Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 561
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561
File number: PEG 120 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 June 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – extension of time granted as arguable case of error demonstrated – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – notification letter incomplete and unclear because, as in Sandor, it did not explain that the applicant was taken to have received it at the end of the day it was transmitted to his authorised representative – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 66, 347, 476, 477, 494B, 494C & 494D
Migration Regulations 1994 (Cth), regs 2.16 & 4.10 and cl 500.212 in Schedule 2
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
BMY18 v Minister for Home Affairs [2019] FCAFC 189; Ali v Minister for Home Affairs [2019] FCA 1102
CAV18 v Minister for Home Affairs [2020] FCA 173
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1646
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission: 13 June 2023 Date of hearing: 26 April 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 120 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAWANPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (the “Act”), the time within which the applicant may file an application for judicial review under s 476 of the Act be extended to 9 June 2022.
2.A writ of certiorari issue quashing the decision of the second respondent dated 2 May 2022.
3.A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review on the basis that it has jurisdiction to do so and according to law.
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 24-26).
On 19 September 2020, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 23-41). Attached to that visa application was a copy of the applicant’s Indian passport, a genuine temporary entrant statement, academic records, financial documents and other supporting information (CB 42-63).
In his visa application, the applicant nominated an education agent from Global Immigration Education Consultants as his “authorised recipient” and authorised the Department of Home Affairs (the “Department”) to communicate with his authorised recipient via email (using the email address provided in his visa application) (CB 27-28). The applicant also provided a completed Form 956A “Appointment or withdrawal of an authorised recipient” document with his visa application (CB 59-63). In that document, the applicant again confirmed that he was appointing his authorised recipient to act on his behalf in relation to his visa application and provided the same email address for receiving electronic communications from the Department (CB 59-60). The document was signed by the applicant and his authorised recipient and was dated 18 September 2020 (CB 62).
On 17 November 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 72-75). The delegate was not satisfied that the applicant met the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia (CB 75).
The Department notified the applicant (through his authorised recipient) of the delegate’s decision in a letter dated 17 November 2021 (the “notification letter”) (CB 68-71). Relevantly, the notification letter was sent to the applicant’s authorised recipient via email (CB 67) and provided (CB 68-69):
Review rights
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.
…
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time the application for merits review is made.
On 7 January 2022, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 76-81). In his review application, the applicant answered “no” when asked whether any authorised recipient was being appointed to act on his behalf. He also provided an alternate email address, which appeared to belong to the applicant personally (or, at least, contained the applicant’s name within the email address) (CB 79).
On 10 January 2022, the Tribunal invited the applicant to comment on the validity of his review application (the “invitation letter”). That invitation letter was sent to the applicant (via email) and, relevantly, provided:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed you on 17 November 2021 and, on the basis that 17 November 2021 was the date on which you are taken to have been notified, the last day for lodging the application for review was 8 December 2021. As the application was not received until 7 January 2022, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 24 January 2022. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
No response was received from or on behalf of the applicant.
On 2 May 2022, the Tribunal determined that, because the review application had not been received “within the prescribed period”, the application was not valid and, as such, the Tribunal had no jurisdiction in relation to the matter (CB 94-95).
The Tribunal notified the applicant of its decision by way of a letter dated 5 May 2022 (the “Tribunal’s notification letter”) (CB 90). The Tribunal’s notification letter was sent to the applicant (via email) on 5 May 2022 (CB 89). With that notification, the applicant was also provided with a “fact sheet” containing “information about decisions” and information about how he could seek review of the Tribunal’s decision (CB 91-93). Relevantly, that fact sheet provided (CB 92):
Review of decisions
Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 9 June 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-8). Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”). In the circumstances, the applicant required an extension of time to pursue the substantive proceeding in this Court.
For the reasons that follow, the Court ultimately determined that an extension of time ought to be granted. Further, as detailed below, the matter came before this Court for hearing on 26 April 2023. Following a directions hearing held on 12 May 2023, further written submissions were provided on behalf of the Minister on 13 June 2023. In those submissions, the Minister conceded that the matter was affected by jurisdictional error. The Court, having reviewed the Minister’s submissions and the circumstances of the matter before this Court, determined that writs should be issued and the matter should be remitted to the Tribunal for consideration (having determined, for the reasons that follow, that it has jurisdiction to do so).
THE TRIBUNAL’S DECISION
The Tribunal’s decision is two pages in length and spans 7 paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Home Affairs on 17 November 2021 to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 7 January 2022. 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 reg 4.10 of the Migration Regulations 1994 (Cth) (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 November 2021 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 10 January 2022 advising him of its preliminary view that his review application is not valid because it was not lodged within the relevant time limit. No response was received from the applicant.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 17 November 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 8 December 2021.
