Shakoor v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 853
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shakoor v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 853
File number(s): SYG 3070 of 2019 Judgment of: JUDGE LAING Date of judgment: 10 September 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant had attempted to apply for an extension of time in which to make an application to the Tribunal – where the Tribunal correctly found that it lacked jurisdiction to review the Delegate’s decision – application dismissed Legislation: Migration Act 1958 (Cth) ss 66, 338, 347, 494B
Migration Regulations 1994 (Cth) rr 4.10, 4.13
Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15
Benissa v Minister for Immigration and Border Protection [2016] FCA 76; (2016) 150 ALD 276
BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517
BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; (2023) 296 FCR 63
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492
MZAIC v Minister for Immigration and Border Protection and Another [2016] FCAFC 25; (2016) 237 FCR 156
s 66
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
SZEYK v Minister for Immigration [2008] FCA 1940
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 23 August 2024 Appearing for the Applicant: In Person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3070 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TABISH SHAKOOR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application be 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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal found that it did not have jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant applied for the student visa in question on 4 December 2018. In his application form, the applicant provided an email address for the purpose of receiving communications from the Department (Nominated Email Address).
The Delegate refused the application on 12 June 2019. Notification of this was sent through correspondence dated 12 June 2019 transmitted by email to the Nominated Email Address.
On 3 July 2019, the applicant sent to the Tribunal an application for an extension of time in which to seek review of the Delegate’s decision. The applicant asked to be told if “anything else [was] needed to support [his] case”. The applicant advised that he would be able to lodge the review application by 12 July 2019.
On 11 July 2019, the applicant lodged an application with the Tribunal for review of the Delegate’s decision.
On 27 September 2019, the Tribunal sent the applicant an invitation to comment on the validity of his review application. On 11 October 2019, the applicant replied, referring (inter alia) to having lodged an application for an extension of time. The applicant stated that he had “searched online and found out on the AAT official website that an extension for time limit can be asked for under compelling circumstances”.
On 22 October 2019, the Tribunal determined that it had no jurisdiction to determine the matter.
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for finding that it lacked jurisdiction:
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 June 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 27 September 2019 the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review. On 11 October 2019 the applicant provided a written response. As well as setting out his claims, the applicant explained that after receiving the Department’s refusal he sought an extension of time to lodge an application for review as he did not have all the documents. However, as set out in the Department’s notification of refusal, an application for merits review of the decision must be made to the Tribunal within 21 calendar days after the day he was taken to have received the letter.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 12 June 2019: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 3 July 2019.
6.As the application for review was not received by the Tribunal until 11 July 2019 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.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 25 November 2019, relying on the following grounds:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision.
2.That procedures that were required by law to be observed in connection with the making of the decision were not observed.
3.That the person who purported to make the decision did not have jurisdiction to make the decision.
4.That the decision was not authorised by the enactment in pursuance of which it was purported to be made.
5.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
6.That the decision involved an error of law, whether or not the error appears on the record of the decision.
7. That the decision was induced or affected by fraud.
8.H that there was no evidence or other material to justify the making of the decision.
9. That the decision was otherwise contrary to law.
(As per the original)
As the Minister observed, the grounds pleaded in the application appeared to be template grounds that were so devoid of particularisation as to be meaningless. At hearing, the applicant did not seek to develop the grounds beyond explaining certain matters that were, understandably, of particular concern to him. Those matters are considered below. Quite courteously, the applicant apologised at the hearing for the reference to “fraud” and explained that this was not intended to be a ground.
It is not apparent how the pleaded grounds could have been demonstrated on the material before the Court. In any event, as was discussed at the hearing of this matter, the question of whether or not the Tribunal had jurisdiction is an objective one.
If the Tribunal lacked jurisdiction to determine the application for review, then the Tribunal’s obligations of procedural fairness under Part 5 of the Migration Act 1958 (Cth) (Act) did not apply: SZEYK v Minister for Immigration [2008] FCA 1940 (Bennett J); Benissa v Minister for Immigration and Border Protection [2016] FCA 76; (2016) 150 ALD 276 at [32]-[36] (Edelman J). To the extent that common law procedural fairness principles applied, the Tribunal wrote to the applicant for his comment on its concerns about the validity of his application.
In any event, if the Tribunal lacked jurisdiction then it would be futile to remit the matter back to it for redetermination. This is so even if some legally recognisable error were apparent in relation to its decision. It follows that in order for the applicant to succeed, he must demonstrate that the Tribunal did not lack jurisdiction in the matter. Noting that the applicant is unrepresented, the Minister, properly, explored three means by which this could be demonstrated:
(a)first, if the Department failed to notify the applicant of the Delegate’s decision in the manner required under s 66 of the Act;
(b)second, if the Tribunal erred in its understanding of the applicable time requirements for the lodging of a review application and so misunderstood its jurisdiction; and/or
(c)third, if the applicant’s request for an extension of time were taken to be an application for review.
Was the Delegate’s decision properly notified?
I accept the Minister’s submission that the notification of the Delegate’s decision met the requirements of s 66 of the Act.
The notification in this case appears to have been sufficiently clear. It enclosed the Delegate’s decision explaining why the visa application had been refused, by reference to the criterion in issue. It informed the applicant of his rights of review to the Tribunal “within 21 calendar days after the day on which” the applicant was “taken to have received” the notification. Under a heading “Receiving this letter”, the applicant was notified that as it was sent by email, he was taken to have received it at the end of the day it was transmitted. This information did not appear under any misleading heading. It is therefore not apparent that the type of error considered in BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 (Reeves, Perram and Charlesworth JJ) at [28]-[37] and [41]-[43] occurred in the present case.
