AKV23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1844

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 14 February 2023, the Applicant applied to this Court for judicial review of a decision of the Administrative Appeals Tribunal ('the Tribunal'), as it then was, made on 6 February 2023.
2. By its decision, the Tribunal had determined it did not have jurisdiction to consider the Applicant's application for review of a decision of a delegate of the Minister for Home Affairs ('the Delegate') to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) ('the Act').

1. The Applicant is a citizen of China.
2. The Applicant first arrived in Australia on 28 January 2018 on a Visitor visa, see Court Book ('CB') at page 10.
3. On 11 April 2018, the Applicant applied for a Protection (subclass 866) visa ('the visa').
4. With his application, the Applicant included a Form 956A, being an appointment or withdrawal of an authorised recipient form (CB23-26). In this form, the Applicant appointed an authorised recipient and provided their contact details (CB24). On the Form 956A, the Applicant provided his residential address which was different to that of the authorised recipient. However, the Applicant's email address, postal address and mobile number were identical to the email address, postal address and mobile number provided for the authorised recipient.
5. On 17 April 2018, the Department of Home Affairs ('the Department') sent the authorised recipient an email acknowledging the Applicant's visa application and invited the Applicant to provide additional information in relation to his application (CB29).
6. On 29 July 2020, the Department sent a letter to the Applicant via post to his residential address pursuant to s 494D(5) of the Act, to advise him that his authorised recipient was not a registered migration agent and that the Department reasonably suspected that they were giving immigration assistance (CB40). The letter stated that as a result, the Delegate was considering exercising the discretion not to communicate with the authorised recipient as required by s 494D(1) of the Act, and to send any further documents about the application directly to the Applicant (CB40).
7. Thereafter, the Department sent all correspondence to the Applicant at the residential address nominated on his Form 956A and continued to send correspondence to the authorised recipient at its postal address.
8. The envelope containing the letter dated 29 July 2020 sent to the Applicant was subsequently returned to sender and received by the Department on 17 August 2020. However, no other correspondence sent by the Department to the Applicant at his residential address was returned.
9. On 16 October 2020, the Department sent a letter by post pursuant to s 56 of the Act, to the Applicant and to the authorised recipient, requesting more information with respect to the application (CB44-47). The letter stated that the Applicant had 35 days after receiving the letter to provide the information.
10. On 29 October 2020, the Department sent both the Applicant and his authorised recipient a further letter by post requesting additional information to support the application as set out in a checklist which was enclosed (CB51-57).
11. On 3 December 2020, the Delegate refused to grant the Applicant the visa (CB67-72). The Applicant and the authorised recipient were notified of the Delegate's decision on that date (CB66). The Applicant's notification was sent to him at his nominated residential address.
12. On 17 October 2022, the Applicant applied to the Tribunal for review of the Delegate's decision.
13. On 19 October 2022, the Tribunal sent a letter to the Applicant acknowledging receipt of the application.
14. On 25 October 2022, the Tribunal invited the Applicant to comment in writing by 8 November 2022 on the validity of the review application. In the invitation, the Tribunal noted that it appeared the application was not valid as it was not lodged within the prescribed time limit of 28 days, commencing on the day the Applicant is notified of the decision, as prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) ('the Regulations') (CB89-90).
15. The Applicant did not respond to the invitation to comment.
16. On 6 February 2023, the Tribunal decided it did not have jurisdiction to determine the review application.
17. On 7 February 2023, the Tribunal notified the Applicant of its decision (CB91-92).

1. The Tribunals decision dated 6 February 2023 is at (CB93-94).
2. At [1] of the Tribunal's decision, the Tribunal confirmed that the review application was lodged on 17 October 2022.
3. At [2], the Tribunal correctly identified that as the Applicant was not in immigration detention, an application for review of the decision had to be made within 28 days, commencing on the day the Applicant is notified of the decision, pursuant to reg 4.31(2) of the Regulations.
4. At [3], the Tribunal noted that the Applicant was notified of the decision by letter dated 3 December 2020 dispatched by post and was satisfied that the Applicant was notified of the Delegate's decision in accordance with the statutory requirements.
5. At [5] of the Tribunal's decision, the Tribunal found that the Applicant is taken to have been notified of the Delegate's decision on 14 December 2020, pursuant to s 494C of the Act, and that the prescribed period to apply for review ended on 10 January 2021.
6. Section 494C(4) of the Act is as follows:

494C When a person is taken to have received a document from the Minister

...

Dispatch by prepaid post or by other prepaid means

(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or

(b) in any other case - 21 days after the date of the document.

