Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first to sixth respondents.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The first to sixth respondents are visa applicants whose applications for visas were refused by a decision of a delegate of the appellant (Minister). The visa applicants applied to the seventh respondent (Tribunal) for review of the delegate’s decision. The Tribunal dismissed the visa applicants’ application for review on the ground of non-payment of the prescribed filing fee. The visa applicants applied to the Federal Circuit Court, as that court was then known, for judicial review of the Tribunal’s decision. The Federal Circuit and Family Court of Australia (Division 2) allowed the visa applicants’ application and made orders quashing the Tribunal’s decision and directing the Tribunal to determine the visa applicants’ application for review according to law. The Minister appeals to this Court from that judgment.

2    The issue in the appeal is whether the letter by which the visa applicants were notified of the refusal of the grant of the visas met the requirement of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) to ‘state’ ‘the time in which the application for review may be made’. The Minister contends that the letter ‘states’ the time by reference to objective facts from which the time in which the application for review may be made can be ascertained on the face of the letter. Alternatively, the Minister contends that if the letter does not so ‘state’ the time, the non-compliance with s 66(2)(d)(ii) is trivial and does not render the notification of the decision ‘invalid’ for the purposes of the Act.

3    The visa applicants have filed a notice of contention by which they seek to uphold the primary judge’s decision on the ground that if the notification met the requirement of s 66(2)(d)(ii), the Tribunal made a jurisdictional error when deciding that the application for review should be dismissed for non-payment of the prescribed filing fee. The issue the subject of the notice of contention is also raised in another appeal before a differently constituted Full Court. The parties agreed that if we were to decide that the appeal should otherwise succeed, we should receive further submissions on the notice of contention after the other Full Court has delivered judgment in the other appeal.

4    For the reasons that follow, the appeal should be dismissed. As a consequence, it is not necessary to address the issues raised in the visa applicants’ notice of contention.

Legislative framework

5    The proper construction of s 66(2)(d) of the Act and its application to asserted notifications of decisions to refuse applications for visas has been the subject of many decisions of this Court exercising its appellate jurisdiction. A number of these decisions have been made by Full Courts and a number by single Judges. As will be explained later, there was no real disagreement between the parties concerning the correct statutory interpretation of s 66(2)(d)(ii); the difference between parties concerns the application of the law to the facts of this case. Be that as it may, it is useful to set out the applicable legislative framework because it assists to understand how something so seemingly simple as whether the notification of the refusal decision ‘states’ the ‘time in which the application for review may be made’ has been the cause of so many applications for judicial review in the Federal Circuit Court and, in turn, appeals to this Court.

6    Section 66 of the Act relevantly provides:

66    Notification of decision

(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 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

…

7    Regulations 2.16(1) and 2.16(3) of the Migration Regulations 1994 (Cth) provide, relevantly, that the prescribed way for the Minister to notify an applicant of a decision to refuse to grant a visa must be by one of the methods specified in s 494B of the Act. Sections 494B(1) and 494B(5) provide, relevantly, that one of the methods consists of the Minister transmitting the document by email to the last known email address provided to the Minister for the purpose of receiving documents.

8    Section 494C of the Act provides:

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.

…

9    Section 494D of the Act provides:

494D    Authorised recipient

(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.

10    In this case, each decision to refuse the grant of a visa was a ‘Part 5-reviewable decision’ within the meaning of that expression in s 338(2) of the Act. In such cases, s 347(1)(b) of the Act provides that an application for review of a Part 5-reviewable decision must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after notification of the decision. Regulation 4.10(1)(a), in turn, provides that for s 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 starts when the applicant receives the notice of the decision and ends at the end of 21 days after the day on which the notice is received.

