Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 279
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279
File number: MLG 249 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 21 April 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for review by the Tribunal filed out of time – whether the applicant was validly “notified” of the delegate’s decision – whether the Tribunal erred in determining that it had no jurisdiction – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to have regard to the applicant’s “exceptional circumstances” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 338, 347, 360, 476, 494B, 494C, 494D
Migration Regulations 1994 (Cth), reg 2.16, 4.10, cl 500.212 in Schedule 2
Cases cited: Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
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
Craig v State of South Australia (1995) 184 CLR 163
DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Kioa v West (1985) 159 CLR 550
Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Manadhar v Minister for Immigration and Border Protection [2018] FCA 2035
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
Singh v Minister for Immigration and Citizenship [2021] FCCA 1426
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 and Citizenship [2013] FCAFC 80
Tay v Minister for Immigration and Citizenship [2010] FCAFC 23
WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 6 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr C McDermott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 249 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATINDER PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 APRIL 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’) 2 & 17). He arrived in Australia in June 2014 as the holder of a student visa. That visa was valid until 30 August 2017 (CB 49).
On 30 August 2017, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa) (CB 1-16). In that application, the applicant nominated a migration agent (the “representative”) as an “authorised recipient” for correspondence sent from the then Department of Immigration and Border Protection (the “Department”) (CB 5).
On 30 October 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 47-52). The delegate determined that the applicant did not meet 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 in Australia temporarily (CB 52).
The Department notified the applicant’s representative of the delegate’s decision in a letter dated 30 October 2017 (the “notification letter”). The notification letter was sent to the applicant’s representative via email (CB 42-46).
On 21 November 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 53-54). In his review application, the applicant nominated the same representative as his representative in relation to the review (CB 54).
On 27 November 2017, the Tribunal invited the applicant, via an email sent to his representative, to comment on the validity of his application for review (CB 55-57). Relevantly, the invitation to comment provided (CB 57):
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 30 October 2017 and, on the basis that 30 October 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 20 November 2017. As the application was not received until 21 November 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 11 December 2017. 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 7 December 2017, the applicant’s representative responded to the invitation to comment via email. Several documents were attached to that email.
Relevantly, the email included a note from the applicant’s representative which provided (CB 58):
We are writing on behalf of the above applicant. We would like to thank you for giving the applicant the opportunity to comment on validity of his application for review. As mentioned in applicant’s response letter, he was informed by us but due to unforeseeable outcome of his application, he was stressed as a result he miscalculated the dates. As the applicant was not financially stable, he advised us that he will lodge his application but unfortunately, on the last day he could not do so because of some system error AAT website. After facing the issue, he has made all the effort to come to our office for help, but we were closed. Our business hour is 9:00 am to 5:30pm weekdays. The applicant came to our office on 21/11/2017 and we advised client that he has passed the 21-day time limit. The applicant explained his circumstances and insist us to lodge his AAT application. We humbly request the Member to please take the applicants circumstances into consideration and accept the application for review.
Please find attached the following documents:
1. Screenshot of AAT website problem
2. College letter
3. Response from the applicant
Attached to the email dated 7 December 2017 was a letter from the applicant which provided (CB 62-63):
I am writing in relation to the validity of my application for the review to AAT in respect of a decision to refuse to grant me a Student (Temporary) (Class TU) visa.
I was informed about the letter by my migration agent. I got very stressed about the outcome of my application after receiving it. In utter confusion, I wrongly counted the days and dates.
I miscalculated the last date for merits review of my application. I missed counting the 3lst of October in the number of days available to respond to the refusal of my visa application. It was all due to a high level of anxiety.
Meanwhile, knowing that I did not have enough money to proceed, I had to request money from my parents back home in India. My parents arranged the money but it took time to reach me.
I advised my agent that I will lodge my application myself. However, I realised on 20/11/17 that it was the last date to lodge the review. I tried to lodge the application for AAT merits review myself from my own computer system. I made number of attempts to complete the application, but it was showing errors (as attached) and I couldn't open the AAT website. Not being able to lodge my application, I approached the migration agent on 20/11/17. I reached the office around 5:45 p.m. but it was closed for that day.
