FEDERAL COURT OF AUSTRALIA

BMY18 v Minister for Home Affairs [2019] FCAFC 189

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 23 May 2019 be set aside and in lieu thereof order that:

(1)    The decision of the Second Respondent made on 19 March 2018 be quashed.

(2)    The Second Respondent determine the Applicant’s review application on the basis that it has jurisdiction to do so.

(3)    The First Respondent pay the Applicant’s costs of the proceedings in the Federal Circuit Court as taxed or agreed.

3.    The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS (IN LIEU OF ORDER 3 OF 31 OCTOBER 2019) THAT:

3.    Pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth), the First Respondent pay the Appellant’s costs of the appeal directly to the pro bono counsel.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to appeal out of time and to the extent necessary the Appellant be granted leave to rely upon fresh grounds not raised below.

2.     The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Before the Court are two appeals: BOQ15 v Minister for Immigration and Border Protection (‘BOQ15’) and BMY18 v Minister for Home Affairs (‘BMY18’). They were heard consecutively by this Court on 30 September 2019. In BOQ15 the appeal should be dismissed with costs. In BMY18 the appeal should be allowed with costs.

The appeal in BOQ15

Background

2    This is an appeal from a decision of the Federal Circuit Court of Australia given on 30 May 2019: BOQ15 v Minister for Immigration and Border Protection [2019] FCCA 1477. The Appellant is a Chinese citizen who arrived in Australia on 12 November 2006 on a student visa. He made his most recent application for a protection visa on 26 May 2014. The basis for the Appellant’s claim to have a well-founded fear of persecution if returned to China is that he is an adherent of Falun Gong. While the Appellant’s protection visa application has been processed he has been granted, and continues to hold, a bridging visa and consequently is not in immigration detention.

3    His application for a protection visa was refused by a delegate of the Minister on 24 February 2015. The delegate concluded that the Appellant’s claimed adherence to Falun Gong was not genuine. The Appellant was entitled to apply for a full review of the delegate’s decision before the Refugee Review Tribunal, which was soon incorporated into the Administrative Appeals Tribunal (‘the Tribunal’). The combined operation of s 412(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) and reg 4.31 of the Migration Regulations 1994 (Cth) (‘the Regulations’) was to require the Appellant to lodge any such review application within a period of 28 days after the notification of the delegate’s decision. He did not lodge any review application with the Tribunal until 11 May 2015. It is not in dispute that the Tribunal has no jurisdiction to entertain a review application which is made out of time. On 2 July 2015, the Tribunal determined that the Appellant’s application was out of time and that it did not have jurisdiction to entertain it. An application for judicial review in the Federal Circuit Court was unsuccessful. The learned primary judge concluded that the Tribunal was correct in its conclusion that it did not have jurisdiction because the application to it was out of time.

4    In this Court, the Appellant raises two matters. First, he submits that the evidence before the primary judge did not admit of the conclusion that the delegate’s decision had been notified to him. If it had not been notified to him, it followed that the 28 day time limit had not begun to run and, more importantly, could not yet be said to have expired. Consequently, the Tribunal did have jurisdiction to determine his review application and should not have dismissed it on that basis. Secondly, on the assumption that the decision had been notified to him (contrary to his first argument) the letter doing so did not explain with sufficient clarity when it was that he had to apply for a review by the Tribunal. Section 66 of the Act required any notification of the decision to the Appellant to ‘state … the time in which the application for review may be made’: s 66(2)(d)(ii).

5    For the reasons which follow, neither of these submissions should be accepted. The appeal should be dismissed with costs.

Extension of time

6    The Appellant was unrepresented in the Federal Circuit Court. The Appellant filed his appeal papers late and therefore requires an extension of time in this Court. This was not opposed by the Minister. At the hearing counsel now appearing for him, Ms King, indicated that she did not wish to press the matters articulated in the Appellant’s draft notice of appeal. Instead, her submissions were confined to the two grounds which were set out in the written submissions Ms King prepared on the Appellant’s behalf. These were described as grounds 5 and 6. At the hearing of the appeal, the Court dispensed with any additional need for the Appellant to file a further notice of appeal reflecting those two grounds. In effect, the Court has proceeded on the basis that the argument described as grounds 5 and 6 in Ms King’s written submissions are the appeal grounds. There was some question as to whether leave was necessary to raise these matters as, on one view, they may not have been raised in the Court below. The Minister did not oppose a grant of leave to the extent that it was necessary.

