CKU21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2006

1. On 26 July 2021, the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 June 2021. The Tribunal found it did have jurisdiction to review a decision of a delegate of the First Respondent (the Minister) refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the protection visa).
2. The proceedings were listed for a callover before a Registrar of the Court on 14 April 2025. There was no appearance by or on behalf of the applicant and the Registrar dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (the 2021 Rules) with costs.
3. On 28 April 2025, the applicant filed an application in a proceeding seeking those orders be set aside (a reinstatement application), together with an affidavit and supporting evidence.
4. On 26 May 2025, the applicant filed written submissions in support of the reinstatement application. On 5 June 2025, the Minister filed their written submissions.
5. On 26 August 2025, pursuant to r 17.02(2)(a) of the 2021 Rules, Judicial Registrar Rohan set aside the orders made on 14 April 2025 which dismissed the application for judicial review with costs. As the reinstatement application was successful, orders were made listing the substantive judicial review application for final hearing.
6. The parties appeared at the hearing on 28 October 2025, at the Parramatta Registry of the Court.
7. At the hearing, the Court Book filed on 17 September 2021 was tendered into evidence and marked Exhibit CB.
8. The applicant appeared in person with the assistance of a Tamil interpreter. The Minister was represented by Mr T Young of Mills Oakley.
9. The applicant and Minister relied on their written submissions filed in relation to the reinstatement application. The oral submissions of the parties developed their written submissions.

1. The applicant is a 49 year old citizen of India. The applicant arrived in Australia on 8 October 2017 as the holder of a Visitor (Class FA) (subclass 600) visa.
2. On 14 December 2017, the applicant lodged the application for the protection visa with the Department of Immigration and Border Protection (the Department) using paper Form 866.
3. On 10 January 2020, the applicant applied for a Bridging B (Class WB) (subclass 020) visa (the bridging visa) so he could return to India to visit his critically ill mother. In the application for the bridging visa, the applicant indicated his consent for the Department to contact him by email and nominated an email address: [redacted]@gmail.com (the first Gmail address).
4. On 23 November 2020, the Department sent the applicant an invitation to comment on information and to provide further information about his visa application: at CB 76-87. The invitation and request for information were sent to the applicant by email to the first Gmail address. No response was received from the applicant.
5. On 27 January 2021, a delegate refused the visa application: at CB 89-100. The refusal notification and a copy of the delegate's decision was sent to the applicant at the first Gmail address.
6. On 23 March 2021, the applicant emailed the Department from a different Gmail address: [redacted]@gmail.com (second Gmail address): at CB 101. This email relevantly stated:

I applied for an onshore protection visa and the details are furnished above. In my application, I gave my residential address was [redacted]. Then I moved to [redacted].

I forget to submit Form 929, 'Change of details form'. In my application. I requested the department to send me the communications to my residential address. As I had moved from the address, I did not receive any communications from the department...My employer informed me that they received the information about my status that I did not have the right to work. I check my VEVO status and I found that I had no visa. I applied for a Bridging E visa and I received the BVE visa today. I have also been advised by the department to contact the protection visa department and requesting to get the decision record. I hereby request you to send a copy of my Decision Record and the other related letters to my email address.

My email ID: (second Gmail address).

1. On 24 March 2021, the Department emailed a copy of the notification and delegate's decision record to the applicant at the second Gmail address: at CB 102.
2. On 7 April 2020, the applicant lodged an application for merits review of the delegate's decision to the Tribunal (merits review application): at CB 103-108. The second Gmail address was provided to the Tribunal for the purposes of correspondence relating to the merits review application: at CB 107.
3. Attached to the application was a statement from the applicant which relevantly stated:

The application for the review was not able to apply in the timeframe, because of the communication. I changed the e-mail ID and failed to inform the department. I did not know about the emails sent by the department until my employer informed me that my visa was expired. I checked my status and immediately applied for BVE and the department granted me BVE on 23rd March 2021. I have been asked to apply for the Tribunal review within 3 months.

1. On 3 June 2021, the Tribunal emailed the applicant inviting him to comment on the validity of the merits review application and whether it was made within the time prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations), which was 28 days commencing on the day the applicant was notified of the decision: at CB 120.
2. On 5 June 2021, the applicant emailed a response to the invitation to the Tribunal (at CB 122) which relevantly stated:

I would like to thank you very much for giving me an opportunity to let you know the reasons for my delayed response in applying to the tribunal.