Approaching them was the first thing I did the next morning. I was in a very disturbed state of mind. They migration agent advised me that I had passed the 21 days' time limit to respond to the visa refusal notice. However, on my request, my migration agent has lodged my review application to be considered on compassionate grounds.
I am continuing my studies in Australia. I am a genuine student currently pursuing Certificate III in commercial cookery which is already near completion. I have completed more than 80% of the certificate III in commercial cookery. I wish to complete Certificate IV in commercial cookery which would commence in January 2018. Before returning home, l want to complete diploma and bachelor's degree in Hospitality Management. I have attached the COE confirming the same.
I sincerely request you to consider that I made best efforts to lodge a valid application on time. I seek to be considered on compassionate grounds. Not allowed to make a valid application, would bar me out from a fair hearing of my case. Returning back to my home country without academic degrees would not only make all my efforts and career goals for higher studies go waste but also my parents' hopes would come to an end.
I request you to please consider my request on compassionate grounds and consider my application for AAT where I can request the AAT Member to review the decision made by Department of Immigration and Border Protection regarding my student's visa. I want to stress again that, I am a genuine student in Australia and would like to continue my studies. I am in a situation because of the circumstances beyond my control. Hence, please consider my request and allow my application to be considered for review.
The email dated 7 December 2017 also attached a screen shot from the Tribunal’s website which provided a one line reference to “http/1.1 Service Unavailable” (CB 60).
On 9 January 2018, the Tribunal determined that it had no jurisdiction in relation to the matter as the applicant’s review application had been filed outside of the legislated 21 day time period for filing (CB 69-70).
On 1 February 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. 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 two pages long and spans seven paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 30 October 2017, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
2.The review application was lodged with the Tribunal on 21 November 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
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 30 October 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 applicant made a written submission to the Tribunal seeking to explain the reason his application for review was lodged late. The application advised in an undated letter he miscounted the number of days in October and accordingly miscalculated the last day for merits review. The applicant blamed the miscalculation on anxiety. The applicant sought the Tribunal grant his request for review on compassionate grounds.
6.The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 30 October 2017. Therefore the prescribed period within which the review application could be made ended on 20 November 2017. As the application for review was not received by the Tribunal until 21 November 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.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
The applicant’s application for judicial review filed in this Court on 1 February 2018 contains four “grounds of review”, as follows:
1.The Tribunal failed to accord me the procedural fairness and natural justice as prescribed in Migration Law. The application for review was made properly by my appointed agent and Administrative Appeal Tribunal adjudged that it was received after the final date thus it does not have jurisdiction in the matter
2.The delegate of Minister failed to give me an opportunity and to address the issues and grounds as prescribed in 500.212 of Schedule 2 of Migration ACT upon which the visa was refused.
3.The Tribunal made a decision disregarding my evidence submitted pertaining to my application.
4.Tribunal failed to see that Delegate of Minister did not allow procedural fairness and natural justice and erred in not having considered my exceptional circumstances.
An affidavit affirmed by the applicant on 31 January 2018 and filed in this Court on 1 February 2018 provides a narrative of events relating to the visa application and the subsequent decisions by the delegate and Tribunal. No further grounds of review are evident from the contents of that affidavit.
The applicant subsequently provided a further affidavit sworn and filed on 9 December 2019. That affidavit contains the following evidence:
(a)an email sent to the applicant, dated 7 December 2017, purportedly showing a “screenshot” of the Tribunal’s website;
(b)a statement from the Victorian Institute of Culinary Arts and Technology (“VICAT”) dated 4 September 2017 outlining that the applicant was “pursuing a Certificate III in Commercial Cookery (SIT30816) at VICAT”;
(c)copies of two bank statements issued by the ANZ Bank showing transactions from 22 February 2017 to 3 August 2017; and
(d)a receipt issued by the VICAT showing payment of $500 towards a “tuition deposit”.
