(revised from transcript)
THAWLEY J:
3 On 5 August 2019, the Federal Circuit Court of Australia dismissed the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal made on 17 November 2016. The Tribunal had concluded that it did not have jurisdiction to review a decision of the delegate of the Minister for Immigration and Border Protection made on 6 September 2016 because the application was made outside of the 21 day period prescribed by the Act and Regulations: s 66(2)(d) of the Migration Act 1958 (Cth); Migration Regulations 1994 (Cth).
4 By an amended notice of appeal, the appellant contends that the primary judge erred in concluding that the Tribunal was correct that it did not have jurisdiction. The error was said to arise because there was no valid notification of the delegate's decision by reason of the failure to state the time in which the application for review may be made. It was contended that a Full Court of this court so held in BMY18 v Minister for Home Affairs [2019] FCAFC 189.
5 To understand this submission, it is necessary to begin with DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. In that case, the Full Court considered whether a letter notifying the visa applicant of the refusal of a protection visa by the delegate met the requirement in s 66(2)(d)(ii) of the Migration Act 1958 (Cth) that it "state … the time in which the application for review may be made": DFQ17 at [41]. Justice Perram concluded that the information in the notification letter must be both complete and clear to meet the requirement of stating the time in which an application may be made: DFQ17 at [58]. The information in the notification letter was complete, but it was held not to have been clear. Clarity was absent because the letter was found to be "piecemeal, entirely obscure and essentially incomprehensible": DFQ17 at [62]. That was because the necessary information had to be assembled from three separate pieces of information across three pages of the notification letter: DFQ17 at [60].
6 In BMY18, it was found that an email notification lacked clarity. Like DFQ17, in BMY18 the information about the time when notification was taken to have been received was not in a section dealing with review rights; but unlike DFQ17, the notification was sent by email, which simplified the calculation of time because receipt was when the email was sent rather than by a deeming process as for physical mail. The Full Court held that the communication as a whole must be sufficiently clear and that clarity is not achieved merely by the letter being formally correct: BMY18 at [36], [37]. The Full Court held that the notification as a whole was not clear.
7 In BMY18 at [38], the Full Court referred to a number of decisions of the Federal Circuit Court where that court had held that, even where the information about the time at which the notification is taken to have arrived is under an incorrect heading, the notification was still clear. The Full Court stated that those decisions were not correctly decided and should be overruled.
8 The decision the subject of this appeal was not stated to be one which should be overruled, because it was not infected by the same factual vice: BMY18 at [39]. The information as to when the notification was taken to have arrived was under an appropriate heading "Receiving this letter", but that was still separate from the part dealing with review rights, meaning that a recipient was required to assemble disparate parts, similar to the position in DFQ17 at [60]. In BMY18 at [39], the Full Court stated:
There are two decisions of the Federal Circuit Court which have held to be clear a notification which conveys information as to when it is taken to have arrived under the heading 'Receiving this letter' and where that section was located in a different part of the notification to the section dealing with review rights: Singh v Minister for Immigration and Border Protection [2019] FCCA 2106 at [69]-[70] and Singh v Minister for Home Affairs [2019] FCCA 2153 at [55], [58]-[59]. That issue does not directly arise in this appeal. However, for the reasons we have given above requiring the reader to assemble the information from disparate parts of the letter to arrive at the correct conclusion does not comply with the requirement of clarity. In our opinion, these decisions were not correctly decided.
9 It will be observed that the Full Court in BMY18 expressed the view that the decision the subject of this appeal was not correctly decided. That conclusion is plainly obiter dictum. It is not clear whether the Court invited argument about the matter or whether it had the actual notification letter before it.
10 It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to "state … the time in which the application for review may be made". Whether or not a notification meets this requirement is a question of fact. Examining whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text - see: Baini v The Queen (2012) 246 CLR 469.
11 In the present case, the notification letter included on pages 1 to 3:
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.
[Page 2]
This review period is prescribed in law and an application for merits review may not be accepted after that date.
Your immigration status
When your visa application was lodged, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for merits review of this refusal decision then that bridging visa will remain in effect during the merits review proceedings. Otherwise your bridging visa will cease 28 calendar days after this notice is taken to have been received. More information on bridging visas is at www.border.gov.au/Trav/Visi/Visi/Bridging-visas.
[Page 3]
Receiving 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.
12 These passages made clear the time in which an application for review may be made.
13 In BMY18, the statement as to when the notification was taken to have been received was located under the heading "Financial or case worker assistance". This was found to have contributed to the result that the letter was "confusing and misleading" with the result that the notification did not "state clearly" the matter required by s 66(2)(d)(ii): at [35]. There is no such difficulty in the present case. Even if the word "state" in s 66(2)(d)(ii) is to be read as "state clearly" as this Court held in DFQ17 and BMY18, the standard of clarity was met in this case.