7    Mr Johnson SC for the Minister did submit, however, that if the argument about the clarity of the notification letter was to be entertained by the Court he wished to tender a brochure which, so he submitted, was relevant to any assessment of the letter’s alleged lack of clarity. The Court permitted the Minister to tender the brochure (over Ms King’s objection).

Ground 5: Whether the evidence established that the Appellant was notified of the delegate’s decision

8    When the Minister refuses to grant a visa under s 65, the effect of s 66(1) is to require the Minister (or, as here, the delegate) to ‘notify the applicant in the prescribed way’. It is only when the decision is notified that time begins to run for the purposes of reg 4.31 of the Regulations. The Appellant submitted that the evidence before the Federal Circuit Court could not sustain a factual finding that the delegate’s decision had actually been notified to the Appellant.

9    This submission should not be accepted. The evidence before the Federal Circuit Court was as follows:

    A letter bearing the date 24 February 2015 from the delegate to the Appellant. This letter on its face appears to be a notification letter. The letter at its foot contained a notation after the signature block that it enclosed four attachments: documents entitled ‘Client Service Information’, ‘R10 Review Tribunal brochure’, ‘Decision Record’ and ‘Digital Recording of Protection visa interview’. This notification letter was signed by the delegate.

    A document headed ‘Protection (Class XA) Visa Decision Record’. This document was also dated 24 February 2015 and contained a detailed consideration of the Appellant’s protection claims. This longer document was also written by the delegate.

    A second letter also bearing the date 24 February 2015. This letter was written by the delegate and was addressed to the Appellant’s then migration agent rather than the Appellant himself. This letter noted that the agent was authorised to receive correspondence on behalf of the Appellant and invited the agent to ‘Please see the attached information’. The letter does not in terms say what the ‘attached’ is, but one inference may be that the delegate enclosed the notification letter and the decision record. This letter bears the imprint of a sticker which reads ‘Registered Post – Sender to keep 51003412801016’. This number has a significance which is explained later in these reasons.

    An affidavit of Mr Clyde Hungerford. Mr Hungerford is a manager of the firm which distributes the Minister’s and the Department’s mail, Converga. He was familiar with the firm’s processes and record keeping procedures. He gave evidence that all outgoing Ministerial or Department correspondence came to the mailroom in which he worked via the internal mail system. As each outgoing item came through the mailroom an employee would record the barcode of all registered and express post items in a spreadsheet and would include details of each including the date, the destination address and the identity of person to whom it was being sent. The spreadsheet for 25 February 2015 contains this entry:

25/02/2015    997951003412801016    [Appellant]    Sydney NSW 1230

Two aspects of this are notable. First, the number is the same as the number on the letter to the migration agent save that it has an additional 4 digits 9979 in front of it. Secondly, the date on which the item was sent is shown as 25 February 2015 whereas the letters themselves are dated 24 February 2015.

    A letter from the Tribunal to the Appellant via his then migration agent dated 12 May 2015 in which the Tribunal indicated that it appeared that the Appellant’s application was out of time and inviting him to make a submission to it on that issue by 2 June 2015. The Appellant made such a submission on 1 June 2015. In this document he indicated to the Tribunal that he had tried to lodge his review application with the Tribunal electronically a week before the 28 day deadline expired. When that did not work, he then sent a paper application through the postal system but this did not appear to have been received by the Tribunal. Importantly, this submission did not suggest that the Appellant had not received the delegate’s decision. Indeed, the submission proceeds upon the assumption that the decision had been received. Consistently with that view, the letter contains this sentence ‘When my protection visa was refused by DIBP, I acknowledged that I have 28 days to apply for RRT review.’

10    The Appellant submitted that this evidence did not show that he had been notified of the decision. The letter to the migration agent was dated 24 February 2015 whereas the postal records were dated the next day, 25 February 2015. Further, it was unclear from the letter to the migration agent what had been enclosed with it. It could not be assumed that the second letter had enclosed the notification decision. Further, the numbers on the registered post record and that in the postal record whilst similar were not the same.