The materials before the Court thus include the application for judicial review and the accompanying affidavit filed by the applicant on 1 February 2018, an affidavit affirmed by Sharon Manpreet Sangha filed on 21 November 2018, an affidavit sworn and filed by the applicant on 9 December 2019, a Court Book numbering 73 pages (marked as Exhibit 1) and written submissions filed by the Minister on 23 March 2022.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to also advise the Court if there was anything else that he thought the Tribunal “did wrong”. This is now standard procedure in this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include, but are not limited to, the following categories:
(a)where the decision 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 and Multicultural 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 and Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant 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 repeated the concerns outlined in his grounds of review – relevantly, that he could not file his application on time “because the AAT website was broken”. This issue is addressed below.
CONSIDERATION
The applicant’s grounds of review are not particularised. While arguably “problematic”, the Court is nonetheless mindful that where an applicant is unrepresented, and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise any concerns in that regard with the Minister. In these circumstances, the Court will read the applicant’s grounds of review as broadly as possible when determining whether an error arises: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Grounds 1 and 2
For ease of reference, grounds 1 and 2 provide (without alteration):
1.The Tribunal failed to accord me the procedural fairness and natural justice as prescribed in Migration Law. The application for review was made properly by my appointed agent and Administrative Appeal Tribunal adjudged that it was received after the final date thus it does not have jurisdiction in the matter.
2.The delegate of Minister failed to give me an opportunity and to address the issues and grounds as prescribed in 500.212 of Schedule 2 of Migration ACT upon which the visa was refused.
To the extent that the applicant suggests that there was an error in relation to the delegate’s decision, this Court has no jurisdiction to review that decision: ss 476(2) and (4) of the Act; Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [34]-[35]; Manadhar v Minister for Immigration and Border Protection [2018] FCA 2035 at [32].
However, having now heard from the applicant, the Court assumes that the reference in ground 2 to “the delegate” is, in fact, a reference to the “Tribunal”.
As such, by grounds 1 and 2, the applicant appears to take issue with the Tribunal’s determination that it lacked jurisdiction to hear his case. He says, for example, that his application was “properly made”. Further, he seems to suggest that he was denied procedural fairness because he was not given an “opportunity to address the issues”. The Court reads the latter concern as a concern that the applicant was not invited to attend a hearing before the Tribunal or a concern that he was not given an opportunity to address the core issue before the Tribunal.
Here, the Tribunal found that it did not have jurisdiction in this matter because, it concluded, the applicant’s application for review before the Tribunal filed with the Tribunal was filed outside of the requisite 21 day time period. The Tribunal determined as follows in this regard:
6.The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 30 October 2017. Therefore the prescribed period within which the review application could be made ended on 20 November 2017. As the application for review was not received by the Tribunal until 21 November 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.
Section 347(1)(b) of the Act requires that an application for review must be lodged at the Tribunal within the prescribed period. This prescribed period is found 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: 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 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 specified in s 494B of the Act.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant via email. Here, the Department sent the notification letter by email to the applicant’s representative (a migration agent) in his capacity as the applicant’s “authorised recipient” (CB 42-46). A record from the Department’s “Enterprise Correspondence Portal” before the Court shows that this email was sent to the representative on 30 October 2017 (Affidavit of Sharon Manpreet Sangha filed on 21 November 2018, pp 5-6)
The applicant consented to the Department sending all correspondence to his representative (CB 5). In accordance with s 494D of the Act, the Department was required to give the applicant’s representative all documents: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181. There was no obligation or requirement for the Department to also provide the notification letter to the applicant personally.
By virtue of s 494C(5) of the Act, the applicant is deemed to have received the notification letter when it was emailed to the representative. That is, at the end of the day on 30 October 2017.
Important for the purposes of this matter is paragraph 66(2)(d) of the Act which 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 the notification letter in this matter states that which is outlined above, the Court is 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 make it clear that in order to ‘state’ a matter as required by the Act, the notification must do so clearly and completely, 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 (“Abbas”). The Court will not reproduce that analysis here, other than to repeat its finding 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 was, in fact, “validly notified”, the Court should forensically assess the content and clarity of the notification letter.
