Walia v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 226
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walia v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 226
File number: MLG 2362 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 23 March 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal that it did not have jurisdiction to review a decision of a delegate of the Minister – where application for merits review not given to Tribunal within prescribed period – whether notification of delegate’s decision complied with requirements of s 66 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 24Z, 29(7)
Migration Act 1958 (Cth) ss 66, 347, 477, 494C, 494B, 494D
Migration Regulations 1994 (Cth) cl 500.212, regs 2.16, 4.10
Cases cited: BMY18 v Minister for Home Affairs (2019) 271 FCR 517 [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection (2019] 270 FCR 492; [2019] FCAFC 64
Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27
SZIUK v Minister for Immigration and Citizenship [2007] FCA 226
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 20 March 2023 Place: Perth Counsel for the Applicant: Mr I Warraich Solicitor for the Applicant: Huk Legal Services Pty Ltd Counsel for the First Respondent: Ms M Harradine Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2362 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAINA WALIA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
23 March 2023
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The application before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 6 July 2018. The Tribunal found that it did not have jurisdiction to review a decision made by a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa) as the application for review was lodged outside of the prescribed period.
For the reasons I explain below, the applicant has not established that the Tribunal decision is affected by jurisdictional error and the application to the Court is therefore dismissed.
BACKGROUND
The applicant is a non-citizen who first arrived in Australia on 22 November 2014 as the holder of a student visa.
The applicant applied for the student visa the subject of this application on 15 March 2018. In her application form the applicant indicated that she appointed a migration agent as her authorised recipient and provided an email address of that authorised recipient for the purpose of electronic communications. The applicant also provided a completed Form 956 – Advice by a migration agent/exempt person of providing immigration assistance in which she appointed the same person as her representative and authorised recipient and consented to receive communications electronically, providing the same email address as that in her application.
A delegate of the Minister made a decision refusing to grant the applicant the student visa on 15 May 2018. Notification of that decision was given to the applicant by email sent on 15 March 2018 at 15:49:58 to her authorised recipient at the email address in the application and Form 956. The notification contained the following relevant information about the time frames for seeking review by the Tribunal of the delegate’s decision:
Review rights
This decision can be reviewed.
We 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.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
…
Receiving 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.
On 16 June 2018 the applicant lodged an application to the Tribunal seeking merits review of the delegate’s decision. The applicant included with this application a form titled Application for Extension of Time for Making an Application for Review of Decision, which is intended for use in the Tribunal’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Taxation and Commercial Division and Veterans’ Appeals Division. Notably, the form is not intended for use in the Migration and Refugee Division of the Tribunal.
On 20 June 2018 the Tribunal wrote to the applicant inviting her to comment on the validity of her application for review. The letter expressed the view that the application was not valid because it was not lodged within the relevant time limit of 21 days from the day on which she was taken to have been notified of the delegate’s decision. The last day for lodging the application for review was 5 June 2018 and, as the application was not received until 16 June 2018, it appeared to be out of time. The applicant was invited to make comments on whether a valid application had been made by 4 July 2018.
In response to the invitation, the applicant provided letters from herself and a friend explaining that she did not have the finances to lodge an application within the prescribed period.
The Tribunal made a decision on 6 July 2018 that it did not have jurisdiction in the matter. The Tribunal noted that pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (Migration Act) and reg 4.10 of the Migration Regulations 1994 (Cth) (Regulations), an application for review of the delegate’s decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal found that the applicant was taken to have been notified of the delegate’s decision on 15 May 2018, with notification of the decision dispatched by email, and was satisfied that the notification was compliant with the relevant statutory requirements. The Tribunal found that the prescribed period to apply for review ended on 5 June 2018 and, as the application for review was not received by the Tribunal until 16 June 2018, it was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 9 August 2018, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicant was self-represented at the time she filed her application and the application contains the following grounds (reproduced without alteration):
1.Under section 44 of the Administrative Appeals Act 1975, i hereby apply for review of the migration decision , delivered dated 09-07-2018.
2.In accordance with the subsection 474(2) of the Migration Act 1958 this review application of the migration decision is not a ‘privative clause decision’ as described in the Act, as i have right to apply for judicial review as per directions of the decision record of AAT.
