WZAVO as litigation guardian for WZAVP v Minister for Immigration
[2022] FedCFamC2G 108
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
File number: PEG 179 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 24 February 2022 Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – extension of time application – 189 day delay – inadequate explanation – no arguable case of jurisdictional error – extension of time refused. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 29.05
Migration Act 1958 (Cth), ss 48B, 65, 66, 347, 477
Migration Regulations 1994 (Cth), regs 4.10 and 4.12, cll 602.212 and 602.215 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Gallo v Dawson [1990] HCA 30
Haque v Minister for Immigration and Citizenship [2010] FCA 461
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kioa v West (1985) 159 CLR 550
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
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 and Border Protection v Kim [2014] FCA 390
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NAKX v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1559
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sainju v Minister for Immigration and Citizenship [2010] FCA 461
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 98 Date of hearing: 22 February 2022 Place: Perth Applicant: WZAVO as litigation guardian for WZAVP Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 179 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WZAVO AS LITIGATION GUARDIAN FOR WZAVP
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:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) 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 China (Court Book (“CB”) 13). He arrived in Australia in January 2013 as the holder of a Tourist (Class TR) (subclass 676) visa. That visa ceased in April 2013 (CB 34).
In April 2014, the applicant was included as a dependant in an application (lodged by his father and litigation guardian (“WZAVO”)) for a Permanent Protection (Class XA) visa. That visa was refused (as were subsequent requests for review of that refusal) (CB 34 & 88).
In September 2019, the applicant was again included as a dependant in a second application (lodged by WZAVO) for a Protection (subclass 866) visa. Ministerial intervention was also sought under s 48B of the Migration Act 1958 (Cth) (the “Act”) (CB 34 & 88).
On 10 January 2020, the applicant applied for a Medical Treatment (Class UB) (subclass 602) visa (the “visa”) (CB 12-25). Attached to that application was a copy of the applicant’s passport (CB 26) and a completed Form 1507 document which identified (at question four) that the “medical condition requiring treatment” was “surgical correction of injured [right] ankle” (CB 27).
On 21 January 2020, the Department of Home Affairs (the “Department”) invited the applicant (through his representative) to comment on information in relation to his visa application (CB 33-37). Relevantly, the applicant was asked to comment on whether he “genuinely intend[ed] to stay temporarily in Australia for the purpose for which the visa [would be] granted” (CB 35).
In response to that request, the applicant provided further documents to the Department, including bank statements, medical records and a completed Form 1229 document signed by the applicant’s mother (CB 38-57).
On 29 January 2020, the applicant’s representative advised the Department of “unforeseen delays in obtaining the necessary supporting documents” for the applicant’s visa application and requested that the Department “hold off on making a decision” in relation to that application until further documents could be provided (CB 58-60).
On 11 February 2020, WZAVO provided further material to the Department via email. That information included further medical records, referrals and reports, photographs of the applicant receiving treatment and various tax invoices (CB 61-80).
On 19 March 2020, a delegate of the Minister refused to grant the applicant the visa
(CB 86-90). The delegate was not satisfied that the applicant met cl 602.215(1) of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had “not demonstrated that [he was] not fit to depart Australia” (as per the requirements of cl 602.212(6) of Schedule 2 of the Regulations) (CB 89).
On 23 March 2020, WZAVO sought review in the Tribunal of a separate refusal decision, concerning a separate visa application made by him (CB 114, 118 and 134-136). In that application for review, WZAVO sought to combine an application for review in respect of the refusal decision in this case. WZAVO was notified by the Tribunal on 24 March 2020, 29 April 2020 and 30 April 2020 that this was not possible (CB 118).
On 5 May 2020, the applicant lodged an application for review with the Tribunal (dated 23 March 2020) in relation to the delegate’s decision to refuse him the medical visa he was seeking (CB 95-106).
On 8 May 2020, the Tribunal invited the applicant to comment on the validity of the application for review (CB 111-112). That letter noted that that the applicant’s application had been lodged outside of the legislative period within which to file the application with the Tribunal
(CB 111-112).
On 22 May 2020, WZAVO responded to the invitation to comment, indicating that he and his son had received the primary decision on 19 March 2020 and “then I submitted the application including [WZAVP] in one form on 23 March 2020. That means we have started to submit the application to AAT immediately” (CB 114).
On 15 January 2021, the Tribunal determined that it did not have jurisdiction in relation to the matter (CB 126-128). Relevantly, as discussed further below, the Tribunal was not satisfied that the applicant’s application to the Tribunal had been filed within the prescribed 21 day period and that, as a result, the Tribunal lacked jurisdiction to hear the matter.