1. The Tribunal correctly identified at [6] that as the last day of the prescribed period fell on a Sunday, the Applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge the application for review in the Tribunal, pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth).
2. Therefore, the Tribunal found that the Applicant had until 11 January 2021 to apply to the Tribunal for review.
3. The Tribunal at [4] of its decision noted that they invited the Applicant to comment on whether a valid application had been made but that the Applicant did not respond to the invitation.
4. The Tribunal concluded at [7] and [8] of its decision that as the application for review was not received by the Tribunal until 17 October 2022, the application was not made in accordance with the relevant legislation, and it did not have jurisdiction to determine the matter.

1. On 14 February 2023, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the Tribunal's decision ('the application'). The Applicant also filed an affidavit annexing the decision of the Tribunal.
2. On 11 August 2023, the parties appeared via telephone before a Registrar. The Applicant was assisted by a Mandarin interpreter. The Registrar made procedural orders which included an order permitting the Applicant to file any written submissions, amended application, and additional evidence upon which he sought to rely, 28 days prior to the hearing and listed the matter for a final hearing on a date to be advised.
3. On 3 June 2025, the parties appeared via telephone before a Registrar. The Applicant was assisted by a Mandarin interpreter. The following Notations were made on that date:

A. The applicant confirmed that they have retained a copy of their court book.

1. The applicant confirmed that their contact details as set out in their application for judicial review remain current.

2. The Court explained to the applicant that the Court does not have power to grant a visa to the applicant, and that the Court's function is to determine whether the second respondent's decision was made according to law.

3. The Court summarised the concept of jurisdictional error to the applicant and explained that it would be necessary for the applicant to establish that the second respondent's decision was affected by such an error for their application for judicial review to be successful.

1. The Applicant did not file any further material.
2. The matter was listed for a final hearing on 7 November 2025.

1. At the hearing, the material listed below was before the Court.
2. The Applicant relied upon the following material:

(a) The Court Book which was tendered and marked as Exhibit 'C1';

(b) The Supplementary Court Book which was tendered and marked as Exhibit 'C2';

(c) Application filed on 14 February 2023; and

(d) Affidavit of AKV23 filed on 14 February 2023.

1. The First Respondent relied upon the following material:

(a) The Court Book which was tendered and marked as Exhibit 'C1':

(b) The Supplementary Court Book which was tendered and marked as Exhibit 'C2';

(c) Response filed on 9 August 2023;

(d) Outline of Submissions filed on 24 October 2025;

(e) Affidavit of John O'Connell filed 24 October 2025; and

(f) Affidavit of Dominic Robert Leal Smith filed 29 October 2025.

1. The Applicant's two grounds of review and particulars are set out on page 3 of the Application filed on 14 February 2023 and are as follows:

*** The Tribunal has failed to discharge its statutory function of reviewing the decision. It has failed to exercise its statutory discretion properly, to act fairly and reasonably.**

*_ the Tribunal's exercise of his discretion in deciding on the review without taking any further action to obtain the information was unreasonable.

• there was no reason provided as to how the Tribunal had exercised his discretion and made the decision. Failure to provide the reason was legally unreasonable._**

*** The Tribunal's failure to take further action to obtain information from the Applicant means that**

*** the Applicant was not afforded natural justice.

• the Tribunal failed to consider relevant matters that the Applicant would have provided if the Applicant was afforded a hearing or an opportunity to provide evidence.
• the Tribunal failed to satisfy the object of section 360 and Div V of the Migration Act.
• in doing (a), (b) and (c) above, jurisdictionally erred, and those errors were material.**

Was the Tribunal wrong in finding it lacked jurisdiction?**

1. Before considering the Applicant's grounds of review, I need to consider whether the Tribunal's decision, that it did not have jurisdiction to hear and determine the review application, was affected by a factual error, which would mean the decision should be set aside.
2. Section 412(1)(b) of the Act, in force at the time of the Tribunal's decision, provided that:

412 Application for review of Part 7‑reviewable decisions

(1) An application for review of a Part 7‑reviewable decision must:

...

(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

...

