FEDERAL COURT OF AUSTRALIA

Chiu v Minister for Home Affairs [2018] FCA 1774

Appeal from:

Sheung v Minister for Immigration [2018] FCCA 750

File number:

NSD 605 of 2018

Judge:

COLLIER J

Date of judgment:

16 November 2018

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court – where Tribunal held that it had no jurisdiction to hear the appellant’s application from the Minister’s delegate’s decision because the application was made out of time – where the appellant argued that he had not been given notice of the delegate’s decision in accordance with s 66 of the Migration Act 1958 (Cth) – where the appellant’s application was combined with his mother’s application – where a letter giving notice of the refusal of the visa application was addressed to the appellant’s mother – whether the appellant was sufficiently notified of the Minister’s decision

Legislation:

Federal Court of Australia Act 1967 (Cth), s 43

Migration Act 1958 (Cth), s 52(3C), 66, 347, 494B, 494C

Migration Regulations 1994 (Cth), regs 1.15A, 2.08A, 2.15, 4.10

Cases cited:

SZUAH v Minister for Immigration and Border Protection [2016] FCA 66

SZVHE v Minister for Immigration and Border Protection [2017] FCA 154

Date of hearing:

9 August 2018

Date of last submissions:

5 September 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

46

Counsel for the Appellant:

Mr L Karp

Solicitor for the Appellant:

Proactive Legal

Counsel for the First Respondent:

Mr H Bevan

Solicitor for the First Respondent:

MinterEllison

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 605 of 2018

BETWEEN:

YAT FU CHIU

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

16 NOVEMBER 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Each party bear their own costs in the appeal.

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

REASONS FOR JUDGMENT

COLLIER J:

Introduction

1    This is an appeal against a decision of the Federal Circuit Court in Sheung v Minister for Immigration [2018] FCCA 750, in which the primary Judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal determined that it did not have jurisdiction to hear the appellants application for review of a decision of a delegate of the Minister for Home Affairs (the Minister) not to grant the appellant a visa, where the appellant was an additional applicant to his mothers application for a Permanent Partner visa. The basis of the determination was that the appellant had failed to apply for review by the Tribunal within the relevant prescribed time period after receiving notification of the delegates decision to refuse the appellants visa application. The appellant essentially argues on appeal that the primary Judge erred in not finding that the appellant had never received notification, or had received inadequate notification, of the decision and his review rights, such that the relevant prescribed period had not expired when the appellant did apply for review by the Tribunal.

Background facts

2    The appellant was born on 4 August 1994 and is a citizen of China. On 29 October 2007, the appellants mother arrived in Australia and in 2010, the appellants mother married an Australian citizen and applied for both temporary and permanent partner visas on that basis. The appellants mother was granted a temporary partner visa on 23 February 2011.

3    At a later date when the appellants mother was in the process of being considered for a permanent partner visa, the appellant was joined to his mothers application. It is accepted that the appellant was added as a second applicant to his mothers application pursuant to reg 2.08A of the Migration Regulations 1994 (Cth) (the Regulations). Regulation 2.08A provided for the addition of visa applicants to an existing application:

2.08A Addition of certain applicants to certain applications for permanent visas

(1)    If:

(a)    a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1, including Schedule 1 as it applied in relation to a particular class of visa, permits combined applications; and

(b)    after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:

(i)    the spouse or de facto partner; or

(ii)    a dependent child;

of the original applicant (the additional applicant) added to the original application;…

then:

(e)    the additional applicant is taken to have applied for a visa of the same class; and

(f)    the application of the additional applicant:

(i)    is taken to have been made on the latter of:

(A)    the Minister receiving the request; and

(B)    the additional applicant charge (if any) being paid; and

(ii)    is taken to be combined with the application of the original applicant; and

(iii)    is taken to have been made at the same place as, and on the safe form as, the application of the original applicant.

4    On 3 December 2013, a delegate of the Minister refused the permanent visa application, in respect of both the appellant and his mother. A letter was addressed to the appellants mother.

5    On the first page of the letter was stated:

Dear MS SHEUNG

Notification of refusal of application for a Partner (Residence) (class BS) Partner (subclass 801) visa

I wish to advise you that the application for this visa has been refused for the following applicant

Client Name:     HEUNG CHING SHEUNG

Date of Birth:    16 August 1972

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

The attached Decision Record provides more detailed information about this decision as it applies to this applicant.

