Moehamad Izat Emir v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 803

1. On 23 October 2023, the applicant provided written comments to the Tribunal (via email) (CB 67-68). The applicant explained that the correspondence from the Tribunal "had been mistakenly filtered into [his] spam folder" and that he "was in the process of adjusting and settling down in a new city ... as an international student" and "starting classes" at college. The applicant also asked the Tribunal to consider his late application as he was "a genuine student" (CB 67).
2. On 27 October 2023, the Tribunal determined that it did not have jurisdiction in relation to the applicant's review application because "the application for review was not received by the Tribunal until 14 August 2023" and, as such, the application for review was "not made in accordance with the relevant legislation" (the "first Tribunal decision") (CB 71-72).
3. The Tribunal notified the applicant of its decision by way of a letter dated 30 October 2023 (the "Tribunal's notification letter") (CB 70). The Tribunal's notification letter was sent to the applicant (via email to the second nominated email address) on 30 October 2023 (CB 69).
4. On 1 December 2023, the applicant applied to this Court for judicial review of the Tribunal's decision (CB 1-8). The application was accompanied by an affidavit (affirmed and filed by the applicant on 1 December 2023) annexing copies of the first delegate's decision, the Tribunal's decision and other correspondence from the Tribunal (CB 9-13).

1. The application for judicial review is made pursuant to s 476 of the Act. In order to obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to first set out the Tribunal's decision.
2. The Tribunal's decision is two pages long and spans nine paragraphs. In full, the Tribunal's decision provides as follows:

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 19 July 2023 to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 14 August 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 July 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 15 August 2023 the Tribunal wrote to the applicant advising him that his application for review was not a valid application because it was not lodged within the relevant time limit. As mentioned above, he had been notified of the decision on 19 July 2023 and advised that an application for review of the decision had to be made within 21 days of that date. The last day to lodge the application for review was 9 August 2023. As the application was not received until 14 August 2023 it was out of time. The applicant was invited by the Tribunal to provide comments regarding the validity of the application by 29 August 2023.

5. On 24 October 2023 the Tribunal received a submission from the applicant stating that he had been regularly checking his emails but the communications had been filtered into his spam folder. The Tribunal notes that this communication from the applicant was also not within the time limit. In his submission, the applicant states that he had also been busy adjusting to a move to a new city and starting his classes. The applicant requested that his late application be considered by the Tribunal.

6. Although the Tribunal is sympathetic to the applicant's request, it has no discretion in respect of review application time frames and statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 July 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 9 August 2023.

8. As the application for review was not received by the Tribunal until 14 August 2023 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.

DECISION

9. The Tribunal does not have jurisdiction in this matter.

1. The application for judicial review (filed by the applicant on 1 December 2023) contains five "grounds of review", as follows (without alteration) (CB 4-5):
   1. Right now, I understand that to reinstatement to Tribunal (AAT) according to Migration Act 1958 section 426(C)
   2. This section does not prevent the Tribunal (AAT) from re-scheduling the applicant's appearance before it or from delaying its decision on the review to enable the applicant's appearance before it as rescheduled.
   3. The Tribunal (AAT) was refused because of confirms the Tribunal affirms the decision not to grant the applicant a student (Temporary) (Class TU) student (Subclass 500) visa.
   4. Therefore, I appeal to the Federal Circuit and Family Court of The Administrative Appeal ACT 1975. There is a description and authorizing me to make such and actions.
   5. Federal Circuit and Family Court of Australia can do in Migration proceedings a legal mistake, because of reaching a decision that is unreasonable in the legal sense.
2. The applicant also filed an affidavit (affirmed by him on 1 December 2023) in support of his judicial review application (CB 9-13). That affidavit annexed a copy of the first delegate's decision and the Tribunal's decision, together with various letters and correspondence from the Tribunal.
3. On 7 February 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions.

