Arshad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, by which an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, was dismissed. The Tribunal had found that it did not have jurisdiction to consider a late application for merits review of a decision of a delegate of the second respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to cancel the appellant's student visa. 2 The delegate cancelled the visa because the appellant had not maintained enrolment in a registered course, which was a condition of his visa. He had not maintained that enrolment for almost 16 months by the time he was sent by email a notification of intention to consider cancellation of his visa. His explanation for not maintaining his enrolment, sent by email five days after the date of the notification, turned on his personal and financial circumstances, including in particular difficulties with his family overseas. That explanation was found by the delegate not to be a sufficient reason not to cancel his visa. His visa was cancelled two weeks after he provided his explanation. 3 The appellant was notified by email of the delegate's decision on the same day that it was made. Attached to the email was a letter advising him of the decision, and a copy of the reasons for the decision. Immediately after the part of the letter advising him of the decision was the following: Review Rights You are entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision. An application for merits review of this decision must be given to the AAT within seven (7) working days after you are taken to have received this letter. Please note this review period is prescribed in law and an application for merits review may not be accepted after that date. 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. 4 The appellant lodged an application for review by the Tribunal 17 working days later, 10 working days later than required. He was advised that his application appeared to be invalid because it was late and was invited to comment. His response raised compassionate and compelling circumstances which led him to lodge the review application out of time. The essential reason given was that when he received the visa cancellation email, he had nothing in his bank account to pay the filing fee, was unsuccessful in borrowing money from friends, and was not aware that he could apply for a waiver of the filing fee. The question of the validity of the application for review was directed to a Tribunal member, who found that the notification of the cancelation decision was in accordance with the statutory requirements. As the application for review was not received within the prescribed time of seven working days after that notification, the Tribunal did not have jurisdiction. 5 There is no dispute that the appellant had not complied with the enrolment condition of his visa, nor that his application to the Tribunal was out of time. His grounds of judicial review before the primary judge were as follows: The applicant states that he has a right to review the decision of the Delegate of the Minister and this right was deprived by the Tribunal. Therefore, the Tribunal's decision that it had no jurisdiction to review the applicant's application is an unreasonable application of the legislative policy which denied the applicant's right for review and that breached rules of natural justice. The decision is therefore erroneous; The Tribunal did not consider specific and relevant circumstances in relation to the applicant, and incurred a jurisdictional error by not acting within its scope of authority. 6 As to the first of the judicial review grounds, the primary judge held (at [15]-[17]): This Ground asserts that the decision of the Tribunal to have had no jurisdiction is legally erroneous. However, in my view jurisdictional error is not made out. A decision to cancel a visa pursuant to s.116(1)(b) of the Act, such as the Delegate's decision in this matter, is a Part 5 reviewable decision as defined in s.338(3). When read together, s.347(1)(b)(i) of the Act and reg.4.10(1)(b) of the Regulations require that an application for merits review of the Delegate's decision be lodged within seven working days of the date on which the Applicant was taken to have received the Delegate's decision. As the Delegate's decision was emailed to the Applicant at his nominated email address by which he agreed to be contacted by the Department, s.494C(5) operated so that the Applicant was taken to have received the decision at the end of the day on which it was sent, being 4 September 2017. Accordingly, the prescribed period in which the Applicant could validly lodge his application for review with the Tribunal expired on 13 September 2017. As the application was not lodged until 27 September 2017, the Tribunal was correct to find that it did not have jurisdiction to review the Delegate's decision. 7 As to the second of the judicial review grounds, the primary judge followed prior authority of this Court on the incapacity of the Tribunal to consider compelling and compassionate circumstances when a merits review application is lodged out of time (at [24]-[25], omitting some of the italics): This Ground presumably invokes the Applicant's claim of compelling and compassionate circumstances, referred to in his email to the Tribunal of 12 November 2017 as a reason for lodging his review application out of time. However, unfortunately for the Applicant, there is no provision of the Act that allows the Tribunal or a Court to override or extend the time limit prescribed by s.347(1)(b) of the Act or grants any jurisdiction to entertain an application that was not made within that time limit. As Charlesworth J stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 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. To similar effect, Marshall J had said in Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] as follows: Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) ("the regulations") prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a decision is taken to be given to the Tribunal when it is received at the Tribunal's registry. The appellants' application was not received at the Tribunal's registry until 29 March 2011. 8 I am of the view that the primary judge's reasons and conclusions above as to both judicial review grounds are unassailably correct, subject to the further issue of the sufficiency of the notification considered below. There is no separate natural justice or other right to have the Tribunal consider a merits review application that is filed late; and there is no scope to have regard to the reasons why an application for review was made outside the prescribed time period. 9 The Minister, in compliance with model litigant requirements, raised for the consideration of the primary judge whether the notification of the cancellation decision was in compliance with the statutory requirement in s 66(2)(d)(ii) of the Migration Act 1958 (Cth) in that it must, if the visa holder has a right to have the decision reviewed, "state … the time in which the application for review may be made". This was not a point raised by the appellant before the primary judge, or on appeal to this Court. 10 In DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, Perram J held at [58] (Rares and Farrell JJ agreeing) that in order for the notification to comply with s 66(2)(d)(ii) of the Migration Act it must not only state the time in which the application for review may be made, but that statement must be both complete and clear. In DFQ17, the notification letter failed to meet that standard because it was "piecemeal, entirely obscure and essentially incomprehensible" (at [62]). 