1. Regulation 4.31(2) of the Regulations provides that the prescribed period for lodging a merits review in the Tribunal commences on the day the applicant is notified of the decision. The day of notification is included in the calculation of the 28-day period: see DZAFH v Minister for Immigration [2017] FCCA 387, at [44]-[46], upheld on appeal in DZAFH v Minister for Immigration [2017] FCA 984. See also s 36(1), Item 2 of the Acts Interpretation Act 1901 (Cth) which provides that, where the period "is expressed to begin at, on or with a specified day", the period is taken to include that specified day.
2. Pursuant to reg 2.16(3) of the Regulations, the Minister had to notify an applicant of a decision by one of the methods specified in s 494B of the Act.
3. Therefore, under s 494B(4), the Delegate was permitted to send the decision by registered post to either the last address for service or the last residential address provided by the Applicant for receiving documents.
4. Pursuant to s 494D(5) of the Act, the Delegate was not required to comply with s 494D(1) if the authorised recipient was not a registered migration agent and the Department reasonably suspected that the authorised recipient was giving immigration assistance as was the case in respect of the Applicant's authorised recipient.
5. In this instance, the notification letter from the Department dated 3 December 2020, was sent by registered post to the Applicant at the last address provided by the Applicant for receiving documents, which was the residential address given by the Applicant on the visa application and the Form 956A. The Delegate also sent the notification letter to the Applicant's nominated authorised recipient. A copy of the registered post envelope is at Supplementary Court Book ('SCB') at page 34.
6. Pursuant to s 494C(4) of the Act, if the Minister gives a document to a person by the method in s 494B(4) and the recipient's address is in Australia, the person is taken to have received the document seven working days after the date of the document. Thus, the Applicant is taken to have received the notification letter on 14 December 2020.
7. Section 66(2)(d)(ii) of the Act provided that if an Applicant has a right to have a decision reviewed by application under Part 7 of the Act, the notification of the decision must state the time in which an application for review may be made.
8. The notification letter sent to the Applicant on 3 December 2020 clearly stated that an application for review must be given to the Tribunal "within the period of 28 calendar days, commencing on the day you are taken to have received this letter" (CB63-64). Thus, the letter complied with the requirements of subparagraph 66(2)(d)(ii).
9. In particular, the notification letter in this case had none of the defects identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189. In this matter, the notification letter:

(a) specified the correct prescribed time limit within which the Applicant could seek review (i.e. 28 calendar days commencing on the day they were taken to have received the letter) under the correct heading 'Review rights'; and

(b) explained when the Applicant was deemed to have received the notification letter (i.e. seven working days after the date of the letter) in the same section under the heading 'Review rights'.

1. In oral submissions, the Applicant stated that he had not received any correspondence from the Department, including the decision of the Delegate. When it was pointed out to the Applicant that the decision of the Delegate had been sent to the Applicant at his residential address, he claimed that the address was not his, although agreed that he had signed the visa application and Form 956A which had this residential address on it.
2. I do not accept the Applicant's submission and find that he was properly notified of the Delegate's decision to refuse the visa in accordance with ss 494B(4) and 66(2)(d)(ii) of the Act.
3. In respect of the delay in lodging the review application, the Applicant alleged this was directly related to his authorised recipient being involved in migration fraud. As a result, the Applicant stated that he did not know what to do, and that when he found out his visa had expired, he tried to obtain advice about what his options were in respect of the visa application. He said he was unable to find a lawyer as no-one would represent him because of his connection to the unregistered migration agent, and that was the reason for the lengthy delay, in lodging his review application.
4. The Applicant did not plead fraud by his authorised recipient in the grounds contained in his application to this Court. It was raised for the first time in his oral submissions.
5. The Applicant did not identify any fraud committed by his authorised recipient in respect of him or his visa application. He simply referred to having found out in the news that members of the migration service that had assisted him with his visa application, had been arrested for migration fraud.
6. It was submitted on behalf of the First Respondent that where an applicant is alleging fraud, it must be distinctly pleaded and proved to the level of satisfaction in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
7. In this case, the Applicant has not alleged any particular fraud in respect of his visa application or review application. He simply alleges that his former authorised recipient was engaged in migration fraud in another case and arrested.
8. In circumstances where fraud is alleged, the Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, concluded at [47] that the issue to be determined is the effect of the fraud on the Tribunal's decision-making process.
9. In Wati v Minister for Immigration and Ethnic Affairs [1996] FCA 1043; (1996) 71 FCR 103 at 112, Lindgren J held that the "fraud" was not limited to that of the decision-maker, a party, or a party's representative, but that the decision in question must be actually induced or affected by the fraud.
10. I find that the Applicant has not adduced evidence of or identified any fraud that affected the decision of the Tribunal.
11. In respect of whether the Tribunal had jurisdiction, the Court stated in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [48], a merits review of a Delegate's decision is only available subject to the time limits in the legislation. The Court agreed with the reasoning of Charlesworth J in Calimoso v Minister for Immigration and Border Protection (2016) 162 ALD 361, in which he stated at [29]:

The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. However, that harsh consequence is one brought about not so much by s 494C(5) of the Act, but rather by s 347(1)(b)(iii) and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame.