A jurisdictional error exists in the decision of the Tribunal, where in it states in the decision that( excerpt from the decision record)
“The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 May 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal received a submission from the applicant on 2 July 2018 which stated that the applicant had not submitted her applicant on time as she had been facing extreme financial hardship at time of application.
The Tribunal finds that the applicant is taken to have been notified of the decision on 15 May 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 5 June 2018.
As the application for review was not received by the Tribunal until 16 June 2018 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.”
1.I would like to state that an application for request for extension of time was submitted to AAT( screen shot attached of AAT online account), which clearly stated the reason( application for request for extension of time attached for reference).
2.As the email was sent which explained the reasons which were beyond my control and there was financial hardship, so i could not apply in prescribed time frame. There were compelling and compassionate reasons which AAT did not consider( submission attached for reference).
On 12 August 2021 a notice of address for service was filed on behalf of the applicant indicating that she was now represented by Huk Legal Services Pty Ltd.
Pursuant to orders made by a Registrar of the Court on 19 February 2020, the applicant was to file and serve any amended application, any supplementary court book and written submissions 28 days before the hearing.
When the application came before me for hearing on 20 March 2023, the applicant, despite been represented by a lawyer, had not filed any amended application, supplementary court book or written submissions.
The Minister filed written submissions on 6 March 2023 in accordance with an order made by the Registrar on 19 February 2020.
The evidence before the Court comprises the court book, an affidavit deposed by the applicant and filed on 9 August 2018 and an affidavit of Michelle Anne Harradine filed on behalf of the Minister on 9 November 2021.
ORAL APPLICATION FOR AN ADJOURNMENT
At the commencement of the hearing on 20 March 2023, the applicant’s lawyer made an oral application for an adjournment of the hearing to allow a further opportunity for the applicant to file an amended application and written submissions.
I refused to grant any adjournment of the hearing and delivered oral reasons for that decision. No proposed grounds of any amended application were articulated by the applicant’s lawyer.
CONSIDERATION OF JUDICIAL REVIEW APPLICATION
In circumstances where the adjournment application was refused, the grounds to be considered are those in the originating application.
The applicant’s lawyer simply relied on the written documents filed by the applicant and did not advance any further submissions. The Minister filed detailed submissions addressing the Tribunal’s jurisdiction and the applicant’s grounds and those submissions accurately set out the relevant law.
Like the Minister’s lawyer, I also consider it to be convenient to address the Tribunal’s jurisdiction more generally before addressing the grounds in the application.
Pursuant to s 347(1)(b)(i) of the Migration Act, any application for review of the delegate’s decision, which is a Part 5-reviewable decision, was required to be made within the ‘prescribed period’. The prescribed period is set out in the Regulations and in the present case was 21 days after the day on which notice of delegate’s decision was received: see reg 4.10(1)(a) of the Regulations.
The day by which the applicant was required to lodge her application to the Tribunal therefore was to be calculated with reference to the day on which she was notified of the delegate’s decision. To determine whether the Tribunal correctly identified the day by which the merits review application was required to be given to the Tribunal requires consideration of when the applicant was taken to have received notice of the delegate’s decision and whether the notice of that decision complied with the requirements of the Migration Act.
Pursuant to s 66(1) of the Migration Act, the Minister was required to notify the applicant of the decision not to grant her a student visa ‘in the prescribed way’. The prescribed way of notifying an applicant of the outcome of a decision is set out in reg 2.16 of the Regulations. Regulation 2.16(3) requires that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act.
One of the methods for giving a person a document that is permitted by s 494B of the Migration Act is to transmit the document by email to the last email address provided to the Minister for the purpose of receiving documents: see s 494B(5). That is what the Minister’s department did in the present case. The Minister’s department gave the applicant notice of the delegate’s decision by transmitting it by email on 15 May 2018 to the address provided to the Minister for the purpose of receiving electronic communications, being the email of her representative and authorised recipient. In circumstances where the applicant had appointed an authorised recipient, the Minister was required to give the notice to the authorised recipient rather than the applicant personally, and by giving the notice to the authorised recipient, the Minister was taken to have given the notice to the applicant: see s 494D. Pursuant to s 494C(5) of the Migration Act, the applicant was deemed to have received the notice of the delegate’s decision at the end of the day on which the email was transmitted, namely at the end of 15 May 2018, as identified by the Tribunal.