11 On the question of the sufficiency of the notification for the purposes of s 66(2)(d)(ii) of the Migration Act, the primary judge said, as part of addressing the first ground of judicial review (at [18]-[21], emphasis added): I note for completeness that a matter raised by the Minister as a model litigant does not assist the Applicant. In my view, the Cancellation letter of 4 September 2017, under the heading on page 2 of "Review Rights", complied with the requirement of s.66(2)(d) of the Act in stating that the Delegate's decision could be reviewed and the time in which an application for review could be made. The decision earlier this year of the Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration [2019] FCAFC 64 (DFQ17) does not avail the Applicant because there is nothing piecemeal, obscure or incomprehensible about the statement of the required information in the Cancellation letter. The relevant part of the Cancellation letter on page 2 stated as follows: REVIEW RIGHTS You are entitled to apply to the Administrative Appeals Tribunal for merits review of this decision. An application for merits review of this decision must be given to the AAT within seven working days after you are taken to have received this letter. Please note this review period is prescribed in law and an application for merits review may not be accepted after that date. 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. In other words, by this section of the Cancellation letter the Applicant was informed that he had until 13 September 2017 to lodge his application for review, because that date was seven working days after 4 September 2017. I note that the Applicant in his review application form indicated that he was notified of the Delegate's decision on 4 September 2017 by email. Accordingly, as I have said, DFQ17 does not avail the Applicant. The content of the letter the subject of DFQ17 is distinguishable from the verbiage used by the Department in the Cancellation letter in this proceeding. … 12 In fact, the passage from the notification letter by the primary judge reproduced above had minor typographic differences from the original (reproduced above at [3]), and the original was slightly clearer still. 13 Just over three months after the primary judge's decision, the ratio in DFQ17 was considered in BMY18 v Minister for Home Affairs [2019] FCAFC 189. In particular, the Full Court in BMY18 observed (at [30]), that the ratio in DFQ17 at [58] was that the notification letter had to be clear and complete, not that it merely had to lack the more extreme characteristics that the notification letter had in that case of being "piecemeal, entirely obscure and essentially incomprehensible". The Full Court in BMY18 referred to a number of Federal Circuit Court decisions in which DFQ17 had been applied, including the decision of the primary judge in this case. The Full Court in BMY18 at [30] referred to the primary judge's reference to that phrase (reproduced in bold in the quote reproduced above at [11]) as therefore misstating the ratio in DFQ17. The Full Court in BMY18 then went on to state that a number of Federal Circuit Court decisions should be overruled, or if not overruled, were wrongly decided. The primary judge's decision in this case was not one of those decisions that was said should be overruled or found to be incorrectly decided beyond the misstatement of the ratio in DFQ17. It is readily apparent why the Full Court in BMY18 did not take that additional step, once consideration is given to the terms of the notification and the question of its compliance with the requirement imposed by s 66(2)(d)(ii) of the Migration Act. 14 The Full Court decision in BMY18 is a judgment dealing with two separate appeals - both BMY18 v Minister for Home Affairs [2019] FCCA 1381 itself, and also BOQ15 v Minister for Immigration and Border Protection [2019] FCCA 1477. In the later BMY18 part of the decision, the same type of notification defect was found to exist as had been identified in DFQ17 and the appeal allowed upon that basis. However, in the earlier BOQ15 part of the decision, the same point failed, based upon the contents of the delegate's notification. This case is like the BOQ15 part of the decision, and unlike the BMY18 part of the decision. A number of key passages from the BOQ15 part of the Full Court's decision are apposite and warrant reproduction in full (at [17]-[20]): The relevant portion of the notification letter said this: Review rights No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days. Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date. As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted. This statement is accurate. In the Full Court's decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 ('DFQ17') a notification letter in which the statement about when the notification was taken to have been received appeared on the next page of the letter under the heading 'Financial or case worker assistance'. Perram J, with whom Rares and Farrell JJ agreed, concluded that such a notification was incomprehensible and that therefore the notification failed to 'state' the time in which a review application could be brought. That is not the case here. It is possible to determine the time within which the review application may be brought. The layout is not confusing. The complexity which exists is not the fault of the author of the letter but is a result of the terms of the statute itself. Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state 'the time in which the application for review may be made'. This is a reference to a period and not a date. In this case, the notification complied with s 66 and DFQ17 does not require otherwise. The Minister sought to buttress the clarity of the message conveyed by the notification of 24 February 2015 by reference to the brochure which it was submitted accompanied it. Given that we accept that the notification was in itself sufficiently clear, it is not necessary to consider that issue further. Ground 6 should be rejected. 15 The review part of the notification letter in this case, reproduced above at [3], was even clearer than that in BOQ15. Unlike in BOQ15, the notification in this case did not require the reader to determine the time within which a review application could be brought. Rather, as the primary judge found, it informed the appellant that he had seven working days from the date the email was sent (transmitted) to apply for a review by the Tribunal. It follows that, although the appellant did not raise the DFQ17 issue before the primary judge, and does not raise it in this appeal, it is not a point that could have succeeded. 16 The appellant's notice of appeal contained the following sole identifiable statement of the ground upon which he relies (verbatim): The Application filed in Federal circuit Court on 6 December 2017 is dismissed on 16 July 2019 by honourable judge Dowdy at federal circuit court Australia In Sydney .which caused the applicant severe physical and mental problems.Applicant want honourable court to reconsider decision on humanitarian grounds and Allow applicants appeal to be heard in Adminsitrative appeal tribunal. 17 As the Minister correctly points out, the appellant therefore asks that his appeal be allowed solely upon on humanitarian grounds. That is not an available basis for appellate intervention by this Court. Given that the Tribunal had no discretion to extend the time for applying for merits review, the conclusion that it had no jurisdiction to consider the appellant's merits review application was correct. The primary judge did not err in the conclusions his Honour reached. The appeal ground advanced by the appellant cannot succeed.