Singh v Minister for Home Affairs
[2019] FCCA 2153
•12 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2153 |
| Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – where notification letter advising of delegate’s decision sent via email – where application to Tribunal lodged outside of time limit – whether the applicant was validly notified – content and clarity of notification letter – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 Migration Act 1958 (Cth), ss.66, 347, 476, 494B, 494C, 494D Migration Regulations 1994 (Cth), regs.4.10, 4.31, cl.500.212 of Sch.2 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | Satnam Singh |
| First Respondent: | Minister for Home Affairs |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | PEG 138 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 2 August 2019 |
| Date of Last Submission: | 2 August 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 2 August 2019 |
| Delivered on: | 12 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The applicant’s application be dismissed.
Formal written Reasons for Judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Perth |
PEG 138 of 2019
| Satnam Singh |
Applicant
And
| Minister for Home Affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 2 August 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The applicant’s application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs in the sum of $5000.
What follows are the written Reasons for Judgment referred to in order 2 of the orders made by this Court on 5 August 2019.
Background
By application filed in this Court on 16 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 20 March 2019.
The Tribunal determined it did not have jurisdiction to review a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”). Importantly, the Tribunal determined that the applicant had not filed his application for review within the 21 day time period imposed by the legislation governing appeals to the Tribunal. The application was filed 3 days late.
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court had before it the applicant’s originating application, an affidavit from the applicant affirmed 16 April 2019, a Court Book (“CB”) numbering 57 pages and written submissions from the Minister dated 26 July 2019.
The applicant appeared before the Court unrepresented. The Minister was represented by Ms Tattersall.
Relevant Chronology
The Minister’s submissions (at [3]-[9]) accurately summarise the chronology relevant to this matter. The summary provided in those submissions was not disputed. It is accurate and not argumentative in nature. The Court adopts the Minister’s summary as its own. It provides, relevantly, as follows.
The applicant, a citizen of India, lodged an application for the visa on 14 September 2018 (CB 1-18).
In his visa application, the applicant authorised his migration agent to act and receive communication on his behalf (CB 6-7). The agent provided an email address under the heading ‘Electronic communication’. This indicated that, by providing an email address, the applicant agreed for correspondence (expressly including the ‘notification of the outcome of the application’) to be sent to that email address (CB 7).
On 17 December 2018, the delegate refused to grant the applicant the visa on the basis that she was not satisfied that the applicant genuinely intended to stay temporarily in Australia and therefore did not satisfy cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 29-35).
On the same day, the Minister’s Department sent a Notification Letter attaching a copy of the delegate’s decision to the applicant’s representative by email (the “Notification Letter”) (CB 25-28).
On 10 January 2019, the applicant applied to the Tribunal for review (CB 36-49). The applicant provided a copy of the delegate’s Notification Letter and decision record.
On 11 January 2019, the Tribunal wrote to the applicant advising him that it appeared his application for review had been received outside the 21 day period for commencing a review and invited him to comment on the validity of his application within 14 days (CB 50-51). The applicant did not respond to that email (CB 55 at [4]).
On 28 February 2019, the Tribunal found that it did not have jurisdiction to review the delegate’s decision (CB 62-63). In effect, the Tribunal based this finding on the fact that the application was filed late.
Tribunal decision
The Tribunal’s decision is short. In full, it provides:
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 17 December 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 10 January 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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 17 December 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The Tribunal wrote to the applicant on 11 January 2019 inviting him to comment upon its preliminary view that the application was not valid given it had not been lodged within 21 days of the notification of the primary decision. It was stated that the application appeared out of time. The letter indicated the Tribunal required a response by 25 January 2019. No response was received.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 17 December 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 7 January 2019.
6.As the application for review was not received by the Tribunal until 10 January 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.
7.The Tribunal does not have jurisdiction in this matter.
Proceedings in this Court
The applicant filed his judicial review application in this Court on 16 April 2019. His review application contained the following grounds:
1. The Tribunal made a jurisdictional error in the finding that The Applicant does not criteria pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations).