Review rights

The decision can be reviewed.

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Migration Review Tribunal (MRT) for merits review of this decision. An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter. Please note that you may only seek merits review of this decision with the MRT if you are physically present in Australia at the time this application for merits review is made.

6    The second page of the letter stated as follows:

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

Your immigration status

When your application for a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa was lodged, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for review of this refusal decision then that bridging visa will remain in effect during the review proceedings. Otherwise your bridging visa will cease 28 calendar days after this notice is taken to have been received. More information on bridging visas is at www.immi.gov.au/allfonns/pdf1/l 024i.pdf

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 departments offices. Details of our office locations and opening hours are available at www.immi.gov.au

Lodging another visa 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. Please refer to the enclosed Form 1026/ Limitations on Applications in Australia.

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.

I wish to advise you that the application for this visa has been refused for the following applicant

Client Name:    Yat Fu CHIU

Date of Birth:    04 August 1994

The applicant did not satisfy the provisions of the Migrations Regulations 1994 (the Regulations).

The attached Decision Record provides more detailed information about this decision as it applied to this applicant.

Review Rights

The decision can be reviewed.

7    The third page of the letter continued:

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Migration Review Tribunal (MRT) for merits review of this decision. An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter. Please note that you may only seek merits review of this decision with the MRT if you are physically present in Australia at the time this application for merits review is made.

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

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 departments offices.

Details of our office locations and opening hours are available at www.immi.gov.au

Lodging another visa 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. Please refer to the enclosed Form 1026i Limitations on Applications in Australia.

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.

Lodging an application for review

Applications for review can be lodged in person, faxed or posted to any registry of the Migration Review Tribunal (MRT). Certain registries of the Administrative Appeals Tribunal (AAT) also accept applications for review on behalf of the MRT.

Registries of the Migration Review Tribunal

Registries of the Administrative Appeals Tribunal

8    The fourth page of the letter continues:

Further information about merits review is also available from the MRT on the Tribunal website at www.mrt-rrt.gov .au and in the enclosed brochure M10 - Migration Review Tribunal.

Receiving this Letter

As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days from 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.

Questions about this decision

No further assessment of this visa application can be taken at this office.

Visa Application charge

The visa application charge which has already been paid is for the processing of the application and it must be paid regardless of the application outcome. There are only limited circumstances in which refunds can be given.

Client service information

We value your compliments, complaints and suggestions. Your compliments let us know where we are performing well and your complaints and suggestions help us improve the services we provide.

In Australia you can call the Global Feedback Unit on 133 177 between 8:30 am and 4:30 pm Monday to Friday. Further information on our Client Service Charter and how to make a compliment, complaint or suggestion is available at www.immi.gov.au/myvisa/feedback

9    Enclosed with the letter dated 3 December 2013 were three attachments, being:

    the decision record;

    Form 1026i Limits of Applications in Aus; and

    M10 Migration Review Tribunal brochure.

10    The appellants mother applied to the Tribunal for a review of that decision on 3 December 2013. That initial application for review did not include the appellant; however, the appellants mother filed an additional application for review on 6 January 2014 in which the appellant was named as a party to the review application.

11    On 22 August 2014, the Tribunal affirmed the decision of the Ministers delegate not to grant the appellants mother a permanent partner visa. The Tribunal further determined that it did not have jurisdiction to consider the application for review in respect of the appellant because his application had not been lodged within the prescribed time period.

applicable legislation

12    At the relevant time, the following legislative provisions were relevant to the Tribunals determination.

13    The appellants visa application was pursuant to regulation 2.08A of the Migration Regulations. This regulation provided as follows:

2.08A Addition of certain applicants to certain applications for permanent visas

(1)    If:

(a)    a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1, including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and

(b)    after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:

(i)    the spouse or de facto partner; or

(ii)    a dependent child;

of the original applicant (the additional applicant) added to the original applicants application; ...

...

then:

(e)    the additional applicant is taken to have applied for a visa of the same class; and

(f)    the application of the additional applicant:

(i)    is taken to have been made on the later of:

(A)    the Minister receiving the request; and

(B)    the additional applicant charge (if any) being paid; and

(ii)    is taken to be combined with the application of the original applicant; and

(iii)    is taken to have been made at the same place as, and on the same form as, the application of the original applicant.

