Federal Court of Australia

ALN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1592

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Set aside orders 1 and 2 made by the Federal Circuit Court of Australia on 6 December 2019 and in their place order that:

(a)    The decision of the second respondent made on 10 January 2019 that it does not have jurisdiction in case number 1834244 be quashed;

(b)    The matter be remitted to the second respondent for determination of the appellant’s application for review dated 23 November 2018 according to law.

(c)    The first respondent pay the appellant’s costs in the Federal Circuit Court of Australia.

3.    The first respondent pay the appellant’s cost of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (FCCA), dismissing his amended application for judicial review of a decision of the Administrative Appeals Tribunal: ALN19 v Minister for Home Affairs [2019] FCCA 3726.

2    The Tribunal found that it did not have jurisdiction to hear and determine the appellant’s application for review of a decision of a delegate of the Minister for Homes Affairs, dated 7 November 2018, refusing to grant the appellant a protection visa, because the application had been lodged with the Tribunal after the time prescribed by reg 4.31(1) of the Migration Regulations 1994 (Cth).

3    The amended notice of appeal contains a single ground of appeal, that the FCCA judge erred in failing to find that the notification to the appellant of the 7 November 2018 decision did not “state … the time in which an application for review may be made” as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth).

Background facts

4    The appellant, a male citizen of Malawi, arrived in Australia on an Orphan Relative (Class AH) (Subclass 117) visa on 16 May 2004. That visa was cancelled by the Minister on character grounds under s 501 of the Act on 21 August 2017. The appellant sought revocation of the cancellation decision, which revocation was refused by a delegate of the Minister. The delegate’s decision was affirmed by the Tribunal on 31 July 2018.

5    In October 2018 the appellant lodged an application for a protection visa. The appellant’s claims for protection are summarised in the FCCA judgment at [6].

6    On 7 November 2018, the appellant was in immigration detention. The appellant was given the notification that is the subject of the appeal that day by hand. The terms of the notification are set out below in full, with identifying details removed:

7 November 2018

...

Transmission Method         By hand

...

Notification of refusal of application for a Protection (subclass 866) visa

This letter refers to your application for a Protection (subclass 866) visa, which was lodged at Sydney City Office on 03 October 2018.

Decision on Protection (subclass 866) visa

I wish to advise you that the application for a Protection (subclass 866) visa has been refused for the following applicant(s):

…

After careful consideration of all the information available to me, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

This application was refused because you did not satisfy subsection 36(2) of the Migration Act 1958. That provision requires you to be a non–citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.

The attached decision record provides more detailed information about this decision and the applicant(s) it applies to.

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 decision must be given to the AAT within the prescribed timeframe. As you are in immigration detention, the prescribed timeframe commences on the [end of page 1] day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day).

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

Lodging an application for merits review

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

Your application can be lodged by you or someone else on your behalf. The person who lodges the application must provide written notification to a detention review officer of the Department on the day that the application is lodged. The notification must provide details of the application, including details of your agent if applicable.

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.

If you apply for a merits review of the decision to the AAT and the Tribunal determines that you are not a person to whom Australia has protection obligations, a post–decision fee will be payable. If this fee is not paid, it may affect any future visa application made by you or members of your family.

[end of page 2]

As this letter was given to you by hand, you are taken to have received it when it was handed to you.

Your Immigration status

You are currently an unlawful non-citizen in Australia. You must contact the Compliance Section of your nearest departmental office by calling 13 18 81 to discuss your immigration status.

Being unlawful has serious consequences including possible detention and removal from Australia.

Leaving Australia

You do not have a valid visa to remain in Australia. If you are not granted another visa and you are not eligible to apply for, or do not make a valid application for merits review of this decision, then you must depart Australia as soon as possible. If there are reasons why you cannot depart Australia, you should contact the Department for advice and assistance as soon as possible.

