CAV18 v Minister for Home Affairs

You can lodge an application for review online at www.tribunalonline.mrt-rrt.gov.au. Alternatively, review application forms can be lodged by email to MRDivision@aat.gov.au 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 www.aat.gov.au 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. Questions about this decision The Department cannot consider your visa application any further. Visa application charge The visa application charge which has already been paid can only be refunded in limited circumstances, regardless of the application outcome. A receipt for your payment is available through your ImmiAccount. ImmiAccount Bridging Visa Application Lodgement Your ImmiAccount cannot be used to lodge further Bridging visa applications linked to this application. Applications for a bridging visa while you are seeking review of a decision must be made using Form 1005 Application for a Bridging visa. Form 1005 is available on our website at www.border.gov.au/Forms/Documents/ 1005.pdf Client service information We value your compliments, complaints and suggestions. Your compliments let us know where we are performing well and your complaints help us improve our services. Further information on our client service charter and how to make a compliment, complaint or suggestion is available at www.border.gov.au/about/contact/provide-feedback Yours sincerely Leonie Position Number: 00005944 Department of Immigration and Border Protection 35 After referring to the judgment of Perram J in DFQ17 (at [58]-[59]), Nicholas J in Ali (at [24]-[32]) said the following: 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." 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. 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) 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 www.tribunalonline.mrt-rrt.gov.au. Alternatively, review application forms can be lodged by email to MRDivision@aat.gov.au 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 www.aat.gov.au 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) 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. 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]. 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. 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. The appeal will be dismissed. 36 Subsequently, on 31 October 2019, BMY18 was decided. The notification letter in that case was dated 9 January 2018. I set out that letter in full below: 9 January 2018 [Redacted] In reply quote: Client Name [Redacted] Date of Birth [Redacted] Date of Visa Application 18 July 2017 Application ID [Redacted] File Number [Redacted] Visa Application Charge Receipt Number [Redacted] Transmission Method Email sent to [Redacted] Dear [Redacted] Notification of refusal of application for a Protection (subclass 866) visa This letter refers to your application for a Protection (subclass 866) visa, which was lodged at Sydney City Office on 18 July 2017. Decision on Protection (subclass 866) visa I wish to advise you that the application for a Protection (subclass 866) visa has been refused for the following applicant(s): [Redacted] After careful consideration of all the information available to me, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law. This application was refused because you did not satisfy subsection 36(2) of the Migration Act 1958. That provision requires you to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person. The attached decision record provides more detailed information about this decision and the applicant(s) it applies to. 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. An application for merits review of this refusal decision must be given to the AAT 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. Lodging an application for merits review Applications for merits review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT). Online www.aat.gov.au/apply-online Registries of the Administrative Appeals Tribunal New South Wales Victoria (before 27 November 2017) Australian Capital Territory Level 6 Level 10 Level 8 83 Clarence Street 120 Spencer Street 14 Moore Street Sydney NSW 2000 Melbourne VIC 3000 Canberra ACT 2601 South Australia Victoria (from 27 November 2017) Western Australia Level 2 Level 4 Level 13 1 King William Street 15 William Street 111 St Georges Terrace Adelaide SA 5000 Melbourne VIC 3000 Perth WA 6000 Tasmania Queensland 39-41 Davey Street Level 6 Hobart TAS 7000 295 Ann Street Brisbane QLD 4000

Alternatively, review application forms can be lodged by email to mrdivision@aat.gov.au or by fax to 02 9276 5599 or 03 8600 5801 or 07 3361 3069. Make sure to include a copy of this letter and the attached decision record when lodging any application for review. Further information about the merits review process is available from the AAT on the Tribunal website at www.aat.gov.au, or by telephoning 1800 228 333. If you apply for a merits review of the decision to the AAT and the Tribunal determines that you are not a person to whom Australia has protection obligations, a post-decision fee will be payable. If this fee is not paid, it may affect any future visa application made by you or members of your family. Your Immigration status When this application for a Protection (subclass 866) visa was lodged, you were granted a bridging visa to allow you to remain in Australia lawfully during the processing of the application. The details and conditions of this bridging visa were included in the Visa Application Summary or Bridging Visa Grant Notice previously provided to you. You can also check your current visa details and conditions using Visa Entitlement Verification Online (VEVO) at www.border.gov.au/Busi/Visa Your bridging visa will cease 35 calendar days after the date of the decision, unless you are eligible to apply and make a valid application for, merits review of this decision. Leaving Australia If you do not hold a current visa other than your bridging visa, and you are not eligible to apply for, or do not make a valid application for merits review of this decision, then you must depart Australia by the date your bridging visa ceases. If you stay in Australia after this date (and you do not hold another visa) you will be here unlawfully. This has serious consequences including possible detention and removal from Australia. If there are reasons why you cannot depart Australia by the time your bridging visa ceases, you should contact the department for advice and assistance as soon as possible. Lodging another application While you are in Australia, you can only lodge another application for a visa to allow you to remain in Australia in very limited circumstances. Refer to Form 1026i Limitations on Applications in Australia available at www.border.gov.au/Forms/ Documents/1026i.pdf If you lodge a further valid application, you may be granted a bridging visa which will remain in effect until you are notified of a decision on that application. Any new application will be considered on its individual merits. Financial or case worker assistance If you are receiving Status Resolution Support Services (SRSS), you are refused a protection visa, and you do not lodge an application for review with the AAT, you will be transitioned out of the SRSS programme within seven business days from the end of the prescribed timeframe for seeking merits review. 