Saefi v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 351
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saefi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 351
File number(s): SYG 2465 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 March 2025 Catchwords: MIGRATION - Partner (Temporary) (Class UK) (subclass 820) visa – Whether the applicant is taken to have received notification of the delegate’s decision through the authorised representative – Where the Tribunal had no jurisdiction to review the matter – application for an extension of time – proposed grounds of judicial review have no merit – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 66(2)(d)(ii) 477, 494D,
Migration Regulations 1994 (Cth) Sch 2, cl 820.211, r 4.10
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Ali v Minister for Home Affairs [2019] FCA 1102
Annon v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 22
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15
BET16 v Minister for Immigration & Border Protection [2016] FCCA 3165
BMY18 v Minister for Home Affairs [2019] FCAFC 189
CAV18 v Minister for Home Affairs [2020] FCA 173
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136
Sandor v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 6 March 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr Harvey Solicitor for the First Respondent: Ms Connolly (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance,save as to costs ORDERS
SYG 2465 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMER SAAD TARESH SAEFI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The application for judicial review is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,189.38.
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 D HUMPHREYS
INTRODUCTION
This is an application for an extension of time filed on 30 October 2020, seeking judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (“the Tribunal”), dated 22 April 2020. The Tribunal found there was no jurisdiction to review a decision of a delegate of the Minister refusing to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (“the visa”) or a Partner (Residence) (Class BS) (subclass 801).
The application for an extension of time was made more than five (5) months out of time pursuant to s 477 of the Migration Act 1958 (Cth) (“the Act”). The first respondent does not oppose the grant of the extension of time.
For the reasons set out below, the application for an extension of time is refused and the application for judicial review is dismissed.
BACKGROUND
The applicant is a naturalised citizen of Sweden. He is of Iraqi ethnicity. On 27 March 2018, he applied for the visa on the basis of his spousal relationship with Ms Sara Sabre, the sponsor. He has a daughter with Ms Sabre who is now four (4) years of age.
Around 16 September 2019, the applicant was arrested on an allegation of domestic violence and taken into custody.
On 24 October 2019, a delegate of the Minister refused to grant the applicant his visa because the applicant’s evidence did not demonstrate that he was the spouse of the Sponsor as required by cl 820.211 (2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). This decision was sent to the applicant’s nominated representative via email (CB 468 – 471). The representative forwarded this decision by email to the applicant (CB 527 -528).
On 28 November 2019, the applicant was released from custody.
On 29 November 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 13 February 2020, the Tribunal wrote to the applicant’s representative, noting that it appeared the review application was lodged out of time and invited comment as to the validity of the application. On 27 February 2020, the representative responded to the invitation (CB 525-528).
On 22 April 2020, the Tribunal found that it did not have jurisdiction in the matter.
APPLICATION FOR AN EXTENSION OF TIME
The Originating Application for judicial review by this Court was filed on 30 October 2020, some five months after the 35-day time frame prescribed by the Act.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)prejudice to the respondent due to the delay; and
(d)the merits of the proposed application.
To the above, the Court would add that the longer the delay in lodging an application, the more persuasive the reason for the delay must be.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The extent of the delay is approximately five months. This is a considerable period of time and mitigates an extension of time being granted.
In his Affidavit sworn 28 October 2020, the applicant provides the following reasons.
From 15 September 2019 until 5 May 2020, his employment with the National Disability Insurance Scheme (NDIS) was suspended because of the applicant being in custody. He was not unable to return to work because of a delay in getting a Swedish police check translated into English. Because of the delay in obtaining employment, he had financial difficulties, and this prevented him from being unable to engage a lawyer to assist him with the proceedings. It was not until October 2020 that he had enough money to engage a lawyer to assist him.
The Court has no reason to doubt these circumstances as set out above. However, there was nothing to prevent the applicant lodging an application on his own behalf and then if necessary, seeking legal assistance to amend that application. The Court is well set up to both assist and deal with unrepresented applicants. The Court considers this factor to be neutral or slightly favouring the applicant in relation to an extension of time being granted.
The Court notes that the first respondent does not oppose an extension of time being granted. No real prejudice will flow to the Minister from an extension of time being granted. This factor favours the extension of time being granted.
The final matter for consideration relates to the merits of the proposed application. These should be considered at an impressionistic level. If there is no merit in the proposed grounds of appeal, then granting an extension of time would be pointless.
THE ADMINISTRATIVE REVIEW TRIBUNAL’S DECISION
The Tribunal decision is relatively short and spans a total of five pages and 23 paragraphs.