14    Section 52(3C) of the Migration Act 1958 (Cth) (the Migration Act) provided that where there are additional applicants to a visa application, there are certain consequences for communications with the Minister and notification to the applicants, being:

52 Communication with Minister

(3C)     If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.

15    Pursuant to s 66 of the Migration Act, the Minister is required to notify an applicant of the decision to grant or refuse a visa in a prescribed way:

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:

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

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

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

(d)     if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:

(i)     that the decision can be reviewed; and

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

(iii)     who can apply for the review; and

(iv)     where the application for review can be made; and

(e)     in the case of a fast track reviewable decision--state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f)     in the case of a fast track decision that is not a fast track reviewable decision--state that the decision is not subject to review under Part 5, 7 or 7AA.

(3)     This subsection applies to an application for a visa if:

(a)     the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b)     this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

(4)      Failure to give notification of a decision does not affect the validity of the decision.

(5)     This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

16    For present purposes, reg 2.16(3) provided that the Minister was to notify the applicants by one of the methods in s 494B of the Migration Act, and s 494C established when a person is taken to have received notification.

17    In relation to the time in which an applicant was able to apply for review by the Tribunal following receipt of notification of the decision, s 347 of the Migration Act materially provided:

347 Application for review by Migration Review Tribunal

(1)    An application for review of an MRT-reviewable decision must:

a.    be made in the approved form; and

b.    be given to the Tribunal within the prescribed period, being a period ending not later than:

i.    if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; … 

(5)    Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to difference classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place.

18    Relevantly in accordance with s 347(5) of the Migration Act, reg 4.10(1)(b) of the Regulations provided as follows:

4.10 Time for lodgement of applications with Tribunal (Act, s 347)

(1)    For paragraph 347(1)(b) of the Act, the period in which an application review on an MRT-reviewable decision must be given to the Tribunal:

a.    if the MRT-reviewable decision is mentioned in subsection 338(2) of (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;..

19    The Tribunal found, accordingly, that the appellant had been notified of the refusal to grant the permanent partner visa on the same date as his mother, being 3 December 2013. The appellants application to the Tribunal for review, lodged on 6 January 2014, was outside the prescribed period of 21 days.

Federal Circuit Court proceedings

20    The appellant and his mother both applied for judicial review of the Tribunals decision in the Federal Circuit Court. In that proceeding the appellants mother was named as the first applicant and the appellant was named as the second applicant.

21    In respect of the appellants mother, the Minister conceded in the Federal Circuit Court that there was jurisdictional error on the part of the Tribunal, as the Tribunal had failed to consider evidence in the form of a Psychological Assessment Report dated 25 January 2014, which detailed the emotional support provided by the appellants mother to her Australian husband when considering the degree of companionship and emotional support that the persons draw from each other pursuant to reg 1.15A(3)(d)(iii) of the Regulations. The application for review in respect of the appellants mother was remitted to the Tribunal for reconsideration according to law.

22    In respect of the appellant, the primary Judge dismissed the application for review. Before the Federal Circuit Court, the appellant materially argued that:

7.     The Tribunal erred in finding that it has no jurisdiction to the second applicants review application.

Particulars

(a)     The Tribunal erred in finding that the purported notification or refusal of the second applicants application for a partner visa was lawful notification to him.

(b)     The Tribunal should have found that lawful notification to the second applicant pursuant to s.66(1) of the Migration Act required that that notification be addressed to him individually, or alternatively to both he and the first applicant (given that they lived at the same address at the time of the purported notification.)

(c)     The purported notification did not inform the second applicant that he could apply for review at the Administrative appeals Tribunal.

23    His Honour observed:

20.    It may be accepted, as the applicants submitted, that the second applicant had been included in the first applicants visa application pursuant to reg.2.08A, which was quoted earlier.

21.    The issue is whether time to lodge a review of the delegates decision concerning the second applicant ever commenced to run and so whether the Tribunal erred in concluding that time had already run out when review of the decision concerning the second applicant was sought of the Tribunal. The second applicant contended that time had not commenced to run because he had never been advised of the outcome of his visa application in a manner sanctioned by the Act.

