Seow v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 450
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Seow v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 450
File number(s): SYG 2624 of 2020 Judgment of: JUDGE GIVEN Date of judgment: 7 June 2022 Catchwords: MIGRATION – Tribunal found no jurisdiction because application made out of time – applicant validly notified – request for change of venue to Western Australia refused – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175
Migration Act 1958 (Cth) ss 66, 347, 476, 494B, 494C
Migration Regulations 1994 (Cth)
Cases cited: BMY18 v Minister for Home Affairs (2019) 271 FCR 517
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492
Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Singh v Minister for Immigration and Citizenship [2011] FCAFC 27
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 7 June 2022 Place: Sydney The Applicant: In Person Solicitor for the Respondents: Ms A Zinn of Mills Oakley ORDERS
SYG 2624 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARLENE SEOW
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
7 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application, filed on 5 November 2020, is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,100.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 5 November 2020 the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 October 2020, by which it found that it did not have jurisdiction to review a decision of a delegate of the Minister (delegate) on the basis that the review application had not been made in time.
BACKGROUND
The background to the application is summarised in [3] to [21] of the Minister’s helpful written submissions.
The applicant is a female citizen of the Philippines who first arrived in Australia on 26 November 2017 as the holder of a Visitor visa (Court Book (CB) 69).
On 6 February 2018, the applicant made a combined application for a Partner (Subclass 820) visa and Partner (Residence) (Subclass 801) visa (CB 1-23). She was sponsored by her de facto partner, an Australian citizen (the sponsor) (CB 94).
In her Partner visa application form under the heading “Contact details”, the applicant listed her email address being a particular gmail address (the gmail address) (CB 4). Further, following was printed under “Electronic communication” (CB 5):
The Department prefers to communicate electronically as this provides a faster method of communication. All correspondence, including notification of the outcome of the application, will be sent to:
Email address: [the gmail address]
On 10 March 2020, the delegate refused to grant the applicant the Partner visas on the basis that the delegate was not satisfied the applicant was in a genuine and continuing relationship and found she did not satisfy cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 100-124).
The delegate’s decision was emailed to the applicant at the gmail address on the same day (CB 100; see also Affidavit of Stephanie Wright sworn on 18 November 2021 (Wright Affidavit)). The letter notifying the applicant of the delegate’s decision (the notification) contained the following text (CB 101-102):
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision.
An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
Procedural history before the Tribunal
On 18 April 2020, the applicant applied to the Tribunal for review of the delegate’s decision (CB 125-127). The applicant provided the same gmail address (CB 126) and appointed the sponsor as her representative (CB 126). The review application contained the following information, under a heading “Decision to be reviewed” (CB 125):
Decision for review
Visa refusal
Visa class and subclass
BS 801
Date of decision
10/03/2020
Department decision notification date
10/03/2020
Department decision notification method
On 15 July 2020, the applicant informed the Tribunal that her contact details had changed and requested that all correspondence be sent to the gmail address (CB 136-138).
On 26 August 2020, the applicant gave the Tribunal a copy of the delegate’s decision record and notification. The cover email confirmed that the applicant received the refusal at 11:40am on 10 March 2020 (CB 140).
On 15 September 2020, the Tribunal wrote to the applicant inviting her to comment on the validity of the application for review (CB 145-146). The letter stated that the Tribunal had formed the preliminary view that the application for review was not lodged within the relevant time limit, namely 21 days from the day on which the applicant was taken to have been notified of the primary decision. The letter stated that as the delegate’s decision was emailed to the applicant on 10 March 2020, she was taken to have been notified on that day, and the last day for lodging the application for review was 31 March 2020. As the application for review was not received until 18 April 2020, it appeared to be “out of time”. The Tribunal invited the applicant to make any comments in response by 29 September 2020.
On 28 September 2020, the applicant responded by email (CB 147). The applicant claimed she had obtained an AVO against the sponsor on 13 August 2020. The applicant stated she did not know for what visa she could apply, that her sponsor had made the application to the Tribunal and she did not know what to do (CB 147).