The form of the notification was, in some ways, similar to that which was found to have been unaffected by error by Nicholas J in Ali v Minister for Home Affairs [2019] FCA 1102 at [26]-[30] (where his Honour found that the notification did not contain errors of the type considered by Perram J in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492 at [58]-[62]). As no authorised recipient was appointed, no question of the type of error considered in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Markovic J) arises.
The applicable timeframe
The notification letter that was sent to the applicant contained the correct timeframe for seeking review.
The Delegate’s decision was a Part 5-reviewable decision by reference to s 338(2) of the Act. Pursuant to s 347(1)(b) of the Act and r 4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations) an application for review of that decision had to be made within 21 days after notification of the Delegate’s decision was received by the applicant.
As the notification was sent by email in accordance with s 494B(5) of the Act, the applicant was taken to have received it at the end of the day on 12 June 2019. As was found by the Tribunal, this meant that the last day for lodging a review application was 3 July 2024.
The request for an extension of time
There is case law suggesting that it is possible for an application to be accepted as valid notwithstanding that it was not made on the correct form. That is where the substance of the application made conforms with the purpose for which the form is required: see MZAIC v Minister for Immigration and Border Protection and Another [2016] FCAFC 25; (2016) 237 FCR 156 (MZAIC).
The exact form of the application for an extension of time that was made to the Tribunal is not in evidence. The evidence in the Court Book contains a communication to the Tribunal seeking an extension of time. However, the PDF documents that appear to have been attached to the communication are not in evidence. I was informed by the Minister that the attachments were not in the Tribunal file and, for this reason, were not included in the Court Book. I was advised that the applicant was in possession of the documents and able to seek to place them into evidence, if he chose to do so. The applicant did not seek for this to occur. In any event, the applicant has described what he did as the making of an extension of time application. This is consistent with the available evidence before the Court.
I accept the Minister’s submission that a written document or documents seeking an extension of time in which to apply for review would not come within the principle considered in MZAIC. This is because the substance of such a request would not be seeking to apply for review itself, but foreshadowing a possible future application and seeking a longer period in which to make it. Further, and in any event, there is no suggestion that the requirement for validity in s 347(1)(c) of the Act (together with r 4.13 of the Regulations) that any application for review be accompanied by the “prescribed fee” was met. The request for an extension of time could therefore not be said to have been a valid application for review that was made within time: see BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; (2023) 296 FCR 63 at [54] (Thawley and Kennett JJ).
As set out above, the applicant contended to the Tribunal that he had been led to believe through an online search of the Tribunal’s website that he was able to apply for an extension of time. In these proceedings, the applicant relied upon an affidavit annexing a screenshot from the Tribunal’s website that appears to show information under a tab labelled “Other decisions”. The heading is “Time limits”. Under this, it is suggested that the decision letter be checked to find out the applicable time limit (said to usually be a period of 28 days). Under a further heading “What can I do if the time limit has expired”, it is suggested that an application for an extension of time may be made.
The Tribunal had no power to extend time in the present case, in which the review application was required to be made according to the time limit specified in r 4.10: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 (McKerracher, Reeves and Thawley JJ). It is therefore not clear how any misleading conduct on the part of the Tribunal would have been capable of displacing the mandatory limitation period provided for under the legislation.
In any event, I am not persuaded on the evidence that is before me that the Tribunal’s conduct was objectively misleading. As set out above, and was discussed at the hearing, the page of the website relied upon by the applicant appears to be located under the tab “Other decisions”. Without some further context, it is not clear what “Other decisions” means. For example, if an earlier page referred to migration decisions, or decisions under the Act, then it may have been sufficiently apparent that information under the tab “Other decisions” was inapplicable. However, if the preceding page referred only to (for example) taxation decisions, then this may have presented a different picture.
Ultimately, it is not clear on the evidence that the webpage was objectively misleading (even if the extract in evidence is materially the same as the page viewed by the applicant in 2019). The evidence does demonstrate that the applicant was mistaken about the ability to extend the timeframe he had been told in the notification letter. That mistaken impression was communicated to the Tribunal on the last day for review. Whilst it would have been preferable if the Tribunal had immediately (and therefore within time) corrected the applicant’s mistaken impression, given the limited amount of time remaining for a valid application, I am not persuaded that the fact that the Tribunal did not do so in time was relevantly misleading.
The applicant’s mistake regarding the timeframe involved is understandable. I have sympathy for the position the applicant is in. However, this does not provide me with a basis for setting aside the Tribunal’s decision. As was explained at the hearing of this matter, the Court’s powers in this type of proceeding are limited. I am not able to set aside the Tribunal’s decision on compassionate grounds, where that decision was lawfully available to the Tribunal. As the Tribunal’s finding that it lacked jurisdiction appears to have been the only conclusion open to the Tribunal, it is difficult to see how any material error could be found in the Tribunal’s decision that this was so. Further, and even if I did set aside the Tribunal’s decision, it would be futile to remit the matter to the Tribunal.
It follows that the application to this Court is unable to succeed.
CONCLUSION
For the above reasons, the application that is before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 September 2024
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