2. The Tribunal also made a jurisdictional error in the finding that The Applicant’s visa wrongfully refused under the clause 500.212 in Schedule 2 of the Migration Regulations.
In his affidavit, the applicant stated:
1. I am the Applicant in these proceedings.
2. I applied for subclass 500 visa on 14 September 2018.
3. I received Notification of Refusal from the First Respondent on 17 December 2018 for my subclass 500 visa.
4. I applied for an appeal to the Second Respondent on 10 January 2019.
5. On 11 January 2019, the Second Respondent wrote to me advising that an appeal application lodged by me outside of the relevant period.
6. On 20 March 2019, the Second Respondent decided in this matter. I enclosed the Second Respondent’s Decision Record, labelled ‘Annexure A’ and The First Respondent Decision Record, labelled ‘Annexure B’.
7. I received an email of Notification of Decision from the Second Respondent on 27 March 2019.
8. I believed that the Second Respondent made an error in the making of this decision.
9. I would like to have the opportunity to have my case reviewed by the Federal Court as I have wrongly been refused subclass 500 visa.
Despite an order of a Registrar of this Court allowing the applicant an opportunity to file any further materials, the applicant did not do so.
Mindful of recent remarks of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] that an unrepresented applicant should be given an opportunity to explain their grounds of review and outline what they believe the Tribunal “did wrong”, the Court gave the applicant the opportunity to make oral submissions in relation to any concerns he had in relation to the Tribunal’s decision.
To assist the applicant, the Court explained to him that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant what this Court cannot do. It was explained that this Court cannot undertake what is referred to as a merits review. This Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Court asked the applicant to explain what he thought the Tribunal “did wrong”. Unfortunately, the applicant did not provide any information that assisted him in relation to jurisdictional error. In effect, he admitted that he did not comply with the 21 day time limit and explained that this occurred “because he was away and did not check his emails”. These explanations do not point to an error on the part of the Tribunal.
For the reasons that follows, the Court concludes that on the facts before it the Tribunal had no choice but to find as it did.
Consideration
Ground 1
1. The Tribunal made a jurisdictional error in the finding that The Applicant does not criteria pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations).
Ground 1 of the application (and paragraph 8 of the applicant’s affidavit) are directed to the central issue in this matter – that is, whether the Tribunal was correct to determine that it did not have jurisdiction.
The applicant claims that the Tribunal erred in finding that he did not meet s.347(1)(b) of the Act and reg.4.10 of the Regulations. Those provisions require that an application for review to the Tribunal must be made within 21 days of the date of notification of the delegate’s decision.
Following the Full Court judgment in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”), it is necessary for the Court to consider if the Notification Letter the applicant received was sufficiently clear for him to determine the date on which he had to seek review of the decision. If the Notification Letter here was not clear then, applying DFQ17, s.66(2)(d)(ii) of the Act will not be met and the Tribunal will be found to have had jurisdiction to review the decision.
This Court has previously addressed the sorts of issues that arise in this case in its decisions in CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080 (“CZI18”) and ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108 (“ELM18”). To the extent that the Court’s analysis in those cases is relevant to this matter, the Court repeats that analysis here.
Notification Letters – Requirements
A copy of the Notification Letter relevant to this matter (with the necessary redactions) is attached to these reasons as Annexure A.
In relation to visas of the sort seen here, an applicant for review of the delegate’s decision must bring an application within 21 days as per s.347(1)(b) of the Act and as proscribed by reg.4.10 of the Regulations.
For that 21 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements of s.66 of the Act. If the Notification Letter here does not accord with these requirements, then there has been no notification of the decision and the time period does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
DFQ17
The legislative provisions highlighted above as relevant to this matter have been extensively canvassed by Perram J in DFQ17. Counsel for the Minister argued that the facts in this case are distinguishable from the facts in DFQ17. As such, it is necessary to analyse DFQ17 in detail.