11    The Appellant’s submission ignores the cumulative effect of the evidence and requires one to accept a series of improbable events: first, that despite the delegate having had the intention to send the notification and having had no motive not to send it, somehow the letter was not sent. Secondly, that the postal record of the correspondence sent to the migration agent was not the correspondence to be sent to the Appellant but, instead, correspondence for another client of the migration agent. Thirdly, that the registered post number on the sender’s file (51003412801016) is to be understood as a different number to the one in the postal records (997951003412801016) and is not just a four digit anomaly. This is necessary because if the numbers are the same it shows that what was sent to the migration agent was a letter about the Appellant and not some other client. Fourthly, that the Appellant’s seeming acceptance in his submission to the Tribunal that he had in fact received the notification decision is to be discounted on some unarticulated basis. Fifthly, that some other document not being the notification was sent to the Appellant on 25 February 2015 (the postal record showing that something was sent to him that day—the Appellant must submit that whatever this was it was not the notification). No submission was made as to what this document could actually be. Nor did the Appellant produce it to show that it was not the notification.

12    Each of these propositions is individually tenuous. That they might all be correct seems most unlikely. We find that the Appellant was sent a copy of the delegate’s decision under cover of a letter dated 24 February 2015 and that this occurred on 25 February 2015. No other coherent view of the evidence is available.

13    The Act sets out in s 494B various ways in which the Minister may hand a document to a person. One of these methods is by dispatching the document in question by pre-paid post within 3 days of the date of the document: s 494B(4). It was this method which applied in the present case. The notification letter was dated 24 February 2015 and was dispatched by registered post on 25 February 2015. When, as it was, this method was utilised it then enlivened s 494C(4)(a) which tells one when the document is taken to have arrived viz ‘7 working days … after the date of the document’. As long as the document is dispatched by registered post within 3 days of the date of the document, it is then taken to arrive 7 working days after its date. The actual day of dispatch, as long as it be within the 3 day window, does not matter.

14    In any event, the effect of s 494C(4) is that the Appellant is taken to have received the notification on 5 March 2015. Consequently, it cannot be contended that the Appellant was not notified of the decision. Ground 5 should be rejected.

Ground 6: Whether the notification sufficiently stated the time within which any review application could be brought

15    The delegate was, of course, required by s 66 to notify the Appellant of the decision and that provision certainly required the delegate to provide the Appellant with a copy of his reasons for the decision: s 66(2)(c). However, s 66 also contained other requirements. One of these, contained in s 66(2)(d), required the delegate to include in the notification a statement about the Appellant’s review rights. For example, the notification was to state that the decision could be reviewed, who could apply for the review and where the review application could be made. Significantly for the present appeal, s 66(2)(d)(ii) also required the notification to ‘state … the time in which the application for review may be made’. As already noted, reg 4.31 required any application for review to the Tribunal to be made within 28 days of the day on which the decision was notified to the Appellant.

16    Because the Appellant was notified by registered post, s 494C(4) had the effect, as already noted, of deeming the notification letter to have been received by the Appellant 7 working days after the date of the notification letter. Since the letter was dated Tuesday 24 February 2015 this meant that it was deemed to have been received by the Appellant on Thursday 5 March 2015. The operation of reg 4.31 then meant that any review application had to be brought within a further 28 days of that date.

17    The relevant portion of the notification letter said this:

Review rights

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.

18    This statement is accurate. In the Full Court’s decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (‘DFQ17’) a notification letter in which the statement about when the notification was taken to have been received appeared on the next page of the letter under the heading ‘Financial or case worker assistance’. Perram J, with whom Rares and Farrell JJ agreed, concluded that such a notification was incomprehensible and that therefore the notification failed to ‘state’ the time in which a review application could be brought.

19    That is not the case here. It is possible to determine the time within which the review application may be brought. The layout is not confusing. The complexity which exists is not the fault of the author of the letter but is a result of the terms of the statute itself. Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state ‘the time in which the application for review may be made’. This is a reference to a period and not a date.

