Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 76
Federal Circuit and Family Court of Australia
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 76
File number: MLG 676 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal that it did not have jurisdiction to review a decision of a delegate of the Minister – whether notification of delegate’s decision complied with requirements of s 66 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 66, 347, 477, 494B, 494C
Migration Regulations 1994 (Cth) reg 4.10
Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 3 February 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 676 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHAVESHKUMAR PRAVINBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
9 February 2023
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
Introduction
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 26 February 2018. The Tribunal found that it did not have jurisdiction in relation to the applicant’s application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision. The application for judicial review is therefore dismissed.
Background
The applicant is a non-citizen who arrived in Australia in July 2009 on a student visa as a dependent of his spouse.
On 13 December 2017 the applicant applied for a medical treatment visa. In his application form, he agreed to the Department communicating with him by email and provided an email address.
On 12 January 2018 a delegate of the Minister made a decision refusing to grant the applicant a medical treatment visa. The applicant was notified of the delegate’s decision on 12 January 2018, with that notification sent to the applicant by email at the email address that he provided in his application form.
The notification of refusal provided information to the applicant about his review rights. Under the heading ‘Review rights’ on page 1, the notification said:
The decision can be reviewed.
We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
The notification then provided further information under the headings ‘Your immigration status’, ‘Leaving Australia’, ‘Lodging another application’, ‘Lodging an application for merits review’ and ‘Online’. Then, on page 3, under the heading ‘Registries of the Administrative Appeals Tribunal’ the notification included a table containing address details for eight Tribunal registries, followed by paragraphs explaining that review forms can be lodged by email or fax and advising that further information about the merits review process was available from the Tribunal website or by telephone. The final paragraph under the heading ‘Registries of the Administrative Appeals Tribunal’ read:
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 applicant lodged an application for review by the Tribunal, which appears to have been faxed to the Tribunal on 6 February 2018.
On 7 February 2018 the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review. In that letter the Tribunal expressed the view that the application was not valid as it was not lodged within the relevant time limit of 21 days from the day he was taken to have been notified of the delegate’s decision. The letter identified that, as the decision was emailed to the applicant on 12 January 2018, the applicant was taken to have been notified of the decision on 12 January 2018 and the last day for lodging the application for review was 2 February 2018. The letter indicated that as the application was not received until 6 February 2018, it appeared to be out of time.
The applicant did not respond to this invitation to comment and on 26 February 2018 the Tribunal made a decision that it did not have jurisdiction in the matter.
Tribunal Decision
In finding that it did not have jurisdiction, the Tribunal identified that the review application was lodged on 6 February 2018 and then said:
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 12 January 2018 and dispatched by email.
4.On 7 February 2018 the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review and to do so in writing by 21 February 2018. The applicant did not respond.
5.The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
6.The Tribunal finds that the applicant is taken to have been notified of the decision on 12 January 2018 in accordance with the Regulations. Therefore the prescribed period to apply for review ended on 2 February 2018.
7.As the application for review was not received by the Tribunal until 6 February 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.
Judicial review application
The application to this Court was filed on 19 March 2018, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act 1958 (Cth) (Migration Act).
The application contains the following three grounds:
1.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
2.The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing applicant to present his arguments.
3.The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.
The applicant filed with his application an affidavit affirmed by him on 19 March 2018 in which he deposed that the ‘Tribunal decision was unjust and was made without giving [him] the opportunity to present [his] arguments and denied [him] natural justice’.
On 20 February 2019 a Registrar of this Court made an Order to progress this matter to hearing. The Registrar ordered that the applicant file any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions 28 days before the hearing. The applicant has not filed any documents in accordance with this Order. The Minister filed written submissions on 17 January 2023 in accordance with the Order.
Consideration
Applicant’s grounds
The applicant’s grounds do not contain particulars that would enable the Court to properly understand the error that the applicant asserts by each ground. In circumstances where the applicant appeared before the Court as a self-represented litigant, it was appropriate to afford the applicant an opportunity to explain his grounds to the Court at the hearing.
The applicant appeared at the hearing via Microsoft Teams and he did not appear to have access to the Court documents, indicating to the Court that he was in his car on the way home from a hospital. The application was displayed to the parties on screen via Microsoft Teams, so that the applicant could see the grounds. The grounds were also read out and interpreted by the interpreter before the applicant was invited to make submissions. The applicant declined to make any submissions in relation to his grounds, and he declined any opportunity to make submissions in reply after Ms McInnes made submissions on behalf of the Minister.
Ground 1 is difficult to understand because nothing in the Tribunal’s reasons turned on its ‘reasonable satisfaction’ and the applicant did not explain this ground in any way at the hearing. In these circumstances, I accept the Minister’s submission that it is appropriate to dismiss this ground on the basis that particulars have not been provided: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
In any event, the factual matters that the Tribunal needed to determine for the purpose of its decision included the date on which the applicant was notified of the delegate’s decision and the date on which he lodged his application for review by the Tribunal. Based on its findings in relation to these matters, the Tribunal was satisfied that the applicant had not applied for review within the prescribed time frame and that was the basis of its finding that it did not have jurisdiction. If, by the reference to ‘reasonable satisfaction’ the applicant was purporting to suggest that the Tribunal did not have a basis for the findings it made in this regard, that is addressed in the discussion below and does not give rise to jurisdictional error.
Ground 2 fails at a factual level, because it is not accurate to say that the applicant was not afforded an opportunity to present his arguments. In assessing this ground, it is important to remember that the issue for the Tribunal was whether it had jurisdiction to conduct a review of the delegate’s decision. The applicant was invited to comment on this issue by way of the letter sent to him on 7 February 2018. He chose not to comment.