Events post-dating the commencement of the proceeding in this Court

1. On 6 December 2023, another delegate of the Minister purported to make a decision granting the applicant the visa (the "second delegate's decision") (CB 74-78).
2. On 12 April 2024, the Department notified the applicant that the purported decision made on 6 December 2023 (detailed above) was "invalid and of no effect due to [the] earlier decision to refuse the visa" (made on 19 July 2023) (see Annexure MCW-1 to the affidavit of Ms Margarita Carmen Woollett ("Ms Woollett") affirmed and filed on 24 May 2024 (the "Woollett affidavit")).
3. On 15 April 2024, another Minister's delegate purported to make a decision refusing to grant the applicant the visa (the "third delegate's decision") (see Annexure MCW-2 to the Woollett affidavit).
4. On 30 May 2024, the applicant emailed the Court advising that he sought to "withdraw" from his review application in this Court on the basis that he had an "appeal" which was "pending before the [Tribunal]". He provided a signed "notice of withdrawal" form.
5. Later that same day (also on 30 May 2024), Ms Woollett emailed the Court requesting that it "refrain from processing the applicant's request" for withdrawal whilst she obtained instructions from the Minister.
6. On 31 May 2024, Ms Woollett again emailed the Court and advised that the Minister was of the view that the decision which was the subject of the applicant's pending Tribunal application was "invalid and therefore not reviewable by the Tribunal". Ms Woollett also asked that the matter be listed before the Court for an urgent directions hearing.
7. On 5 June 2024, the applicant provided a signed notice of discontinuance to the Perth Registry of the Court. That document was not accepted for filing. The Court advised the parties that the matter would be listed for a directions hearing (followed by a final hearing, if deemed appropriate) on 7 June 2024 at 1.00pm to discuss the both applicant's request for withdrawal and the matter more generally.
8. That same day (on 5 June 2024), the Department notified the applicant that the purported decision made on 15 April 2024 (detailed above) was "sent in error and [was] invalid and of no effect" because of the earlier decision to refuse the visa (made on 19 July 2023).
9. As correctly submitted by the Minister (at [14] in written submissions filed in this Court on 24 May 2024), the power conferred by s 65 of the Act was exhausted when the first delegate's decision (refusing to grant the applicant the visa) was made on 19 July 2023. It is well established that a delegate's decision can only be re-made if it is made in jurisdictional error, for the reasons set out in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
10. On that basis, the Court notes that only the first delegate's decision is the subject of the proceeding currently before this Court (together with the Tribunal's decision made on 27 October 2023 in relation to the application for review of the first delegate's decision).
11. On the day of the first hearing, Ms Woollett provided the Court with correspondence from the applicant in which he advised that his "lawyer [was] unable to attend" the hearing and seeking approval for his mother to accompany him to the hearing.
12. The Court confirmed (on 7 June 2024) that the applicant could bring his mother as a support person and asked the applicant to provide details of his lawyer (noting that there was no solicitor on the Court record as acting on behalf of the applicant).
13. That same day (on 7 June 2024), the applicant advised that he only had a "verbal discussion with a lawyer" the day prior and provided details of that lawyer to the Court.

1. The applicant first appeared before this Court on 7 June 2024 without legal representation. He was assisted at that hearing by a Malay interpreter and his mother was also in attendance as a support person for the applicant. Mr Ashley Burgess ("Mr Burgess") from the Australian Government Solicitor appeared a the first hearing on behalf of the Minister.
2. The Court had a discussion with the applicant about the lawyer he had been speaking with and asked him whether that lawyer had agreed to represent him or if they were still simply having discussions. The applicant advised that they were "still in discussions" at that stage.
3. The Court was concerned that, given the number of purported decisions the Department had made, the applicant (who was not legally represented and for whom English was not a first language) may have been confused about what his options were and may not actually have wished to withdraw his application.
4. Given the potential for confusion in this matter (based on the multiple purported decisions made by the Department, seemingly in error) and the fact that the applicant had approached a lawyer in an attempt to obtain legal assistance, the Court considered that it was necessary to adjourn the matter to ensure that the applicant was afforded procedural fairness and given an opportunity to seek legal advice about what appeared to be a procedurally complex matter.
5. The Court adjourned the application to 29 August 2024 to allow the applicant sufficient time to obtain legal advice and to advise Chambers as to whether he still wished to "withdraw" from the matter.

