Proper Notice of Decision

 
 

Here is one case where on the surface it looked like the applicant was out of time but on closer examination the notice of visa refusal was inadequate and therefore ineffective.  Zhan v MIMIA [2003] FCA 327 (11 April 2003) concerned a case where the applicant has missed the time limit.  The question turned on where the refusal notice under s. 66 was valid. S. 66 is, relevantly , in the following terms:

 

(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.

(3) [not relevant]

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

(5) [not relevant]

Allsop J saw defects in the letter of notice.  He ruled:

59 In those circumstances, it is unclear to me what criterion or criteria was or were relied on by the delegate. In circumstances of such ambiguity and opacity, I do not think it can be said that there has been a "specification" of the criterion for par 66(2)(a). There needs to be some clarity and precision in an explicit identification of the relevant matter. Though in another context, what the Full Court said in NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 34 AAR 508 at [32] is particularly apposite.

60 The lack of clarity is not merely a matter of form. A person in the applicant's position must be able to appreciate to what matters or issues his or her application for review must be directed. Not only must the document be filed promptly (the risk of any delay in the postal system having been thrust on to the would-be applicant), but also material must be marshalled to put to the Tribunal. Here, is it just the issue of sponsorship to which the applicant must direct herself in gathering material, or is the genuineness and bona fides of the marriage to, or relationship with, Mr Lai in issue? These were important matters for the applicant to know.

61 The notification was in my view inadequate to specify the criterion for the purpose of par 66(2)(a).

62 It was not disputed that if there was a failure to comply with s 66 there had been no initiating of time running against the applicant.

63 In these circumstances, this deficiency in the decision record and notification means that the Tribunal was obliged to accept the applicant's application for review and that the applicant is entitled, in substance, to the relief she seeks.

 

The alleged failure to comply with par 66(2)(c)(iv)

64 I also base my conclusion upon par 66(2)(d)(iv). That requires the respondent to state where the application for review can be made. The verb "state" not "specify" is used. Nevertheless, the purpose is to give information as to where the applicant can "make the application", that is, initiate it. The applicant was told that lodgement of documents had to be at "a registry of the Tribunal". No address was given. A leaflet giving that information was not included with the letter and decision record. Mr Smith says that the applicant only had to look up the white pages of the Sydney phone book to find the entry annexed to these reasons.

65 However that entry gave no information as to whether level 3, 44 Market St in Sydney was a registry of the Tribunal or its head office or the site of some other activity of the Tribunal. Further enquiry needed to be made.

66 The scheme of the Act and regulations is such as to place the risk of postal delays on applicants. The consequence of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time. Parliament, as part of this scheme, requires the Minister or his delegate to provide sufficient information to the applicant to facilitate the timeous filing of an application for review directed to the relevant subject matter. One aspect of that is the requirement to tell the applicant where he or she is to go to make an application. If the registries of the Tribunal had been identified in the phone book it may be that the letter was adequate. I have some doubts about that, but , with no assistance given to the applicant as to the location of the registry of the Tribunal in communication or the phone book, I do not think the delegate has stated in the communication "where" the application may be made.

67 Whilst I have drawn assistance in my consideration of this issue from the decisions of the Full Courts of the ACT and Tasmanian Supreme Courts in Golden-Brown v Hunt (1972) 19 FLR 438 and Evans v Donaldson [1977] Tas SR 104, especially the judgments of Fox J and Green CJ, I think decisions on other statutes are of limited utility. In the context of the crucial importance of timeous filing, I think that par 66(2)(d)(iv) requires some direction to a location where the act of making the application may be done. Merely to state "at a registry of the Tribunal" seems to me to be insufficient. No doubt that was why the leaflet was intended to be included.

Barbara Davidson