The notice of the delegate’s decision must include the details set out in s 66(2) of the Migration Act. That subsection provides:
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
(e)in the case of a fast track reviewable decision–state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
(f)in the case of a fast track decision that is not a fast track reviewable decision–state that the decision is not subject to review under Part 5, 7 or 7AA.
In the present case, I am satisfied that the notice given to the applicant complied with the relevant requirements of s 66(2) because:
(a)The decision record clearly set out the criterion that the delegate found that the applicant did not satisfy, being cl 500.212 in Schedule 2 to the Regulations: s 66(2)(a).
(b)The decision record set out written reasons explaining why the delegate found that the applicant did not meet the criteria in cl 500.212: s 66(2)(c).
(c)The notice set out that the decision could be reviewed by the Tribunal and gave details of how the applicant could apply for review. Importantly, the notice stated the time within which the applicant must make any application to the Tribunal in a way that was clear and complete: see DFQ17 v Minister for Immigration and Border Protection (2019] 270 FCR 492; [2019] FCAFC 64 (DFQ17) at [58]. Under clear headings, the notice stated that any application for review must be made within 21 calendar days after the date on which the applicant is taken to have received the notice, and that as the applicant had been given the notice by email, she was taken to have received it on the day the email was sent. I accept the Minister’s submission that the notice does not suffer from the deficiencies identified in cases such as DFQ17 and BMY18 v Minister for Home Affairs (2019) 271 FCR 517 [2019] FCAFC 189.
(d)Subparagraphs 66(2)(b), (e) and (f) have no application in the present matter.
Taking into account the matters discussed above, the Tribunal was correct to find that the applicant was notified of the delegate’s decision on 15 May 2018 and that any application for review needed to be given to the Tribunal within 21 days of that date, namely by 5 June 2018. The applicant does not challenge the Tribunal’s finding that she did not lodge her application until 16 June 2018 and that it was lodged out of time.
The applicant’s applications to the Tribunal and to this Court proceed on the misunderstanding that the Tribunal could extend the time for the applicant to lodge her application to the Tribunal. This is not the case. The Tribunal has no discretion to extend the 21 day time frame within which the applicant was required to lodge her application: see Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27 at [47]-[48].
I now turn to the grounds set out in the application.
I accept the Minister’s submission that the applicant raises the following two main complaints:
(a)she lodged an application for an extension of time to the Tribunal which explained the reason her application was not lodged within time; and
(b)the application was not lodged within time due to reasons beyond her control including financial hardship, and the Tribunal did not consider that there were compelling and compassionate reasons.
Neither of these complaints establish jurisdictional error.
While the applicant did apply for an extension of time, as discussed above, the Tribunal did not have any power to grant her an extension of time: see also SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 at [12]. The form used by the applicant for the purposes of seeking an extension of time is a form created for the purposes of seeking an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Pursuant to s 24Z of the AAT Act, Part IV of the AAT Act, which includes s 29(7), does not apply in relation to proceedings in the Migration and Refugee Division of the Tribunal.
The Tribunal acknowledged the applicant’s response to its invitation to comment on its jurisdiction, which included her explanation of the financial difficulties she faced that prevented her from lodging her application on time. However, in circumstances where the Tribunal had no power to grant an extension of time, it did not need to consider this explanation in detail and it was not required to indicate whether it accepted or rejected the explanation. The Tribunal was not required to consider whether there were any compassionate or compelling circumstances in the applicant’s case, as the potential existence of compassionate or compelling circumstances was not relevant to the question of whether the application for review was given to the Tribunal within the prescribed period.
The Tribunal’s finding that it did not have jurisdiction to review the application for merits review of the delegate’s decision was the only decision open to it in circumstances where it found that the application was lodged outside of the prescribed period. It does not disclose any jurisdictional error. Rather, the Tribunal reasons indicate that it correctly understood its jurisdiction.
CONCLUSION
Given that the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application to this Court must be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 23 March 2023
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