24    The primary Judge found that the Tribunal was correct in finding that the appellant had applied for review outside of the prescribed time period after notification of the decision to refuse the visa and dismissed the appellants ground of review for the following reasons:

    In relation to grounds (a) and (b): s 52(3C) of the Migration Act covered the appellants situation, such that the Minister was not required to send a separate, individualised notification to the appellant, or to address the notification to the appellants mother to the appellant also. At [25] his Honour concluded that s 66(1) is concerned with the practical steps required to effect notification of the outcome of a visa application whereas s 52(3C) is concerned to deem a certain consequence when only one of a couple or a group of applicants who applied together is notified, pursuant to the procedure to be followed under s.66(1), of the outcome of the application.

    In relation to ground (c): the letter notifying the appellant and his mother of the decision to refuse the grant of the visa satisfied the requirements of the Migration Act. It was not ambiguous and the use of the word you in the letter was capable of referring to both visa applicants. The letter was set out such that the appellant was advised of his review rights. His Honour said:

28.    The letter was not ambiguous. It was in three sections. The first dealt with the first applicants application and, relevantly, advised review rights in that connection. The second dealt with the second applicants application and, relevantly, advised review rights in that connection. The third dealt with consequential matters, starting with where a review application might be lodged. A reading of the letter from start to finish makes it perfectly clear that the second applicant had personal and individual appeal rights. Read in context, the relevant use of the word you was not ambiguous and did not fail to advise the second applicant of his review rights.

Appeal to this court

25    The appellant seeks to appeal against the decision of the Federal Circuit Court in respect of him on the following grounds:

1.    The Court below erred in finding that the purported notification to the appellant of the rejection of his visa application, addressed to his mother (who was the primary applicant for the partner visa sought by both) and sent by prepaid post on 3 December met the requirements of s 66(1) of the Migration Act.

Particulars

(a)    Error in finding that s 52(3C) of the Migration Act had the effect of deeming that a notification addressed and sent by post to the appellants mother was notification to the applicant.

(b)    Error in finding that the purported notification under s 66(1) informed the appellant, rather than his mother that she could seek review of the appellants application for a partner visa.

2.    The Court should have found:

(a)    That s 52(3C) of the Migration Act was not relevant in the circumstances of the appellants case.

(b)    That a valid notification of the refusal of the appellants application for a partner visa pursuant to s 66(1) of the Migration Act would have required, in his circumstances, a letter addressed to him individually, or alternatively addressed to both he and his mother.

(c)    That the purported notification of the refusal of the appellants application for a partner visa did not comply with s 66(1) of the Migration Act because it stated that the appellants mother could apply for review of that refusal.

(d)    There was no lawful notification of the refusal of his application for a partner visa, and so the application to the second respondent for review of that decision, on 6 January 2014 was valid and the second respondent erred in finding that it did not have jurisdiction to conduct the review.

submissions of the parties

The appellants submissions

26    The appellant contends that the Minister did not comply with s 66 of the Migration Act in giving notification of the decision to the appellant. He submitted that his application was combined with his mothers application, but that the appellants application was nonetheless a separate application in respect of which s 66 of the Migration Act operated. He therefore contends that s 66 of the Act required that he be given notification individually, or that, at the very least, the letter notifying of the refusal of the visa be addressed to him as well as his mother.

27    The appellant submitted that s 52(3C) does not apply to notification of visa grants or refusals because it appears in Subdivision AB of Div 3 of Part 2 of the Migration Act, which is headed Code of procedure in dealing fairly, efficiently and quickly with visa applications. The appellant therefore submits that there is no provision in the Migration Act which deems that notification to the appellants mother of the refusal was taken also to be notification to the appellant.

The Ministers submissions

28    The Minister submitted that the primary Judge was correct to conclude that the Tribunal did not have jurisdiction to review the appellants application. In summary, the Minister submitted:

    The requirements for notification under s 66 of the Migration Act, reg 2.16(3) of the Migration Regulations 1994 (Cth), and s 494B(4) of the Migration Act were satisfied.

    The letter sent on 3 December 2013 clearly dealt with both the appellant and the appellants mother. The letter included separate statements as to each of their review rights and enclosed a copy of the delegates decision record that dealt first with the positon of the appellant.