The Tribunal’s decision
On 2 October 2020, the Tribunal found it had no jurisdiction (CB 153-154).
The Tribunal found that pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg 4.10 of the Regulations, the application for review had to be made within 21 days after the applicant had been notified of the decision in accordance with the statutory requirements (CB 154, [2]).
The Tribunal found that the material before it indicated the applicant was notified of the decision by letter dated 10 March 2020 and dispatched by email and was satisfied that it met the statutory requirements (CB 154, [3]).
The Tribunal found the Department purported to give the notice of the decision in accordance with a method in s 494B “but made an error in doing so” (this will be addressed further below). The Tribunal found that the applicant received the notification decision and had not shown that it was received at a time later than the relevant deemed receipt period in s 494C. Accordingly, the Tribunal found that the applicant was taken to have received it as if the deeming provision in s 494C applied: s 494C(7) (CB 154, [4]). For the reasons discussed below, the Department validly notified the applicant of the decision and no such error is apparent.
The Tribunal found that the applicant was taken to have been notified of the decision on 10 March 2020 pursuant to s 494C of the Act and therefore the prescribed period to apply for review ended on 31 March 2020 (CB 154, [5]).
The Tribunal noted that a review application was initially lodged on 2 April 2020 which was outside of the time limit, and for which the requisite fee was not paid ([6]).
The Tribunal noted that the applicant was informed by email sent on 15 September 2020 that the application for review appeared not to have been made in accordance with the relevant time limit and invited comments to be received by 29 September 2020 (CB 154, [7]).
The Tribunal confirmed that it received a submission on 29 September 2020 stating that the relationship had broken down and that the application was lodged out of time (CB 154, [8]).
As the second application for review was not received by the Tribunal until 18 April 2020, it followed that the review application was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter (CB 154, [9]-[10]).
APPLICATION TO THIS COURT
By her application to show cause, the applicant seeks judicial review of the Tribunal’s decision and raises the following three grounds of review (errors in original):
1.The decision of the Home affairs officer of the representative of minister was inaccurate
2.The decision of the officer of the Department would violate my de-facto husband right to travel if he is restricted to travel because of our visa application.
3.Our relationship has been established now for five years and we have no plans to end this. It would put [ILLEGIBLE] a big strain and disadvantage to my husband de facto if I will be sent home.
With the application for judicial review, the applicant also filed an Affidavit by which she attached the decision of the Tribunal and also two additional documents which appear to be character references. The Minister objected to this being received and I rejected the Affidavit on the basis that the attached decision of the Tribunal is already contained in the Court Book, and the two character references, aside from the fact they substantively did not go towards any matter which engaged with the review, were also dated after the date of the Tribunal’s decision. Other than that, the Court has before it a Court Book, and a Supplementary Court Book, which were filed for the Minister and were received as Exhibits “1R” and “2R”, respectively, together with a bundle of additional documents which appear to be screenshots from the applicant’s sponsor sent to the Tribunal on 2 April 2020, which was received as Exhibit “3R”.
On 10 December 2020, a Registrar of this Court made orders by consent which provided for the applicant to file and serve any amended application on or by 25 March 2021, and for written submissions to be filed 28 days before the hearing. The applicant did not avail herself of the opportunity to amend her application and no written submissions were filed with the Court. However, yesterday afternoon two emails were sent to the Court at about 3.45 pm. The first is a narrative email, the body of which I proposed to treat as a written submission. The body of that email included a statement that “photos of the application for the reduction of payment will be sent to you honorable Associate Judge Given”. Shortly after the first email was received, an additional email was received. It attached a photograph of a document headed “Administrative Appeals Tribunal Request for Fee Reduction”. The applicant indicated that she wished the Court to receive this document into evidence. I did and it was marked as Exhibit “1A”.