1. On 28 August 2024, the applicant contacted the Court to request an adjournment on the basis that he was "waiting for a decision from the [Tribunal] concerning [his] appeal" and he was required to "submit the results of [his] PTE test" scheduled for 10 September 2024.
2. The Court agreed to reschedule the hearing to 10 October 2024.
3. On 5 October 2024, the Court notified the parties that, due to judicial unavailability, the hearing of the matter would be adjourned to 22 January 2025.
4. On 20 January 2025, the applicant again contacted the Court requesting a further postponement of the hearing on 22 January 2025. He provided a psychological report and an email from his PTE IELTS "trainer" in support of that request.
5. Later that same day (on 20 January 2025), the Court sought the Minister's position in relation to the applicant's adjournment request.
6. On 21 January 2025, Ms Woollett advised the Court that the Minister opposed the adjournment request because the matter "had already been adjourned on multiple occasions".
7. That same day (on 21 January 2025), the Court notified the parties that the matter would be listed for a hearing of an interlocutory application for an adjournment and a final hearing (if deemed appropriate) on 22 January 2025.
8. On 21 January 2025, the applicant sought permission to bring "two individuals" to the hearing (his mother and "a friend who is well-versed in legal matters"). He also provided the Court with educational records.
9. The Court granted approval for the applicant to have support persons with him at the hearing but advised that if those individuals wished to address the Court, the applicant would need to seek approval from the Court for them to do so. The Court also asked whether the applicant's "friend" would be acting for the applicant (as solicitor) in the matter.
10. The applicant advised the Court that his friend was "acting" in the capacity of "a friend" and "confidant", not as a solicitor.
11. On 22 January 2025 (just prior to the scheduled hearing), the interpreter booked to assist the applicant "cancelled" and advised that they would not attend. The Court was unable to obtain a replacement interpreter on short notice. Regrettably, the parties were advised that both the interlocutory hearing of the application for adjournment and the final hearing (if deemed necessary) would be adjourned to 4 February 2025.

1. The applicant appeared at the second hearing before this Court on 4 February 2025. He did so without legal representation. He was assisted at that hearing by a Malay interpreter. His mother was also in attendance as a support person. The applicant also had a lawyer with him but that person confirmed that he was "simply there as a friend" (and was not acting as the applicant's legal representative). Mr Burgess again appeared at the second hearing on behalf of the Minister.
2. The Court again expressed its concerns about the conflicting information the Department appeared to have provided to the applicant in this matter and the apparent confusion in the Department's decision making processes. In this regard, Mr Burgess told the Court that he was instructed not to seek costs in the event that the Minister was successful in this matter. The Court thanks Mr Burgess for notifying the Court of the Minister's instructions in this regard. This information allowed the Court to allay any concerns the applicant might have had about any increasing costs in relation to this matter. This is what the Court expects of a model litigant. Others would do well to emulate Mr Burgess' approach in this regard.
3. The Court asked the first applicant to confirm that he had received copies of the Court Book and the Minister's written submissions. The Court also asked the applicant if he still pressed the adjournment request. The applicant told the Court that he no longer sought the adjournment and was "happy to proceed to the final (and substantive) hearing". On that basis, the Court proceeded with the final hearing (on 4 February 2025).
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 1 December 2023 (the applicant's affidavit being taken as read and in evidence), a Court Book numbering 78 pages (marked as Exhibit 1 at the hearing of this matter), email correspondence from the applicant to the Court dated 21 January 2025 (tendered and referenced as Exhibit 2), correspondence from the applicant to the offices of AGS (forwarded to the Court by Ms Woollett) on 7 June 2024 (tendered and referenced as Exhibit 3), correspondence from the applicant to the Court dated 3 February 2025 (tendered and referenced as Exhibit 4), written submissions filed on behalf of the Minister on 24 May 2024 and the Woollett affidavit (taken as read and in evidence).
5. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
6. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 ("SZMDS") at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. In response, the applicant asked if his mother could speak on his behalf. Mr Burgess did not object and the Court allowed the applicant's mother to speak for her son. The applicant's mother stressed that she "simply wanted to ensure" that her son successfully completed the courses that he "had had paid for in full". She explained that her son was "very determined to get a good result and fulfil his requirements" and thanked the Court and Mr Burgess for the assistance provided to the applicant.
3. Unfortunately, the comments made by the applicant's mother do not give rise to any allegation of jurisdictional error of the sort that this Court can address.
4. Noting that the applicant was unrepresented, the Court will interpret the applicant's concerns as raised in his grounds of review as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 ("MZAIB")) and will itself review the Tribunal's decision for any possible jurisdictional error.

