Sometimes there is hidden in something that appears to be “ordinary” something which might actually be truly extraordinary.
So it is with a decision that was recently handed down by the Full Court, DFQ17 v Minister for Immigration (2019) FCAFC 64 (18 April 2019).
This case dealt with the seemingly “mundane” or “boring” question of whether a letter that had been sent by the Department informing an applicant for a protection visa of the refusal of that application had properly and correctly notified the applicant concerning the time period or deadline within which an application for review could be made.
The requirement that a refusal letter must “state” the time in which an application made be made to the Tribunal for review is found in section 66(2) of the Migration Act.
Importantly, prior to the Full Court’s decision in DFQ17, there had been two earlier Federal Court decisions that had held that a failure on the part of the Department to comply with section 66(2) of the Act has the consequence that the Department’s decision has not been notified.
And therefore the further consequence of a failure by the Department to comply with section 66(2), and ot correctly state the time period within which an application for review must be made, is that the period in which to commence an application for merits review does not begin to run.
As readers will be aware, it is commonplace for the Tribunal to dismiss applications for merits review on the basis that they have not been filed within the applicable review period. In such cases, the Tribunal routinely “finds” or “declares” that it does not have jurisdiction to hear the case.
However, as will be explained below, the Full Court’s decision in DFQ17 illustrates that any decision of the Tribunal that it did not have jurisdiction because the application for merits review was not timely filed may very well be vulnerable to challenge in the Federal Courts if it can be demonstrated that the Department letter purporting to notify the applicant of a refusal did not comply with section 66(2) by not correctly stating the time in which the application for review could be made!!!!!!!
It is therefore possible that hundreds, and perhaps thousands, of Tribunal decisions in which the Tribunal dismissed supposedly “late” applications for merits review may be affected by jurisdictional error and may be able to be overturned in the Federal courts!!!!!!!!
With this background, let’s take a look at what happened in DFQ17.
By letter dated 3 February 2017, the Department notified the applicant that her application for a protection visa had been refused.
The refusal letter had been sent by post to an address (a post office box) in Australia; thus under section 494C(4)(a) of the Act, the applicant was “taken to” or “deemed” to have received the letter 7 working days “after the date of the document” – in other words, on 14 February 2017.
Further, under Regulation 4.31(2), which specifies that the time for filing an application for review of a “Part-7” reviewable decision is 28 days commencing from the day on which the applicant is notified of the decision, the applicant effectively had until 13 March 2017 in which to lodge her application with the Tribunal.
However, in the event, the applicant did not actually file her application for review until two weeks later, on 28 March 2017.
The Tribunal thus concluded that the application for review had been filed “out of time” and thus decided that it did not have jurisdiction.
So what saved the applicant in DFQ17?
The Full Court held that the requirement in section 66(2) that a notification of a visa refusal must “state” the time in which the application for review may be made should be interpreted as requiring that the notification must clearly convey the period in which review may be sought: in this case, the Full Court held that section 66(2) required that the notification clearly convey that the deadline for seeking review was 13 March 2017.
The Full Court found in DFQ17 that the notification letter did not meet this standard:
On one page of the letter, under the heading “Review Rights”, the letter referred to the 28 day period (specified in Regulation 4.31(2)) during which the applicant could seek review of the visa refusal; on the following page of the letter, under a heading reading “Financial or Case Worker Assistance”, the letter referred to the 7 working day period within which the applicant was “taken” or “deemed” to have received notification of the refusal.
The Full Court determined that the text of the refusal letter (which stated that the timeframe to commence an application for merits review “commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days”) did not “clearly convey” the date by which the application for merits review had to be filed (the Full Court characterised the text of the letter as “piecemeal, entirely obscure and essentially incomprehensible”.
Thus the Full Court found that the applicant had not been properly notified of the refusal, that the time period for lodging an application for review had not begun to run, and that the Tribunal’s decision that it did not have jurisdiction to entertain the application was affected by jurisdictional error.
The extremely important message of this case is that any decision by the Tribunal that an application for review is untimely is likely affected by jurisdictional error if the refusal letter does not clearly state the time period within which an application for review must be filed.
And that may very well extend to cases in which the refusal letter does not state the actual date by which the application must be filed with the Tribunal.
So: if you are acting for an applicant whose application for review has been dismissed by the Tribunal on the basis that it was supposedly “out of time” or “late”, it is worthwhile to seek legal advice to determine whether an application for judicial review in the Federal courts would have reasonable prospects for success.
Note to readers: I will again be posting regular updates on the Migration Alliance Website about important case developments, like this one. I will also be posting additional material which will be available on an affordable subscription basis. The material on that separate site, migrationmessenger.com will be available for free until 10 May 2019.
Have a look, there are some interesting cases discussed on that site, dealing with topics like the GTE for student visas, the health criterion, time of application criteria for 485 visas, and more!!!
So if you have found these case updates to be useful to your practice, they'll again be available to you as a valuable resource!
Questions about DFQ17, or about Migration Messenger? Email This email address is being protected from spambots. You need JavaScript enabled to view it.