On 3 May 2022, the Court received an email from the applicant’s visa sponsor which was sent from a Yahoo address which appears to be his own. The email stated:
To Whom it May Concern,
on behalf of my partner de facto wife Arlene Seow, we would like to ask the honourable court for an adjournment to a later date due to my wife’s failing health due to depression
All my best,
[the sponsor]
On 4 May 2022, the Registry received a number of emails from the Yahoo address attaching various letters from general practitioners and a psychologist, all of whom appeared to be based in New South Wales. The last of these emails stated:
Please find the attached and submit to the honourable Judge Given for enlightenment and also if we can have the matter moved to a Western Australian court as we now resides in Boulder WA
All my best,
[the sponsor]
The Minister’s solicitors were not copied into either of the adjournment request or the emails to the Registry providing documents. The Court responded to include the Minister’s solicitors in that correspondence and also to indicate that the matter would remain listed and observe that the applicant’s partner was not a party to the proceedings. The applicant was told that she was welcome to renew any adjournment request at the commencement of the hearing on 7 June 2022. Later, on 4 May 2022, the Court received correspondence from the Yahoo address, which was copied to the applicant’s gmail address, and the solicitor for the Minister. That email said (errors in original):
Dear Associate Justice Guven,
I believe I am a party to this proceedings as I am the sponsor of Arlene Seow, and also take into considerations that we have moved to Western Australia so would it be better if the matter be adjourned and be moved to Western Australia as to not put us in a very disadvantage position plus the mental and emotional status of my wife.
All my best,
[the sponsor]
On 4 May 2022, a Notice of Address for Service was filed for the applicant notifying an address for service in Western Australia. On 6 May 2022, my Associate replied to the applicant’s sponsor with the applicant and the Minister’s solicitor copied, to explain the effect of s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), that ex parte communication was not permitted and to indicate that the matter would be listed for a directions hearing before me on 16 May 2022. I listed the matter for the afternoon to accommodate a potential time difference, given the suggestion which now arose from both the email on 4 May 2022 and the Notice of Address for Service that the applicant now resided in Western Australia.
On 16 May 2022, the parties appeared before me via Microsoft Teams. I asked the applicant whether she did, in fact, reside in Western Australia because the medical documents which had been attached to the sponsor’s various emails sent earlier that month and were dated in or around March 2022 all seemed to be from medical practitioners in New South Wales. The applicant confirmed that she had since moved to Western Australia. At the directions hearing, I reconfirmed the date for hearing as being 7 June 2022, but indicated that it would be held via Microsoft Teams with a changed time to 2.15 pm (AEST) to ensure that the applicant was not disadvantaged by a time which might be unfairly early for attendance from Western Australia.
As noted earlier, on the afternoon of 6 June 2022, namely yesterday and being the day before the hearing, the applicant sent two emails to the Court (again ex parte) being the written submission and Exhibit 1A. The applicant has again appeared before me this afternoon using the Microsoft Teams platform. The applicant was unrepresented at hearing, albeit she seemed to have her partner (the visa sponsor) next to her who sought to assist her at times during the hearing. While it is possible for the applicant to have a support person, I indicated to her that by virtue of the fact that it was my understanding her partner was not a lawyer, she should represent herself. The Minister was represented by a solicitor.
The connection has appeared clear throughout the hearing and without technical difficulties. The parties do not appear to have had any difficulty understanding one another, nor engaging with the Court. I note that, notwithstanding the fact that the applicant was given an opportunity to do so, and that she was told she could renew any adjournment request, no adjournment request or venue transfer request was made at the hearing before me today.
As noted earlier, the applicant has raised three grounds of review. The first two grounds of review appear to be a challenge to the delegate’s decision, and I sought to confirm this with the applicant. She confirmed that this was so. As I explained to the applicant at several junctures during the hearing, the Court has no jurisdiction to review a primary decision which is a decision of the delegate pursuant to s 476(2) of the Act.
The third ground of review in the originating application explains that the applicant would be put at a disadvantage and her relationship would be strained if she was to return home to the Philippines. This is presumably intended to engage the Court in merits review and to make a compassionate plea for an alternate outcome, so that the applicant can be granted a visa and remain in Australia. As I explained to the applicant several times, that is not a valid exercise for the Court to engage in, and my power is limited to assessing whether the Tribunal was correct to find that it was without jurisdiction.
