter”. The delegate’s letter also included information about lodging an application for merits review and how to lodge an application. The letter also advised that “as the letter was sent to you by email, you are taken to have received it at the end of the date it was transmitted”. It was submitted accordingly, that the delegate’s letter clearly explained that the applicant was taken to have received the letter on the day that it was transmitted and that he also had 21 days from that time to seek review by the Tribunal.
It was not necessary for the letter to state the precise day by which the application needed to be made: (see; BMY18 v Minister for Home Affairs (2019) 271 FCR 517 at [19]). The Tribunal’s notification letter in this case is very similar to that in Singh at [10-16], where no invalidity was found. The decision of the Tribunal was inevitable and this is fatal to the present proceeding.
In relation to ground one, this appears to be that the Tribunal’s email to the applicant of 23 December 2019 constituted a “valid finding” and “a decision” that the Tribunal had jurisdiction. The argument is without substance.
Firstly, the letter states that the case had been “reassessed” in the light of the recent Federal Court judgement and “it would appear that the Tribunal has jurisdiction”. That wording is suggestive in that only a preliminary assessment had been made, not a final decision.
Secondly, the email was sent by “Ragu S, For the Registrar”. No material has been provided that this particular person had any delegated powers of the Tribunal, let alone a delegated power to make a determinative decision about the Tribunal’s jurisdiction.
More importantly, as indicated above, whether or not the Tribunal has jurisdiction is a jurisdictional fact for this Court. Either, the Tribunal had jurisdiction or it did not. It is submitted that it did not.
Ground two appears to raise the issue as to whether “a Tribunal registry officer” can act “on behalf” of a member or the Registrar in dealing with pre-hearing questions of jurisdiction. It was submitted that it does not assist the applicant or the Court as it is for the Court to determine whether or not as a jurisdictional fact, the Tribunal had jurisdiction. Furthermore, no evidence has been provided to establish that the writer of the letter “Ragu S” had any delegated power to determine jurisdiction.
Ground three is misconceived. It alleges that the Tribunal “constructively failed” to determine its’ jurisdiction because the Tribunal failed to “engage” with the applicant’s submissions about why the notification letter was defective. The first applicant complains that the Tribunal member applied the principles set out in Singh, rather than BMY18. It was submitted that the issue of jurisdiction is a matter for the Court to decide, and that the Tribunal’s view is not determinative.
The reason why the Tribunal referred to Singh is that the letter considered in that case was entirely similar. The result of Singh provided a helpful guide as to whether or not the letter satisfied s 66(2)(d)(ii) of the Act. Nothing said by the first applicant in ground three explained why the notification letter is invalid.
Ground four alleges that the Tribunal acted in a “procedurally unfair” manner in relying on Singh. In so far as the ground suggests the Tribunal was estopped from “retrospectively declining jurisdiction”, it was submitted that a claim of estoppel cannot be raised to prevent or hinder the exercise of statutory powers or functions. Nor is it apparent how estoppel could possibly “create” jurisdiction in the Tribunal where, objectively assessed it has none: (see; Asaad v Minister for Home Affairs(No 2) [2019] FCAFC 214 at [35]-[36]).
Ground five alleges that the Tribunal erred by not inviting the applicant for an oral hearing in relation to jurisdiction. No error is established. The first applicant had multiple opportunities to address the Tribunal in respect of jurisdiction, which he took up by providing numerous sets of written submissions. It cannot be said that the applicant did not have an opportunity to convince the Tribunal that it did have jurisdiction. Even if the Tribunal erred in not inviting the first applicant to an oral hearing (which is not conceded) any error would be of no moment as the applicant now has in this Court, the opportunity to advance whatever submissions he wishes to show the Tribunal had jurisdiction. Further, there is no basis to find that Singh cannot apply to any notification letter sent prior to 28 February 2020, being the date that Singh was decided.
CONSIDERATION
There is no dispute between the parties that the application for review by the Tribunal was lodged well outside the mandated 21 day period from the date of the applicant receiving the refusal letter. In fact, it was not lodged till approximately 18 months after the due date.
The first applicant first seeks to argue that due to faults within the letter, time did not begin to run. Alternatively, the Tribunal was prevented from finding that it did not have jurisdiction due to various procedural errors in the manner in which the application was handled by the Tribunal.