The Tribunal set out the legislative requirements under s.347(1)(b) of the Act and r.4.10 of the Regulations indicating that 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 indicated that the applicant was notified of the delegates decision to refuse him a spousal visa by letter dated 24 October 2019 and dispatched by email to the applicant’s nominated address for correspondence.
On 13 February 2020 the Tribunal registry sent a natural justice letter to the applicant through his nominated representative. The applicant’s representative provided a response which included submissions, and an accompanying document titled “Release Certificate”.
The representative’s submissions which are reproduced at [5] of the decision record includes a statement by the applicant noting that he had been arrested on 15 September 2019 by NSW Police and had been stripped of his mobile phone and had no access to internet or phone calls. As such, the applicant did not receive the email forwarded to him by his Migration Agent and stated that the circumstances were “beyond [his] control”. The representative also stated that the delegate knew of the applicant’s incarceration and that he was not able to be contacted. The representative stated that the matter was remitted to the Tribunal for the reasons put forth in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”).
The Release certificate simply stated the date the applicant was released from a correctional facility, being 28 November 2019, after having gone into custody on 16 September 2019.
The Tribunal had regard to the submission that the applicant suffered compelling circumstances by reason of his incarceration at [10]-[13]. Although the Tribunal acknowledged that the applicant was incarcerated for a time, this in itself did not give the Tribunal jurisdiction in the matter. As the applicant had nominated an authorised recipient to receive his communications from the Department under s 494D(1), accordingly the Department had fulfilled its obligation of notification to the applicant by sending the notification to the representative.
Citing a decision of Judge Smith in BET16 v Minister for Immigration & Border Protection [2016] FCCA 3165 at [20], the Tribunal found that the terms of the Act allow for no interference even if the result is harsh and significant injustice arises.
Ultimately the Tribunal held that the notification letter transmitted to the authorised recipient to the applicant was a proper notification.
The Tribunal then had regard to the following question: Did the notification clearly state the time by which the review application could be made? The Tribunal stated it had regard to DFQ17, along with the subsequent case of BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [35].
The Tribunal acknowledged at [14] that there are three pieces of information which were needed to calculate that the date for which the applicant could seek review, and for which the letter must have clearly conveyed, ended on 14 November 2019. These three pieces included:
(1) the period of time allowed for review application;
(2)when the applicant was taken to have received the notification of decision refusal (which is based on the date of the email containing the notification letter); and
(3) the date of the email itself.
As to the first, the Tribunal states that the information was located in the notification letter under the heading “Review rights”. As to the second piece of information, this was found under the subheading: “Registries of the Administrative Appeals Tribunal”, which was itself located under a heading “Lodging an application for merits review”. In the case of the date of the email itself, this was located in the email which attached the notification letter, which Department records state was sent on 24 October 2019.
At [16] the Tribunal held that although the information is located over three different places in two documents, the information was clearly conveyed.
At [21] it held that the applicant was notified of the decision on 24 October 2019 according to s 494C of the Act and the period to apply for review ended on 14 November 2019. Given that the Tribunal did not receive the application for review until 29 November 2019, the application was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in the matter.
GROUNDS OF JUDICIAL REVIEW
The applicant’s five grounds of judicial review are included in an Originating Application filed on 30 October 2020 (less particulars):
(1)The Tribunal Member erred in finding that the Tribup.al had no jurisdiction to review the decision of the delegate of the Minister for Immigration ("delegate”) on 24 October 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.
(2)The Tribunal Member erred in failing to find that the fact of the applicant's incarceration for the entirety of the period during which a review application could be made to the Tribunal constituted compelling circumstances which prevented him from:
(i) receiving the delegate's decision refusal letter while he was incarcerated
or
ii) being notified of the delegate's decision refusal while he was incarcerated;
such that the applicant could not be taken to have received thedelegate's refusal letter on 24 October 2019.
(3)Consequently, the Tribunal Member erred in finding that the prescribed 21-day period during which a review application could be made to Tribunal (for the purposes of s. 347(1)(b) of the Migration Act 1958 and r. 4.10 of the Migration Regulations 1994) commenced on 24 October 2019.
(4)The Tribunal Member erred in failing to find that the 21-day period commenced upon the applicant's release from custody on 28 November 2019.
(5)The Tribunal Member failed to give proper weight to the evidence of the applicant's lack of access to email, internet or phone communications while he was incarcerated.
THE APPLICANT’S SUBMISSIONS
The applicant appeared at the hearing via Webex. He is currently residing in Sweden, having voluntarily departed Australia after his bridging visa expired. He was assisted by an interpreter.