    The appellant was a visa applicant only because of his inclusion as part of his mothers application so, in that sense, his status as a visa applicant was dependent.

    Section 494C(7) of the Migration Act provides that if the Minister purports to give notification under s 494B of the Migration Act but makes an error in doing so, the person is nonetheless taken to have received the document at the time mentioned in s 494C, unless the person can show that it was received at a later time.

    The appellants argument that s 52(3C) of the Migration Act has no work to do in this situation is inconsistent with the authority of SZVHE v Minister for Immigration and Border Protection [2017] FCA 154 (SZVHE), which the Minister submits is not plainly wrong and should be followed by this Court.

    The appellants reliance on the fact that s 52(3C) is located in a different sub-part than s 66(1) is inapt because of the interaction of the following provisions. Section 52(3C) provides that, in the case of combined applications, notifications given to any of the applicants are taken to be given to each of them. The note to s 52(3C) refers to s 494B, and s 494(1B) of the Act expressly refers to s 52(3C) of the Migration Act. Further, reg 2.16(3) provides that notification under s 66 of the Act must be given by one of the methods provided under s 494B.

    The letter is not ambiguous as to the appellants right of review – rather, there is a section dealing specifically with the appellant which is followed by a paragraph setting out his review rights.

Supplementary Submissions

29    At the hearing, I made orders for the filing of supplementary submissions by the parties in relation to the operation of s 494C(7) of the Migration Act.

30    Section 494C deals generally with the time at which a person is taken to have received a document from the Minister. Section 494C(7) provides:

If:

(a)    the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error doing so; and

(b)    the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it as a later time.

31    The Minister sought to rely on this provision in response to submissions by the appellant that it could not be assumed that the appellant had the same address for service as his mother and that there was no evidence about when the appellant actually received the notification, such that deemed receipt would not apply.

32    The appellant submits that s 494C(7) is of no assistance in the circumstances of the present appeal because it is a precondition to the operation of s 494C(7) that the Minister has purported to give the notification to the appellant, which the Minister did not do (as outlined above).

Consideration

33    The key issues in this case concern the application of sections 52(3C) and 66 of the Act. Section 66 (1) requires the Minister to notify an applicant of a decision in the prescribed way when the Minister grants or refuses to grant a visa. Section 52(3C) provides that if, in accordance with the regulations, two or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.

34    The importance of proper notification by the Minister to visa applicants of the success or failure of their visa applications explained by Gray J in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292. After examining s 66 of the Migration Act, his Honour at [45] observed:

The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. A bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined.

35    In this case only one letter of notification was despatched by the Minister, and that was on 3 December 2013, to the appellants mother.

36    Were the applications of the appellant and his mother made together within the meaning of s 52(3C) of the Migration Act? The appellant submits that they were not, because his application was made pursuant to reg 2.08A of the Regulations and his mothers application was for a Partner (Temporary) (class UK) (subclass 820)/Partner (Residence) (class BS) (subclass 801) visa. The appellants mother applied for her Partner (Residence) (class BS) (subclass 801) visa on 31 March 2010 (and was granted a Subclass 820 provisional partner visa on 23 February 2011; the appellant applied for a subclass 445 visa on 15 November 2011 (and was granted this visa on 17 September 2013). However, the effect of reg 2.08A is that the appellant – who was a dependent child at the time of the application – was taken to be a secondary applicant in his mothers visa application. The success, or failure, of his visa application was clearly dependent on her application. Notwithstanding the temporal difference in their applications, the dependency of the appellants visa application on his mothers must mean that they had applied for their visas together, particularly in light of the terms of reg 2.08A (1)(f)(ii) which treats the addition of the additional applicant as being combined with the application of the original applicant, and taken to have been made at the same place as, and on the same form as, the application of the original applicant.

37    In such circumstances the legislative scheme contemplates notification to the primary visa applicant, namely the appellants mother in this case, being notification to the appellant as the secondary visa applicant. In forming this view I respectfully adopt the approach of Robertson J in SZUAH v Minister for Immigration and Border Protection [2016] FCA 66 at [24].

38    The next question however was whether it could be said that the notification in this case was effective. The notification was poorly expressed, and was ambiguous, in that:

    It was addressed only to the appellants mother.