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. Questions about this decision We cannot consider your visa application any further. Border Watch - report something suspicious If someone has given you incorrect information about applying for a protection visa or if someone has applied on your behalf without your knowledge, you can report this information through the Department's website www.border.gov.au/report Yours sincerely Sarah Bernadette Position Number: 00001142 Department of Immigration and Border Protection 37 At [30]-[35] in BMY18, the Full Court said: In DFQ17 Perram J held that in order to have 'stated' within the meaning of s 66(2)(d)(ii) the time within which an application for review could be made, the notification had to 'set out the information in each of the subsections in a way which is not only complete (as [Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; 128 FCR 569] holds) but clear as well': at [58]; Rares J at [1] and Farrell J at [67] agreeing. As Nicholas J observed in Ali v Minister for Home Affairs [2019] FCA 1102 ('Ali') at [25] this is the ratio decidendi of the decision. At [62] Perram J then concluded that the letter in that case did not meet that standard because it was 'piecemeal, entirely obscure and essentially incomprehensible'. The Federal Circuit Court has on a number of occasions applied that phrase as if it were the ratio decidendi of DFQ17 so that if a notification is not 'piecemeal, entirely obscure or essentially incomprehensible' then the standard in s 66(2)(d)(ii) is satisfied: see, for example, Arshad v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 2075 at [19] where it was held that DFQ17 did not avail the applicant in that case because 'there is nothing piecemeal, obscure or incomprehensible about the statement of the required information'. Reasoning of this kind does not involve a correct application of DFQ17. The notification in DFQ17 was described at [60]: … the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading 'Review Rights' the letter referred to the 28-day period during which the Appellant could seek review of the delegate's refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading 'Financial or Case Worker Assistance'. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017. Was the notification in this case 'clear'? As in DFQ17 the time when the notification was taken to have been received was located on p 3 under the heading 'Financial or case worker assistance' and not under the section dealing with the right to apply for a review. As in DFQ17 the calendar date of sending or transmission was located on a different page to either the section headed 'Review Rights' or the section headed 'Financial or case worker assistance'. In DFQ17 the critical date was the date on the letter (since it was sent by post) which was located on p 1. In this case, the critical date was the date of the email (since the notification was transmitted as an attachment to an email). The date of the email was necessarily located outside the letter which it attached and hence even further from the section headed 'Review Rights'. In this case, there was no difference between the date of the email and the date of the letter (which would generate it owns problems were it to occur). The fact that the notification was sent by email does, however, remove one of the difficulties present in DFQ17. As explained in DFQ17 at [45] where a notification is sent by post it is taken to have arrived on the seventh day after the date it bears but the 28 day review application period (or 21 days for Part 5-Reviewable Decisions under s 347(1)(b)) is taken to commence on that day with the consequence that the seventh day counts twice. In consequence, the time to apply for a review is within 34 days of the date the letter bears. This is the sum of the number of days the letter is taken to arrive (7) plus the review period (28) less the fact that the review period starts on the seventh day (-1). The temptation to add 7 to 28 to get 35 must be resolutely resisted. In contrast, where a notification is sent by email, the time to apply for a review is a 28 day period commencing on the day the email is sent; that is to say, the review must be lodged before the end of the 27th day after the email was sent. So the appeal time for notifications sent by post is 34 days and for those sent by email 27 days. Both of these are confusing, especially since a correct statement of what the regulation necessitates - using the number 28 - does not feature in either outcome. But the 34 day requirement, it may accepted, is more confusing than the 27 day requirement. Consequently, DFQ17 does not directly control this case. Be that as it may, the placing of the information as to when the notification is taken to have been received on p 3 under the incorrect heading 'Financial or case worker assistance' and away from the pertinent section on p 2 headed 'Review Rights' means that the letter was confusing and misleading. Consequently, it does not state clearly the matter required by s 66(2)(d)(ii). 38 At [36], the Full Court distinguished Ali, in part, because the statement that the email in question in that case was taken to have been received on the day it was transmitted was correctly located under the heading "Lodging an Application for Review". Placing the statement there was considered to have been sensible. The Court then said: In general, where the information as to when the notification is taken to have been received is located in the notification away from the section dealing with review rights and under an incorrect heading, there is likely to be a problem and that problem is not solved merely because it was sent by email. 