20    In this case, the notification complied with s 66 and DFQ17 does not require otherwise. The Minister sought to buttress the clarity of the message conveyed by the notification of 24 February 2015 by reference to the brochure which it was submitted accompanied it. Given that we accept that the notification was in itself sufficiently clear, it is not necessary to consider that issue further. Ground 6 should be rejected.

21    Both grounds having failed, the appeal should be dismissed with costs.

The appeal in BMY18

Background

22    This is an appeal from the Federal Circuit Court given on 23 May 2019: BMY18 v Minister for Home Affairs [2019] FCCA 1381. The Appellant is a 46 year old citizen of China who arrived in Australia on 7 May 2017 travelling on a three month temporary tourist visa. On 18 July 2017 he applied for a protection visa. Subsequently, he was granted a bridging visa whilst his application for a protection visa was determined. Consequently, he was not in immigration detention at the time of the hearing of the present appeal.

23    The basis upon which the Appellant sought a protection visa was that his land in the village in which he lived in China had been expropriated by the village committee. His crops had then been levelled and he had received no compensation. Attempts to complain to the government were unsuccessful. He therefore left China as he had no ability to change the status quo.

24    His application for a protection visa was determined by a delegate of the Minister on 9 January 2018. The delegate accepted that expropriation of land in the manner described by the Appellant was a regular occurrence in China. However, it was not satisfied that the expropriation had happened by reason of the Appellant’s member of any particular social group. Consequently, the delegate concluded that the Appellant’s protection visa application should be refused.

25    In this Court, the Appellant raises three points. First, he submitted that the notification he received of the delegate’s decision did not ‘state … the time in which the application for review may be made’ as was required by s 66(2)(d)(ii). It was submitted on the Appellant’s behalf that the notification was in same terms as the notification in DFQ17 where the Full Court had so held. Secondly, the Appellant submitted that he was not notified of the decision at all. Although there was evidence before the learned primary judge which tended show that the notification had been received, the Appellant submitted that this evidence was inadmissible and should have been rejected by the primary judge. Thirdly, the Appellant submitted that he was unrepresented before the primary judge and that his Honour should have informed him of his right to object to the evidence and by so failing to inform him denied him procedural fairness.

26    We would accept the first of these arguments. It is not in that circumstance necessary to deal with the remaining arguments. The appeal should be allowed with costs.

Procedural matters

27    The Appellant commenced the present appeal by way of an application for an extension of time. In fact, he was not out of time. On 8 August 2019 a Registrar ordered that the Appellant’s draft notice of appeal stand as his notice of appeal. At the hearing of the appeal, Ms King of counsel who appeared for the Appellant, relied upon three ‘additional’ grounds of appeal and accepted that the grounds in the draft notice of appeal were encompassed in those three grounds. It is convenient to treat the appeal as if it were conducted on those grounds. They correspond to the description of the appeal in the previous section. In Ms King’s written submission they were referred to as grounds 3, 4 and 5.

Ground 3: Whether the notification letter stated the time within which any review application could be brought

28    The notification letter was dated 9 January 2018. One part of the letter dealt with review rights under the heading ‘Review Rights’. This appeared at the foot of p 1 of the letter but went over to the top of p 2 as well. It was in these terms:

Review Rights

The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

29    There was no mention in this part of the letter of when it was that the Appellant was taken to have been notified of the decision. However, towards the lower half of p 3 of the letter under the heading ‘Financial or case worker assistance’ there appeared this statement:

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.

30    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.

31    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.

32    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).

33    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.

34    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.

35    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).

36    There are some footnotes to this conclusion. The fact that a notification is sent by email is not in itself sufficient to distinguish a case from DFQ17. There may be cases where the notification was sent by email where the statement as to when it is taken to have been received will be sufficient. The decision of Nicholas J in Ali was one such case. In that case, the notification was sent by email but the statement that it was taken to have been received on the day it was transmitted was correctly located under the heading ‘Lodging an Application for Review’ where it was sensibly located. But Ali does not stand for the broader proposition that simply because the notification was sent by email that DFQ17 does not apply. No doubt, sending the notification by email reduces the double counting problem, but the question still remains: is the notification clear? 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.

37    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.