    The client name and details on the first page referred only to the appellants mother.

    The salutation referred only to the appellants mother.

    The opening sentence referred to the advice to you that the application for the visa. had been refused for the appellants mother.

    Throughout the letter the writer refers to you, which must be the appellants mother.

    At the bottom of page 2 of the letter is an advice to the appellants mother that the visa has been refused for her son. At the top of page 3 of the letter is a statement that you are entitled to apply to the Tribunal for merits review of this decision.

    The letter then returns to general statements about – presumably – the appellants mother, in that you must depart Australia by the date your bridging visa ceases.

39    The effect of that letter was that:

    the appellants mother was notified of the adverse decision concerning the appellants visa application; and

    the appellants mother was entitled to apply to the Tribunal for merits review of that decision.

40    The letter could properly have been addressed to both the appellant and his mother such as to put the appellant, an adult by this point in time, on notice of the Ministers decision. The letter could properly have, in its introductory passages, have identified the visa applications of both the appellants mother and the appellant as having been refused, such that the appellants mother would have realised that the letter related to both visa applications. It was, in my view, unclear, and particularly so considering that it was intended to be read – and possibly acted on – by visa applicants whose first language was not English.

41    However, the legislation is clear. The poor quality and ambiguity of the letter of 3 December 2013 did not equate to an ineffective communication of the decisions of the Minister in respect of both visa applications. The letter set out the decisions of the Minister in respect of the visa application of the appellants mother and the appellant; and by operation of s 52(3C) of the Act the notification of those decisions to the appellants mother meant that the appellant was deemed to receive the notification insofar as it affected him.

42    Finally, it is not in dispute that the appellant was out of time in seeking review of the Ministers decision. Section 494B of the Migration Act contemplates despatch of documents from the Minister to a person by (inter alia) prepaid post, and s 494C of the Migration Act provides that a person who is sent a document by (inter alia) prepaid post is deemed to receive the document 7 working days after the date of the document.

43    In SZVHE v Minister for Immigration and Border Protection [2017] FCA 154 Jessup J noted the prospect of a disconnect between the terms of s 494C(4) and reg 4.31(2) of the Migration Regulations in respect of relevant time lines for receipt of notification by the Minister of a refusal of a visa and the filing of a review application. His Honour found that the provisions could be reconciled, observing:

7.    The position is, however, that whether or not s 494C(4) was properly used to calculate the time within which the appellants were required to make their applications for review, they were out of time by a number of weeks at least, and, as the primary Judge noted, the Tribunal had no capacity to extend time.

9.    In the present case, the decision of the delegate was dispatched within three working days of the date which it bore by prepaid post to the last residential address provided to the Minister by the first appellant. That was therefore a proper notification under the Act. If it be the fact that s 494C(4) had no application in the circumstance of the case, the result would be, in my view, that notification took place at the point of dispatch of the letter, that is to say on 9 May 2014. That would have produced a cut-off date by which an application for review was required to have been made some time before the date which is yielded by the application of s 494C(4), namely 16 June 2014.

44    In this case there was no dispute that the appellant resided with his mother to whom the Ministers notification was addressed. As Counsel for the Minister correctly submitted, no evidence was led by the appellant in the primary proceedings to the effect that the notification was not received, or received at a later date such that the proviso in s 494C(7) applied.

Conclusion

45    There is no appellable error in the decision of the learned primary Judge. It follows that the appropriate order is to dismiss the appeal.

46    The litigation before me has arisen, largely, from the poor quality of the Ministers communication to the appellant and his mother in this case. While the notification was effective, in circumstances where the letter was addressed only to the appellants mother, the first reference to the appellant was both inconspicuous and at the bottom of the second page of the letter, and information concerning the appellant was sandwiched between information apparently relevant only to the appellants mother, it cannot be said that the letter clearly notified either the appellant or the appellants mother that it related to the rights of the appellant as well as his mother. This is particularly so in circumstances where English was not the first language of either the appellant or his mother. In that light, and notwithstanding that the appellant has been unsuccessful such that costs would ordinarily be awarded against him, I consider it an appropriate exercise of my discretion pursuant to s 43(1) of the Federal Court of Australia Act 1976 (Cth) to order that each party bear its own costs in this appeal.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:    16 November 2018