Turning then to that question, it appears from the documents that are in the Court Book, and also from explanations and annexures to the Wright Affidavit, that the applicant sent an email to the Tribunal from her gmail address (CB 140 to 141). By that email, she forwarded an earlier email which had been sent to the applicant from the first respondent’s Department on 10 March 2020 at 11.40 am. The email chain also demonstrates that at 6.39 pm on 10 March the email was forwarded from the applicant’s Gmail address to the sponsor’s Yahoo address. The relevance of this is that the email of 11.40 am on 10 March 2020 corresponds to an entry in the Department’s ICSE records which are contained in Exhibit 2R, and also the last document in the Court Book, which is at CB 158, which also is reproduced and forms annexure SGW-1 to the Wright Affidavit.
The record which is found at page 1 of the Supplementary Court Book indicates that there is an entry for an event titled “refused” on 10 March 2020, followed immediately thereafter by a notation regarding the correspondence sent which says:
SENT, 10/03/2020, 11:39:55.
As I noted, this corresponds with an Enterprise Correspondence record, which is at both pages 158 of the Court Book and forms annexure SGW-1 to the Wright Affidavit. Flowing from this, and from the other documents in the Court Book, I make the following findings:
(a)the applicant’s gmail address was provided by the applicant to the Department with the visa application and it can be seen at pages 4, 5 and 10 of the Court Book. By so providing this, the applicant was agreeing to receive correspondence at this email address;
(b)while the applicant’s home address and telephone numbers changed from time to time, the client contact list in the ICSE records (page 1 of the Supplementary Court Book) indicates no change of email address and that the gmail address was the only email contact the Department appears to have held for the applicant at all times;
(c)at the time that the applicant applied to the Tribunal for review she requested that correspondence be sent to the sponsor, utilising his Yahoo address. However, on 15 July 2020 the applicant changed her contact details with the Tribunal, which included reverting to use of her gmail address. That gmail address was also provided by the applicant to the Court and has been used throughout the life of these proceedings as the applicant’s email address for service;
(d)pursuant to s 66(1) of the Act, the Minister was required to notify the applicant of a decision to refuse to grant her visa in a prescribed way. By reference to s 494B(5) of the Act, the dispatch of the delegate’s decision to the applicant by email, to the email address provided to the Minister for receiving documents, was the applicant’s gmail address;
(e)the notification letter itself complied with the requirements of s 66(2) of the Act (something that I will return to briefly later);
(f)by operation of s 494C(5) of the Act, the applicant was deemed to have received the notification by email at the end of the day on which it was transmitted, namely 10 March 2020;
(g)the last date on which the applicant could apply was 21 days later, namely on or by 31 March 2020, by reference to s 347(1)(b) of the Act, and reg 4.10 of the Regulations; and
(h)the application for review, once properly lodged with the Tribunal, was so lodged on 18 April 2020, which was 18 days beyond the last day upon which it could have been validly made.
From both the Tribunal’s decision and submissions made to me by the applicant at hearing today, it appears that the 18 April 2020 application was not the first attempt the applicant made at applying for a review of the delegate’s decision. An earlier attempt appears to have been made on 2 April 2020. While it is not entirely clear the circumstances which surrounded this, the applicant has now made another claim to the Court today by the written submission which was sent by email yesterday, and also repeated before me at hearing today.
Relevantly, in the written submission sent to the Court yesterday, the applicant said:
In response to the second respondent it failed to take into consideration, the March 28 initiation of our appeal to the DHAs unfair judgment when they refused to grant a visa. (photos of the application for the reduction of payment will be sent to you Honorable Associate Judge Given) As the AAT website failed to accept my partner’s MasterCard Online application prior to March 28, 2020. Under the 21 day’s appeal period stated in the Law. It is still in the jurisdiction of the AAT…
At hearing today, when the applicant indicated that she had attempted to make a review application to the Tribunal on 28 March 2020, I explored this with her and indicated that she had been given ample opportunity to file evidence before the Court to indicate anything of this nature, and had failed to do so since the inception of the proceedings in November 2020. After some confusion and much discussion about the fact that the applicant’s evidence was in photographic form, and that those photographs were stored on the sponsor’s iPad, which was malfunctioning, I sought to adjourn briefly so that such documents could be provided to the Court before the applicant clarified that the photograph that she was in fact talking about was the Request for Fee Reduction form which now forms Exhibit 1A.