1. Before addressing the applicant's grounds of review, and noting the principles in MZAIB, the Court will first consider whether the applicant was "properly notified" of the delegate's decision and whether, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.

Whether the Tribunal was correct in determining that it had no jurisdiction in this matter

1. This Court has provided a detailed overview of the core requirements for notification letters broadly in its decisions in CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 561 ("Singh") (at [27]-[47]) and AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 ("AGS20")).
2. Those judgments also provided an overview of the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 ("Sandor").
3. The Court repeats the analysis of those cases provided in its previous judgments below.
4. Sandor addressed whether a notification letter sent by the Department advising of a delegate's decision was a proper notification (that is, whether the time period within which the appellant - Mr Sandor - could seek review by the Tribunal was made clear to him by that notification letter) and clarified the relevant case law in that regard. It is noted, however, that Sandor considered that issue within the specific context of a notification letter that was sent to an appellant (or applicant) via his or her authorised recipient.
5. There was no evidence before this Court that the applicant had nominated an authorised recipient to assist him with his application before the Department or the Tribunal. In those circumstances, it is unnecessary for the Court to consider or address the decision in Sandor as it does not apply to the circumstances of this matter.
6. As previously explained by this Court (in Singh and AGS20), the defect in the notification letter in Sandor was that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the notification letter did not sufficiently explain the effect of s 494D(2) of the Act. As emphasised by Justice Markovic, the fact that Mr Sandor had an authorised recipient required careful consideration of the deeming effect of s 494D of the Act in relation to the calculation of time. Having undertaken that consideration, Her Honour determined that the deeming effect of the notification letter before her was not "manifest".
7. The notification letter in Sandor required the appellant to understand that he "was taken to have received" the letter on "the day the letter was transmitted" to his authorised recipient. However, the notification letter in the present matter did not require the applicant to do so.
8. The Court is satisfied that this matter is distinguishable from Sandor on its facts.
9. The analysis provided in the judgments referenced above (at [59]) in relation to the core requirements for notification letters is otherwise repeated (with minor amendments) below.
10. The Act and Regulations impose time limits within which applications can be made to the Tribunal for review of certain decisions. The relevant time limits begin to run when an applicant is properly notified of a delegate's decision. Section 66 of the Act outlines how a visa applicant is to be notified of a decision and s 66(2)(d)(i) of the Act, in particular, requires that, where the applicant has a right of review at the Tribunal, the notification letter must state the timeframe within which the application for review must be made.
11. At the time of the first delegate's decision in this matter (being as at 19 July 2023), s 347(1)(b) of the Act required that an application for review of a Part-5 reviewable decision must be lodged at the Tribunal within the prescribed period. The relevant prescribed period was outlined in reg 4.10(1)(a) of the Regulations which, relevantly, provided as follows (emphasis added):

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.

1. For that 21-day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements set out in s 66 of the Act. If the notification does not meet these requirements, then there has been no notification of the decision and the time period does not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58], [75]-[76], [78] & [103].
2. Section 66(1) of the Act specified that, where the Minister refused to grant a visa, the Minister must have notified the applicant of that refusal in the prescribed way.
3. Section 66(2) of the Act (as was in force at the time of the delegate's decision) outlined how a visa applicant was to be notified of a decision and, relevantly, provided as follows:

...

(2) Notification of a decision to refuse an application for a visa must:

(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

(c) unless subsection (3) applies to the application - give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(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

1. Regulation 2.16(3) of the Regulations states that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
2. In this matter, a delegate of the Minister refused to grant the applicant the visa on 19 July 2023 (CB 56-58). As outlined above, the Department was then required to notify the applicant of that decision "in a prescribed way" (see s 66(1) of the Act as set out in s 66(2) of the Act).
3. The applicant answered "no" to the question of whether he "authorise[d] another person to receive written correspondence on [his] behalf" in his visa application. Further, the applicant provided an email address and agreed for the Department to communicate with him (directly) using that email address (CB 18).
4. The applicant was sent notification of the refusal decision via email on 19 July 2023. That email was sent to the nominated email address included by the applicant in his visa application (CB 52). The notification comprised a letter from the Department (addressed to the applicant) with notification of the delegate's decision (CB 52-55) and a copy of that decision (CB 56-58).
5. The notification letter in this matter satisfied the requirements set out in s 66(2) of the Act by:

(a) stating that the applicant had not satisfied the provisions of the Regulations and therefore could not be granted the visa (CB 52);

(b) referencing annexed written reasons which detailed that delegate was not satisfied that the applicant satisfied cl 500.213 in Schedule 2 of the Regulations (CB 52 & 56-58): s 66(2)(a) of the Act;

(c) annexing those written reasons which outlined why the visa criteria was not satisfied: s 66(2)(c) of the Act;

(d) detailing the applicant's review rights as follows (CB 52-53):

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 decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

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.

The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.

You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time the application for merits review is made.

(e) providing information about how to lodge an application for review with the Tribunal (CB 53-54) as per s 66(2)(d) of the Act.

1. As outlined above, the Department correctly sent the notification letter to the nominated email address included in the applicant's visa application - being the last email address that had been provided to the Department for the purpose of receiving documents: s 494B(5)(d) of the Act.
2. The Department was permitted to communicate with an applicant by email pursuant to ss 494B(5)(b) and 494B(5)(d) of the Act.
3. By virtue of s 494C(5) of the Act, an applicant is deemed to have received a document on the date that it was sent to the email address provided by that applicant to the Department in relation to his or her visa application. This is so even if the applicant did not receive those documents for any reason.
4. Further, by sending the document by one of the methods set out in s 494B or s 494C of the Act, the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
5. The applicant here is thus taken to have received that notification at the end of the day on 19 July 2023 (being the date on which it was transmitted to him via email) regardless of whether or not he actually received the documents or accessed the email.
6. When concerns arise in this regard, it is also necessary for the Court to consider whether any relevant notification letter was "sufficiently clear". In this regard, as outlined above, s 66(2)(d) of the Act provides that notification of a decision to refuse an application for a visa must state:

(a) that the delegate's decision can be reviewed; and

(b) the time in which the application for review may be made; and

(c) who can apply for the review; and

(d) where the application for review can be made.

1. In assessing whether a notification letter stated that which is outlined above, the Court has previously been guided by the considerable judicial analysis provided in relation to this issue in cases such as such as DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 ("DFQ17"); BMY18 v Minister for Home Affairs [2019] FCAFC 189 ("BMY18"); Ali v Minister for Home Affairs [2019] FCA 1102 ("Ali"); CAV18 v Minister for Home Affairs [2020] FCA 173 and Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 ("Singh FCAFC").
2. These cases clarify that in order to "state" a matter as required by the Act, the notification must do so clearly and completely and in a way that the receiver will "reasonably understand".
3. A detailed overview of the principles outlined in those cases was provided by this Court in Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 ("Abbas"). In particular, it is noted that, when assessing whether s 66 of the Act has been complied with, the relevant case law is clear that, when considering whether an applicant has, in fact, been "validly notified", the Court should forensically assess the content and clarity of the notification letter.
4. In this regard, the Court relies on and repeats its analysis as provided in Abbas (at [78]-[79]).
5. Relevantly, the above cases make it clear that the following principles apply:

(a) where the statement in the letter which outlines the time in which an applicant is taken to have been notified of the decision is found beneath a disconnected and incorrect heading (such as "Financial and Case Worker Assistance") the notification will lack clarity: DFQ17; BMY18;

(b) where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that is relevant to an applicant's right of review (such as under the heading "Lodging an Application for Review") this is sufficiently clear: Ali;

(c) where the statement outlining the time in which an applicant is taken to have been notified of the decision is found beneath a heading that sufficiently identifies this information and uses linking or referable language to the review rights (such as under the heading "Receiving this Letter"), the notification is clear: Singh FCAFC;

(d) the letter should be read as a whole. Hence, the fact that different pieces of information may be spread across a number of pages is not decisive in relation to the level of clarity: Ali. Where the layout is confusing, however (for example, unclear headings are used), the separation of the information may result in a lack of clarity: BMY18; and

(e) whether a notification is "clear" will turn upon the language and terms in which the notification is expressed when read as a whole by a person exercising a reasonable level of care: Singh FCAFC; Ali. It is not significant that an applicant may not speak English as a first language. The question is whether the letter conveys the required information.