Lodging another application

While you are in Australia, you can only lodge another application for a visa to allow you to remain in Australia in very limited circumstances. Refer to Form 1026i Limitations on Applications in Australia available at www.homeaffairs.gov. au/Forms/Documents/1026i.pdf

If you lodge a further valid 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.

Financial or case worker assistance

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.

Questions about this decision

We cannot consider your visa application any further.

Visa application charge

The visa application charge which has already been paid can only be refunded in limited circumstances, regardless of the application outcome.

A receipt for your payment is available through your ImmiAccount.

[end of page 3]

Border Watch - report something suspicious

If someone has given you incorrect information about applying for a protection visa or if someone has applied on your behalf without your knowledge, you can report this information through the Department’s website www.homeaffairs.gov.au/report

Yours sincerely

7    On 18 November 2018, the appellant lodged with the Tribunal an application for review of the decision to refuse his protection visa application.

8    By letter dated 20 December 2018, the Tribunal informed the appellant that his application appeared to have been made out of time, because the time for lodging it expired on 15 November 2018. The Tribunal sought submissions on whether a valid application had been made.

9    On 9 January 2019, the Tribunal found that it did not have jurisdiction to determine the appellant’s application.

10    The FCCA judge made the following findings that are not in dispute:

(1)    The appellant was notified of the delegate’s decision by the notification of refusal letter on 7 November 2018, which was a Wednesday and thus a “working day” as defined in s 5 of the Act, and the decision was delivered by hand as authorised by s 494B(2) and taken to have been received by the appellant on that date by force of s 494C(2).

(2)    Pursuant to reg 4.31 of the Regulations, as he was in immigration detention, the appellant had to give his application for merits review to the Tribunal within seven working days commencing on 7 November 2018, being by Thursday 15 November 2018.

Legal framework

11    Section 66 of the Act provides relevantly:

(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; …

DFQ17, BMY18 and Singh

12    The operation of s 66(2)(d) has been considered in three recent Full Court decisions: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492 (DFQ17), BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 (BMY18) and Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh).

13    In DFQ17, Perram J (Rares J at [1] and Farrell J at [67] agreeing) reasoned, at [52], that earlier first instance decisions established “that the context in which [the] word ‘state’ appears in s 66(2) suggests that it requires the provision of complete information so as to allow a fair, if strict, chance of engaging the review process”. At [57], his Honour reasoned that “[t]he regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear”. At [58] and [59], Perram J concluded:

[58] I conclude that when s 66(2) uses the word ‘state’ it means that the notification must 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) 128 FCR 469] holds) but clear as well. This required the letter of 3 February 2017 annexed below clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.

[59] Turning then to the letter of 3 February 2017, the question is whether it “states” the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated “the time in which the application for review may be made” necessarily devolves to an inquiry into whether that information was clearly conveyed.

14    Applying this interpretation of s 66(2), the Full Court concluded that the relevant letter did not “state” the time in which the application for review may be made. At [62], Perram J found that the letter “failed to convey the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible”.

15    In BMY18, a Full Court comprising Reeves, Perram and Charlesworth JJ followed DFQ17, stating at [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.

16    Their Honours continued at [30]:

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.

17    The Full Court found, at [35], that the relevant email did not “state clearly the matter required by s 66(2)(d)(ii)”.

18    At [36] and [37], their Honours recorded the following additional matters:

[36] … 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.

19    At [38], the Full Court then identified several FCCA decisions that it considered to have been incorrectly decided. At [39], the Full Court identified two other cases, being Singh Minister for Immigration and Border Protection [2019] FCCA 2106 and Singh v Minister for Home Affairs [2019] FCCA 2153 (Singh FCCA judgments), and expressed the opinion that these decisions were also not correctly decided because “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”.

20    At [41], their Honours reiterated the relevant principle as follows:

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.