11    Relevantly, the collective effect of these provisions of the Act and Regulations is that when the Minister refuses to grant a visa, the applicant must be notified by a method that includes transmitting the notification by email to the last known email address of the visa applicant’s authorised representative. If it is transmitted by email, the visa applicant is taken to have received the document at the end of the day on which the document is transmitted. And, if the visa applicant has an authorised recipient, the visa applicant is taken to have received the document at the end of the day on which the document is transmitted to the authorised recipient. Further, where the decision to refuse the grant of a visa is a Part 5-reviewable decision within the meaning of s 338(2) of the Act, an application for review must be made within 21 days after that day.

Relevant facts

12    The first respondent is a citizen of the Republic of (South) Korea. On 1 February 2019 she lodged an application for the grant of a Temporary Activity (Religious work) (subclass 408) visa. The second to sixth respondents are also citizens of South Korea and were included in the visa application as members of the first respondent’s family. The second respondent is her spouse and the third, fourth, fifth and sixth respondents, her children.

13    In the visa application the first respondent nominated a migration agent as an authorised recipient to receive written communications and gave an email address for that agent. The same email address was given as the applicants’ email address in a different section of the application form.

14    On 19 March 2019 a delegate of the Minister refused to grant the first respondent her visa. As a consequence, the delegate also refused to grant the second to sixth respondents’ their visas. The delegate sent a letter addressed to the first respondent as an attachment to an email sent to the nominated email address of the authorised recipient. It was not in dispute that the letter was transmitted by email on 19 March 2019 and for the purposes of ss 494C(5), 494D(1) and 494D(2), is taken to have been received by the first respondent at the end of 19 March 2019.

15    The first and second pages of the letter are in the following terms:

19 March 2019

…

Transmission Method        Email sent to info@kyuandyounglawyers.com.au

Dear Jee Yea PARK

Notification of refusal of application for a Temporary Activity (class GG) Temporary Activity (subclass 408) visa

Refused Applicant

I wish to advise you that the application for this visa has been refused on 19 March 2019 for the following applicant:

The applicant did not satisfy the provisions of the Migration Regulations 1994.

The attached decision record provides detailed information about this decision as it applies to this applicant.

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 if you have an approved sponsor, or your sponsor is seeking a merits review of a sponsorship refusal 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.

Your immigration status

During the processing of your visa application, 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 35 calendar days after the date of the decision. More information on bridging visas is available on our website www.homeaffairs.gov.au/bridging-visas.

Leaving Australia

You must depart Australia by the date your bridging visa ceases. If you stay in Australia after the date your bridging visa ceases (and you do not hold another visa) you will be here unlawfully. This has serious consequences including possible detention and removal from Australia.

If there are reasons why you cannot depart Australia by the time your visa ceases, you should contact us for advice and assistance as soon as possible. You can call 131 881 between 8.30 am and 4.30 pm Monday to Friday or you can visit any one of the Department’s offices. Details of our office locations and opening hours are available at www.homeaffairs.gov.au[.]

Lodging another application

While you are in Australia, you can only lodge another application in very limited circumstances for a visa to allow you to remain in Australia. Refer to Form 1026i Limitations on Applications in Australia available at immi.homeaffairs.gov.au/help-support/departmental forms/pdf-forms[.]

If you lodge a new application, you may be granted a bridging visa which will remain in effect until you are notified of a decision on that application.

Any new application will be considered on its individual merits.

…

16    The balance of the second page through to the seventh page of the letter then set out under the same headings the same or similar information concerning each of the other visa applicants. Then, the seventh and eighth pages of the letter set out the following:

…

Lodging an application for merits review

Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT).

Online www.aat.gov.au/apply-online

Registries of the Administrative Appeals Tribunal

Alternatively, review application forms can be lodged by email to mrdivision@aat.gov.au or by fax to 02 9276 5599 or 03 9454 6999 or 07 3052 3069. Make sure to include a copy of this letter and the attached decision record when lodging any application for review.

Further information about the merits review process is available from the AAT on the Tribunal website www.aat.gov.au, or by telephoning 1800 228 333.

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.

