Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 659

1. The name of the first respondent be amended to "Minister for Immigration and Multicultural Affairs"
2. The application for judicial review filed on 20 June 2018 be dismissed.
3. The applicants pay the first respondent's costs fixed in the amount of $6,100.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By an application filed on 20 June 2018, Mr Singh (primary applicant) and Ms Kaur (second applicant) seek review of a decision made by the second respondent (Tribunal) on 7 June 2018, that it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) not to grant the applicants a Skilled (Residence) (class VB) visa (visa). The Tribunal filed a submitting appearance and did not participate in the proceedings.

1. The applicants, who are husband and wife, are citizens of India. On 28 March 2017, the primary applicant applied for the visa (Court Book (CB) 10-23). The second applicant was included in the application as a member of the primary applicant's family unit.
2. In the visa application form, Mr Kalra was identified as the authorised recipient and the email address - xx@xx - was recorded as the email address to which the authorised recipient agrees correspondence from the Department will be sent (CB 15-16).
3. On 13 April 2018, a delegate of the Minister made a decision to refuse to grant the applicants the visa (CB 145-150).
4. On the same day, the visa refusal notification letter was sent via email to the applicants' authorised recipient to xx@xx (CB 139-144).
5. On 17 May 2018, the applicants applied to the Tribunal for review of the delegate's decision (CB 211-213). In a letter that accompanied the application, the primary applicant acknowledged that his visa had been refused on 13 April 2018, and he had 21 days to lodge the application for review. He offered as an explanation for his failure to do so that he was under depression owing to his mother in India being unwell. The primary applicant sought an extension of time to lodge the application (CB 214-215).
6. On 22 May 2018, the Tribunal sent an invitation to the applicants to comment on the validity of their applications for review on the basis that they were not lodged within the relevant time limit (CB 223-225). The letter recorded that in circumstances where the primary decision had been emailed to the applicants' authorised recipient on 13 April 2018, this was the date on which the applicants were taken to have been notified of the decision and the last day for lodging the applications was therefore 4 May 2018, being 21 days from this date. The application for review was instead made on 17 May 2018. The applicants were invited to make any responsive comment in writing by 5 June 2018.
7. On 5 June 2018, the primary applicant sent an email to the Tribunal which attached a "Submission to AAT" and a "Letter from Psychologist" (CB 232-248). In the submission, the primary applicant again acknowledged that his visa had been refused on 13 April 2018 and that a time limit of 21 days had applied to the lodgement of his application for review. The primary applicant repeated the explanation that he weas under depression due to the condition of his mother. The attached letter from psychologist Edwin Kleynhans supported this explanation.
8. On 7 June 2018, the Tribunal made a decision that it did not have jurisdiction in the applicants' matter and prepared a brief written statement of decision and reasons (R) (CB 255-257).

1. The Tribunal noted that pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg 4.10 of the Migration Regulations 1994 (Cth) (Regulations), an application for review must be made within 21 days after the applicant was notified of the decision in accordance with statutory requirements. In this case, the review application was lodged with the Tribunal on 17 May 2018 (R, [1]-[2]).
2. The Tribunal observed that the material before it indicated that the applicant was notified of the decision by letter dated 13 April 2018 and dispatched by email and that this satisfied the statutory requirements (R, [3]).
3. The Tribunal noted that on 22 May 2018, the Tribunal had written to the applicants inviting them to comment on the validity of their applications for review (R, [4]) and that the primary applicant had made submissions to the Tribunal dated 4 June 2018 in which he had requested an extension of time to lodge the review application (R, [4]-[5]). The Tribunal identified, in summary form, the matters referred to by the primary applicant as explaining his failure to lodge the review application on time and the matters which he said justified being given a chance to have his matter heard by the Tribunal (R, [5]-[6]). The Tribunal noted that the applicant had provided a detailed report from his psychologist that supported his contentions in relation to his mental health and this impacting his delay in lodging the review application (R, [7]).
4. The Tribunal acknowledged the difficult circumstances surrounding the primary applicant during the 21-day period in which he was required to lodge the review application but found that these could not be taken into account when determining whether or not the review application was lodged within the prescribed timeframe (R, [8]).
5. The Tribunal found that the applicant was taken to have been notified of the decision on 13 April 2018 (s 494C) and therefore the prescribed period to apply for review ended on 4 May 2018. As the application for review was not received by the Tribunal until 17 May 2018 it followed that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter (R, [9]-[10]).