21    In CAV18 v Minister for Home Affairs [2020] FCA 173 (CAV18), Foster J considered whether a single judge sitting in the Court’s appellant jurisdiction is bound to follow a Full Court decision with which the judge does not agree. His Honour did not decide the question but applied dicta of Black CJ and Allsop J (as his Honour then was) in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [43] that “[t]he conclusion that a Full Court decision should not be followed should be one left to another Full Court, even if the judge is exercising the appellate jurisdiction of the Court”; and of Lander J in SZNPT v Minister for Immigration and Citizenship [2009] FCA 1408 at [29] to the same effect. At [25], Foster J observed:

Litigants are entitled to expect, in the ordinary course, that decisions of the Full Court will be applied by single judges, even when sitting in the appellate jurisdiction of the Court.

22    Foster J went on to consider DFQ17, BMY18 and Ali v Minister for Home Affairs [2019] FCA 1102 (Ali), in which Nicholas J concluded at [24] that DFQ17 was distinguishable on the facts. At [25] of Ali, Nicholas J had noted that his Honour was bound by DFQ17 and that it was authority for the proposition that s 66(2)(d)(ii) requires that the relevant information be clearly conveyed. Nicholas J concluded that the relevant information was stated clearly in the letter that was the subject of the appeal before his Honour.

23    At [45] of CAV18, Foster J expressed the view that the decision in Ali “does not sit comfortably with the decisions in DFQ17 and BMY18” and that Nicholas J’s conclusion in Ali was correct. Foster J concluded this aspect of his Honour’s reasons as follows:

[46] Whilst I do not doubt that the notification letter required by the Act and the Regulations must state the information set forth in s 66(2)(d)(ii) in such manner as can be understood by a person reading the letter with appropriate care, with great respect to the Full Courts in DFQ17 and BMY18, I do not agree that the letters in question in those cases and the letter in question in the present case failed to state that information as required by s 66(2)(d)(ii). It is true that the letters were clumsily drafted and could have been expressed with greater clarity. However, in my view, that is not to the point. The question is whether or not the relevant information has been stated as required by s 66(2)(d)(ii). For the reasons which I have endeavoured to explain, I think that the information was so stated.

[47] However, as I have already accepted, notwithstanding my disagreement with the reasoning and the result in DFQ17 (on the point of interest here) and BMY18 in relation to the requirements of s 66(2)(d)(ii), I accept that I am not entitled to decline to follow those cases and therefore will do so in the present case. …

24    In Singh, a Full Court comprising Flick, Bromwich and Thawley JJ disagreed with the opinion that had been expressed in BMY18 at [39] about the Singh FCCA judgments. As to the question of statutory interpretation, Thawley J (Flick J at [1] and Bromwich J at [2] agreeing) stated at [10]:

It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to “state ... the time in which the application for review may be made”. Whether or not a notification meets this requirement is a question of fact. Examining whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text – see: Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469.

25    At [13], his Honour concluded:

Even if the word “state” in s 66(2)(d)(ii) is to be read as “state clearly” as this Court held in DFQ17 and BMY18, the standard of clarity was met in this case.

26    At [19], his Honour added:

The average recipient would read the whole of the letter and would know the letter contained information of importance. The real question, however, is what the statute required be done. It required that the notification “state ... the time in which the application may be made”. An inquiry into the possible characteristics of the average recipient has the potential of distracting attention away from the central inquiry of what the letter “stated”.

27    Finally, at [23], his Honour concluded:

It should be noted that cases concerning s 66(2)(d)(ii) hinge upon a simple factual inquiry into whether or not the notification letter states the time within which the application for review may be made. That question is to be resolved by examining the particular terms of the relevant notification letter in question.

28    The appellant submitted that there is a clear inconsistency in the approaches of the Full Courts in DFQ17 and BMY18 on the one hand, and Singh on the other hand. The former cases hold that the requirement to “state” information in s 66(2) requires the relevant notification to set out the information in a way that is both complete and clear. Singh (at [13]) doubts that “state” means “state clearly”, and reasons (at [10]) that an examination of a notification for clarity is a tool for determining whether the requisite information is, as a matter of fact, stated in the notification.

