Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 640
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
File number: MLG 390 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 11 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in determining that it lacked jurisdiction – whether the applicant was notified of the delegate’s decision – whether the notification letter was clear – whether the application for review was filed late – whether the Tribunal failed to provide reasons for its decision – whether the applicant was denied the right to present his case – whether the Tribunal was obliged to invite the applicant to attend a hearing – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 347, 360, 476, 494B, 494C, 494D & 500 and Part 5 & Part 7
Migration Regulations 1994 (Cth), reg 2.16 & 4.10 and cl 500.213 in Schedule 2
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Celik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 420
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kioa v West (1985) 159 CLR 550
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 9 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Roeger Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 390 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIRENDER PAL 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:
11 AUGUST 2022
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 11). He arrived in Australia in March 2014 as the holder of a student visa (CB 26).
On 18 September 2017, the applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 10-25). In that application, the applicant nominated a representative from Orchid Migration and Education Services (the “representative”) as his authorised recipient and provided the representative’s email address for all correspondence in relation to the visa (CB 14-15). Attached to that application were copies of the applicant’s genuine temporary entrant statement, academic records from Zenith Business Academy, a completed “Form 956 - Advice by a migration agent/exempt person of providing immigration assistance” document containing the same contact details for the applicant’s representative (including an email address for all electronic communications), the applicant’s passport, financial information and Policy Certificate for overseas health cover (CB 26-42).
On 16 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-53). The delegate was not satisfied that the applicant met cl 500.213 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant met the English language proficiency requirement for the grant of the visa (CB 53).
The then Department of Immigration and Border Protection (the “Department”) notified the applicant’s representative of the delegate’s decision by way of a letter dated 16 November 2017 (the “notification letter”) (CB 47-50). That notification letter and a copy of the delegate’s decision were sent to the applicant’s representative by email (CB 46) on 16 November 2017 (CB 54-55).
On 15 December 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 56-66). In that application, the applicant answered “no” to question 21, relating to whether he wanted to appoint a representative to act on his behalf (CB 62). Attached to that application was a letter from the applicant which provided (CB 67):
I would like to inform you that my visa got refused I could not be able to lodged AAT on time as I had medical condition I fell down from the stairs and still I am under treatment doctor has advised me to rest for 8 weeks therefore, I could not lodged my AAT application on time due to my bad health condition I would be very grateful to you kindly accept my request and consider my application as I am a genuine student and still I am studying Bachelors from GCA College please let me get this opportunity and consider my application your help in this regards will be highly appreciated.
On 20 December 2017, the Tribunal invited the applicant to comment on the validity of his application for review (CB 70-71). Relevantly, the invitation to comment letter provided as follows:
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 to your authorised recipient on 16 November 2017 and, on the basis that 16 November 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 7 December 2017. As the application was not received until 15 December 2017, 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 3 January 2018. 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.
On 30 December 2017, the applicant responded to that invitation by email (CB 72-77), stating that his representative had not given him a copy of the refusal decision and that he did not receive a copy until he followed up with the representative by telephone on 11 December 2017 (following which the representative forwarded a copy of the delegate’s decision to him) (CB 73). The applicant provided a “screenshot” of the email correspondence between himself and his representative with his reply (CB 76).
On 10 January 2018, the Tribunal determined that it did not have jurisdiction in relation to the matter because the application for review had not been filed by the applicant within the statutorily required 21-day filing period (CB 81-83).
On 14 February 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-6). The applicant filed an affidavit in support of his application, annexing a copy of the Tribunal’s decision (CB 7-9). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is three pages in length and spans 10 paragraphs.
The Tribunal began by outlining the type of decision under review, noting that the delegate’s decision was made on 16 November 2017 (at [1]). The Tribunal confirmed that the applicant had lodged his review application with the Tribunal on 15 December 2017 and that the application had not been made in accordance with the relevant legislative requirements (at [2]).
The Tribunal then explained as follows:
3.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.
4.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal noted that it had formed the preliminary view that the application had not been filed within the relevant time limit as the last day for the applicant to lodge his application for review was 7 December 2017 (at [5]).
The Tribunal then confirmed it had invited the applicant to comment on the validity of his application by 3 January 2018 (at [6]).
The Tribunal continued:
7.On 28 December 2017 the applicant responded to the Tribunal as follows, attacting screen shots of his email inbox:
Honestly speaking my visa was going to expire 21 September 2017. And i consult with Stampford Australia pty. lyd. And they apply for my visa on 18 September. Everything was going good, i was waiting for my visa, along with I contacted to my lawyer regarding my visa, they said it is still waiting.