The applicant was notified of the Tribunal’s decision on 18 January 2021 by email
(CB 124-125).
On 18 January 2021, WZAVO sent an email to the Tribunal. That email appears to have been blank (CB 129).
On 25 March 2021, WZAVO wrote to the Tribunal and advised that he had only found out about the Tribunal’s decision on 24 March 2021 (CB 132). He requested an extension of time for a “further lodging due to the cov-19 blocking” and asked that the applicant be allowed to “finish his study in school” (CB 132-133).
On 27 August 2021, WZAVO applied to this Court for judicial review of the Tribunal’s decision dated 15 January 2021 (CB 1-6). He did so on behalf of his son. Unfortunately, that application was filed approximately 6 months outside of the 35 day time limit specified in s 477 of the Act.
Accordingly, the applicant requires an extension of time to pursue these proceedings.
For the reasons that follow, the applicant’s request for an extension of time within which to file his substantive application for judicial review is denied.
CONSIDERATION - EXTENSION OF TIME
The materials before the Court include the application for judicial review and supporting affidavit (both filed on 27 August 2021), a Court Book numbering 138 pages (marked as Exhibit 1), written of submissions filed by the Minister on 7 February 2022 and a list of authorities filed by the Minister on 8 February 2022 and email correspondence (with attachment) (which are, in effect, submissions) sent to chambers by WZAVO on 22 February 2022.
The applicant was given an opportunity to file any amended application, written submissions and any affidavit evidence. He was asked to do so by 25 January 2022. Unfortunately no further correspondence was received until 4.30pm the day before the hearing. The Court accepted this document as constituting “submissions” (marked as Exhibit 2). The Minister did not object in this regard.
At the hearing, WZAVO appeared on the applicant’s behalf (as litigation guardian) and was assisted by an interpreter in the Mandarin and English languages. WZAVO confirmed to the Court that he had received a copy of the Court Book and the Minister’s written submissions prior to the hearing.
Noting that WZAVO and his son were not legally represented, the Court explained that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 15 January 2021. The date by which the applicant was required to file his judicial review application in this Court was 19 February 2021. He did not do so until 27 August 2021. The delay here is thus 189 days. That is more than five times the specified statutory limitation period.
The Court explained that, despite the late filing, an applicant can ask the Court for an extension of time within which to file his or her substantive application. Relevantly, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant (through WZAVO) requested an extension of time in writing and provided grounds stating why he believes an extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant was “represented” by WZAVO but did not have any legal assistance, the Court explained to WZAVO that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay and prejudice;
(b)whether the explanation for the delay is adequate; and
(c)whether the proposed substantive application for judicial review has merit.
In relation to 28(c) above, it was also explained that when making a determination about whether a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. An applicant need only identify an arguable case (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391. However, the Court should not grant an extension of time in relation to an application which has no arguable prospect of success. To do so would be futile and would not be in the interests of the administration of justice.
The Court invited WZAVO to address each of the factors outlined above and highlight anything else he considered relevant to the application for an extension of time.
WZAVO’s responses are discussed in the consideration that follows.
Arguably, WZAVO’s affidavit (dated 12 August 2021 and filed on 27 August 2021 and which accompanied the substantive application filed on behalf of the applicant) does not explain the delay in question or why it is in the interests of the administration of justice for an extension of time to be granted. An applicant is required to provide an explanation of this sort pursuant to r 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). However, the Court can dispense with compliance of this requirement if deemed appropriate. The Court does so here.
Length of the Delay
An extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Limitation periods specified in the Act are the “general rule” and the grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
In this matter, the applicant filed his substantive application (through WZAVO) more than six months late. This is significant and weighs against the granting of an extension of time.
Prejudice if the extension is granted
The Minister conceded (in written submissions filed by the Minister on 7 February 2022) that there is no prejudice to the Minister by the granting of an extension of time.
This weighs in favour of granting an extension of time.
Explanation for the delay
The grounds that WZAVO provides in support of his son’s application for an extension of time provide as follows (without alteration):
1.It’s the serious pandemic time of virus. I am also suffering long term malnutrition and hypoglycaemia and getting treatment (etc)
2. As the only guardian, I also need arranging treatment to my son.
3.This time is unusual, we didn’t receive any mail paper notice and telecall, from AAT; only know the decision very late until [the applicant]’s school’s enquiry for us.