39 At [37], the Court continued as follows: On the other hand, where the information as to when the notification is correctly located under a sensible heading having a connection with the exercise of review rights it is likely that the notification will be clear in the requisite sense, as Ali holds. Although what the regulation requires by way of time limits is very poorly drafted, we would not hold that an accurate statement of what the regulations require is unclear just because the regulation itself is. Nor would we hold that the obligation can only be discharged by nominating an actual date although this would certainly be a far better outcome for all concerned. But we would emphasise that clarity is not demonstrated just because the reader can put all the pieces together and arrive at the correct answer. Another way of putting this is the standard of clarity is not achieved merely because the letter is formally correct: a document may be correct without being clear, as anyone who reads the output of ultimate appellate courts will attest. For example, if a notification informs its recipient of the time within which a review application must be made by means of integers of correct information scattered in a disconnected manner over several pages but which can be assembled into the correct answer, then the notification will be clear in the way that a jig-saw puzzle is. So too, where the correct information is included under a heading which is apt to suggest that the information following it has nothing to do with review rights then this will be confusing. It is trivial that that which is confusing is not clear. 40 In the present case, the Minister submitted (correctly) that the form of the notification letter sent to the appellant on 9 May 2017 is indistinguishable from the letter under consideration in BMY18. It is also substantially the same as the letter under consideration in DFQ17. I have attached a redacted copy of the 9 May 2017 letter as Attachment A to these Reasons for Judgment. 41 In both DFQ17 and BMY18, the Full Court held that the two critical statements concerning the relevant visa applicant's review rights (namely that the applicant had such review rights and needed to exercise them within a specified time and that the time would run from the date when the communication was sent in the case of emails or from some other date to be calculated in the case of correspondence) were separated by text within the relevant notification letters and that the second relevant statement was misleadingly located under a heading "Financial or case work assistance". Both Full Courts held that these circumstances rendered the requisite statutory communication of the visa applicant's review rights unclear and non-compliant with the requirements of s 66(2)(d)(ii) of the Act. 42 The notification letter in Ali differs from the other letters. The material under the heading "Review rights" on pp 1 and 2 of the letter is substantially the same as the material under that heading in the letters in the other matters. 43 The statement that, because the letter had been sent to Mr Ali by email, he would be taken to have received it at the end of the day it was transmitted appears on page 3 under the overall heading "Lodging an application for merits review". Thus, in the Ali notification letter, there is a separation between the statement that the recipient could seek merits review within 21 calendar days after the day on which the recipient is taken to have received the letter and the further statement that he will be taken to have received the letter at the end of the day it was transmitted. The essential difference between the notification in Ali and the notification in DFQ17, BYM18 and in the present case is that the second statement in those cases appears under a heading on page 3 "Financial or case worker assistance". 44 In the notification letters under consideration in DFQ17 and BMY18, the material under the heading "Financial or case worker assistance" is not entirely disconnected from the communication of the fact that the recipient of the letter has a right to seek merits review. In fact, the right to seek merits review is specifically referred to in the last few words of the first paragraph under that heading which, of course, appears in the letter immediately before the statement to the following effect: 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. 45 In my opinion, the decision in Ali does not sit comfortably with the decisions in DFQ17 and BMY18. In Ali, Nicholas J ultimately held that the notification of the right to seek merits review and the timeframe within which to do so were stated clearly enough and would have been noted and understood by a person reading the letter with appropriate care. I think that his Honour's conclusion was correct. After all, the Court is entitled to assume that persons receiving a serious letter of the kind in question in the present case and under consideration in the other cases, will read that letter very carefully and, to the extent that that person requires translator assistance to overcome any language difficulty, that person will seek such assistance. 46 Whilst I do not doubt that the notification letter required by the Act and the Regulations must state the information set forth in s 66(2)(d)(ii) in such manner as can be understood by a person reading the letter with appropriate care, with great respect to the Full Courts in DFQ17 and BMY18, I do not agree that the letters in question in those cases and the letter in question in the present case failed to state that information as required by s 66(2)(d)(ii). It is true that the letters were clumsily drafted and could have been expressed with greater clarity. However, in my view, that is not to the point. The question is whether or not the relevant information has been stated as required by s 66(2)(d)(ii). For the reasons which I have endeavoured to explain, I think that the information was so stated. 47 However, as I have already accepted, notwithstanding my disagreement with the reasoning and the result in DFQ17 (on the point of interest here) and BMY18 in relation to the requirements of s 66(2)(d)(ii), I accept that I am not entitled to decline to follow those cases and therefore will do so in the present case. This necessarily means that I will make the Proposed Orders.

Issue Four: Whether, in all the circumstances of the case and on the assumption that BMY18 must be applied, the appropriate remedy is to make the Consent Orders 48 The Minister submitted that I should make the Proposed Orders. I intend to do so. Pursuant to those Orders, I am asked to allow the appeal, to quash the Tribunal's decision dated 27 March 2018 and to remit the matter the matter to the Tribunal to be determined according to law.

Conclusion 49 For all of the above reasons, I will make orders substantially in the form of the Proposed Orders. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.