While I was applying for my PV application, I was residing in Auburn. In my application, I request the department to send all the communications to me through the post to my residential address. Last year I moved to Pendle Hill and I missed updating my new contact details to the department. Then I applied for Bridging visa C, but for some reason, it was not granted to me. On 23rd November 2020, the department sent me a letter for further details s56 to my address. As I moved from there, I did not receive communication from the department. The same thing happened when the department sent me the decision to my address.

As I did not respond within 28 days, as I was unaware, my visa was canceled and I applied for Bridging Visa E. If I knew my decision I would respond to the department.

I did not get the communication. When my employer advised me to check my visa, then only I came to know about my visa.

1. On 29 June 2021, the Tribunal decided it had no jurisdiction to review the delegate's decision: at CB 125.

1. The Tribunal set out the procedural background of the matter: at [1]. The Tribunal noted that the applicant was not in immigration detention on the day he was notified of the delegate's decision, therefore an application for review had to be made within 28 days: at [2].
2. The Tribunal noted it had written to the applicant to invite him to comment, and had regard to his response which acknowledged that he had moved address and had not updated the Department, and it was only when his employer advised him to check his visa status that he came to know about his visa situation: at [3].
3. The Tribunal considered the applicant's response, and noted that on 10 January 2020, the applicant had provided a Form 1006 in which he agreed to the Department communicating with him by email, and the Tribunal was satisfied that the Department had used the correct email address: at [4].
4. The Tribunal found that the applicant was taken to have been notified of the delegate's decision on 27 January 2021, that the prescribed period for review therefore ended on 23 February 2021, and therefore the Tribunal had no jurisdiction to review the matter: at [7]-[8].

1. The substantive application for judicial review advanced one ground of review, which states (without alteration):
   1. The Tribunal erred in law by failing to uphold that the AAT review application was lodged within the time prescribed by Sec 412 of the Migration Act.

Particulars

A review application in the prescribed form as required by the Act was sent to the Tribunal on 6th April 2021. It is submitted that the delegate decision was never despatched to the proper physical address, as required under Sec 494C of the Migration Act.

The Tribunal in paragraph 4 of its decision observes that " Department records confirm that on 10th January 2020, after making his visa application, the applicant provided to the Department a Form 1006 in which he provided his email address, used for the relevant notification, advising he agreed to the Department communicating with him by email". From the above it is clear that no decision was posted to the physical address. A copy relevant pages of my 866 visa application for the protection visa is attached with the applicant's affidavit .At question number 38 the applicant has clearly stated that he does not agree for the Department communicating with him by fax or email or other electronic means as the applicant is not tech savy and he wanted all communications in relation to his protection visa application to come to the indicated physical address

Form 1006 in an application for bridging visa B (BVB). This is a separate application to change the condition in the existing bridging visa which independent of the main 866 visa application. The applicant due to some exigency applied for an BVB application in order to go overseas on a short notice. The BVB application does not affect the applicant's 866 protection visa application (which is the applicant's main visa application). The applicant provided his friend's email address only for the limited purposes of knowing the outcome of the BVB application and not the main 866 protection visa application. It is submitted that, if the applicant intended to change his contact details on 10th January 2020 then he would have used form 929 giving the new contact details for the protection visa application. The applicant did not do this as he wanted the communications on my main 866 visa application to go to his physical address as stated in the 866 visa application.

As the service of notification of 866 visa decision was defective, it shall not be deemed to be proper service under Sec 494C of the Act. It is submitted that the review application was received with the prescribed time by the Tribunal. Hence it is submitted that the tribunal has jurisdiction to consider the case.

1. By this ground the applicant contends that the Tribunal erred in finding it had no jurisdiction to review the delegate's decision to refuse to grant him a protection visa. The applicant contends he did not consent to the Minister (or their delegate) communicating with him by email (at the first Gmail address) for the purposes of his protection visa application and, as he was not properly notified of the delegate's decision in respect of that application, the prescribed period within which he had to apply for review had not yet commenced.
2. The applicant submitted that in his protection visa application, lodged on 14 December 2017, (at Question 38) he answered 'No' to the question: 'Do you agree to the Department communicating with you by fax, email, or other electronic means?'.
3. The applicant contended that when he provided the details of the first Gmail address in his application for the bridging visa, he was only consenting to electronic communication in respect of that application, and not in respect of his protection visa application. The applicant submitted that each visa application was independent of the other and he was entitled to have different modes of communication for each visa application.
4. At the hearing, the applicant said he was notified of the bridging visa refusal via the email nominated in the bridging visa application (the first Gmail address), however, he had not used that email since. He said he only became aware of the protection visa refusal from his employer, after which he applied for a review of the decision with the Tribunal.
5. The applicant submitted that if he wanted to alter the mode of communication in respect of the protection visa application, he would have submitted a 'Form 929: Change of address and/or passport details' duly authorising communication by email. He submitted that, in the absence of this, the Tribunal's service of the protection visa decision was defective and not deemed proper service under the Act.
6. The applicant submitted that he had therefore lodged the application for review with the Tribunal within the prescribed 28-day period from the date he was notified of the delegate's decision, and the Tribunal erred in finding it had no jurisdiction to review the matter.