WZAVO also provided a letter to the Court dated 16 August 2021. That letter was annexed to an affidavit in support of the application for judicial review filed on behalf of his son. The Court notes that in that letter, WZAVO states (without amendment):
5.During my long time struggling for myself recovery and treatment. AAT member suddenly sent an email which I didn't have chance to focus to open it, especially at pandemic time, without notice by mail or telephone call to facilitate the appearance at tribunal for complete understanding the decision. this showed the lack of seriousness in actual legal practice. This year I am still at the battle of treatment recovery for myself accompanied by the serious influence of the virus pandemic in all fields of our living.
To the extent that WZAVO claims that he was hampered by the COVID-19 pandemic, the Court sympathises and acknowledges that the pandemic has impacted all of us to some degree. These are indeed challenging times. However, there is no evidence before this Court that details how the pandemic delayed the lodgement of the application for judicial review (filed on behalf of the applicant)9. Was WZAVO unwell? Is there medical evidence to support that claim? Did COVID restrictions prevent him from seeking legal or migration assistance? Is there anything COVID related that prevented him from filing his son’s application electronically? Did he attempt to contact the Court registry to obtain assistance or information about lodging an application?
WZAVO also claims to have had health issues which hindered his ability to make an application on his son’s behalf. Again, the Court notes that no medical evidence has been provided to support this claim. This is required: NAKX v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffith and Mortimer JJ. Further, while WZAVO has claimed to have long-term health issues that he is being treated for, no explanation has been provided as to how those health issues affected his ability to make an application to this Court (on his son’s behalf) within the statutory timeframe.
WZAVO was ultimately able to file the application with the Court some six months after the requisite time period. However, no explanation has been provided by him as to how he was able to do so at that time but was not able to do so within the 35 day time period.
WZAVO also claims that he needed to arrange treatments for his son (noting that he is the applicant’s only guardian). Again, no medical evidence has been provided to support any treatment being received by the applicant. The Court also notes that the visa application made on 10 January 2020 stated that the applicant needed to remain in Australia until 21 November 2020 for ankle treatment (including surgical correction) (CB 87). There is no evidence before the Court in relation to the applicant’s ankle after 6 February 2020 (CB 62), or any evidence to support the claim that the applicant is continuing to have treatment for his ankle and how that impacted on WZAVO’s ability to apply for judicial review in this Court (on the applicant’s behalf).
In the substantive application for judicial review, WZAVO also claims not to have received notification from the Tribunal of its decision. The affidavit filed in support of the application, however, seems to suggest that the Tribunal sent an email which he “didn't have chance to focus [on] to open it”. In this regard, WZAVO seems to suggest that the Tribunal should have phoned to notify him of the decision or sent a further copy by post.
The Court notes that the Tribunal here notified the applicant of the Tribunal’s decision by transmitting the documents to his last known email address. This is a valid method of distribution specified under s 379A of the Act. Whilst dispatching by post is also a valid method of distribution pursuant to s 379A of the Act, the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship [2010] FCA 461 at [13] and [62] per Jacobson J.
Further, the transmission of the document by email refers to the “sending” of the documents and a person is taken to have received the document at the end of the day on which it was sent: Sainju v Minister for Immigration and Citizenship [2010] FCA 461 (“Sainju”) at [57] per Jacobson J. Here, the notification was sent by email to the applicant via email at 14.18pm on 18 January 2021. He is therefore taken to have received the documents at close of business on 18 January 2021. The date relevant for the Court is the date upon which “the email was sent, not when it came to the attention of the addressee” (in this case WZAVO or the applicant): Sainju at [77]. Thus the applicant was taken to have received notification of the decision on 18 January 2021.
The Court does not consider the explanation for the delay in filing the application to be satisfactory.
This weighs against the granting of an extension of time.
Merits
Whether the proposed application for judicial review has any “arguable prospect of success” is largely the most critical factor for consideration.
Noting that the applicant was not legally represented (but was represented by WZAVO, his litigation guardian), the Court gave WZAVO an opportunity to elaborate on the substantive grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist WZAVO, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision in determining whether there is an arguable case of error. 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 of “mistakes”:
(d)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;
(e)where the decision-maker ignores relevant material: Craig at 198;
(f)where the decision-maker relies on irrelevant material: Craig at 198;
(g)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];
(h)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(i)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 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 he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that 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, WZAVO stated that his primary concerns with the Tribunal’s decision are as follows:
(a)a procedural mistake was made in that the Tribunal did not provide him with the information he needed to be able to file the application;
(b)he was told by the Tribunal that he “didn’t need to do anything”;
(c)the Tribunal should have been more flexible and did not show compassion for the family’s difficult circumstances; and
(d)he was of the view that, based on a discussion with his lawyer, “he had no chance to be granted the visa” because the Tribunal never grants medical visas.