The first argument rests upon the contention that the refusal letter was insufficiently clear for time to being to run. There is no doubt that for a period of time there was considerable uncertainty as to the necessary wording required for the refusal notification letter to be sufficiently clear that time did begin to run for the lodgement of the application for review.
In Singh the following appears at [10]:
[10] It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to “state … the time in which the application for review may be made”. Whether or not a notification meets this requirement is a question of fact. Examining whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text – see: Baini v The Queen (2012) 246 CLR 469.
In the present case, the notification letter included on pages 1 to 2, and 6:
Review rights
The decision can be reviewed.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.
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.
[Page 2]This review period is prescribed in law and an application for merits review may not be accepted after that date.
Your immigration status
During the processing of your visa application, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for merits review of this refusal decision then that bridging visa will remain in effect during the merits review proceedings. Otherwise your bridging visa will cease 35 calendar days after the date of the decision. More information on bridging visas is at 6]
Receiving this Letter
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.An examination of the actual letter sent to the applicants on 10 January 2018 reveals it has precisely the same text as set out above in Singh in terms of the review rights and immigration status. There is a further paragraph at the end of the letter that sets out information as to how a review application can be lodged with the Tribunal, including information as to the Registry locations of the Tribunal. The wording under the heading “receiving this letter” is in precisely the same words as set out in Singh. The Court is satisfied that the letter in this case is not infected with the same factual vice as found by the Full Court in BMY18 or DFQ17. The Court is therefore satisfied that the applicant was validly notified of his review rights and that the time for the lodgement of any application for Review ended on 31 January 2018. Accordingly, the Tribunal had no jurisdiction to consider the applicant’s review applications and correctly so found. No jurisdictional error exists.
The above finding is of itself sufficient to dispose of the application to this Court. However, it is appropriate to make some brief comments on the “questions” posed by the applicant. The first question takes issue with the Tribunal’s email to the applicants on 23 December 2019. The Court is satisfied that the communication was no more than the raising of a question and did not constitute a decision. There is no material before the Court that the author of that letter, who signed it “for the registrar”, had any delegated power to make any determinative decision in relation to the Tribunal’s jurisdiction. The Court also accept the argument that jurisdiction is a matter for this Court, not the Tribunal. Question one has no merit.
Question two seems to suggest that the Tribunal officers made a final decision in relation to the jurisdiction the Tribunal. There is no evidence that the author of the letter had any delegated power other than to send the level behalf Registrar. Further, as pointed out by the first respondent’s legal representative, jurisdiction is a matter for this Court to finally determine not the Tribunal.
Ground three alleges that the Tribunal “constructively failed” to determine jurisdiction as it did not engage with the applicants submissions as to why the notification letter was defective. A fair reading of the Tribunal decision, indicates that the Tribunal assessed the application as against the emerging case law. After Singh, the position was sufficiently clear for the Tribunal to make a final determination as to whether not it had jurisdiction. Up until that point of time, there had been no determination by a member rather, that there had been preliminary assessments. Whilst the Court appreciates that the constantly changing law would be difficult for the applicant to appreciate, the fact is that both this Court and the Tribunal are bound by Singh. The wording in the notification letter is identical to that in Singh. The findings of the Full federal Court in the previous cases relied upon by the applicant can be distinguished.
Question four alleges procedural unfairness on the part of the Tribunal. The Court is satisfied that the applicants were properly put on notice that there was a jurisdictional issue and were able to make submissions as to why the Tribunal did have jurisdiction. The Court is not satisfied that there is any estoppel principle that arises in this case. Further, the Tribunal was correct in ultimately applying Singh, as it was required to apply the correct law as at the time of the decision. It is not unusual for Courts and Tribunals not to determine particular matters where there was no challenge on an applicable point law to the Full Federal Court, or indeed the High Court. No procedural unfairness arises and question four has no merit.
Question five alleges procedural unfairness in that the Tribunal did not invite the applicants to an oral hearing. The Court is satisfied that there was no requirement to do so. Further, the applicant had multiple opportunities to provide submissions to the Tribunal as to why it had jurisdiction. Question five has no merit
As the applicants are unrepresented, the Court has carefully perused the Tribunal decision but is unable to find any jurisdictional error which has not been articulated.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 November 2021
SCHEDULE OF PARTIES
CAG 9 of 2021 Applicants
Fourth Applicant:
BRIAN KENECHUKWU NWAKOR
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