Ali v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before me is an appeal from a judgment of a judge of the Federal Circuit Court of Australia made on 2 November 2018 dismissing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) an application for judicial review on the basis that the application did not disclose any arguable case of jurisdictional error. On 14 May 2019 leave to appeal against the primary judge's judgment was granted by consent. 2 The appellant is a citizen of Pakistan born in February 1977. On 12 April 2017 he applied for a Medical Treatment (Visitor) (Class UB) visa ("the Visa") which he sought for the period 12 April 2017 to 11 July 2017. On 21 April 2017 a Delegate of the first respondent ("the Minister") refused the appellant's application for the Visa. 3 The appellant was notified of the Delegate's decision by letter dated 21 April 2017 which was emailed to the appellant on that date at the email address nominated in his visa application form at which the appellant indicated that the Department could communicate with him. 4 The Delegate's decision was a "Part-5-reviewable decision": see s 338(2) of the Migration Act 1958 (Cth) ("the Act"). 5 On 25 May 2017 the appellant applied to the second respondent ("the Tribunal") for a merits review of the Delegate's decision. 6 On 14 June 2017 a letter was sent on behalf of the Registrar of the Tribunal to the appellant advising that, in the Registrar's view, the application had not been lodged within the relevant time limit. The letter included the following: I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Medical Treatment (Visitor) (Class US) visa. 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 you on 21 April 2017 and, on the basis that 21 April 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 12 May 2017. As the application was not received until 25 May 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 28 June 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. … 7 No response was provided by the appellant to this letter. 8 On 10 July 2017 the Tribunal determined that it did not have jurisdiction in relation to the appellant's application for merits review because it had not been made to the Tribunal within 21 days after the date on which the appellant was taken to have been notified of the Delegate's decision. The Tribunal found that the appellant had been notified on 21 April 2017 and that the application for merits review had to be made by 12 May 2017. The application for merits review was not made until 25 May 2017. 9 In short, the Tribunal reasoned that by the operation of s 347(1)(b) of the Act and Reg 4.10 of the Migration Regulations 1994 (Cth) ("the Regulations") an application for merits review of the decision had to be made to the Tribunal within 21 days after the date on which the appellant was taken to have been notified of the Delegate's decision. 10 As the Tribunal explained in [6] of its reasons: The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 21 April 2017. Therefore the prescribed period within which the review application could be made ended on 12 May 2017. As the application for review was not received by the Tribunal until 25 May 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. 11 It is implicit in the Tribunal's reasoning that the email was sent to the appellant on 21 April 2017. This is consistent with the letter to the appellant dated 14 June 2017 which stated that the primary decision was emailed to the appellant on that date. 12 The grounds appearing in the application for judicial review lodged by the appellant are set out in the reasons of the primary judge and were as follows: 1. The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing applicant to present his arguments. 2. The Tribunal fell into jurisdiction [sic] error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application. 3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 13 None of these grounds engage with the Tribunal's reasoning which led it to conclude that it did not have jurisdiction to review the Delegate's decision. 14 At the hearing of the appeal the appellant did not advance any argument challenging the correctness of the Tribunal's conclusion or the correctness of the primary judge's judgment. 15 There does not appear to me to be any reason to doubt that the notice of the Delegate's decision was transmitted to the appellant on 21 April 2017 to the email address which the appellant had nominated in his visa application as the email address at which the Department could communicate with the appellant including by notifying the appellant of the outcome of his visa application. 16 Section 494B(5) of the Act provides that the Minister may give a document that he or she is required or permitted to give to a person by (inter alia) transmitting it by email to the last email address provided to the Minister for the purposes of receiving documents. 17 Section 494C(5) of the Act relevantly provides: If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. 18 Section 347(1) of the Act relevantly provided: 347 Application for review of Part 5-reviewable decisions (1) An application for review of a Part 5-reviewable decision must: … (b) be given to the Tribunal within the prescribed period, being a period ending not later than: (i) if the Part 5-reviewable decision is covered by subsection 338(2) … - 28 days after the notification of the decision; or … … (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place). 19 Regulation 4.10 relevantly provided: 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 … … … 20 By virtue of this regulation, the 28 day period specified in s 347(1)(b)(i) has been shortened to 21 days. Sub-section (5) of s 347 expressly authorises the making of a regulation having that effect. The relevant period in this case commenced with the notification of the Delegate's decision and ended 21 days later. 21 Section 66 of the Act relevantly provides: 66 Notification of decision (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to refuse an application for a visa must: … (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 22 Counsel for the Minister has referred me to the decision of the Full Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 which was delivered on 18 April 2019, some months after the primary judge gave judgment, and after the appellant sought leave to appeal from his Honour's judgment. In that case, Perram J (with whom Rares and Farrell JJ agreed) said of the decision-maker's notice dated 3 February 2017 at [58]: I conclude that when s 66(2) uses the word 'state' it means that the notification must set out the information in each of the subsections in a way which is not only complete (as Zhan holds) but clear as well. This required the letter of 3 February 2017 … to convey to the Appellant that the period in which she could seek review ended on 13 March 2017. ("Zhan" is a reference to the decision of Allsop J (as the Chief Justice then was) in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327, (2003) 128 FCR 469.) 23 Perram J continued at [59]: Turning then to the letter of 3 February 2017, the question is whether it 'states' the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated 'the time in which the application for review may be made' necessarily devolves to an inquiry into whether that information was clearly conveyed. 24 In the present case the Minister has submitted that the Full Court's decision in DFQ17 is distinguishable. I accept that submission. In my view the facts of this case are different from DFQ17. In DFQ17 Perram J considered that the information as to the time within which the relevant application had to be made in that case was (at [62]) "… piecemeal, entirely obscure and essentially incomprehensible." 25 I am bound by DFQ17 and must follow it in so far as it concerns the proper construction of s 66(2)(d) of the Act. It is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review may be made) must be clearly conveyed. 26 The letter sent to the appellant on 21 April 2017 included the following (at pages 1-2): Review rights The decision can be reviewed. 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. 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. (emphasis added) 27 The letter described how an application for review can be lodged and included the following: Lodging an application for merits review Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT). Registries of the Administrative Appeals Tribunal [The letter included a table setting out the addresses of the five registries] You can lodge an application for review online at . Alternatively, review application forms can be lodged by email to or by fax to 02 9276 5599 or 03 8600 5801. Further information about the merits review process is available from the AAT on the Tribunal website at 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. (emphasis added) 28 The first of the emphasised statements appears on page 1 of the letter whereas the second appears on page 3. But the letter must be read as a whole and the fact that these statements appear on different pages does not mean that the relevant information is not clearly conveyed. 29 A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review: Zhan at [66]. 30 None of the complexities that the appellant in DFQ17 faced in determining the time in which an application for review could be made are present in this case. I find that the letter sent to the appellant by email on 21 April 2017 clearly conveyed that an application for review was required to be lodged within 21 days of the date the email was transmitted and that it complied with the relevant requirements of s 66(2)(d) of the Act. 31 In all the circumstances, I am satisfied that the Tribunal was correct to conclude that it did not have jurisdiction to review the Delegate's decision for the reasons it gave and that the primary judge was correct to conclude that the application for judicial review filed by the appellant did not raise any arguable case for the relief claimed by the appellant. 32 The appeal will be dismissed. 33 The appellant must pay the first respondent's costs as assessed or agreed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.