29    The Minister contended that there is no relevant inconsistency, because the factual context in Singh is entirely distinguishable from the facts under consideration in DFQ17 and BMY18. The Minister argued that a common factual element in DFQ17 and BMY18, but not Singh, is that a key part of the relevant information was placed under the heading “Financial or case worker assistance”. However, if there is a relevant inconsistency, the Court should refer the matter to a Full Court of five judges to resolve.

Conclusion

30    The Full Court in Singh doubted that the requirement to “state … the time in which the application for review may be made” includes a requirement to state that time clearly as held in DMQ17, followed in BMY18. According to the Full Court in Singh, the clarity of a communication is relevant to deciding the factual question whether a communication fulfils the requirement to “state” certain information. The Full Court in Singh also concluded that the standard of clarity was met on the facts of the case. Singh did not find that a notification that failed to state information clearly nevertheless complied with s 66(2). Accordingly, Singh is not clearly inconsistent with DMQ17 and BMY18, as the appellants suggest, and I do not consider it necessary to decide between inconsistent decisions which to follow: cf. Broome v Cassell & Co [1972] AC 1027 at 1107.

31    Adopting the approach identified by Foster J in CAV18, I consider that I should follow DMQ17 and BMY18. Accordingly, the issue on the appeal is whether the FCCA judge erred in concluding that the notification met the requirement in s 66(2)(d)(ii) where the relevant information was not stated, because it was not set out in a way which was both complete and clear.

Appellant’s submissions

32    The appellant made three broad arguments in support of his appeal.

First argument (grounds 1(a) and (b))

33    The appellant contended that the FCCA judge at [18] did not correctly identify the ratio decidendi of DFQ17 as applied by BMY18, in considering that the notification would comply with s 66(2)(d)(ii) of the Act unless it was “piecemeal, entirely obscure and essentially incomprehensible”. Further, the appellant contended that the FCCA judge misconstrued the notification in finding that:

(1)    “[t]he required information is not placed under an inapt or inappropriate subject heading, but rather states the relevant information under the meaningful, sensibly located and appropriate headings of ‘Review Rights’ and ‘Lodging an application for merits review’” (at [18]);

(2)    the information “is appropriately set out in a unified and coherent manner” (at [19]); and

(3)    the notification was “relevantly similar” to that held valid in Ali (at [20]).

According to the appellant, the FCCA judge should have found that part of the information was located on its own on a different page to the rest of the information, with no heading, following a section about the location of registries of the Tribunal.

34    The relevant passage of the FCCA judge’s reasons is as follows:

[17] In my view, the notification of refusal letter sets out what is required by s.66(2)(d)(ii) of the Act and sets it out clearly. The core information given in compliance with s.66(2)(d)(ii) is found in the last sentence of the first relevant paragraph and the third relevant paragraph and which together read as follows:

... As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day) ... As this letter was given to you by hand, you are taken to have received it when it was handed to you.

[18] There is, in my view, nothing “piecemeal, entirely obscure and essentially incomprehensible” about the notification of refusal letter in this connection, as was the case with the notification letter under consideration in DFQ17 … The required information is not placed under an inapt or inappropriate subject heading, but rather states the relevant information under the meaningful, sensibly located and appropriate headings of “Review Rights” and “Lodging an application for merits review”.

[19] The information is not “scattered” in a disconnected manner over several pages of the notification of refusal letter, but is appropriately set out in a unified and coherent manner, although extending over three pages. The information appearing after the heading “Review Rights” and extending through to the top of the third page is all in connection with the unified theme of advising the Applicant of his review rights and how and where he might lodge an application for merits review.

[20] In other words, in my view the notification of refusal letter does not suffer from the vices of the notification letters held to be invalid for breach of s.66(2)(d)(ii) of the Act by the Full Court of the Federal Court in DFQ17 and BMY18 …. Rather, it is relevantly similar to the notification letter held to be valid by Nicholas J in Ali …, where at [26] – [27] his Honour set out the relevant terms of the notification letter under consideration by him.