DFQ17 concerned an appeal from the Administrative Appeals Tribunal. The Tribunal had been asked to review a decision of the delegate to refuse the appellant’s application for a protection visa. That refusal was communicated to the appellant by a letter dated 3 February 2017 (annexed to these reasons as Annexure B). That letter was sent to a post office box address the appellant had provided on her protection visa application.
Although Justice Perram was reviewing a different section of the Act (such that the time period in question was 28 days, as relevant to protection claims) his Honour’s findings generally are nonetheless applicable here (in relation to the 21 day requirements for student visas of the sort seen here).
Referencing the particular visa in question, Justice Perram explained that an appeal to the Tribunal must be brought within 28 days of the date upon which a visa applicant is taken to have received notification that the visa application has been refused. The Minister contended that the appellant was duly notified by the delegate that her application for the visa had been refused by means of the letter dated 3 February 2017. Consequently, she needed to lodge any review application by 13 March 2017. She did not do so until 28 March 2017. The Tribunal concluded that her application was out of time and could not be entertained.
His Honour noted, relevantly, that:
a)on the second page of the letter sent to the applicant under the heading ‘Review Rights’ the letter says:
‘An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days.’
b)on the third page of the letter under the heading ‘Financial or case worker assistance’ the letter says:
‘As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.’
As discussed below, Justice Perram found that the letter in question was obscure and confusing. His Honour explained that the question for the Court was whether a letter which explains the date by which a review application must be lodged in an obscure manner ‘states’ the time within which such application must be lodged within the meaning of s.66(2)(d)(ii). If it does not, the visa applicant has not been notified of the refusal and the 28 day period in which to apply for a review has not yet commenced to run.
In assessing whether the time by which the application to the Tribunal was to be made was ‘stated’ in the letter of 3 February 2017, his Honour noted that s.66 of the Act requires the Minister to notify an applicant of a decision to refuse to grant a visa. Section 66(2)(d)(ii) relevantly provides:
Notification of decision
…
(2)Notification of a decision to refuse an application for a visa must:
…
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
…
(ii) the time in which the application for review may be made; and
…
His Honour then asked: what is the time in which a review application must be made?
His Honour noted that if, as in DFQ17, the applicant is not in immigration detention the issue is governed by reg.4.31(2) of the Regulations which provides:
4.31Time for lodgement of application with Tribunal
…
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
His Honour explained that in light of these legislative provisions, an unsuccessful applicant must make any review application to the Tribunal within 28 days of the day the applicant is notified of the decision or, should that decision fall on a non-working day, the next working day.
His Honour then asked, “when is an applicant notified of a refusal decision” and noted that the answer to this question turns upon the mode of delivery by which the refusal is communicated. It was noted that in DFQ17 the decision was sent by pre-paid post. Accordingly, the matter was governed by s.494C(4).
His Honour highlighted that the letter in DFQ17 was sent from an address in Sydney to a post office box in Sydney. Consequently, subclause s.494C(4)(a) applied and the appellant was taken to have received the decision on 14 February 2017 – that being 7 working days after the date of the letter of 3 February 2017. Hence, if the letter of 3 February 2017 was an effective notification of the decision then the effect of reg.4.31(2) was that any review application with the Tribunal had to be made by the appellant within 28 days, i.e., 13 March 2017.
Having assessed the letter and the relevant legislative provisions, his Honour expressed concerns as follows:
45.Pausing here, it should be noted that the calculation of 13 March 2017 from 3 February 2017 is not a straightforward exercise. Section 494C(4)(a) uses the expression ‘7 working days… after the date of the document’ whereas reg 4.31(2) stipulates ‘28 days, commencing on the day the applicant is notified of the decision’. Applying s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(2) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)) and having regard to the difference between days and working days, the 7-day period is not inclusive of the first day, weekends and public holidays but the 28-day period is inclusive of the first day, weekends and public holidays. Accordingly, 14 February 2017 must be double-counted. Whilst previous decisions of this Court have accepted that the notification letter need not draw attention to the need to double-count the day a person is deemed to have been notified of the decision (see, for example, Cao v Minister for Immigration and Citizenship [2009] FCA 586; 176 FCR 396 per North J; 176 FCR 396; CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 per Allsop CJ), it does serve to highlight a certain need for clarity.