17    On 2 April 2019, within 21 days after 19 March 2019, the visa applicants applied to the Tribunal for review of the decision to refuse the grant of the visas. The application for review was accompanied by a request for a reduction in the prescribed application fee. Part of the full application fee was paid. After correspondence from an officer of the Tribunal went unanswered, an officer of the Tribunal notified the visa applicants that their request for a fee reduction had been refused and that they were required to pay the balance of the full application fee by 2 May 2019.

18    On 6 January 2020 an officer of the Tribunal wrote to the visa applicants indicating that the remainder of the full fee had not been paid within a reasonable time and invited them to comment on the validity of their applications by 20 January 2020. The visa applicants’ representative responded on the same day.

19    On 27 March 2020 the Tribunal decided that it did not have jurisdiction to review the application. The Tribunal said that it was a requirement that the prescribed fee be paid within the prescribed period set out in reg 4.10 or within a reasonable period after the determination that the fee should not be reduced. The Tribunal found that the visa applicants had been given a reasonable time to pay the outstanding portion of the prescribed fee, but had failed to pay. The visa applicants’ notice of contention relates to this aspect of the Tribunal’s decision.

The primary judge’s decision

20    In Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 Markovic J allowed an appeal from a judgment of the Federal Circuit Court that dismissed an application for judicial review that raised materially the same issues as the application before the primary judge. Sandor concerned a letter asserted to be notification of a decision to refuse the grant of a visa that was in materially the same terms as the letter under consideration in this case.

21    In the proceedings before the primary judge, the Minister conceded, based on the reasoning of Markovic J in Sandor, that the primary judge was bound to allow the application. The primary judge accepted that concession, allowed the application and made the orders from which the Minister now appeals. The grounds of appeal assert, in effect, that although the primary judge was correct to find that he was bound by Sandor, he erred in finding that the notification of the decision failed to comply with the requirement in s 66(2)(d), or alternatively, to the extent it did not comply, that non-compliance was not sufficient to render the notification invalid, because Sandor was wrongly decided and should not be followed.

Applicable legal principles

22    It is common ground that, on the proper construction of s 66(2)(d), the word ‘state’ means that the notification of the decision must set out the information in each of the subsections in a manner that is complete and clear: DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492 at [58] (Perram J, Rares and Farrell JJ agreeing); BMY18 v Minister for Home Affairs and Anor [2019] FCAFC 189; 271 FCR 517 at [30]-[37] (Reeves, Perram and Charlesworth JJ). Nonetheless, the relevant question remains whether notification of the decision meets the requirements of s 66(2)(d) to ‘state’ the matters referred to in that subsection. Therefore, 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 has been met, but should not be allowed to replace the statutory text’: Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] (Thawley J). The explanation of the meaning of the word ‘state’ in DFQ17 does not, of course, replace or supplant the statutory text. However, as the parties here evidently accept, it declares the meaning of the text of the provision, on its proper construction, as a matter of law and statutory interpretation.

23    Relying on the reasoning of the High Court in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 at [38]-[42], the Minister submits that the notification of the decision meets the statutory requirements of s 66(2)(d)(ii) if there is sufficient information on the face of the notification to permit the visa applicant to determine the time within which the application for review may be made correctly. The notification must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the notification.

24    The Minister’s submission has a tendency to do precisely that which the Minister submits was the error Markovic J made in Sandor; namely, to supplant the statutory text with judicial pronouncements of its meaning. The question for consideration in EFX17 was whether an invitation made under s 501CA(3) of the Act invited the former visa holder to make representations about revocation to the Minister ‘within the period and in the manner ascertained in accordance with the regulations’. The invitation was in a letter that said that EFX17 could make representations ‘within 28 days after [he was] taken to have received this notice’ and also said: ‘As this notice was transmitted to [him] by email, [he was] taken to have received it at the end of the day it was transmitted.’ The notice was not transmitted by email to EFX17 but to the correctional centre at which he was held and it was handed to him the following day. The letter failed to invite EFX17 to make representations ‘within the period … ascertained in accordance with the regulations’ because it was handed to him and not transmitted by email and, therefore, the relevant date could not be ascertained on the face of the letter by reference to correct objective facts. The High Court was not addressing the question of whether by reference to correct objective facts, notwithstanding that all the information could be pieced together to ascertain the date on the face of the letter, due to a lack of clarity in the text of the invitation it nonetheless failed to convey the information sufficiently clearly to meet the requirements in s 501CA(3).