6.As the application for review was not received by the Tribunal until 7 January 2022 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.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 9 June 2022 contains one particularised proposed “ground of review” which provides (without alteration) (CB 5):
1.The Tribunal failed to exercise its jurisdiction to review the decision of the delegate of the first respondent as it ought to have lawfully done in accordance with the Migration Act 1958 and the related regulations.
Particulars
1)The Tribunal failed to examine the details of whether the delegate of the first respondent had notified the applicant of the decision to refuse the Student (Temporary) (Class TU) visa in accordance with the requirements of the Migration Act.
2)The notice of decision was sent via electronic mail to [email address omitted] by the delegate of the first respondent to [the authorised recipient], who had lodged the student visa application on behalf of the applicant. The applicant did not authorise [the authorised recipient] to be a person authorised to receive any communications on behalf of the applicant.
3)The notice of decision and record of decision sent by the delegate of the first respondent to [the authorised recipient] on 17 November 2021 by electronic mail, was therefore, ineffective notification to the applicant.
4)The date on which the applicant was notified was 7 January 2022 when he first physically received a copy of the notice and record of decision dated 17 November 2021. The applicant had, therefore, submitted the review application to the second respondent within the 21 days period following the effective notification of the decision to the applicant.
On 2 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review (including an application for an extension of time) and supporting affidavit filed by the applicant on 9 June 2022, a court book numbering 95 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 12 April 2023, an affidavit of service of Elizabeth Grace Bennett deposed on 17 April 2023 (and filed in this Court on 18 April 2023) and correspondence from the applicant to this Court seeking an adjournment of the hearing before this Court (marked as Exhibit 2).
The matter was listed for a hearing of the application for an extension of time on 26 April 2023. The applicant appeared at that hearing via video and audio link. Ms Mickle appeared at the hearing on behalf of the Minister.
Ordinarily, in matters of this sort, the Court would consider the following factors when assessing whether to grant an extension of time (as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12]):
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
For the reasons that follow, that approach will not be followed in this judgment.
Following the hearing of this matter, a decision was handed down by Justice Markovic in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”). This Court determined that Sandor had implications for this matter.
Relevantly, as discussed further below, Sandor addresses what constitutes proper notification of a delegate’s decision – that is, whether the notification letter sent by the Department advising of a delegate’s decision is “complete or clear”.
This Court held a directions hearing on 12 May 2023 to discuss Sandor and its consequences for the matter before this Court. Ms Bennett, for the Minister, appeared by telephone at that directions hearing. Unfortunately, the applicant did not appear at the directions hearing, despite having been notified of the need to appear (by telephone) at a further direction hearing.
Ms Bennett agreed to file further written submissions on behalf of the Minister addressing Sandor and, importantly, whether the notification letter before this Court was “clear”. That is, whether the letter complied with s 66(2)(d)(ii) of the Migration Act 1958 (Cth) (the “Act”). The Court also explained to Ms Bennett that it would give the applicant an opportunity to file any submissions in reply. Orders were made by the Court to that effect following the directions hearing.
Further written submissions were filed on behalf of the Minister on 13 June 2023 in response to the Court’s orders. Those written submission are perhaps best described as “limited”. Relevantly, they state:
(a)the Minister concedes that the delegate’s notification letter (at CB 68-71) is materially indistinguishable from the notification letter found not to satisfy s 66(2)(d)(ii) of the Act in Sandor;
(b)the Minister makes the formal submission that Sandor is plainly wrong; and
(c)the Minister does not wish to be heard further at any oral hearing unless that would assist the Court. He appreciates that the consequence of the above position is that the application before this Court will be allowed and relief in the nature of constitutional writs granted. The Minister should be ordered to pay the costs the applicant is entitled to recover as a self-represented litigant, if any. The Minister also proposes, in light of his position, that the order granting the applicant to file and serve reply submissions be vacated.
As will be discussed further below, it is noted that the Minister’s submissions state that the decision in Sandor is “plainly wrong”. Nothing is said about why that it is the case or what, precisely, the Minister would like the Court to do with that argument. Rather (while not entirely clear), the Minister’s submissions appear to concede that the application for an extension of time should be allowed. Further, in the particular circumstances of this case, writs ought to be issued because, applying Sandor, jurisdictional error arises on the face of the Tribunal’s decision.