Ground 3 asserts that the Tribunal misinformed itself of the true nature of the applicant’s evidence. The only evidence expressly addressed in the Tribunal decision was the notification of the delegate’s decision. The Tribunal decision did not otherwise turn on the applicant’s evidence. I accept the Minister’s submission that the Tribunal did not err in its consideration of the notification of the delegate’s decision. This is discussed in detail below.
To the extent that grounds 2 and 3 might be seen as asserting errors on the basis that the Tribunal did not consider the applicant’s evidence and did not afford the applicant an opportunity to present arguments in relation to whether he met the criteria for a medical treatment visa, the grounds cannot succeed. The Tribunal could only conduct a review under Part 5 of the Migration Act if it had jurisdiction to do so. As a consequence of the Tribunal’s finding that it did not have jurisdiction, it had no power or obligation to consider the applicant’s evidence and arguments in relation to whether he met the criteria for a medical treatment visa.
The applicant’s grounds of application do not establish jurisdictional error in the Tribunal decision.
There is no error in the Tribunal decision
The Minister, quite appropriately in the context of this matter, advanced submissions that extend beyond the grounds raised by the applicant and which address the lawfulness of the Tribunal’s decision more generally. I address the matters raised in the Minister’s submissions below.
Pursuant to s 347(1)(b) of the Migration Act and reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations), the applicant was required to give his application for review to the Tribunal within the prescribed period, being a period which ‘starts when the applicant receives notice of the decision and ends at the end of 21 days after the date on which the notice is received’.
Section 66 of the Migration Act sets out the obligation of the Minister to notify a visa applicant of the grant or refusal of a visa. Subsection 66(2) provides:
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
(e)in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
(f)in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.
The notice of the refusal sent to the applicant needed to comply with these requirements in order to be a valid notice. I have carefully reviewed the notice and I accept the Minister’s submission that the notice complied with the requirements of s 66(2) to the extent that they are applicable in the present case. The decision record that formed part of the notification clearly set out that the applicant did not meet cl 602.215 in Schedule 2 to the Regulations and gave reasons as to why that criterion was not satisfied. The notice also put the applicant on notice of his review rights, including by stating that decision can be reviewed, stating the time within which an application for review must be made, stating who can apply for review and giving details of where the application for review can be made.
For the most part, these findings are uncontroversial. However, my acceptance that the notification stated the time in which the application for review may be made requires further explanation.
In DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 (DFQ17), the Full Court held that the requirement in s 66(2)(d) of the Migration Act to ‘state’ certain matters means that the notification must set out the information in a way which is not only complete but clear as well: DFQ17 at [58] (per Perram J; Rares and Farrell JJ agreeing). The Court in that case found that the information about the day on which any review application had to be made was conveyed in a way that was ‘piecemeal, entirely obscure and essentially incomprehensible’: DQF17 at [62].
The judgment in DQF17 was considered by the Federal Court (Nicholas J) in Ali v Minister for Home Affairs [2019] FCA 1102 (Ali). The Court accepted that it was bound by DQF17 and must follow it insofar as it concerns the proper construction of s 66(2) of the Migration Act, namely, that the information must be clearly conveyed: Ali at [25]. However, the Court in Ali distinguished DQF17 based on the terms of the notification. The notification letter in Ali stated the time in which the applicant may apply to the Tribunal for review in substantially the same terms as the notification letter in the present case, as extracted at [6] and [7] above.
While the Court in Ali acknowledged that the statements to the effect that:
(a)the application for merits review of the decision must be given to the Tribunal within 21 calendar days after the day on which the applicant was taken to have received the letter; and
(b)as the letter was sent to the applicant by email, he was taken to have received it at the end of the day on which it was transmitted,
appeared on different pages (as they did in the present case), this did not mean that the relevant information was not clearly conveyed: Ali at [28]. The Court concluded in Ali that 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’: Ali at [29].
I accept the Minister’s submission that the information in the notification in the present case, which is in substantially the same terms as that considered in Ali, was clear and comprehensible insofar as it stated the time in which the applicant may apply to the Tribunal for merits review of the delegate’s decision.
Having accepted that the notification of the delegate’s decision complied with s 66 of the Migration Act, I now turn to the Tribunal’s findings relevant to its conclusion that the application was not given to the Tribunal within the prescribed time frame.
The Tribunal found that the applicant was notified of the decision on 12 January 2018. The notification was sent to the applicant by email transmitted on 12 January 2018 to the email address set out in his application, which appears to be the last email address that the applicant provided to the Department. Section 494B(5) of the Migration Act allows the Minister to give a document to a person by transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents. Pursuant to s 494C(5) of the Migration Act, where the Minister gives a document to a person by email, the person is taken to have received the document at the end of the day on which the document is transmitted. Accordingly, the Tribunal was correct to find that the applicant was notified of the delegate’s decision on 12 January 2018, being the day on which the notification was sent to him by email. The applicant is deemed to have received the notification at the end of 12 January 2018 irrespective of whether he actually received it on that date: see SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36].
Taking into account the date of notification and the time frame prescribed in reg 4.10(1)(a) of the Regulations, I accept the Minister’s submission that the Tribunal was correct to find that the prescribed period ended on 2 February 2018. It follows that the Tribunal was correct to find that the application, which was received by the Tribunal on 6 February 2018, was given to the Tribunal outside of the prescribed timeframe.
The Tribunal does not have any discretion to extend the timeframe for the applicant to make an application for review: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [82]-[83]. It follows that there is no error in the Tribunal’s conclusion that it did not have jurisdiction to review the delegate’s decision.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application to this Court is therefore dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 February 2023
0
9
0