I called them sever times. But i called them on monday, 11 December. The guy i talked with name [omitted] he simply reply ‘YOUR VISA WAS REFUSED ON 16 OF NOVEMBER’.
But I regularly checked my email I didn’t get any email from agent. When i had a phone conversation on 11 December 2017, then he sent me the eamil.
It was late to reply the AAT as well. Next day 12 December, Tuesday i go and meet him personally. Then he said it will be fine we can still apply for AAT review. On next day 13 DECEMBER he apply for AAT, but via post.
This is the reason why everything is delayed. SO I M REQUESTING TO GIVE ME A CHACE TO PROVE MYSELF, As i m genuine student. I have some dreams to be something in my dream country. As well my parents are worried about this matter as well: To be honest there is not my fault at all. I was waiting for visa didn’t get information on time.
I would mention that my agent said he got this email on 4 December, because he said the case officer was on holidays but i got on 11 December... I know this would not be enough but at least give me some time to prove myself.Please sir im requesting you to give me a chance as it was not my mistake at all. If i got email on time i could take a action on the spot, because it is about my career.
The Tribunal considered the applicant’s response but determined that that response provided no basis upon which the Tribunal could accept the review application as filed by the applicant (at [8]).
The Tribunal ultimately found as follows:
9.The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 16 November 2017. Therefore the prescribed period within which the review application could be made ended on 7 December 2017. As the application for review was not received by the Tribunal until 15 December 2017 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.
On the basis of the above, the Tribunal found that it did not have jurisdiction in this matter (at [10]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 14 February 2018 contains three “grounds of review” as follows (without alteration) (CB 4):
1.Tribunal member has made a jurisdictional error in making that Tribunal has no jurisdiction in this matter.
2.Tribunal member has made jurisdictional error as reason mentioned in decision is without explanation
3.Natural Justice
In support of his application, the applicant swore and filed an affidavit on 14 February 2018 which annexed a copy of the Tribunal’s decision (CB 7-9). That affidavit also repeated the first two “grounds” of review from the applicant’s judicial review application.
On 12 December 2018, procedural orders were made by Registrar Ryan of this Court giving the applicant an opportunity to file an amended application, evidence and written submissions. Unfortunately, no further materials were filed by the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 14 February 2018, a Court Book numbering 83 pages (marked as Exhibit 1), written submissions and a list of authorities filed by the Minister on 26 July 2022 and the affidavit of Shauna Leigh Roeger affirmed and filed on 5 August 2022 (the “Roeger affidavit”).
The applicant appeared before this Court (on 9 August 2022) without legal representation. He was assisted at the hearing by an interpreter in the Punjabi language. The Court confirmed with him that he had received a copy of the Court Book, the Minister’s written submissions and the Roeger affidavit.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(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 & Anor (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]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that, while he accepted that his application had been filed late, this error was not through any fault of his own. Rather, his agent had failed to send him the delegate’s decision and had not advised the applicant that he only had 21 days within which to file a review application in the Tribunal.
The applicant’s oral submissions will be discussed below when considering the applicant’s grounds of review.
CONSIDERATION
Grounds of review
The applicant’s grounds of review are not particularised. While “problematic”, this Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or to understand what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will address that error accordingly: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Ground 1
For ease of reference, ground 1 provides:
1.Tribunal member has made a jurisdictional error in making that Tribunal has no jurisdiction in this matter.
The applicant asserts that the Tribunal erred in determining that it lacked jurisdiction.
This Court has outlined its preferred approach (and an overview of the relevant jurisprudence) in relation to “jurisdictional decisions” in previous judgments – most recently in Abbas v Minister for Home Affairs [2020] FCCA 1051 (“Abbas”); Celik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 420 (citing Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279 and Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281).
The Court repeats the analysis provided in the above cases below.
Relevantly, in Abbas (at [33]), this Court provided a framework for assessing whether, in circumstances where an application for review is filed “out of time”, the Tribunal was correct in determining that it lacked jurisdiction to review the matter. In cases such as this, the Court will assess the following:
(a) whether (and how) an applicant was notified of the delegate’s decision;
(b) the content and clarity of the notification letter; and
(c) whether the application for review was, in fact, filed “late” or out of time.
Applying this three-tiered approach to the current matter, the Court finds as follows.