(a) the letter clearly stated that "[an] application for merits review" must be given to the Tribunal "within the period of 21 calendar days after the day on which you are taken to have received this letter" (CB 52); and

(b) the letter also stated that "[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted" (CB 52).

1. Here, as in Abbas, the notification letter was clear. The layout was not confusing. A clear heading was used that provided an unambiguous "signpost" which allowed the applicant to identify the information that he required.
2. On the basis of the above, the Court is satisfied that the Minister's notification letter in this matter satisfied the requirements of s 66(2)(d)(ii) of the Act.
3. Having been validly notified of the first delegate's decision (and that Minister's notification letter having satisfied the requirements set out in s 66(2)(d)(ii) of the Act) on 19 July 2023, the time within which the applicant could seek review of the Tribunal's decision "began running" on that date (being 19 July 2023).
4. The applicant was required to file his review application within 21 calendar days, commencing on the 19 July 2023 (being the date the notification of the first delegate's decision was deemed to have been received). The applicant was therefore required to file his review application with the Tribunal on or before 9 August 2023.
5. Here, the Tribunal review application was not lodged online by the applicant until 14 August 2023 (CB 59-64). The application was therefore lodged five days out of time.
6. In circumstances where the application for review was lodged outside of the prescribed time period, the Tribunal was correct to find that it did not have jurisdiction in the matter: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29]. Further, the Tribunal did not have any discretion or any power to extend the period for the lodging of a valid application for review once it was evident that the 21-day time period had not been complied with: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 at [83]; Awon v Minister for Immigration & Border Protection [2015] FCA 846 at [38]- [39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [7] and Minister for Immigration & Border Protection v ASE15 [2016] FCAFC 37; (2016) 237 FCR 460 at [48].
7. For the reasons set out above, the Court is satisfied that the applicant was properly notified of the first delegate's decision and, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.
8. No jurisdictional error arises in this regard.

1. As outlined above, ground one provided as follows:
   1. Right now, I understand that to reinstatement to Tribunal (AAT) according to Migration Act 1958 section 426(C)
2. Ground one referenced s 426(C) of the Act. The Court notes that no such section of the Act was in force at the time of the Tribunal's decision. Based on the reference in ground one to "reinstatement", the Court assumes that the applicant was referencing s 426A(1C) of the Act which provided that the Tribunal could either reinstate an application which was dismissed on the basis of an applicant's failure to appear at a hearing or confirm the dismissal decision. Unfortunately, s 426A(1C) of the Act cannot assist the applicant in this case because the applicant was not invited to attend a Tribunal hearing, the provision only related to Part-7 reviewable decisions (of which this matter was not) and the Tribunal did not dismiss the applicant's review application.
3. As outlined above, the Tribunal determined that it did not have jurisdiction in this matter because it was filed outside of the requisite time period. The Tribunal was and is therefore unable to reinstate the applicant's review application in this matter.
4. No jurisdictional error arises in relation to ground one.