46.The first step in the Appellant’s argument is that s 66(2)(d)(ii) requires that a notification of a refusal decision must ‘state… the time in which the application for review may be made’. The second step is the factual contention that the letter annexed below is so obscure it cannot be said to state that time. The final step is that a decision which is sent to an unsuccessful applicant which does not state the time in which a review may be made to the Tribunal, has not been notified within the meaning of reg 4.31(2) so that the 28 day period has not yet begun to run.
47.As the appeal was conducted, this third step was not disputed by the Minister…
48.Attention may therefore be confined to the first two steps…
49.One starts with the meaning to be given the word ‘state’ in s 66(2)(d)(ii)….
….
58.I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete …. but clear as well. This required the letter of 3 February 2017 …. clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
59.Turning then to the letter of 3 February 2017, the question is whether it ‘states’ the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.
60.As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.
61.The Minister submitted that there was nothing misleading or erroneous about putting the statement as to the date on which the letter was taken to be received on a separate page because the period in which review may be sought was not the only matter in the letter that proceeded by reference to that date. Accordingly, it made logical drafting sense to express the deemed notification period separately from the explanation of the period in which review may be sought. Whilst that may explain the intent behind the drafting choices of the Minister, the present question is whether the letter clearly conveyed that the time in which the application for review may be made ended on 13 March 2017.
62.I have no doubt that in this case the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application.
Applying DFQ17 to the facts of this case
In light of DFQ17, it is necessary for the Court to consider here if the Notification Letter was sufficiently clear for him to determine the date on which he had to seek review of the decision. If the Notification Letter was not clear, s.66(2)(d)(ii) of the Act will not be met and the Tribunal will been found to have fallen into jurisdictional error.
The Minister’s Submissions
The Minister’s written submissions contended, relevantly, as follows:
a)Justice Perram concluded that the Notification Letter under consideration in DFQ17 failed to clearly convey the necessary information, describing the notification in that case as “piecemeal, entirely obscure and essentially incomprehensible” (at [62]);
b)as a consequence, the Court found that the letter did not state the matter required in s.66(2)(d)(ii), which meant that the time within which an application for review to the Tribunal could be lodged had not yet started to run and the Tribunal had erred in concluding that the review application was out of time (and thus wrong in concluding it had no jurisdiction to review the decision);
c)there are a number of differences between the facts of the present case and the facts in DFQ17.
d)this notification was communicated by email. As a result, there was no additional complication of the calculation of seven working days to determine deemed receipt.
e)on the first page, under the hearing “Review Rights”, the notice here advises (CB 25):
An application for 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. This review period is prescribed in law and an application for merits review cannot be accepted after that date.
f)on the third page, under the heading “Receiving this Letter”, the notice advises (CB 27):
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.
g)a key difference between the present case and DFQ17 is that in that case there was significant complexity in calculating the end date in which to seek review, due to the fact that the notification was sent by post. Justice Perram described the process of calculating the date for filing of the application for review as “not a straightforward exercise” (at [45]), noting that only when “Carefully read by a person skilled in reading Commonwealth regulations, the letter does disclose the information that the review application had to be made by 13 March 2017”;
h)the calculation in DFQ17 was found to be particularly complex due to the following factors:
i)section 494C(4)(a) applied in that case (but not in the present case). Section 494C(4)(a) uses the expression “7 working days…after the date of the document”, whereas regulation 4.31(2) stipulates, “28 days, commencing on the day the applicant is notified of the decision” (discussed at [45]). This meant that it was necessary to have regard to s.36(1) of the Acts Interpretation Act 1901 (Cth) to work out how to calculate the time, and resulted in one day having to be double-counted in DFQ17; and
ii)there was also the difference between the use of the term “days” in reg.4.31(2) and “working days” in s.494C(4)(a). As a result of the different terms used in those provisions, there was a material difference in what days were counted for the purpose of each provision. That is, the 7 day period was not inclusive of the first day, weekends and public holidays, whereas the 28 day period was inclusive of the first day, weekends and public holidays. In the present case, there is no reference to “working days”.