1. The applicants filed their application seeking judicial review of the Tribunal decision on 20 June 2018.
2. On 2 October 2019, a Registrar of this Court made procedural orders including that the applicants file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of application, any supplementary court book, and written submissions. The applicants did not file any material in accordance with these orders.
3. On 7 February 2024, a Registrar convened a Call Over on which occasion further orders were made including that the Minister have leave to file an amended court book on or before 21 February 2024. The Minister filed an amended court book on 14 February 2024.
4. On 12 March 2025, the Minister filed written submissions addressing the applicants' grounds of review.
5. The hearing of the application took place before me on 31 March 2025. The primary applicant represented himself with the assistance of an interpreter in the Punjabi and English languages. The Minister was represented by solicitor advocate, Mr Gardner.

1. The application to this Court identifies the following as grounds of review:
   1. The primary applicant made submissions to the Tribunal dated 4 June 2018 requesting an extension of time to lodge the review application. In his submissions, he stated that during the 21 days between 13 April 2018 and 4 May 2018:
   2. I was under severe depression because his mother (who lives in India) was unwell;
   3. I was constantly on calls with his family overseas and it was an emotional situation as he is ve1y attached to his mother
   4. My mother has suffered prolonged illness for the past 5 years and that this condition had been aggravated;
   5. The primary applicant provided a detailed report from his psychologist in support of his contentions in relation to his mental health and this being the reason for his delay in lodging his review application with the Tribunal. The Tribunal has reviewed the report and accepts the psychologist's diagnosis that the primary applicant was suffering from an adjustment depressed mood, diagnosed as Adjustment Disorder with Depressed Mood as per the criteria set out in DSM-V.
   6. The tribunal has not given me a fair opportunity to present my case and not given me a fair hearing which leads to an error of law where I should have been at least given a fair hearing to present my matter
   7. I confirm that this is a jurisdictional error made by the AAT
   8. I would requested the respected registrar to remit the matter to the AAT for a fair hearing as all documents were provided in suppo1t of my application to the AAT and the AAT has overlooked the facts and not given me a fair hearing.
2. The primary applicant was invited at hearing to make submissions about these grounds as well as to identify any error, not already described, in the decision of the Tribunal. The primary applicant made submissions that involved a repetition of the matters identified as going to his personal circumstances and the reasons why he was unable to comply with the time frame prescribed in legislation for making a review application to the Tribunal.
3. The Minister submitted that none of the matters raised by the applicants disclosed error in the decision of the Tribunal. This was because the Tribunal had expressly considered the primary applicant's explanation for the delay and had correctly found that it did not have discretion to vary or extend the prescribed period to apply for review.
4. This assessment is undoubtedly correct and reflects the way the statutory time-limit operates, which permits of no variation or extension, provided that notification of the adverse decision occurs in accordance with statutory requirements.
5. In this case, the notification letter was sent to the applicants via their authorised recipient and by using the email address recorded in the visa application form as the email address to which Department correspondence was to be sent. The method of notification therefore complied with s 494B(5)(d) of the Act and was taken to have been received by the applicants at the end of the day on which the email was transmitted (s 494C(5)), being 13 April 2018. The applicants then had a period of 21 days in which to seek review of the delegate's decision, meaning that the last day on which the application could be lodged was 4 May 2018. The application was lodged instead on 17 May 2018.

Were the applicants validly notified of the delegate's decision?

1. As model litigant, the Minister raised for consideration with the Court the issue of whether the notification letter complied with s 66(2)(d) in circumstances where two relatively recent decisions of the Federal Court had cast the spotlight on what was required to give effect to this notification requirement and in particular, the requirement in s 66(2)(d)(ii) that, a notification state the time in which the application for review be made.
2. Section 66 of the Act relevantly provided:

(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

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

...

(d) if the applicant has a right to have the decision review by application under Part 5 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.