Whether a notification is “clear” will largely 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.
For example, 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 as relating to the review rights (such as under the heading titled “Receiving this Letter”), the notification is clear: Singh.
In written submissions filed on 23 March 2022 (at [23a]), the Minister contends that:
The notification is identical in terms to that which was found by the Full Federal Court of Australia in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 to be clear and understandable in its terms and in conformance with s 66(2)(d) of the Act. It is also apparent on the facts of this case that the Applicant and his migration agent understood and calculated the statutory deadline for filing the merits review application – they ought to have known, and clearly did know, that the applicable deadline was 20 November 2017. The deadline was simply not met.
The Court agrees.
Looking at the relevant notification letter dated 30 October 2017 (CB 43-46), the following can be concluded:
(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 43); and
(b)under the heading “Receiving this Letter” it is 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” (CB 45). The heading directly encompasses the language of the statement referring to the time limit. A person reading the letter “as a whole”, as explained by the Full Court in Singh, would be sufficiently alert and would be able to identify and determine the relevant information.
The notification letter in this matter is clear. Its layout is not confusing. Clear headings are used that provide effective “signposts” for the applicant to identify the information he needs in order to lodge a valid application for review. The language (or the terms) used in the notification letter is unambiguous.
The Court is satisfied that the notification letter here is sufficiently clear to meet the requirements set out in s 66(2)(d)(ii) of the Act.
What the notification letter makes quite clear is that the applicant needed to file his application to the Tribunal by 20 November 2017.
The application for review filed on behalf of the applicant in this matter was received by the Tribunal on 21 November 2017 (CB 53-54). It was thus 1 day outside of the legislated 21 day time period.
In these circumstances, the Tribunal had no discretion, or indeed any power whatsoever, to extend the time within which the applicant could lodge his review application. Having lodged the application outside of the prescribed timeframe, the Tribunal had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 (“Beni”).
The Tribunal was therefore correct in finding that it had no jurisdiction in relation to the matter.
In so far as the applicant is concerned that he was not invited to a hearing or allowed to “present his case”, the Court references its recent decision in WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 (“WZAVO”) in this regard and notes as follows.
Section 360 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments. However, there is no requirement to do so where there is no “valid” application before the Tribunal.
As outlined by the Federal Court in SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [46]:
46.The Minister contends that the Tribunal has obligations of procedural fairness in the course of conducting a review, which are exhaustively codified by the Act in Div 4 of Pt 7; but no review is commenced unless an application is made which engages the Tribunal’s jurisdiction. While the Tribunal needs to form a view about whether it has jurisdiction in each case, it cannot conclusively determine its own jurisdiction and its opinion on the issue has no legal force in itself. Thus no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction. The issue before the Court is simply whether the Tribunal’s conclusion was right, not how it arrived at that conclusion.
Here, as was the case in WZAVO, and as detailed above, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Here, for the reasons detailed above, the Tribunal’s decision in relation to whether it had jurisdiction was correct. The application was, without doubt, filed late. As such, the requirements in section 360 of the Act do not apply.
In relation to the question of common law guarantees of natural justice more broadly, the Court again references its recent decision in WZAVO (at [83]) and highlights that the common law rules of procedural fairness simply require that the Tribunal bring to the applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response (in this case in relation to the issue of jurisdiction): Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
Here, in a letter dated 27 November 2017, sent to the applicant’s representative via email, an official at the Tribunal provided details of the relevant adverse information that was before the Tribunal, as follows (CB 57):
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 30 October 2017 and, on the basis that 30 October 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 20 November 2017. As the application was not received until 21 November 2017, it appears to be out of time. However, this is a matter which must be determined by a Member.
The same letter advised the applicant to provide any comments to the Tribunal on the information above by 11 December 2017. This provided the applicant (and his representative) with a two week period within which to provide comments addressing the core issue before the Tribunal.