25    In DFQ17 the notification ‘[c]arefully read by a person skilled in reading the Commonwealth regulations’ disclosed the information that the review application had to be made by a particular date. However, the notification nonetheless lacked sufficient clarity for that information to meet the requirement in s 66(2)(d)(ii) to ‘state’ the ‘time in which the application for review may be made’. In DFQ17 the objective facts included that the notification was given to the visa applicant by post: DFQ17 at [19], [52], [60], [62].

26    In BMY18 the notification was given by email and, again, on a careful reading of the notification it disclosed the information from which the time in which the application for review had to be made could be ascertained. But, the Full Court considered that the information was not sufficiently clear for the notification to meet the requirement in s 66(2)(d)(ii) because the statement as to when the notification was taken to have been received was located under the heading ‘Financial or care work assistance’ and therefore ‘confusing and misleading’: BMY18 at [35], [43]. The decision in Sandor is to similar effect: Sandor at [51]-[52].

27    In Singh, again, the time within which the application for review could be made could be ascertained through information disclosed in the notification by reading different parts of the notice. However, because of the way the information was presented in that case, the Full Court considered that the requirement in s 66(2)(d)(ii) was met: Singh at [11] – [22]. Similarly, in Ali v Minister for Home Affairs [2019] FCA 1102 Nicholas J came to the view that the notification before him met the requirement in s 66(2)(d): Ali at [27]-[31].

28    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 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.

29    Despite some initial equivocation on the part of the Minister, it was also eventually common ground that whether the notification of the decision meets the requirements of s 66(2)(d) is a question of fact. That was the approach of the Full Court in Singh (at [10], [23]). Here, the Minister accepted that ‘[w]ithin the bounds of reasonableness, the application or non-application of the common understanding of an expression used in a statute to facts that have been found is itself a question of fact’: Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 at [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ), citing Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 7-8; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395; Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24]-[25].

30    As the authorities to which the High Court made reference reveal, whether facts as found answer a statutory description or satisfy a statutory criteria will very frequently be exclusively a question of law and will only be a question of fact if on examination it is found that the statute uses the words according to their common understanding and the question is whether the facts as found fall within these words. However, as no party in the appeal contended to the contrary, the extent to which s 66(2)(d) uses the word ‘state’ other than according to its common understanding need not be explored. Therefore, the original premise of the Minister’s appeal that Sandor was wrongly decided as a question of law and should be ‘overturned’ is founded on a misconception that the application of the facts in Sandor involved a question of law.

31    Justice Markovic in Sandor correctly identified and applied the meaning of ‘state’ as expressed in DFQ17 and BMY18. Her Honour applied the correct construction of s 66(2)(d)(ii) to the facts before her and concluded that the letter had not met the statutory requirements: Sandor at [51]-[52]. There was no legal error in her Honour’s reasoning that requires correction in this appeal.

32    It follows that the matters raised in this appeal boil down to a simple question of fact; namely, whether the notification of the decision, in the context of the objective facts, states the time in which the application for review may be made within the meaning of s 66(2)(d)(ii). In an appeal such as this, this Court is in as good a position as the primary judge to determine that question from the facts found or undisputed. Thus, while due respect and weight must be given to the conclusion of the primary judge, if this Court reaches a different conclusion to the primary judge on those facts, it has a duty to correct that error: e.g., Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 (Gibbs ACJ, Jacobs and Murphy JJ).

Was the information required in section 66(2)(d)(ii) clear?