A review of Exhibit 1A reveals that it is the first page of (at least) a two-page document. I infer this from the fact that in the bottom right-hand corner it says, “Turn to page 2”, with an arrow. However, only one page has been provided. The second thing to observe about this form is that it is entirely undated. Accordingly, even if this was a form that somehow sought to be submitted to the Tribunal on 28 March 2020, there is nothing to demonstrate this to be so. Further, it does not correspond with any of the documents which are in the Court Book. There is nothing before me to suggest that a valid application was made within the requisite 28 day period, either on 28 March 2020 or at all. There is also nothing to suggest to me, as is now claimed in the written submission received yesterday, that somehow the Tribunal’s website failed in any way, including but not limited to not accepting the payment from the applicant’s sponsor’s Mastercard.
There is also nothing to suggest that any fault in the Tribunal’s system caused an otherwise valid application to be incorrectly delayed. Even on the applicant’s case, at least insofar as she made submissions to the Tribunal, the first attempt to seek review was 2 April 2020 by which stage the application was already out of time. The applicant’s response to the Tribunal’s invitation to comment seems to have conceded as much, and it can be found at page 147 of the Court Book.
In Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243, Perry J considered an argument pertaining to late lodgement with the Department in circumstances where the Department’s systems were alleged to not be operating properly. Her Honour found in that case (at [28]) that it was not one where an application was lodged, but, subsequently, lost or not acted upon by virtue of some fault in the system. The same can be said here. On any version of events, no application was even attempted to be made in time, and I note again my findings in relation to the lack of evidence of the very newly raised claim that an attempt had been made to commence the review proceeding on 28 March 2020.
Two further issues arise for comment. The first respondent has drawn the Court’s attention to a curious statement in the Tribunal’s reasons for decision where, at [4], the Tribunal commences by saying:
The Tribunal finds that the Department, in purporting to give the notice of the decision in accordance with a method in s 494B, made an error in doing so.
This statement is at odds with the balance of the decision and appears to have been taken from some other decision, because it has absolutely no relation to the instant matter in which the applicant was, in fact, notified in accordance with s 494B(5). While an unfortunate inclusion in the reasons for decision, the question of whether the Tribunal had jurisdiction is a jurisdictional fact for this Court to determine, and the infelicitous inclusion of the erroneous statement in [4] of the reasons for decision do not alter that: see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19].
Lastly the first respondent submits, and I accept, that the notification letter of the delegate in this matter is not one which suffers from the same deficiencies as those which were considered by the Full Federal Court in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 or BMY18 v Minister for Home Affairs (2019) 271 FCR 517. A review of the letter in this case indicates that it is more akin to the form of letter which was considered in the matter of Singh v Minister for Immigration and Border Protection [2020] FCAFC 31. The applicant’s review rights are clearly stated under a heading which says “Review Rights”, and, in my view, the letter complied with s 66(2)(d) in this regard. I am not satisfied that the only ground of review which is valid before the Court, and which is directed to the decision of the Tribunal and not to the decision of the delegate, is made out.
Further, and for the forgoing reasons, I find that the Tribunal was correct to find that it had no jurisdiction. The Tribunal had no discretion to extend time and the applicant had not applied within it: Singh v Minister for Immigration and Citizenship [2011] FCAFC 27 at [47]-[48]. The decision being free from jurisdictional error is a privative clause decision and must be dismissed, and I will so order.
Consequent upon the dismissal of the matter, the Minister seeks an order that the applicant pay costs fixed in the amount of $6,100. In deciding whether or not a costs order should be made there are two matters that I must consider. The first is whether a costs order should be made noting the general rule that costs follow the event. The second question is, if I am to make a costs order, in what amount should that costs order be made.
The applicant has made submissions to me that she does not have money and she is not working right now. I am, however, satisfied that the costs should follow the event in this matter and that the amount sought is reasonable. Accordingly I will make orders to this effect.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 16 June 2022
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