Whether the applicant was notified of the delegate’s decision
At the time of filing his application for review with the Tribunal, the applicant claimed that he had been unable to lodge his application within the prescribed timeframe because he had fallen on the stairs and had been advised (by the doctor) that he needed to rest for eight weeks (CB 67).
Later, in response to the invitation to comment on validity letter sent to him by the Tribunal, the applicant claimed that he was not properly notified of the delegate’s decision because the notification was sent to his representative and he only became aware of the decision after the legislative time period within which a valid application could be made had lapsed. He claimed that he only received notification of the decision (on 11 December 2017) after he had contacted his representative to follow up on his matter and that he was otherwise “unaware” that a decision had been made in relation to his visa application (CB 72-74).
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”.
The prescribed period is set out in reg 4.10(1)(a) of the Regulations, which relevantly provides as follows (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;
In order for that 21-day period to commence, the Department must notify an applicant of the delegate’s decision in accordance with the requirements set out in s 66 of the Act. If the notification fails to meet those requirements, then the applicant will not have been validly “notified” of the delegate’s decision and the time period within which an application to the Tribunal must be made does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Section 66(1) of the Act specifies that, where the Minister refuses to grant an applicant a visa, the Minister must notify the applicant of that refusal in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision by one of the methods set out in s 494B of the Act.
A copy of the “notification letter” relevant to this applicant is provided in the Court Book (at 47-50). Having assessed the contents of that letter, the Court notes as follows.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant, or an applicant’s representative, via email.
The applicant here claims that he did not receive the notification letter until after the prescribed period had lapsed because the Department sent the notification letter to the applicant’s representative (rather than to the applicant directly).
As outlined above, the applicant in this matter nominated his representative (a registered migration agent) as an “authorised recipient” and provided the representative’s email address for all correspondence from the Department in relation to the visa application (CB 14-15). The applicant also provided a completed “Form 956 - Advice by a migration agent/exempt person of providing immigration assistance” document, which included the same contact details (including the same email address) for the applicant’s representative (CB 36-38).
Section 494D(1) of the Act provides that, if an applicant gives the Minister or the Department written notice of an authorised recipient for the purposes of s 494B of the Act, then the Minister or the Department must provide documents to that authorised recipient (instead of the applicant): Lee v Minister for Immigration and Citizenship [2007] FCAFC 62.
The applicant may vary or withdraw that notice given under s 494D(1) of the Act at any time, provided that no more than one person is the applicant’s authorised recipient: see s 494D(3) of the Act.
There is no evidence before this Court to suggest that the applicant varied or withdrew his representative as an “authorised recipient” in relation to the visa application relevant to these proceedings.
In circumstances where the Department had not received any notice of withdrawal at the time of the delegate’s decision (or at all), the Department was required to send notification of that decision to applicant’s representative and did so here via email on 16 November 2017 (CB 46 & 54-55). Pursuant to s 494D(2) of the Act, if the Minister (or the Department) gives a document to the authorised recipient, the Minister (or the Department) is taken to have given the document to the applicant.
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the email address he provided to the Department (being the email address of his representative) – that is, at the end of the day on 16 November 2017. This is so even if the applicant’s representative did not forward a copy of that correspondence or a copy of the delegate’s decision to the applicant. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act (in this case, to the valid nominated email address of the applicant’s representative), 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.
The Court is satisfied that applicant was “validly notified” of the decision to refuse to grant him the visa.
Whether the notification letter was “clear”
Section 66(2) of the Act provides that a letter notifying the applicant of a decision to refuse a visa application 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 s 500 of the Act, 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.
Here, the notification letter identified that the applicant’s visa application had been refused because the “applicant did not satisfy the provisions of the … Regulations” (CB 47). Further, the delegate’s decision explained that the visa was refused because the applicant did not satisfy cl 500.213 in Schedule 2 of the Regulations (CB 53). The delegate provided written reasons why the criteria in cl 500.213 in Schedule 2 of the Regulations were not satisfied and the visa was refused (CB 51-53).
On the basis of the above, the requirements set out in ss 66(2)(a)-(c) of the Act were satisfied in this matter.
Section 66(2)(d) of the Act requires the notification contain specific information about an applicant’s right of review. The Court is satisfied that:
(a)having stated expressly that “[t]he decision can be reviewed” and having advised the applicant that he was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 47);
(b)having indicated that, if he sought review, the applicant must be “physically present in Australia” (as required by s 347(3) of the Act), the notification satisfied s 66(2)(d)(iii) of the Act (CB 47); and
(c)in providing a table indicating the address for each of the Tribunal’s registries, the national email and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 48-49).