These concerns, to the extent that they point to an arguable case of jurisdictional error, will be addressed below.
Tribunal’s decision
In order to determine whether the substantive application for judicial review has “merit”, it is useful to first outline the Tribunal’s decision.
The Tribunal’s decision is three pages long and spans 8 paragraphs.
In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 19 March 2020 to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 5 May 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 March 2020 and dispatched by email. The letter set out the information required to determine the time period to make a review, under the heading ‘Review Rights’, and the Tribunal finds that this complied with s.66(2)(d)(ii). The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The Tribunal finds that the visa applicant is taken to have been notified of the decision on 19 March 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 9 April 2020.
5.The Tribunal wrote to the review applicant on 8 May 2020, inviting his comments on the validity of the application for review, given its assessment that it appeared to have been lodged out of time. The applicant’s father, [WZAVO] responded on 21 May 2020, on the review applicant’s behalf ….. From his comments and supporting documents, the following emerges:
•Both the review applicant and [WZAVO] had applied for separate Medical Treatment visas, on different dates; the primary decisions on these two applications were both made on 19 March 2020; and they were both notified by email to the same address on 19 March 2020.
•On 24 March 2020, [WZAVO] lodged an application for review which attempted to include his son (the review applicant).
•The Tribunal advised [WZAVO] by email on 24 March 2020 that the two review applications cannot be combined, and that his son (the review applicant) must make a separate application for review. By way of background, regulation 4.12 sets out the circumstances under which Part 5 review applications may be combined. These circumstances do not include where there have been separate applications and primary decisions for this visa, even in the case of family members.
•In the comments, [WZAVO] (who referred to the review application as having been lodged on 23 March 2020), explained that the review applicant had at least ‘started to submit the application to the AAT immediately’; that the focus of discussions with Tribunal staff had been on the payment of prescribed fees (rather than the attempt to combine the review applications); and that COVID-19 restrictions had prevented his (the father’s) attendance at the AAT’s office to discuss and clarify the matter.
•[WZAVO] also provided supporting documents, such as a copy of a letter he sent to the Prime Minister on 19 November 2019, in relation to the review applicant’s health. This is not relevant to the Tribunal’s assessment of the validity of the review application.
6.The Tribunal is not satisfied that the application for review meets s.347(1)(b) through [WZAVO]’s efforts to attempt to include the review applicant in his application of 24 March 2020, eg. that this represents the ‘start’ of the applicant’s submitting his review application.
7.As the application for review was not received by the Tribunal until 5 May 2020 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
8.The Tribunal does not have jurisdiction in this matter.
Proposed Application for Judicial Review
The applicant’s substantive application for judicial review does not provide any grounds of review. However, annexed to an affidavit affirmed by WZAVO on 12 August 2021 (and filed in this Court on 27 August 2021), is a letter from WZAVO dated 16 August 2021. That letter identifies concerns with the Tribunal’s decision and, in effect, reads like submissions. Similar concerns are raised in “submissions” sent to chambers on 22 February 2022 (Exhibit 2).
Having assessed the above, the Court has identified the following “proposed grounds of review” (as broadly outlined) and as addressed in the Minister’s written submissions filed on 7 February 2022:
Ground 1: The application for review was lodged within time and the Tribunal thus had jurisdiction in the matter.
Ground 2: The Tribunal failed to provide the applicant with the correct fee for payment in relation to the application.
Ground 3: The Tribunal failed to invite the applicant to attend a hearing.
These proposed “grounds of review” are addressed below.
Proposed ground 1 – “the application for review was lodged within time and the Tribunal thus had jurisdiction in the matter”
The Tribunal found that it did not have jurisdiction in this matter because the application for review filed with the Tribunal in this matter was filed outside of the requisite 21 day time period from the date of the delegate’s decision.
Here, the delegate refused to grant the applicant the visa on 19 March 2020 (CB 86-90). The applicant was required to be notified of that decision “in the prescribed way” (see s 66(1) of the Act) as set out in s 66(2) of the Act.
The applicant’s migration agent was sent notification of the refusal by the delegate via email on 19 March 2020 (CB 81). Attached to the email was a letter addressed to the applicant with notification of the refusal (CB 82-85), a copy of the delegate’s decision (CB 86-90) and a fact sheet containing information in relation to making an application for review to the Tribunal (CB 91-94).