In these circumstances, and without more, the Court has determined that the applicant in this matter ought to be granted an extension of time. The Court will make orders in that regard. Further, having granted the applicant an extension of time, the Court would ordinarily bring the parties before it again for a hearing of the substantive application. However, in this matter, given that the Minister does not wish to be heard at a further hearing on the issues raised in Sandor (and noting the Minister’s position that the facts of this case are indistinguishable from Sandor – such that writs should be issued), writs will be issued and the matter will be remitted to the Tribunal.
CONSIDERATION – WHY SHOULD WRITS BE ISSUED?
Notification letters post-Sandor
The Act and Regulations impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is notified of a delegate’s decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the time within which the application for review may be made.
Section 347(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period. The relevant prescribed period is outlined in reg 4.10(1)(a) of the Regulations which provides (emphasis added):
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a)if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
For the 21 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way.
Section 66(2) of the Act outlines how a visa applicant is to be notified of a decision and relevantly provides as follows:
66 Notification of decision
…
(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 under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
The Department is permitted to communicate with an applicant by email pursuant to s 494B(5)(d) of the Act.
Where an applicant has appointed an authorised recipient, s 494D(1) of the Act requires the Minister to give the authorised recipient (instead of the applicant) any documents that would otherwise have been given to the applicant. Further, where the Minister gives documents to the authorised recipient, the Minister is taken to have given the documents to the applicant: s 494D(2) of the Act. There is also no obligation for the Minister to provide a copy to the applicant directly (but the Minister is not prevented from doing so): s 494D(2) of the Act.
Further, by virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the document is sent to an applicant’s authorised recipient (who did not forward a copy of that correspondence to the applicant) or, if the applicant did not receive those documents. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was “sufficiently clear”. In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:
(a)that the delegate’s decision can be reviewed; and
(b)the time in which the application for review may be made; and
(c)who can apply for the review; and
(d)where the application for review can be made.
In assessing whether a notification letter states that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64; BMY18 v Minister for Home Affairs [2019] FCAFC 189; Ali v Minister for Home Affairs [2019] FCA 1102 (“Ali”); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
These cases clarify that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will “reasonably understand”.
A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051. In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when assessing whether an applicant has, in fact, been “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
In this regard, the Court repeats its assessment in Abbas (at [78]-[79]). Relevantly, the above cases make it clear that the following principles apply:
(a)where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as “Financial and Case Worker Assistance”) the notification will lack clarity: DFQ17; BMY18;
(b)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant’s right of review (such as under the heading “Lodging an Application for Review”) this is sufficiently clear: Ali;
(c)where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading “Receiving this Letter”), the notification is clear: Singh;
(d)the letter should be read as a whole. Hence, the fact that different pieces of information may be spread across a number of pages is not decisive in relation to the level of clarity: Ali. Where the layout is confusing, however (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and
(e)whether a notification is “clear” will turn upon the language and terms in which the notification is expressed when read as a whole by a person exercising a reasonable level of care: Singh; Ali. It is not significant that an applicant may not speak English as a first language. The question is whether the letter conveys the required information.
Sandor also addresses whether a notification letter sent by the Department advising of a delegate’s decision was a proper notification (that is, whether the time period within which the appellant – Mr Sandor – could seek review by the Tribunal was made clear to him by that notification letter) and clarifies the case law summarised above. Sandor considers this issue within the specific context of a notification letter that is sent to an appellant (or applicant) via his or her authorised recipient. That variable has thus far not been specifically addressed by the Courts.
As accurately summarised by the Minister (at [5]-[7] in written submissions filed in this Court on 13 June 2023), in Sandor, Justice Markovic summarised the characteristics of the relevant notification letter in that matter, noting that (at [45]):
(a)the notification letter was dated in the top left-hand corner of the first page (13 February 2018);
(b)immediately under the date, the notification letter was addressed to the visa applicant, Mr Sandor, by his name;
(c)the first page of the notification letter stated “Transmission Method: Email sent to [email protected]”;
(d)also on the first page, under the heading “Review Rights” the notification letter stated that the decision can be reviewed and that: “[a]n 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 receive this letter”;
(e)on the third page, under the heading “Receiving this letter”, the notification letter stated “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”; and
(f)at the end of the letter, the notification letter also stated:
The original of this letter including any attachments was sent to:
Karola SZECSKO
Ms Szeckso was Mr Sandor’s migration agent. Mr Sandor had identified her as being authorised to receive correspondence in connection with his visa application.