A further issue here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
In this regard, it is necessary for the Court to consider the content and structure of the notification letter as a whole when determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”). Further, whether a notification letter is “clear” will turn on the language and terms in which the notification letter is expressed when read “as a whole” by a person exercising a reasonable level of care: Singh; Ali v Minister for Home Affairs [2019] FCA 1102.
Having reviewed the notification letter in this matter (CB 47-50), the Court notes as follows:
(a)under the heading “Review Rights” it is stated that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 47); and
(b)under the heading “Receiving this Letter” it is stated that, “[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” (CB 49).
On the basis of the above, the Court is satisfied that a person reading the letter “as a whole” (as required by the Full Court in Singh) would be “sufficiently alert” to what was required of them and would be able to identify when that information was required.
The notification letter in this matter (dated 16 November 2017) was clear. Its layout was not confusing. Clear headings were used that provided “signposts” for the applicant to identify the information that he needed in order to lodge an application for review within the 21 day time period.
Whether the application for review was, in fact, filed late
The applicant here does not dispute that his review application filed with the Tribunal was lodged late. The applicant confirmed this was the case by letter accompanying his application for review filed with the Tribunal (CB 67). That letter relevantly states:
I would like to inform you that my visa got refused I could not be able to lodged AAT on time as I had medical condition I fell down from the stairs and still I am under treatment doctor has advised me to rest for 8 weeks therefore, I could not lodged my AAT application on time due to my bad health condition I would be very grateful to you kindly accept my request and consider my application as I am a genuine student and still I am studying Bachelors from GCA College please let me get this opportunity and consider my application your help in this regards will be highly appreciated.
Later, in response to the invitation to comment letter sent to him by the Tribunal, the applicant again confirmed that he had not filed the application within the prescribed period but claimed that he had not been provided with a copy of the delegate’s decision until 11 December 2017 (after the requisite time period within which he could seek review had already lapsed) (CB 72-74).
The applicant also confirmed that the application had been filed later when addressing this Court (at the hearing on 9 August 2022).
In its decision (at [3]), the Tribunal correctly explained that the time period within which the applicant was required to lodge an application for review of the delegate’s decision was 21 days from the date upon which he was notified: s 347(1)(b) of the Act and reg 4.10 of the Regulations.
Here, the 21 day time period here commenced on 16 November 2017 (being the day upon which the applicant’s representative was notified of the delegate’s decision) and ended on 7 December 2017. The applicant lodged his application for review with the Tribunal on 15 December 2017. The application for review was thus filed 8 days out of time.
Whether the Tribunal erred
The Tribunal was correct to find that it did not have jurisdiction in this matter. The applicant was validly notified of the delegate’s decision and was correctly informed of his review rights. He failed to lodge his application for review within the legislated 21-day time period.
Further, the Tribunal had no discretion (nor any power) to extend the time within which the applicant could lodge his review application. Having lodged the application outside of the legislatively prescribed timeframe, the Tribunal had no jurisdiction to assess the application for review: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
In the circumstances, the Tribunal made the only decision open to it.
No error arises in this regard.
Ground 2
Ground 2 provides:
2.Tribunal member has made jurisdictional error as reason mentioned in decision is without explanation
The applicant appears to suggest that the Tribunal did not provide reasons for its decision. This fails on a factual level.
The Tribunal here provided a detailed explanation as to why (and how) it came to the conclusion that it did not have jurisdiction in this matter.
As outlined above, the Tribunal set out the relevant legislation specifying the time within which an application for review was required to be filed, as follows:
3.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.
It then detailed the date that the applicant was notified of the delegate’s decision, as well as the date the applicant applied to the Tribunal for review of the delegate’s decision, as follows:
4.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
5.The Tribunal formed the preliminary view that it did not have jurisdiction because the application lodged on 15 December 2017 was not lodged within the relevant time limit. The primary decision notification letter, dated 16 November 2017 was emailed to the applicant's authorised recipient on that date to the address that was provided by him for the purposes of receiving documents. On the basis that 16 November 2017 was the date on which the applicant was taken to have been notified, the last day for lodging the application for review was 7 December 2017.
The Tribunal explained that, on 20 December 2017, it had invited the applicant to comment on the validity of his application for review and requested any comment in that regard be provided to the Tribunal by 3 January 2018 (at [6]).
The Tribunal then set out the applicant’s reply to that invitation letter (in full) (at [7]).