1. The combined effect of s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations was that the time in which the application for review had to be made was within 21 days after notification of the delegate's decision had been received by the applicants.
2. Section 494C of the Act relevantly provided:

494C When a person is taken to have received a document from the Minister

(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)

...

Transmission by fax, email or other electronic means

(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

1. In Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, Markovic J found that a notification letter sent to Mr Sandor's migration agent as "authorised recipient" did not comply with s 66(2)(d)(ii) of the Act. This finding had the effect of invalidating the notification letter and the decision of the Tribunal that it did not have jurisdiction in Mr Sandor's matter because he had lodged his application for review "out of time".
2. At [45] of Sandor, Markovic J described the characteristics of the notification letter as:

(1) [it] is dated 13 February 2018. On the first page it is addressed to the appellant at his address but also includes:

Transmission Method Email sent to Karola@nextvisa.com.au

(2) under the heading "Review rights", on pages 1 to 2, includes:

We 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.

(3) under the heading "Receiving this Letter", on page 3, includes:

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

(4) was emailed to the appellant's authorised recipient on 13 February 2018

1. Markovic J considered that the question posed by Mr Sandor's appeal was whether the notification letter was incomplete and unclear in that it did not explain that he was taken to have received it at the end of the day it was transmitted to his authorised recipient. In other words, that it did not explain the effect of s 494D(2) of the Act.[1]
2. The Minister had argued that the notification letter was not incomplete or lacking in clarity because the notification letter stated that "you [the appellant] are taken to have received it"; this was said to reflect the deeming effect of s 494D(2) of the Act. The Minister had also referred to the fact that the notification letter stated that the appellant is taken to have received it "at the end of the day it was transmitted" and submitted that if regard was then had to the first page of the letter it was evident that it had, by reason of the specified "Transmission Method", been transmitted by email sent to the address there recorded (being the appellant's migration agent).
3. Markovic J rejected the Minister's submissions as follows at [51]-[52]:
   1. The use of the words "you are taken to have received" may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister's submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister's reading of the Notification Letter, the appellant must understand that the reference to "the day the letter was transmitted" requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
   2. It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way that is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.

1. In Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136; (2024) 305 FCR 317, a Full Court of the Federal Court revisited the decision of Sandor, with the Minister arguing that it had been wrongly decided.
2. In the course of its analysis, the Full Court identified applicable legal principles, including that considering "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 [to "state" the matters referred to in s 66(2)(d)] has been met, but should not be allowed to replace the statutory text".[2]
3. The Full Cout referred to earlier decisions that had considered whether notifications had met the requirements in s 66(2)(d)(ii) of the Act. At [28] it observed:

All these authorities merely illustrate that, depending upon the relevant objective facts and the form of the notification before the Court, the notification of the decision may or may not, as a matter of fact, meet the requirements of s 66(2)(d). Further, notwithstanding that all the information to ascertain the time in which the application for review may be made can be distilled from the contents of the notice, the notification may nonetheless fail to crystallise that information with sufficient clarity to meet the requirement of s 66(2)(d)(ii). It follows that while other decisions of the Court concerning notifications of decisions to refuse visas may provide guidance and assistance in relation to the application of s 66(2)(d), they are not determinative of the facts before the Court in this appeal.

1. The Full Court found that Markovic J in Sandor had correctly identified and applied the meaning of "state" and applied the correct construction of s 66(2)(d)(ii) to the facts before her. As a result, there was no legal error in her Honour's reasoning that required correction on the appeal.[3]
2. The Full Court dismissed the Minister's appeal with a finding that the notification sent to the respondents did not comply with the requirement in s 66(2)(d)(ii) and the non-compliance could not be characterised as "trivial".
3. On the compliance point, the Full Court considered it to be significant that:[4]

...there was no obvious or logical connection between the reference to the commencement of the 21-day period (the day on which the visa applicant is taken to have received the letter) under the heading 'Review rights' and the reference to the day on which the visa applicant was taken to have received the letter under the heading 'Registries of the Administrative Appeals Tribunal'. The lack of clarity was compounded by the length of the letter, the remoteness of the references to the time of receipt of the letter from the references to the commencement of the 21-day period and by multiple references to the 21-day period for multiple visa applicants...