1. Ground two stated:
   1. This section does not prevent the Tribunal (AAT) from re-scheduling the applicant's appearance before it or from delaying its decision on the review to enable the applicant's appearance before it as rescheduled.
2. In so far as the applicant again referenced s 426A of the Act, those provisions are not applicable in relation to the applicant's circumstances in this matter. In particular, the Court notes that s 426A(2) of the Act (in force at the time of the Tribunal's decision) stated that, in circumstances where an applicant failed to appear at a Tribunal hearing, the Tribunal was not prevented from "rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled".
3. As outlined above, the applicant in this matter was not invited to attend a Tribunal hearing and thus did not "fail to appear" before the Tribunal.
4. To the extent that the applicant suggests that he ought to have been invited to attend a Tribunal hearing (as required by s 360(1) of the Act as was in force at the time of the Tribunal's decision), the Court disagrees for the reasons that follow.
5. As this Court has previously outlined in Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941 (and other similar matters), the issue of whether or not the Tribunal is under any obligation to invite an applicant to attend a hearing in matters such as this (where the Tribunal has correctly determined that it has no jurisdiction to review the matter) has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 ("Benissa").
6. In Benissa, the Federal Court relevantly determined as follows:
   1. In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal's decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal "must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review".
   2. Justice Bennett dismissed the applicant's ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no "decision under review" ([34]).
   3. The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal's conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a "hollow opportunity" ([39]).
   4. The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the "utility of extending any opportunity to be heard" was "elusive" and may well have been (using the phrase of Bennett J) "a hollow opportunity". There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
   5. In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
   6. First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
   7. Secondly, and further supporting the reasoning of Bennett J, a "decision under review" within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a "decision...made under [the Act]".
   8. Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
   9. Fourthly, the obligation in s 360 requires the Tribunal's invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that "relate to" the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
7. Here, as in Benissa, the issue arising related to whether the Tribunal had jurisdiction in the matter and not in relation to the decision under review itself (that is, whether or not the applicant should have been granted the visa). In the circumstances, the Court is satisfied that the applicant suffered no practical injustice arising from the Tribunal denying him a hearing concerning jurisdiction. The Court is also satisfied that there was no obligation arising from the requirements of procedural fairness in s 360(1) of the Act for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
8. No jurisdictional error arises in relation to ground two.

1. Grounds three and four provided as follows:
   1. The Tribunal (AAT) was refused because of confirms the Tribunal affirms the decision not to grant the applicant a student (Temporary) (Class TU) student (Subclass 500) visa.
   2. Therefore, I appeal to the Federal Circuit and Family Court of The Administrative Appeal ACT 1975. There is a description and authorizing me to make such and actions.
2. Grounds three and four were simply "statements" and do not raise any issue of jurisdictional error on the part of the Tribunal.
3. To the extent that the applicant suggested that the Tribunal "confirmed" or "affirmed" the decision refusing to grant the applicant the visa, this is not the case.
4. The Tribunal found that the review application lodged by the applicant was filed outside of the requisite time period allowed and, as such, the Tribunal determined that it did not have jurisdiction in this matter.
5. As outlined above, the Tribunal had no power or discretion to extend that time period and the Tribunal came to the only decision available to it.
6. No error arises in relation to grounds three and four.

1. Ground five stated:
   1. Federal Circuit and Family Court of Australia can do in Migration proceedings a legal mistake, because of reaching a decision that is unreasonable in the legal sense.
2. Insofar as the applicant suggests that the Tribunal acted unreasonably or that the Tribunal's decision was otherwise illogical or irrational in any way, the Court disagrees.
3. The Tribunal's decision was the only decision open to it. As articulated by the High Court in SZMDS at [130]-[131], the threshold for illogicality and irrationality is as follows:
   1. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
   2. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
4. In the circumstances of this case, there was nothing unreasonable, illogical or irrational in relation to the Tribunal's assessment that it did not have jurisdiction in this matter.
5. As outlined above, the applicant filed his application for review outside of the requisite timeframe. Further, the Tribunal did not have any discretion or any power to extend the time within which the applicant could seek review of the first delegate's decision.
6. In these circumstances, the Tribunal was required to find that it did not have jurisdiction to consider the matter. The Tribunal's decision was not, contextually, illogical, irrational or unreasonable.
7. No jurisdictional error arises in this regard.

1. The circumstances of this matter are most unfortunate.
2. The applicant in this matter appears to have been provided with multiple purported decisions from the Department which have left him confused and in a position where he was attempting to seek review of multiple decisions (by this Court and the Tribunal) without any real clarity or understanding of which decision was or is binding.
3. The applicant is young, English is not his first language and, whilst he appears to have at least one friend with some legal experience, he has not been legally represented before this Court.
4. The Court has considerable sympathy for the applicant. An already stressful visa review process has been made worse by what appear to be multiple (unnecessary) decisions made by the same Department.
5. Unfortunately, for the reasons set out above, the Court is not able to assist the applicant in relation to his judicial review application.
6. The Court does, however, draw the applicant's attention to the Minister's discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicant the visa, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision should the Minister deem it appropriate to do so.

1. The application for judicial review (filed by the applicant on 1 December 2023) has failed to identify any error on the part of the Tribunal. This Court is also unable to identify any jurisdictional error.
2. The application is, accordingly, dismissed.

I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.