i)in the present case, the applicant was only required to calculate the 21 days from and including the date the email was sent. The letter clearly conveyed to the applicant the time in which the application for review was to be made;
j)the fact this information was found in two parts of the Notification Letter did not lead to any lack of clarity or have the consequence that the notice of the matters referred to in s.66(2)(d)(ii) was “piecemeal, entirely obscure and essentially incomprehensible”; and
k)further, the statement as to when the letter was taken to be received was under a clear heading “Receiving this Letter”. In contrast, in DFQ17 the statement was found under the heading “Financial or Case Worker Assistance”.
Did the Notification Letter “state” the time in which to file an application for review?
The central issue here is whether the “level of clarity” contained in the Notification Letter was such that the Notification Letter can be found to have “stated” the time in which the applicant had to file his application for review before the Tribunal.
For the reasons that follow, the Court finds that the Notification Letter here was sufficiently clear to satisfy the requirements of s.66(2) of the Act.
In this case, and with reference to Annexure A, it is noted that the Notification Letter spans 4 pages. Relevantly:
a)at the top of page 1 the date of the decision is provided (that being 17 December 2018);
b)at the bottom of page 1, under the heading “Review Rights” is a reference to the 21 day time period the applicant has to file a review application; and
c)on page 3, under the heading “Receiving this Letter”, the following paragraph 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.
It is noted that the Notification Letter in DFQ17 (with reference to Annexure B to these reasons for judgment) provided information to the applicant as follows:
a)the date of the decision (that being 3 February 2017) appears at the top of page 1
b)on the top of page 2, under the heading “Review Rights” (which was on the base of page 1) is a reference to the 28 day time period within which the applicant is required to file a review application; and
c)on page 3, under the heading “Financial or caseworker assistance” the following paragraph appears:
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.
As in CZI18 and ELM18, Counsel here contended that in DFQ17 it was the paragraph at point (c) above that was found to be the most problematic and the most likely to cause confusion on the part of a legally unsophisticated applicant. It was argued that the paragraph is obscure and incomprehensible and lacks the “level of clarity” required to sufficiently “state” what is required of an applicant for review (as per s.66(2)(d)(ii) of the Act).
The Court agrees.
In this case, and unlike in DFQ17, the applicant was not required to calculate the 7 working day period while also remembering to ‘double-count’ a particular date. Rather, he only required two pieces of information:
a)the 21 day time limit; and
b)the date of receipt of the email that attached the Notification Letter.
In DFQ17, there was the added complexity that the applicant had to consider the additional seven day working period in which she was deemed to have received the notification, while remembering to double count (as she had received the Notification Letter by post). Here, the applicant received the notification by email. Hence, the required calculation was limited to determining the 21 day period from the date of the email – a date clearly noted at the top of the Notification Letter.
Here, as in CZI18, there was no need (as there was in DFQ17) to determine a new date from which to gage when the time period started (ie, seven days after the date of notification not including weekends or public holidays) and then count 21 days (which period included weekends and public holidays). Here, the applicant had all the information needed. He was not faced with differing definitions of what was a day or required to undertake two separate calculations. Rather, there was one straightforward calculation relevant to the 21 day period.