The Tribunal confirmed that it had considered the response but did not find it provided any basis for the Tribunal to accept the review application (at [8]).
The Tribunal ultimately determined as follows:
9.The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 16 November 2017. Therefore the prescribed period within which the review application could be made ended on 7 December 2017. As the application for review was not received by the Tribunal until 15 December 2017 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.
The Tribunal outlined the relevant legislation, correctly identified the time within which the applicant was required to file his review application with the Tribunal, provided the applicant with an opportunity to comment on the fact that his application had been filed out of time and considered the applicant’s response. The Tribunal then made its decision based all of the information before it.
The Tribunal provided detailed reasons for its decision and the information it considered in coming to that decision.
No error arises in relation to ground 2.
Ground 3
As outlined above, ground 3 provides:
3. Natural Justice
The applicant’s ground here is not entirely clear. Insofar as the applicant queries whether he was denied common law natural justice guarantees (in a broad sense), the Court refers to its recent decision WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) (at [83]) and again emphasises that the common law requires the Tribunal to bring to an applicant’s attention any critical issue upon which the Tribunal’s decision is likely to turn. Further, the Tribunal is required to provide an applicant with an opportunity to comment on or provide any response to such an issue: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
In the circumstances of this matter, the Court notes that:
(a)the applicant was validly notified of the refusal decision (as outlined above) and the timeframe within which his application for review could be lodged (CB 47-50);
(b)the applicant was sent an letter on 20 December 2017, by way of email sent to his nominated email address, inviting him to comment on the validity of his application lodged with the Tribunal (CB 70-71);
(c)the applicant provided the Tribunal with a response to that invitation (by return email) providing an explanation (with supporting documentation) as to why he was of the view that the Tribunal ought to proceed with a review of his application (CB 72-77); and
(d)the Tribunal expressly considered the applicant’s response in its decision (at [7]-[8], CB 82-83).
Here, as was the case in WZAVO, it cannot be said that the applicant was denied the right to present his case.
To the extent that the applicant is suggesting that he ought to have been invited to attend a hearing before the Tribunal (as required by s 360(1) of the Act), the Court disagrees for the reasons that follow.
The issue of whether the Tribunal is obliged to invite an applicant to attend a hearing in matters where, as the case is here, the Tribunal has correctly determined that it has no jurisdiction, has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”) as follows:
28.In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29.Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30.The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31.The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32.In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33.First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34.Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35.Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36.Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
Here, as was the case in Benissa, the issues arising in this matter related to whether the Tribunal had jurisdiction in the matter and not in relation to the decision under review itself. In those circumstances, the Court is satisfied that there was no practical injustice arising from a denial of a hearing concerning jurisdiction and no obligation arising from the requirements of procedural fairness in s 360(1) of the Act for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
Further, as discussed above, there was no power vested in the Tribunal to extend the time within which an application for review could be made by the applicant and, in those circumstances, the Tribunal made the only decision open to it.
The Court is satisfied that no error arises in relation to ground 3.
Otherwise
The Court notes that the Tribunal, at paragraph [8] in its reasons, references the date the applicant lodged his review application as 14 December 2017. This is incorrect. The application for review was filed by the applicant on 15 December 2017 (CB 56-67).
The Court considers this error to be no more than typographical in nature rather than jurisdictional. Whether the application was received on 14 or 15 December 2017 did not alter the Tribunal’s jurisdiction in this matter. The applicant was required to file his application by 7 December 2017. In those circumstances, regardless of this erroneous reference to 14 December 2017, even if this date was relied upon by the Tribunal, the applicant still would not have filed his application for review within the requisite 21-day time period (being by 7 December 2017) – a statutory requirement which cannot be waived or extended by the Tribunal.
Further, the Tribunal correctly references the application date as being 15 December 2017 in the remainder of its decision (see for example, [1], [5] and [9]).
Here, the reference to 14 December 2017 had no influence on the ultimate finding of the Tribunal that it lacked jurisdiction in the matter.
No error arises in this regard.
The Court also notes that the applicant told the Court that his migration agent failed to do what was asked of him (that is, advised him of what was required of him).
While drawing no conclusions in this regard, the Court notes that negligence, incompetence or bad advice (while unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. However, the Court does highlight (for the applicant’s attention) the powers of the Office of the Migration Agents Registration Authority. That Authority, unlike this Court, is statutorily empowered to investigate and address allegations of negligence, incompetence or bad advice on the part of migration agents.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 14 February 2018 fail to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 August 2022
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