The notification letter in this matter met the requirements set out in s 66(2) of the Act by:
(a)stating that the applicant had not satisfied a criterion for the grant of the visa outlined in the Regulations (CB 82);
(b)referencing annexed written reasons which detailed that delegate was not satisfied that the applicant met cl 602.215(1) of Schedule 2 of the Regulations (CB 89): s 66(2)(a) of the Act;
(c)annexing written reasons which outlined why the criterion was not satisfied: s 66(2)(c) of the Act;
(d)detailing the applicant’s review rights as follows (CB 82-83):
Review rights
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision if you have an approved sponsor, or your sponsor is seeking a merits review of a sponsorship refusal decision.
An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time the application for merits review is made.
(e)providing information about how to lodge an application for review with the Tribunal (CB 83) as per s 66(2)(d) of the Act.
As noted above, the notification of the delegate’s refusal of the visa was sent by email to the applicant’s migration agent (CB 81). In circumstances where an applicant is a minor (as was the case here), the Minister is required to provide notice of refusal to the carer of the minor: s 494B(1A) of the Act. Where the applicant in a matter has given written notice of the name and address of an authorised recipient to receive documents on his or her behalf, the Minister must give that authorised recipient (instead of the applicant) any documents in relation to the matter: s 494D of the Act.
As the Minister correctly submits (in written submissions filed with this Court on 7 February 2022):
36.4.To the extent that ss 494B and 494D of the Migration Act may be in conflict with one another, they should be read harmoniously - to the effect that service on Ms Manera amounted to service on the applicant’s carer for the purposes of s 494B. This construction is supported by SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63; (2007) 159 FCR 199 at [25] per Besanko J, Moore J agreeing; SZKDB v Minister for Immigration & Anor [2007] FMCA [27]-[28] per Smith FM.
Here, the application for the visa included details of the applicant’s migration agent as an “authorised recipient” (CB 17). The Minister thus correctly notified the applicant’s migration agent of the visa refusal.
Where a document is provided by electronic means (including by email, as was the case here), the person is taken to have received the document at the end of the day on which the document was transmitted: s 494C(5) of the Act. Here, the applicant was thus taken to have received the notification on 19 March 2020. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act, the person 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 (“SZNZL”) at [36] per Barker J.
As outlined above, the applicant was required to apply for review of the delegate’s decision within 21 days (that is, by 9 April 2020): s 347(1)(b)(i) of the Act and reg 4.10(1)(a) of the Regulations.
The application for review filed on behalf of the applicant in this matter was received by the Tribunal on 5 May 2020 (CB 107) and thus was outside of the legislated 21 day time period. The Tribunal had no discretion, nor any power, to extend the time in which the applicant could lodge his review application. Having lodged the application outside of the prescribed timeframe, the Tribunal had no jurisdiction to review the decision: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
The Tribunal was therefore correct in finding that it had no jurisdiction in relation to the matter.
To the extent that WZAVO suggests that he attempted to “add the applicant to the applicant’s father’s own Tribunal application dated 24 March 2020”, this “approach” is not permitted. As correctly submitted by the Minister (at [38] of written submissions filed on 7 February 2022), ss 347(2) and 347(3) of the Act provide that only the non-citizen who is the subject of the delegate’s decision may apply for review. Further, reg 4.12 of the Regulations sets out the circumstances within which Part 5 Reviewable applications are able to be combined. As noted by the Tribunal, those circumstances “do not include where there have been separate applications and primary decisions for [the] visa” (at [5]). This is the case even in relation to members of the same family unit.
As separate decisions were made by delegates of the Department in relation to the applicant and WZAVO, a combined review application could not be submitted.
The Court is not unsympathetic to the concerns raised here by WZAVO and the applicant. They appear to have done what they thought needed to be done. However, the relevant legislative requirements are inflexible. In the circumstances, the Tribunal adopted the only approach open to it.
No arguable case of error arises in relation to proposed ground 1.
Proposed ground 2 – The Tribunal failed to provide the applicant with the correct fee for payment in relation to the application
WZAVO emphasises that he was not provided with payment details for his applications to the Tribunal. He refers to conversations between himself and the Tribunal about prescribed fees for his applications to the Tribunal and notes, in effect, that “he still hasn’t had a response”.
Although not entirely clear, WZAVO seems to be of the view that the Tribunal erred because it focused on the fact that the required filing fees had not been paid. He says there is reason for this non-payment.