1. Thus, where an applicant has been properly notified as in this case and seeks review in the Tribunal outside the relevant statutory timeframe, the Tribunal has no discretion to extend time and is obliged to find it has no jurisdiction.
2. Accordingly, I conclude that the Tribunal did not have jurisdiction to review the decision of the Delegate.
3. Against this background, I now consider the grounds contained within the Applicant's Application filed on 14 February 2023.

1. The Applicant alleges by this ground that the Tribunal failed to discharge its statutory function of reviewing the decision and failed to exercise its discretion fairly and reasonably.
2. The Applicant appears to misunderstand the manner in which the Tribunal proceeded and alleges the Tribunal's decision involved the exercise of a discretion.
3. For the reasons outlined above, the Tribunal correctly determined it did not have jurisdiction to review the decision of the Delegate, as the review application had been filed outside the period prescribed and the Tribunal is not empowered to alter the statutory time-frame.
4. As such, the Tribunal did not exercise any discretion, nor was it required to do so, and no jurisdictional error is established by this ground.

1. The Applicant alleges by this ground that the Tribunal failed to obtain information from him and that he was not afforded natural justice.
2. It was submitted on behalf of the First Respondent that because the Tribunal did not have jurisdiction to review the application it therefore did not have the power to obtain information from the Applicant regarding his substantive protection claims.
3. In respect of Particular (a), it is contended that the Tribunal did not afford the Applicant natural justice.
4. On 19 October 2022, the Tribunal sent a letter to the Applicant to via the email address on his review application which acknowledged receipt of the review application and stated in the second paragraph (CB82):

Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

1. On 25 October 2022, the Tribunal sent a second letter to the Applicant via email inviting him to comment by 8 November 2022 on the validity of his application (CB88-90). The letter clearly stated that it appeared to the Tribunal the application was not valid as it had not been lodged within the relevant time limit. The letter set out the relevant provision of the Regulations, the time limit and when the time limit commences. The Applicant did not reply to the letter.
2. Section 422B(1) of the Act in force at the time provided that Part 7, Division 4 is an exhaustive statement of the requirements of the natural justice hearing rule as to the conduct of a review. As the Tribunal had formed the view that it did not have jurisdiction to review the Delegate's decision, s 422B and Part 7, Division 4 of the Act were not engaged.
3. In SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [37] Bennett J stated that:

Common law natural justice and procedural fairness require that the applicant be given a reasonable opportunity to deal with matters adverse to his interest that the decision maker proposes to take into account in exercising its power.

1. It was submitted on behalf of the First Respondent that the letter sent by the Tribunal afforded the Applicant natural justice by providing him with a reasonable opportunity to respond to the adverse information relating to the validity of his application for review.
2. I agree that the Applicant was given the opportunity to respond to the Tribunal and chose not to do so. In oral submissions, the Applicant claimed that the email address the letter was sent to was not his email address. I do not accept that submission in circumstances where the Applicant acknowledged he completed and signed the review application which provided the email address on it. The Applicant subsequently filed his judicial review application in this Court a week after the Tribunal's decision had been sent to that same email address.
3. I find the Tribunal acted in accordance with the common law principles of natural justice and fairness and no error is established by this aspect of the ground.
4. Particulars (b) to (d) contend that the Tribunal failed to comply with s 360 by which the Applicant appeared to mean s 425 of the Act, and that the Applicant should have been afforded a hearing or an opportunity to provide evidence. This contention is misconceived. As already identified, in circumstances where the Tribunal determined that it had no jurisdiction, the procedural fairness requirements in Part 7 of the Act did not apply: see Alam v Minister for Home Affairs [2019] FCA 389 at [29].
5. Therefore, the Tribunal was not required to provide the Applicant with a hearing under section 425 of the Act, and no jurisdictional error is established by this aspect of the ground.

1. For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.

1. The First Respondent sought an order for costs in the fixed amount of $5,600 which is below the scale amount in Sch 2, Pt 3 of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2025 (Cth).
2. The Applicant has been unsuccessful. I also take into account that the length of the hearing was extended by the Applicant raising fresh grounds in support of his application, which should have properly been put before the Court by an amended application.
3. I therefore consider it is appropriate that an order for costs be made and will order that the Applicant pay the First Respondent's costs fixed in the amount of $5,600.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.