33    Turning then, to the facts before this Court, the Minister contends that the letter of notification of the decision in the context of the objective facts conveyed sufficient information on the face of the letter to inform the visa applicants of the time in which the application for review had to be made. The Minister relies on the following matters:

(1)    The letter was addressed to the first respondent and primary visa applicant.

(2)    The letter is dated 19 March 2019.

(3)    The letter indicates the transmission method was by email to the email address of the visa applicants’ nominated authorised representative and to the email address nominated as the visa applicants’ email address in the visa application form.

(4)    The letter commences with a heading ‘Refused Applicant’. It states: ‘I wish to advise you that the application for this visa has been refused on 19 March 2019 for the following applicant.’ A table then identifies the visa applicant as the first respondent. Then, under the heading ‘Review rights’ on the first page of the notification states that the decision can be reviewed and that: ‘An application for merits review must be given to the AAT within 21 calendar days after the day you are taken to have received this letter.’ It also states: ‘This review period is prescribed in law and an application for merits review may not be accepted after that date.’ The Minister submits each of those statements is an accurate statement of the legal position of the visa applicants under the legislative provisions described earlier in these reasons.

(5)    The same information is repeated for each of the second to sixth respondents, the other visa applicants. That information is contained on pages 2 to 7 of the letter.

(6)    On page 8 of the letter under the heading ‘Registries of the Administrative Appeals Tribunal’ it sets out in a table the locations of each of the registries in each State and the Australian Capital Territory. Then, in the last sentence under that heading it states: ‘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.’ Again, the Minister submits that that is an accurate statement of the legal position of the visa applicants under the legislative provisions described earlier in these reasons.

(7)    As a matter of objective fact, the letter was transmitted by email to the visa applicants’ authorised representative via the representative’s nominated email address info@kyuandyounglawyers.com.au on 19 March 2019. The Minister submits the visa applicants can be taken to have known that fact because an authorised representative was nominated and the letter records that the transmission method was by email to the email address of the authorised representative recorded in the visa application.

34    The Minister contends that these matters were conveyed to the visa applicants: that the notification was transmitted by email; the visa applicant was taken to have received the notification at the end of the day it was so transmitted; the visa applicant had 21 calendar days after that day to apply for merits review of the decision to refuse the visa; and, as an objective fact, it was transmitted to the visa applicant (through the authorised representative) on 19 March 2019. That is, the time in which the visa applicant had to make an application for review was ascertainable on the face of the notification taken with the objective fact of the transmission of the email with the notification to the authorised representative on 19 March 2019.

35    The visa applicants contend that, while all the information was contained in the letter, the time in which the visa applicants had to apply for review was not conveyed clearly and, as such, the letter failed to state that information as required by s 66(2)(d)(ii).

36    The visa applicants submit that, because the letter was transmitted by email to the authorised representative and the letter is addressed to the first respondent, the reference to ‘you’ in the sentence dealing with when the visa applicants are taken to have received the letter is incorrect or, at least, unclear and confusing. Further, because the letter deals with all the visa applicants and refers to ‘you’ with respect to each of them, that creates additional uncertainty regarding the person(s) to whom ‘you’ refers in that sentence. Additionally, ‘transmitted’ in that sentence is unclear and confusing in that it does not state to whom the letter was transmitted. Again, reading ‘you’ as the addressee of the letter, it was not addressed to the first respondent. Put another way, the letter does not state: ‘As this letter was sent to [your authorised representative] by email, you are taken to have received it at the end of the day it was transmitted [to your authorised representative].’ A description of the applicable deeming provisions of the Act and Regulations in those terms would be an unambiguously accurate and clear statement of the effect of the applicable provisions on the addressee of the letter in her particular circumstances.