35    The appellant first contended that the FCCA judge made the error referred to in BMY18 at [30], by treating the ratio decidendi of DFQ17 as being that a notice which is not “piecemeal, entirely obscure and essentially incomprehensible” will comply with s 66(2)(d)(ii) of the Act. That was said to be apparent from the first sentence of [18] of his Honour’s reasons which is quoted above.

36    I do not agree that this is a fair interpretation of his Honour’s reasoning. At [17] of the FCCA judgment, his Honour addressed himself to the relevant issue, being whether the relevant information was stated in the notification, by setting out what was required and setting it out clearly.

37    Paragraph [18] of the FCCA judgment contrasts the notification under consideration with that in DFQ17, and observes that the notification does not display the vices of being “piecemeal, entirely obscure and essentially incomprehensible”. His Honour also gives additional reasons for his finding that the notification sets out what is required with clarity.

38    The appellant next took issue with the FCCA judge’s finding that the relevant information is stated “under the meaningful, sensibly located and appropriate headings of ‘Review Rights’ and ‘Lodging an application for merits review’”.

39    The appellant noted that the sentence “As this letter was given to you by hand, you are taken to have received it when it was handed to you” appears at the top of the third page of the letter. The words “Lodging an application for merits review” appears towards the top of the letter’s second page in bold font. Lower down the second page and also in the same size bold font are the words “Online” (followed by an email address) and “Registries of the Administrative Appeals Tribunal” (followed by a table of three rows and three columns) and three further paragraphs of information.

40    By virtue of the bold font, there appear to be three headings on the second page of the letter, namely, “Lodging an application for merits review”, “Online” and “Registries of the Administrative Appeals Tribunal”. In the context of the second and third of these apparent headings, the connection between the first heading and the sentence at the top of the third page is obscure.

41    Accordingly, I accept the appellant’s submission that the FCCA judge’s finding that the sentence at the top of the third page is conveyed under the meaningful, sensibly located and appropriate heading of “Lodging an application for merits review” is a strained construction of the notification.

42    Consequently, I disagree with the FCCA judge’s assessment that the relevant information is “appropriately set out in a unified and coherent manner”. To the contrary, the sentence at the top of the third page is located on a different page to the rest of the relevant information, with no heading, and following various pieces of information about the locations of Tribunal registries, lodgement of review applications by email or fax, sources of further information about the merits review process and the possibility of a “post-decision fee”.

43    The appellant then challenged the FCCA judge’s finding at [20] that the notification is relevantly similar to the letter held to be valid in Ali. However, as the appellant noted, from the extract of the letter set out in Ali at [27], there is no indication that the sentence informing the person of when they were taken to have received the notification was located on its own at the top of a page with no heading or other indicator of its significance (as in this case). Contrary to my reading of the notification, the FCCA judge evidently did not consider the different headings and the different subject matter between the heading “Lodging an application for merits review” and placement of the sentence at the top of the third page to be a relevant distinction between the notification in Ali and this case.

Second argument (ground 1(c))

44    The appellant next contended that the FCCA judge at [21] erred in finding that the complexity in the language of the notification was “the result of the terms of the statutory regime” and should have found that the sentence in the notification “As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day)” was cast in unnecessarily confusing terms that could easily be misunderstood by an ordinary reader of English.

45    His Honour reasoned:

[21] … Any complexity in the notification of [the] refusal letter which exists is the result of the terms of the statutory regime: see BMY18 per Perram J at [19]. The definition of “working day” in s.5 of the Act is consistent with common knowledge in this country and, in any event, the notification of refusal letter is a document advising on legal rights under the Act and legal rights inherently involve degrees of complexity and density of thought, meaning and expression.

46    In BMY18 at [19], the Full Court stated relevantly, concerning the letter under consideration:

[19] … 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.