The applicant’s representative responded to the invitation to comment via email on 7 December 2017 (CB 58). That email contained an attachment of a screenshot which the applicant claims to be from the Tribunal’s website (CB 60), a statement of enrolment from VICAT dated 4 December 2017 (CB 61) and a two-page letter to the Tribunal dated 4 December 2017 which was signed by the applicant (CB 62-63).
In the circumstances, it cannot be said that the applicant was not given a reasonable opportunity to comment on information that his application for review before the Tribunal was invalid.
In its decision (at [5]), the Tribunal referred to and considered the contents of the applicant’s letter dated 4 December 2017, noting, for example, the applicant’s assertion that he was anxious at the relevant time, had “miscalculated the number of days in October and accordingly miscalculated the last day for merits review” and his “request for review on compassionate grounds”.
In oral submissions, the applicant seemed to stress that the Tribunal failed to afford him procedural fairness because it denied him an extension of time within which to lodge his application for review – noting that he was under stress and also noting that the Tribunal’s website was “down” when he tried to lodge his application for review.
There is no concrete evidence before this Court that the Tribunal’s website was indeed “down” when the applicant attempted to lodge his review application. Nor is there any evidence that the applicant attempted to do so.
To the extent that what the applicant says this did occur, however, the Court is sympathetic to the concerns he raises. These events have undoubtedly proven quite stressful for him. Unfortunately, the Court cannot assist him in this regard.
Once the Tribunal found that it had no jurisdiction to decide the matter because the application for review was lodged out of time, it had no discretion to extend the time period in which the application ought to have been lodged. This was the case no matter how compelling the personal circumstances alleged by the applicant in the letter dated 4 December 2017 might have been to the Tribunal: Beni. As recently explained in Singh v Minister for Immigration and Citizenship [2021] FCCA 1426 at [71] (emphasis added):
The more recent decision of the Full Court in Beni Minister for Immigration and Border Protection [2018] FCAFC 228 is consistent with the relevant reasoning in the above cases. That decision arose out of a decision by the Administrative Appeals Tribunal (AAT), and, in turn, this Court, that the AAT had no jurisdiction to determine an application for review of a decision by a delegate to refuse a visa made out of the time prescribed by s 347(1)(b). Amongst other things, broadly speaking, that decision concerned whether amendments to the Administrative Appeals Tribunal Act 1975 (Cth) had the consequence that that the AAT had power to extend the relevant time. The relevant amendments were not in force at times relevant to the instant case. In any event, the Full Court held that they were not effective to extend the relevant time.
The Tribunal did not fail to afford the applicant procedural fairness.
Grounds 1 and 2 accordingly fail.
Ground 3
For ease of reference, ground 3 states (without alteration):
3.The Tribunal made a decision disregarding my evidence submitted pertaining to my application
By ground 3, the applicant is, in essence, claiming that the Tribunal failed to take into account relevant information in the form of evidence provided by him.
The applicant does not specify which information or evidence the Tribunal disregarded or failed to take into account. However, the Court notes as follows.
For the reasons detailed above, the only evidence relevant to the Tribunal’s assessment in this matter was evidence that addressed whether the Tribunal had jurisdiction.
In response to the invitation to comment extended to him (and his representative) on 27 November 2017, the applicant provided three pieces of evidence to the Tribunal. These were a screenshot purportedly of the Tribunal’s website (CB 60), a statement of enrolment issued by VICAT dated 4 December (CB 61) and a two-page statement signed by the applicant (dated 4 December 2017) in which he outlines why he did not file his application within the requisite 21 day period (CB 62-63).
In its decision (at [5]), the Tribunal referred to and considered the two-page statement provided by the applicant. The Tribunal’s decision does not, however, refer to any other aspect of evidence presented by the applicant and does not specifically reference the Tribunal screenshot. While arguably “unusual” (given the Tribunal’s assessment of the applicant’s other evidence about his “miscalculation” of the relevant 21 day time period) it cannot be said here that any failure to unequivocally address the “screenshot” amounts to an error on the part of the Tribunal.