It is true that, in its reasons, the Tribunal refers to the “fee issue” (at [5]) and notes comments made by WZAVO about the payment of prescribed fees.
However, the Tribunal’s finding in relation to its jurisdiction was not made because WZAVO had failed to pay any prescribed fee. Instead, the Tribunal’s decision was based solely on its assessment as to the date upon which the review application was received and whether it had been received within the prescribed period (as required by s 347(1)(b) of the Act).
Whether or not WZAVO was advised of or paid a prescribed fee was not relevant for the purpose of the Tribunal’s decision.
Proposed ground 2 raises no arguable case of error on the part of the Tribunal.
Proposed ground 3 – The Tribunal failed to invite the applicant to attend a hearing
The Act makes it clear that the Tribunal is required to invite an applicant to attend a hearing. That did not occur here. However, as correctly argued by the Minister (in written submissions filed on 7 February 2022), this obligation only arises in circumstances where a “valid application” is before the Tribunal. As highlighted in 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, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the application was filed late, the Tribunal lacked a valid application about which any further determinations could be made. Hence, as per SZNZL, no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it had jurisdiction. The only issue is whether the Tribunal’s conclusion was right, not how it arrived at that conclusion. Here, for the reasons detailed above, the Tribunal’s decision in relation to whether it had jurisdiction was correct.
To the extent that it is argued that, putting aside any lack of a statutory obligation, the applicant was entitled to the common law guarantees of natural justice, the Minister submits that the common law rules of procedural fairness only require that the Tribunal draw to the applicant’s attention the critical issue upon which a decision is likely to turn and provide the applicant with an opportunity to respond accordingly: Kioa v West (1985) 159 CLR 550 at 584 and 587.
The Court agrees.
Here, the Tribunal sent the applicant an invitation to comment letter on 8 May 2020 via email (CB 111-112). That letter stated as follows (CB 112):
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 calendar days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 19 March 2020 and, on the basis that 19 March 2020 was the date on which you are taken to have been notified, the last day for lodging the application for review was 9 April 2020. As the application was not received until 5 May 2020, 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 22 May 2020. 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.
WZAVO provided a response to that invitation in two parts, by way of emails dated 21 May 2020 (and attached material) (CB 114-116) and email dated 22 May 2020 (with further attached material) (CB 117-124).
In the circumstances, it cannot be said that the WZAVO (or the applicant) was denied the right to do what was asked of him. As the Minister correctly submits, inviting the applicant to a hearing (in circumstances where the applicant was already invited to comment on the issue and provided a response to that invitation) would not have assisted the applicant because, as detailed above, the Tribunal had no power to extend the time within which the applicant could lodge an application with the Tribunal and it was clearly the case that the application had been filed late.
Proposed ground 3 raises no arguable case of error on the part of the Tribunal.
WZAVO’s oral submissions – Bias
In his oral submissions before this Court, WZAVO stated that, in a conversation he had with his lawyer, a question was raised as to whether, “in the course of history”, the Tribunal has ever granted visas of this type (being medical treatment visas) and the lawyer’s view was that the “Tribunal has not granted even one visa for [medical] treatment”. WZAVO stated that he thought there was “no chance” that the applicant would be granted the visa.
This arguably raises a claim of bias.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Here, the issue of concern for the Tribunal was not whether the applicant should be granted the visa. Rather, the issue was whether the application for review was filed with the Tribunal within the prescribed period and whether the Tribunal had the jurisdiction to consider the visa refusal. Having found that the review application was not received within the prescribed period, the Tribunal did not have the jurisdiction to review the decision of the delegate in this matter.
There is no evidence before this Court to suggest that the Tribunal (or the Department) does not grant medical treatment visas. That may well be what WZAVO (or his lawyer) thinks. Unfortunately, there is no evidence to support the concern raised or any reason for the Court to accept that the applicant was denied a fair review because of the visa category in question.
There is nothing in the materials before the Court to suggest that the Tribunal had a closed mind or approached its task subjectively.
No arguable case of error arises in this regard.
Should an extension of time be granted?
The lengthy delay, lack of a satisfactory explanation for that delay and the lack of an arguable case of jurisdictional error on the part of the Tribunal are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
CONCLUSION
The applicant has failed to satisfy the Court that an extension of time should be granted in this matter. Accordingly, the extension of time is refused.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 February 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Limitation Periods
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Judicial Review
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Natural Justice & Procedural Fairness
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