47    Regulation 4.31(1) of the Regulations provided:

(1)     For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:

(a)     the day the applicant is notified of the decision; or

(b)     if that day is not a working day—the first working day after that day.

48    By operation of item 2 of the table at s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(1) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)), the seven working day period in reg 4.31(1) includes the day on which the period commences (that is, the date of notification, or if that day is not a working day, the first working day after that day).

49    As the appellant observed, the language of the notification does not precisely track reg 4.31(1). The notification refers to a “prescribed timeframe” which is identified as follows:

As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day).

50    As a matter of ordinary English, words in parentheses can typically be separated from the rest of a sentence without causing the sentence to lose its sense. In R v Frawley [2005] NSWCCA 66; (2005) 152 A Crim R 336 at [14], Spigelman CJ (Mason P at [33] and Santow JA at [34] agreeing) noted that, when a statute contains words in parentheses it is often the case that those words are used only by way of example or, if intended to have operative effect, to do so by way of qualification or explication of earlier words which have the primary operative effect.

51    In my view, by using parentheses, by failing to identify clearly the subject of the verb “beginning” and by the reference to “the first working day that occurs on or after that day” when no specific day is identified within the parentheses, the language of the notification was confusing as to the meaning and significance of the words in parentheses.

52    As the appellant put it, what is not clearly identified is the fact that the identified seven day period commenced on the day of notification, so that the prescribed timeframe ended on the sixth working day after notification, rather than the seventh.

53    I agree with the appellant’s submission that the statutory regime did not require the convoluted description of the “prescribed timeframe” in the letter. Rather, the letter was drafted in a manner that allowed for uncertainty as to whether it would be handed to the appellant in immigration detention on a working day. The FCCA judge’s reasons do not address whether there was any practical need to allow for such uncertainty.

54    It follows that I disagree with the FCCA judge’s conclusion at [21] that the complexity in the language of the notification was the result of the terms of the statutory scheme.

Third argument (grounds 1(d)-(f) and 2)

55    The appellant’s third argument is directed to the following words in the notification:

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

56    The potential ambiguity in similar words was adverted to by Allsop CJ in CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 at [7].

57    The FCCA judge addressed an argument that the words were ambiguous or could give the impression that the prescribed period could be susceptible of an extension, or that a review application could be entertained by the Tribunal after the deadline at [22] and following. His Honour referred to authorities concerning the different meanings of the word “may” and the collation “may not”. At [27] to [29], the FCCA judge concluded:

[27] Of course the intended recipients of notification letters sent in compliance with s.66 of the Act would rarely include lawyers having the benefit of all the above quoted legal learning in relation to “may” meaning “must”. However, such a notification of refusal letter is necessarily to be expressed in the English language and in my view a plain English reader of the notification of refusal letter under consideration here would not have been led into a belief or understanding that the second relevant paragraph denoted that a review application could possibly be considered by the Tribunal after the prescribed review period had expired. Rather, such a plain English reader would have had no difficulty in understanding that the second relevant paragraph conveyed a warning to the effect that after the relevant review period an application for merits review “must not”, “shall not” or “cannot” be accepted.

[28] I further note in this connection that the second relevant paragraph appeared in the notification letter considered in Ali (see Ali at [26]) without any adverse comment or finding by Nicholas J. It also appeared in the notification letter considered by the Full Court comprised of Reeves, Perram and Charlesworth JJ in BMY18 (see BMY18 at [17]) and again suffered no adverse comment. It is further relevant that s.66(2)(d)(ii) in its own terms refers to “the time in which the application for review may be made” and of which provision North J in Cao v Minister for Immigration and Citizenship [2009] FCA 586; (2009) 176 FCR 396 at 398 [13] said:

[13] Section 66(2)(d)(ii) requires that the notification state the time in which the application for review must be made. It may well suffice to comply with this provision that a statement of the date at which the time to apply expires was made. It does not require an explanation of the way in which the time is calculated or arrived at. The text of the section is clear. The context of the provision confirms this conclusion. The cases which give rise to the need for such notification often involve non-English speaking applicants and often without legal representation. It is likely that Parliament chose to make the notification as simple as is consistent with proper communication.