1. The Minister submitted that against the parameters and principles established by these cases, the Court should be satisfied that the notification letter in this case, as a matter of fact, did clearly state the time in which an application for review may be made, having regard to the following considerations:

(a) the letter correctly set out relevant information necessary for the reader to understand the time in which an application for review had to be made;

(b) the letter was sent to the email address nominated by the primary applicant for communications to him, being the email of his authorised recipient;

(c) the information was set out under relevant headings (first, under a heading directing attention to "Review rights", and second, under a heading "Lodging an application for merits review");

(d) the primary applicant here does not argue (and could not argue) that he did not understand the date of his notification. His statement lodged with his review application indicates he was clearly aware that he had 21 days to lodge his application and did not do so; and

(e) the terms of the statements that together informed the reader of the period in which an application for review may be made contained similar language regarding the concept of when the letter was "taken to have [been] received" such that the reader would reasonably understand that the two statements should be read together.

1. The Minister made the further submission that a reasonable person who has appointed an authorised recipient is on notice that all notifications will be sent to their authorised recipient and would understand that the term "you are taken to have received this letter at the end of the day it was transmitted" meant the end of the day it was transmitted to the authorised recipient. This was particularly so when they have only given the email address of the authorised recipient for communications to them.
2. The Minister also made the submission that there is no statutory requirement under s 66 of the Act to explain separately, or specially to refer to the deeming effect of subsection 494D(2) of the Act as to when a letter is taken to have been received. Simply because the notification letter requires the reader of the letter to determine the operation of the prescribed period does not mean that it is in any way incomplete or unclear or not stated.
3. The Minister submitted that it was also relevant that in this case the notification letter did not suffer from problems that afflicted the letter in Park being that it was addressed to six visa applicants and was overly long (running to 9 pages).

The applicants were validly notified of the delegate's decision

1. Ultimately, I am persuaded that, as a matter of fact, the correspondence sent to the applicants using the email address of their authorised recipient, and addressed to the primary applicant, did state the information required by s 66(2)(d)(ii) of the Act. The position is finely balanced however because apart from the fact that the notification letter in Park ran to nine pages and concerned six rather than two visa applicants, in other respects, the language used in the letter and the manner in which it was recorded (including the use and description of headings) was substantially similar to, or identical, to the notification letter sent in this case.
2. The page length of the letter in Park however created difficulties in cohesion and intelligibility that don't, in my opinion, operate with the same force in this case. In particular, less than two pages separate the information (found at the bottom of the first page under "Review rights") concerning the 21-day review right period and the information contained under the heading "Lodging an application for merits review" and "Registries of the Administrative Appeals Tribunal" about the day on which the visa applicant was taken to have received the letter. I consider that in these circumstances, and despite the letter not "spelling out" how precisely the various statutory provisions interrelated to produce the consequences that they did concerning the timing of a valid review, the information crystallised with sufficient clarity to meet the requirement stipulated under s 66(2)(d)(ii) of the Act.
3. The fact that the primary applicant was apparently able to discern this information from the face of the letter has not been decisive in this analysis given that it must reflect an objective evaluation of the letter which purports to communicate the matters required by s 66(2)(d). Neither do I consider persuasive the argument that a reasonable person who has appointed an authorised recipient would be on notice that references to "you" should be assimilated to themselves because of the authority given. The notification and its clarity (or lack thereof) is to be evaluated on the face of the document and not by reference to statements or authorities given at a different point of time. More decisive is the fact that the notification letter is addressed to the primary applicant rather than the authorised recipient.

1. In circumstances where I am unable to discern jurisdictional error in the decision of the Tribunal and where the basis for its decision on jurisdiction reflects a validly issued notification letter, the application for judicial review filed by the applicants on 20 June 2018 must be dismissed.
2. The Minister has sought his costs in the amount of $6,100. This amount is reasonable and reflects an amount that is lower than that set out in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. I will make a further order that the applicants pay the Minister's costs in this fixed amount.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

[2] Park at [22] referring to Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] (Thawley J).