37    The visa applicants submit that the letter is nine pages in length and addresses the position of six different visa applicants. The reference to the 21-day period is contained under the heading ‘Review rights’ in six places in relation to each applicant. In each instance the letter refers to ‘you’ and it is not clear if that refers to the addressee of the letter or each other visa applicant. The reference to when the letter is taken to have been received is then contained only once on page 8 under the heading ‘Registries of the Administrative Appeals Tribunal’ which is misleading. The visa applicants contend that Markovic J was correct to conclude that the letter her Honour considered in Sandor, which contained the same references to the 21-day period and when the letter was taken to have been received under the same headings, was not clear. The letter in this case is yet less clear because it deals with multiple visa applicants and the reference to the time when the letter was taken to have been received is even more remote and less obviously linked to the topic of ‘Review rights’ than the letter Markovic J considered in Sandor.

38    These observations about the structure and contents of the letter before Markovic J in Sandor and this Court may be contrasted with the letter under consideration in Singh where the reference to the time at which the applicant was taken to have received the notification was stated under the heading ‘Receiving this Letter’. In Singh there were also two time periods to which the time at which the applicant was taken to have received the notification were relevant. In those circumstances, dealing with the time of receipt separately and under a distinct heading had good reason and, the notification letter under consideration in that case, was found to state the time in which the application for review may be made with sufficient clarity to meet the requirement in s 66(2)(d)(ii): Singh at [11] – [23].

39    In this case, although the notification conveyed the information necessary to convey to a careful reader with knowledge of the date the email was transmitted to the authorised representative the time in which an application for review had to be made, the information was not conveyed in a sufficiently clear manner to ‘state … the time in which the application for review may be made’ for the purposes of s 66(2)(d)(ii) of the Act. Leaving to one side the question of whether the references to ‘you’ in the letter created confusion in circumstances where the letter was sent to the authorised representative and dealt with multiple visa applicants, 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. While it might be thought that there was good reason for a single reference to the day on which the letter was taken to have been received for the commencement of the 21-day period for all visa applicants, unlike the letter in Singh, the purpose of that reference to the day on which the letter was taken to have been received was not expressed under a separate heading that made it obvious that the reference to the time of receipt of the letter was linked to earlier references in the letter to the 21-day periods.

Was non-compliance with the requirement in section 66(2)(d)(ii) trivial?

40    The Minister submits that if there was non-compliance with the requirement in s 66(2)(d)(ii), such non-compliance is trivial and does not render the letter invalid as a notification of the decision to refuse the grant of the visas for the purposes of s 66 of the Act. Relying on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91], the Minister submits that the question of whether non-compliance renders the letter invalid is a matter of statutory interpretation having regard to the degree and significance of non-compliance. Further, in the joint reasons of Charlesworth and Jackson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62 (at [92]) their Honours observed that their reasoning on the validity of the notification under consideration in that case should not be taken as a statement that ‘on a proper construction of the statute applied to the objective facts at the time of the purported notification, any degree of non-compliance will invalidate the notification, no matter how trivial.’

41    We are prepared to assume, without deciding, that there could be trivial ways in which a notification may not strictly comply with the requirements of s 66(2)(d) that would not deprive the notification of legal effect as ‘notification of the decision’ for the purposes of s 347(1)(b) of the Act and reg 4.10 of the Regulations. But, it is difficult to see how a notification that is incomplete or unclear and, as a consequence, does not ‘state’ the information required in s 66(2)(d)(ii) could be described as trivial non-compliance or, otherwise, that the legislature intended that such notification, notwithstanding non-compliance, would be legally effective for the purposes of notifying the visa applicants of when the period in which review of the decision may be made commences.

42    The Minister’s submissions, with respect, do not grapple with the manner in which it could be said that the letter in this case, although containing information from which the period can be determined but not in a form that is clear, nonetheless fulfils two basic functions of the notification which are to inform the unsuccessful visa applicants that: (1) the decision can be reviewed; and (2) the time in which the application for review may be made. In substance, the Minister’s submission regarding triviality is no more than another way of contending that the time in which the application for review may be made can be ascertained on the face of the letter taken with the objective facts. Therefore, the triviality ground fails for the same reasons that the compliance ground fails.

Disposition

43    The appeal should be dismissed with costs.

Associate:

Dated:    25 October 2024

SCHEDULE OF PARTIES