In written submissions filed with this Court on 23 March 2022 (at [23b]), the Minister stresses:
There is “nil cogent or clear evidence of any “systems” problem with the Tribunal’s website on 20 November 2017 which would have rendered the Applicant practically unable to lodge an application for merits review online within time. In any event, the Applicant was informed of alternative methods of filing an application for merits review in person (at the time of the merits review application was lodged he lived in [sic] suburb in Melbourne) or facsimile. Why it was considered necessary for the Applicant to attend upon his migration agent in person after business hours on 20 November 2017, as opposed to contacting them by telephone sometime earlier that day, is also left entirely unexplained by the Applicant in the materials before the Tribunal. Nor is there any relevant evidence of the Applicant making any contact with the Tribunal on that day (for example, by phone or email).
The Court Book contains a screenshot that appears to show the Tribunal’s website as “unavailable” (CB 60). However, that screenshot is not dated and, arguably, does not “prove” that the applicant attempted to lodge his application on the Tribunal’s website on 20 November 2017. The information presented on that screenshot is not legible and nothing on it indicates that it was taken from the Tribunal’s website on 20 November 2017.
The Tribunal is not required to refer to every piece of evidence before it or to give reasons why a particular piece of evidence is rejected or not given weight: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]; BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354 at [88]. Further, any “failure” by the Tribunal to specifically refer to the statement issued by VICAT and the screenshot of the Tribunal’s website does not necessarily mean that such evidence was not considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].
Here, the Tribunal does make it clear that it took into account the applicant’s written statement and his request for compassion. In this matter, because the core issue before the Tribunal concerned the validity of the application for review (rather than whether the applicant satisfied cl 500.212 in Schedule 2 of the Regulations), it was up to the Tribunal to consider and refer to relevant aspects of evidence before it in addressing that core issue: Li at [10].
In this matter, the screenshot and other evidence before the Tribunal did not address that issue. It was irrelevant to the issue of jurisdiction. What that evidence pointed to was a plea for an extension of time on the basis of a claimed, but poorly substantiated, set of events. As discussed above, the Tribunal had no discretion to extend the time in that regard.
To the extent that the Tribunal did not “clearly” address this evidence, it can be inferred that the Tribunal did not so because it was not relevant to the issue of jurisdiction. Further, and in any event, even if an error does arise in this regard, that error is not material as that evidence could not have altered the fact that the application was filed late and the Tribunal had no discretion to extend the time within which the application needed to be filed.
Ground 3 is, accordingly, dismissed.
Ground 4
This ground 4 provides:
4Tribunal failed to see that Delegate of Minister did not allow procedural fairness and natural justice and erred in not having considered my exceptional circumstances.
This judgement has already established that the applicant was afforded procedural fairness. This Court has also explained why it cannot review the delegate’s decision.
By ground 4, the applicant also claims that the Tribunal made an error in not considering his “exceptional circumstances.”
It is not entirely clear what “exceptional circumstances” the applicant is referring to. To the extent that he is concerned that the Tribunal failed to address what he claims occurred in relation to the Tribunal’s website, the Court repeats the analysis provided above in relation to ground 3. Further, to the extent that the applicant is arguing that he should have been “given more time” because he was under considerable stress and failed to properly calculate the relevant 21 day period, the Court again notes that, regardless of how sympathetic the Tribunal may have been toward the applicant, once it was clear that the Tribunal lacked jurisdiction, there was simply nothing the Tribunal could do to assist the applicant. As stressed by the Minister, in written submissions filed on 23 March 2022 (at [21]), the timeframe for filing a merits review application is absolute. As explained by the Full Court in Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [19]:
…the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received.
No jurisdictional error arises in relation to ground 4.
CONCLUSION
The application for judicial review filed by the applicant on 1 February 2018 fails to identify any jurisdictional error. The Court is also unable to identify any error in the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 April 2022
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