Justice Markovic first rejected Mr Sandor’s contention that the notification letter did not meet the requirements of s 66(2)(d)(ii) of the Act because the letter stated it was sent to Mr Sandor when, in fact, it had been emailed to his authorised recipient: at [48]. As in Sandor, no issue in relation to s 66(2)(d)(ii) of the Act arises in this matter.
Her Honour then addressed a separate contention – that is, whether the notification letter was invalid because it was incomplete and unclear in 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: at [49]. Mr Sandor argued that, on that basis, the notification letter was invalid and, as such, the Tribunal had erred in finding that it had no jurisdiction because the time within which Mr Sandor could seek review had not begun to run.
The Minister submitted that the letter was clear, emphasising that the language reflected the terms of s 494D(2) of the Act. Relevantly, the Minister stressed that, in light of what was stated on page three (that Mr Sandor was “taken to have received it at the end of the day it was transmitted”) and page one (that it was transmitted to Mr Sandor's authorised recipient) it was clear that the 21-day time period commenced from that date.
Justice Markovich rejected the Minister’s argument, determining as follows:
49.The second matter is whether the Notification Letter was incomplete and unclear in 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.
…
51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister's submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister's reading of the Notification Letter, the appellant must understand that the reference to "the day the letter was transmitted" requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
Is this matter distinguishable from Sandor?
As outlined above, the issue in Sandor related to the contents of the notification letter sent by the Minister’s delegate and, in particular, whether the timeframe within which the applicant could seek merits review by the Tribunal was clearly set out in that notification letter.
The contents of the notification letter in this matter are described above at [5]. For ease of reference: (CB 68-71):
(a)the letter was dated 17 November 2021 (on the first page – CB 68);
(b)the letter was addressed to the applicant (referencing him by name) at his residential address (on the first page – CB 68);
(c)the letter indicated that the “transmission method” was via email sent to the applicant’s authorised recipient (on the first page – CB 68);
(d)under the heading “Review rights” (on pages 1 to 2 – CB 68-69), the letter stated (emphasis added):
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 the application for merits review is made.
(e)the letter was sent by email to the applicant’s authorised recipient on 17 November 2021 (CB 67-68).
It is clear from the above that the letter in this letter is indistinguishable from the letter the subject of Justice Markovich’s decision in Sandor.
The defect in the notification letter in Sandor was 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 sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Her Honour in Sandor, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not ‘manifest’.
That reasoning apples equally in the matter before this Court. Here, as in Sandor, the notification letter is unclear. As in Sandor, the notification letter here required the applicant to understand that he “was taken to have received” the letter on ‘the day the letter was transmitted’ to his authorised recipient. The applicant here (who we note was not legally represented before this Court and for whom English is not his first language) was also required to understand that his representative was deemed to have received the notification letter on the date it was “transmitted” and then calculate the timeframe within which a review application could be made (that is, from the date that his authorised recipient was deemed to have received the notification letter).
As in Sandor, the applicant here was required to “piece together” information and calculate the timeframe within which a valid application for review could be lodged with the Tribunal. Contextually, that is an unreasonable expectation and not something that this Court can support.
It follows then that the notification letter in this matter is defective for the same reasons detailed in Sandor. Importantly, the notification letter here “did not explain that the [applicant] was taken to have received it at the end of the day it was transmitted to his authorised recipient” and thus did not comply with the requirements set out in s 66(2)(d)(i) of the Act.
The Court notes that, as outlined above, the Minister in this matter contends (at [3] in written submissions filed in this Court on 13 June 2023) that the decision in Sandor is “plainly wrong”. To the extent that there is any suggestion that this Court should not adopt the reasoning in Sandor because that decision is “plainly wrong”, the Court disagrees in the strongest of terms.
As previously emphasised by this Court in Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1646, whilst the decision in Sandor may not have been “well received” in some quarters, this does not mean that the reasoning provided in that case is “clearly wrong”. Sandor could have been appealed by the Minister. It was not. This Court should not be asked to do what could have been done through the appellate process. That process exists for a reason and will not be ignored or circumvented here.
The Court considers the reasoning in Sandor to be binding on this Court and that decision is, accordingly, followed.
In circumstances where the notification letter issued by the delegate in this matter was defective, the time within which the applicant was required to file his application for review with the Tribunal did not begin to run. On that basis, the Tribunal erred in determining that it did not have jurisdiction because the application filed by the applicant was not filed within time.
CONCLUSION
For the reasons outlined above, the Court has identified jurisdictional error on the part of the Tribunal.
The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for it to determine on the basis that it has jurisdiction to do so and according to law.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 June 2023
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