…

[29] Further, context is always important when considering the possibility of ambiguity. Here the expression “may not” in the second relevant paragraph is preceded by the expression “prescribed by law” which warns a plain English reader of the existence of an authoritative limitation and restriction of the period of time after which review applications would not be accepted and the second relevant paragraph is preceded by the first relevant paragraph which contained in its second sentence as follows:

An application for merits review of this decision must be given to the AAT within the prescribed timeframe.

…

58    The appellant contended that the FCCA judge erroneously sought to determine the correct construction of this part of the notification, rather than considering whether a reasonable person in the position of the appellant could have read the notification differently.

59    I do not accept this characterisation of the FCCA judge’s reasons. Although the FCCA judge expressed himself by reference to the interpretation of a “plain English reader”, the effect of his Honour’s reasons was to reject the submission that the notification was relevantly ambiguous or could give a false impression.

60    In any event, I agree with his Honour’s observation at [29] that the relevant words must be understood in the context of the previous paragraph, including the following statement:

The Department cannot consider your visa application any further. … An application for merits review of this decision must be given to the AAT within the prescribed timeframe.

61    In that context, I am not persuaded that the FCCA judge erred in concluding that the relevant words did not cause the notification to fail to meet the requirement in s 66(2)(d)(ii).

Disposition of appeal

62    The decisions identified above were not directed to language of the kind used in this notification because none of those decisions concerned the position of a person in immigration detention.

63     In DFQ17 at [59], Perram J stated that whether the relevant letter “states” the time within which a review application must be made within the meaning of s 66(2) is a question of law, citing Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] (Vetter). There, Gleeson CJ, Gummow and Callinan JJ stated that whether facts as found answer a statutory description will “very frequently be exclusively a question of law”. If the facts are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.

64    In Singh at [10], Thawley J stated that whether a notification meets the requirement in s 66(2)(d)(ii) is a question of fact.

65    This difference of opinion must be based on different assumptions or conclusions as to whether there is room for different conclusions as to whether a notification “states” the required information. In Vetter at [25], Gleeson CJ, Gummow and Callinan JJ cited with apparent approval the following passage from Hope v Bathurst City Council (1980) 144 CLR 1 at 7:

… special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens [1972] UKHL 6; (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was “insulting”. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.

66    In my view, the question whether the notification meets the requirement in s 66(2)(d)(ii) admits of different conclusions, particularly once it is accepted that the requirement involves consideration of whether the necessary information is stated clearly. That is a matter upon which reasonable minds may differ, as appears from Foster J’s reference to the notion of a communication that is “clear enough” in CAV18.

67    As in BMY18, it is possible to determine the period within which the review application may be brought. It is not easy to do so, mainly because the period is identified in language directed to the fact that the period is affected by when the appellant would be notified of the decision and whether or not he would be notified on a “working day”. However, once the reader recognises that the parentheses are directed to the specification of when the “seven working days” end, as well as recognising that the words “that day” in the parentheses is the day on which the addressee was notified of the decision, it is possible to determine the relevant time.

68    The period within which the review application may be brought is not stated with clarity. It is identified in a way that is confusing and liable to fail to communicate the important fact that the appellant had only until 15 November 2018 to exercise his review rights. Applying DFQ17, I do not accept that the notification stated the time within which the review application may be brought within the meaning of s 66(2)(d)(ii). For the reasons set out above, I am convinced that the FCCA judge came to the wrong conclusion: cf. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [25] and [30].

69    Accordingly, the appeal must be allowed. The Tribunal’s decision that it did not have jurisdiction to determine the appellant’s application for review should be quashed, and the Tribunal should be ordered to determine that application according to law.

70    The Minister should pay the appellant’s costs of the appeal and his costs of the proceeding below in the FCCA.

Associate:

Dated:    5 November 2020