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.