At the commencement of the hearing, the applicant indicated he did not have a copy of the relevant Court book, it was with his previous lawyer. He had received a copy of the Minister’s written submissions and understood them. He obtained a pen and paper so he could take notes during the course of the hearing.
The Court explained that it was conducting judicial review not merits review and the difference between the two types of review. The Court also explained the manner in which the hearing would be conducted.
There was no written submission filed by the applicant despite the orders of Registrar Cummings directing that submissions should be filed 28 days before the hearing. On 6 February 2025, by way of email sent to my Chambers, the applicant sent correspondence which was taken by the First Respondent to be written submissions. The Court accepted the correspondence to be the applicant’s written submissions.
The submissions did not address the grounds of judicial review rather they addressed the merits of the matter. The applicant stated he seeks a “visa” to be granted so he can re-enter Australia and have contact with his four-year-old daughter.
THE FIRST RESPONDENT’S SUBMISSIONS
The First Respondent addresses grounds three and four together. The applicant advances arguments about the prescribed period within which to apply for review in the Tribunal.
The first respondent submits that the error identified in DFQ17 does not arise in this matter as the notification letter in this case appears in terms largely similar to that in Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”).
The first respondent considered if the type of error identified in Sandor v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”) and Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 (“Park”) arises in this case.
The validity of the notification letter was dispositive in Sandor and Park because the Tribunals had found they did not have the jurisdiction to review the applications on the basis that they were made out of time.
Markovic J in Sandor made findings as to the defect in the notification letter at [49], finding that it "did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the Notification Letter did not explain the effect of s 494D(2) of the Act." Her Honour found that an applicant must no be required to “piece together facts which would allow him to know that time in which the application for review may be made” at [51]-[52] in finding that the notification letter did not comply with s 66(2)(d)(ii) of the Act.
Section 66 (2)(d)(ii) states (emphasis added):
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non - disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed by application under Part 5 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.
The finding by Markovic J’s is not inconsistent with the Full Court decision in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 which held that the prescription for the notification of a decision to “state” is a question of fact. This question may be determined by examining whether the notification can be understood by a person exercising reasonable care; (see: Singh [10]-[12] per Thawley J with whom Flick and Bromwich JJ agreed).
The first respondent refers to a decision of Judge Kendall’s in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 where his Honour also referred to Foster J’s decision in CAV18 v Minister for Home Affairs [2020] FCA 173 at [45]-[46].
As to the case of Park, the relevant question, at [22] the Court identified that “state” within s 66(2)(d) meant that the notification letter must set out the required information in a manner that is complete and clear. Whether the notification “states” the matters required at s 66(2)(d) is a matter of relevant objective fact, the form of the notification letter will determine, as a matter of fact whether it meets s 66(2)(d).
The appeal in Park raised a question of fact, that being “whether notification letter in the context of the objective facts, “states” the time in which the application for review made be made, within the meaning of s 66(2)(d)(ii)”.
In applying these principles to this application, the first respondent submits that read against the objective facts, the notification letter in this case “ states” the time in which the application can be reviewed, for the purposes of s 66(2)(d)(ii).
Firstly, this case is distinguished from Sandor in that it does not contain a head ‘ Receiving this letter’. It is similar to the one in Park in how the information Is placed under certain headings however it is distinct in that it is not addressed to multiple applicants and is not overly long. The letter is similar to that examined in Annon v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 22.
Secondly, the applicant does not claim that he did not understand the date of his notification. Instead, the applicant accepts that the notification letter was received by his authorised recipient and forwarded to his email in which he did not have access to whilst in custody. The applicant’s true complaint is that he was unaware of the notification and did not action the review application in time.
Thirdly, in line with the decision of Singh, which is not denied by the Full Court in Park, whether the requirements of s 66(2)(d) is satisfied depends in part on whether the notification letter is capable of being understood by a person exercising reasonable care.
At 34.2 – 34.5 of the first respondent submissions, the information set out under relevant headings of the notification letter is set out as follows:
34.2. The first page included:
“Review Rights
The decision can be reviewed.
We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
…
This review period is prescribed in law and an application for merits review may not be accepted after that date.”
34.3 The second page included:
“Lodging an application for merits review
Applications for review can be lodged online, in person, faxed or posted to any
registry of the Administrative Appeals Tribunal (AAT).”
34.4. On the third page, the notification stated the following:
Registries of the Administrative Appeals Tribunal
…
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.”
34.5. The terms of the statements together informed the reader of the period in which an application for review may be made contained similar language regarding the concept of when the letter was ‘taken to have [been] received’ such that the reader would reasonably understand that the two statements should be read together.