14 Under the clear heading "Review rights", the letter set out that "the decision can be reviewed". The relevant review body was identified as the Tribunal. The letter stated that "an application for merits review of this decision must be given to the [Tribunal] within 21 calendar days after the day on which you are taken to receive this letter".
15 The appellant's main complaint was that information regarding the determination of when the email was taken to have been received was not under the same heading, "Review rights". That information was on a separate page under the heading "Receiving this Letter". The text under that heading stated "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". As the Minister submitted, this statement was both correct and clear. The heading "Receiving this Letter" was clear and relevant. The wording of the heading is clearly referable to the words "taken to receive this letter" under the heading "Review rights". This distinguishes DFQ17.
16 As the Minister also submitted, there was good reason to provide the information regarding receipt of the letter under a separate heading. There were two relevant time periods to explain. One was the time of 21 days for applying for review; the other was the cessation, after 28 days, for the bridging visa. The fact that there were two relevant time periods to explain is a consequence of the statutory scheme.
17 The appellant submitted that confusion was also caused by the fact that the date the notification was received had to be determined by reference to the email, which was "external" to the notification. The notification letter was dated 6 September 2016 and the email attaching it was transmitted on that day. No confusion would reasonably have been caused by the fact that the notification was communicated by email on the same date.
18 The appellant submitted that the average recipient would not have English as a first language and that, whilst it may be obvious to a person proficient in English that they are required to piece together disparate pieces of information, it would or may not be to the average recipient.
19 The average recipient would read the whole of the letter and would know the letter contained information of importance. The real question, however, is what the statute required be done. It required that the notification "state … the time in which the application may be made". An inquiry into the possible characteristics of the average recipient has the potential of distracting attention away from the central inquiry of what the letter "stated".
20 The appellant also submitted that the notification was misleading because it stated that the review period was prescribed and "an application for merits review may not be accepted after that date" (emphasis added). It was contended that this suggested that an extension might be obtainable. This issue was noted, but not decided, by Allsop CJ in CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 at [7].
21 This sentence, read in context, does not have the consequence that the notification letter did not "state … the time in which the application may be made": s 66(2)(d)(ii). Immediately above the statement, the notification letter states that an "application for merits review of this decision must be given to the [Tribunal]" within the stipulated 21-day period (emphasis added). As the Minister submitted, the word "may" is also used in other parts of the letter in terms which denote inflexible limits as opposed to flexible discretion (eg: "you may only seek merits review of this decision… if you are physically present in Australia…" (emphasis added)).
22 The primary judge concluded that the notification letter stated the time within which the application for review was to be made. This conclusion turned on the particular facts. The appellant has not demonstrated that the primary judge's conclusion was affected by error.
23 It should be noted that cases concerning s 66(2)(d)(ii) hinge upon a simple factual inquiry into whether or not the notification letter states the time within which the application for review may be made. That question is to be resolved by examining the particular terms of the relevant notification letter in question.
24 For these reasons the appeal must be dismissed.
25 By a notice of contention, the Minister submitted that the decision of the primary judge should be affirmed because there was no evidence that the form of the notification played any role in the appellant's failure to bring an application for review within the required period. This was said to be significant for two reasons:
(1) First, it was contended that, in order to determine whether non-compliance with a statutory requirement causes an administrative action to be invalid, it is necessary for the Court to determine the presumed intention of Parliament, referring to SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129. In that case, Emmett J stated at [30] (see also Buchanan and Nicholas JJ at [64]-[67]):
While the Parliament may be taken to have intended that compliance with the requirements of s 66(2) would discharge the Minister's obligation with respect to the giving of timely and effective notice of a decision, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure.
(2) Secondly, it was contended that materiality is an essential element of jurisdictional error, referring to Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30]-[31] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [44]-[45]. It was submitted that, if there was any non-compliance with s 66, the onus was on the appellant to demonstrate that any such error had a material effect on the Tribunal's ultimate conclusion that it had no jurisdiction because the application for review was out of time. The appellant did not claim before the Tribunal to have been misled or to have been unaware of the 21-day time limit. Indeed, the appellant had stated that the reason for his delay was that he had lost his phone and "a little laziness from my side as well that I thought I will apply for MRT appeal after discussing it with my fellow colleagues" (corrected for errors). The grounds of review in the amended application to the Federal Circuit Court alleged that the appellant was not aware of the 21-day time limit. This allegation was not supported by any evidence.
26 These interesting questions, which are of obvious importance, are not necessary to decide given that the appeal must be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.