38    A number of decisions in the Federal Circuit Court have held that even where the information about the time at which the notification is taken to have arrived is under an incorrect heading—most often ‘Financial or Case Worker Assistance’, as was used in DFQ17—it is still clear: BUY18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 1787 at [25]-[35]; CZI18 v Minister for Home Affairs [2019] FCCA 2080 at [56]-[68]; ELM18 v Minister for Home Affairs [2019] FCCA 2108 at [52]-[66]; FJR18 v Minister for Home Affairs [2019] FCCA 2274 at [28]-[35]; APN19 v Minister for Immigration. Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 2342 at [41]-[47]; FWQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 2308 at [25]-[38]; GLV18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 2525 at [26]-[27]; and ABD19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCCA 2555 at [20]-[25]. For the reasons we have just given these decisions are not correctly decided and should be overruled.

39    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.

40    There are other decisions of the Federal Circuit Court where the actual form of the notification was not set out and it is difficult to be clear precisely what they say: see, for example, BMG19 v Minister for Home Affairs [2019] FCCA 2627 (‘BMG19’). It was said in BMG19 that the letter was in the form set out in Ali. On that assumption, it need not be overruled.

41    Many of these decisions appear to approach the matter on the basis that if the notification is sent by email the problem disappears as the calculation is less complex. This is not correct. Sending the notification by email reduces but does not eliminate one area of confusion but that in itself is far from determinative. The notification must be considered and the question asked whether it clearly stated when the review application had to be made. There is no one size fits all approach to this but it is a common sense question. The fact that the regulation is so complex no doubt makes the task of explaining clearly how it works more complex for those who must draft notifications. That problem, however, is their problem. It is not the problem of the persons receiving such notifications.

42    In the Court below the primary judge dealt with this issue in these terms:

7.    In my view, this case is clearly distinguishable from the decision in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64, being a decision of Rares, Perram and Farrell JJ.

8.    The letter received by the applicant denying his application for a protection visa, is set out at page 75 to 77 of the Court book. It relevantly states:

“An application for merits review of the refusal decision must be given to the AAT within the prescribed timeframe. The timeframe commences on the date on which you are taken to be notified of this decision and ends at the end of 28 days.”

9.    Pursuant to s 494C (5) of the Migration Act 1958 (Cth), “a person is taken to have received documents by email at the end of the day in which the document is transmitted.” This section makes it clear that the applicant had 28 days from 9 January 2018 as a matter of law. The applicant’s application to the Tribunal on 6 March 2018 was thus well out of time.

43    His Honour did not engage at [9] with that critical feature of the reasoning in DFQ17 about the information being located on the third page under an incorrect heading. He did not explain why it was distinguishable. In fact, the letter is identical and the only difference is that it was sent by email. But his Honour did not refer to the fact that the notification was sent by email as the distinguishing feature so it is very difficult to understand what his Honour can have meant. In any event, as we have explained the fact that it was sent by email does not, on the facts of this case, mean that it clearly stated the time within which the review application had to be made. The appeal must be allowed with costs. It is not necessary in that circumstance to deal separately with the Appellant’s allied contention that his Honour gave no adequate reasons for distinguishing DFRQ17 although it would appear to be well-founded.

Grounds 4 and 5: Whether the notification was received and whether the primary judge afforded the Appellant procedural fairness

44    Since the Appellant has succeeded on Ground 3 it is not necessary to deal with these two grounds.

Orders

45    In BOQ15 the following orders should be made:

(1)    The Appellant be granted leave to appeal out of time and to the extent necessary be granted leave to rely upon fresh grounds not raised below.

(2)    The appeal be dismissed.

(3)    The Appellant pay the First Respondent’s costs of the appeal as taxed or agreed.

46    In BMY18 the following orders should be made:

(1)    The appeal be allowed.

(2)    The orders made by the Federal Circuit Court on 23 May 2019 be set aside and in lieu thereof order that:

1.    The decision of the Second Respondent made on 19 March 2018 be quashed.

2.    The Second Respondent determine the Applicant’s review application on the basis that it has jurisdiction to do so.

3.    The First Respondent pay the Applicant’s costs of the proceedings in the Federal Circuit Court as taxed or agreed.

(3)    The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

Associate:

Dated:    31 October 2019