While the information here is located on separate pages, as noted in Ali v Minister for Home Affairs [2019] FCA 1102 at [28]-[30] letters of this sort must be read as a whole and the mere fact that various pieces of information appear on different pages does not mean that the information is not clearly conveyed. As Justice Nicholas, who appeared to be considering a letter formatted similarly to the letter here explained:
28 The first of the emphasised statements appears on page 1 of the letter whereas the second appears on page 3. But the letter must be read as a whole and the fact that these statements appear on different pages does not mean that the relevant information is not clearly conveyed.
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. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review: Zhan at [66]
The Court is satisfied that the Notification Letter in this matter was sufficiently clear to be found to have “stated” the scope of the applicant’s review rights. The Notification Letter does not suffer the same deficiencies evident in DFQ17.
On the basis of the above, the Court concludes that the Notification Letter here satisfies the requirements of s.66(2) of the Act. The applicant is found to have received the relevant notification on 17 December 2018.
Was the applicant properly “notified” and was his application filed late?
Having determined that the Notification Letter was valid, the Court now turns its attention to whether the transmission of the notification was carried out in accordance with the relevant legislative requirements.
In the applicant’s visa application he was represented by a migration agent. On page 6 of the application he answered “yes” to authorising his migration agent to receive all correspondence on his behalf.
The applicant’s migration agent provided his email address. As the applicant had indicated that he wished his correspondence to be sent to the migration agent, by virtue of s.494D(2) of the Act, the Notification Letter was taken to have been given to the applicant. Further, the Notification Letter “must” be given to the authorised recipient: Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181, and the applicant is deemed to have received the Notification Letter when it is given to an authorised representative. While the Notification Letter may also be sent to an applicant (see.s.494D(2)), this does not supplant the fact that sending the document to the authorised recipient is sufficient.
The Notification Letter was sent to the agent’s email address. Sending a document by email is an approved method by which the Minister may provide a document to a person (s.494B(5)). The Notification Letter then correctly identified that the applicant would be deemed to have received the letter at the end of the day on which it was transmitted (s.494C(5)).
Here, the applicant was validly notified of the delegate’s decision and deemed to have received it on 17 December 2018.
The final task for this Court is to determine the date by which the applicant had to lodge his application for review at the Tribunal. The review of the delegate’s decision was to be lodged with the Tribunal by 7 January 2019. It was not received by the Tribunal until 10 January 2019. The application was, therefore, outside of the statutory time limit by three days.
The Tribunal had no discretion, nor any power, to extend the time in which the applicant could lodge his review application. Having lodged the application outside of the statutory time limit prescribed by the Regulations, the Tribunal had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
There was, therefore, no error in the Tribunal finding that the application did not meet the requirements of s.347(1)(b) of the Act and reg.4.10 of the Regulations.
Ground 1 (and paragraph 8 of the applicant’s affidavit to the extent it can be considered a ground of review) must, accordingly, be dismissed.
Ground 2
Ground 2 is misconceived.
To the extent the applicant can be seen to be suggesting that the Tribunal erred in failing to find that the delegate was wrong in refusing the visa under cl.500.212, this argument must fail. As the Tribunal had no jurisdiction to review the delegate’s decision, it made no finding (and could not make any finding) that the applicant’s visa was wrongfully refused under the cl.500.212 of the Regulations.
There is no jurisdictional error in this regard.
Ground 2 must, accordingly, be dismissed.
Applicant’s Affidavit
The applicant’s affidavit is largely irrelevant to the issues before this Court. It merely recounts uncontested factual matters.
As for paragraph 8, the applicant is inviting the Court to hear him on why his visa was wrongfully refused under cl.500.212. The Court cannot undertake merits review of the sort requested here.
Conclusion
For the reasons outlined above, and noting the particular circumstances of this case, the Court concludes that there is no jurisdictional error evident in the Tribunal’s decision. The Tribunal was correct in determining that it did not have jurisdiction.
The application is, accordingly, dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 August 2019
ANNEXURE A
(The applicant’s Notification Letter)
ANNEXURE B
(The Notification Letter in DFQ17)
4
20
4