In this way, the statements together inform the reader both the period in which the application for review may be made and when the letter is taken to have been received. The terms of the statements are in such a way that a reader should understand that the two statements should be read together.
As held in Ali at [29], “[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”.
There is no other evidence to suggest that the notification letter was non-compliant with the requirements of the Act (RS [36]).
Further, it is put forth that a “ reasonable” person who elected an authorised representative should be on notice that any notifications would be sent to that representative and on par with the terms of the statement in the notification letter, would understand the term “you are taken to have received this letter at the end of the day it was transmitted” meant at the end of the day it was transmitted to the authorised representative. The applicant in their visa application, nominated their authorised recipient to receive communications on behalf of them.
In this case, the established principle that whether there has been a notification is a question of fact, is the live issue for consideration.
It is submitted that the Tribunal was correct in finding that the applicant could apply for review within 21 days after 24 October 2019, such that the prescribed period ended on 14 November 2019.
As to grounds one, two and five, the applicant complains that their period of incarceration impacted their ability to communicate and did not enable him to receive notification of the delegate’s decision until after the 21-day period had elapsed.
The issue of whether or not the review application was in fact lodged out of time was a jurisdictional fact to which the Tribunal made a “no jurisdiction” decision because the application was lodged out of time. The Court is left to consider whether or not the review application was in fact lodged out of time.
Reliance was placed on Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15 (“ Beni”) at [82]-[83] . With regard to this, the first respondent submits that the Tribunal did not have any power to extend the time for lodging the application as it was brought in the Migration and Refugee Division of the Tribunal. Furthermore, although the applicant’s explanation is plausible, the decision In Beni is authority for the principle that even if the result is harsh and significant injustice arises, the Tribunal is bound by statutory requirements.
CONSIDERATION OF THE MERITS OF THE PROPOSED GROUNDS OF JUDICIAL REVIEW
A perusal of the relevant documentation confirms that the application for review by the Tribunal was lodged on 29 November 2019, some 15 days outside the prescribed 21-day time period set by the Act.
In these circumstances, the Tribunal had no option other than to find that it had no jurisdiction. The existence of compelling circumstances, as discussed at [10] – [12] which may result in a harsh outcome were not matters that the Tribunal could take into account in determining whether or not it had jurisdiction. The court agrees with this finding.
The Court is satisfied the Tribunal then properly considered whether or not the notification letter of the refusal of the visa clearly stated the time by which the review application could be made.
The refusal letter (CB 468–471) on page 468 at the bottom states as follows:
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 have taken to receive this letter.’
I am satisfied that the above statement objectively clearly sets out the relevant time period in respect of which an application for merits review could be made and the applicant, taking reasonable care, could have understood the notification letter as to the relevant time period.
Further, the letter at CB 469 – 470 goes on to clearly indicate the methods by which an application for merits review can be made including online, by way of lodgement at the various registries of the Tribunal, including setting out relevant addresses or via email or fax. At CB 470, included under the heading “Lodging an application for merits review” the following appears:
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 Court is satisfied that the errors in the notification letter identified by Markovic J in Sandor are not present in this case. This matter is analogous to the facts found in Park, which post-dates Sandor. In Park, the Full Court concluded that the applicant was properly notified and the application to the Tribunal was lodged out of time.
Grounds three and four allege that the Tribunal erred in finding the prescribed 21-day time period commenced on 24 October 2019 and did not commence upon the applicants release from custody on 28 November 2019.
As set out above, the Court is satisfied that the refusal letter was properly transmitted to the applicant’s nominated representative at the email address provided by him in his application for the visa. Accordingly, the 21-day time period commenced on the day the refusal letter was transmitted to the applicant, via his nominated representative. The fact that the applicant was unaware of the refusal letter due to him being incarcerated is regrettably irrelevant to the calculation of the commencement date of the 21-day time period. In these circumstances, the court is satisfied the Tribunal correctly found that the application was lodged out of time and therefore the Tribunal had no jurisdiction. Ground three and four have no merit.
Grounds one, two and five also have no merit. The Tribunal correctly considered the applicant’s inability to communicate while in custody. The Tribunal correctly found that it had no power to extend the time within which an application may be brought to seek review of a decision, relying on Beni at [82] – [83]. As the application was made outside the required time period, the Tribunal had no option other than to find that it had no jurisdiction.
DETERMINATION
As none of the grounds of judicial review, even at an impressionistic level, have merit, there is no utility in granting an extension of time
The application for an extension of time is refused, and the application for judicial review is dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 14 March 2025
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