1. For the Department to give information to an applicant by way of electronic communication, s 9(1)(d) of the Electronic Transactions Act 1999 (Cth) (ET Act) requires that the applicant consent to receiving electronic communication. Nothing in the ET Act prescribes any form or particular requirement for the giving of consent: Hossam v Minister for Immigration and Border Protection [2016] FCA 1161; (2016) 70 AAR 320 per Perry J at [62].
2. It is not in dispute that in the protection visa application, lodged in December 2017, the applicant indicated that he did not consent to the Department communicating with him by fax, email, or other electronic means. In the protection visa application, he provided a residential address (the Auburn address) as his postal address. Subsequently, in the bridging visa application, lodged on 10 January 2020, the applicant gave consent to the Department communicating with him by email (at the first Gmail address). In that application, he provided a residential address (the Pendle Hill address), which he indicated was also his address for correspondence.
3. The applicant contended that the consent he provided in the bridging visa application was limited to communication in relation to the bridging visa application and not the protection visa application. The Minister contends that the applicant's consent was not qualified or restricted with any statement to the effect that he agreed to electronic communication solely in relation to the bridging visa application.
4. The Minister submitted that Question 9 ('Do you, and the other applicants included in this application (if any), agree to the Department communicating with you by fax, email or other electronic means?') in the bridging visa application was an open-ended question, the terms of which did not restrict the request only to the bridging visa application.
5. The Minister further argued it was open for the applicant to qualify his consent if that was his intention, however, the applicant did not qualify or restrict his answer to Question 9 with any statement to the effect that he agreed to email/electronic communication solely in relation to that application.
6. In this case, the issue is whether there was a valid notification of the delegate's decision to refuse the protection visa. If the notification for refusal of the visa failed to comply with the relevant requirements in ss 66(1) and (2), and s 494B of the Act, and reg 2.16(3) of the Regulations, then it will not be a valid notification of the decision and the prescribed period within which the applicant had to apply for review will not have commenced.
7. Pursuant to s 66(1) of the Act and reg 2.16(3) of the Regulations, the Minister is required to notify the applicant of the decision to refuse the visa by one of the methods specified in s 494B of the Act.
8. Section 494B sets out the various methods by which the Minister may give a person a document. Relevantly, one of those methods included transmission by email to the last email address provided to the Minister for the purposes of receiving documents: ss 494B(5)(b) and (d).
9. I accept, as submitted by the Minister, that nothing in the terms of s 494B ties the provision of any 'fax number, email address or other electronic address' to a specific visa application. As held in DCD18 v Minister for Home Affairs [2018] FCA 2090 (DCD18) per Allsop CJ at [34]:

...the words in s 494B(5)(d) directed to any particular forms, or parts of forms, used by the department such as the forms, and questions, referred to at [11] and [12] above. The question is: objectively, was the email address provided for the purpose of receipt of documents, that is, for the purpose of communication? ... An email address is only useful for the receipt of electronic information and documents. Objectively analysed, one of the purposes of the email ...was to provide the applicant's contact details, including email address, to the department for use, if needed, for communication with the applicant, that is, the sending and receipt of information and documents.

1. While the facts of DCD18 were not on all fours with the facts in the present case, the reasoning in that case supports the Minister's position that the terms of s 494B(5)(d) did not tie the email address to any specific departmental forms and that if an email address had subsequently been provided to the Minister for the purposes of communication, then, objectively, one of its purposes was for the receipt of documents.
2. In SZVRO v Minister of Immigration and Border Protection [2017] FCA 421 (SZVRO) at [46]-[49], in considering the operation of s 494B(4)(c), Beach J stated:

46. First, the limbs of s 494B(4)(c) refer to the "last address for service" or the "last residential or business address" (my emphasis). Thus the address can change over time, for example, because the previous address provided may have been superseded as in the present case where the Villawood address became irrelevant.

47. Second, the phrase "provided to the Minister" (my emphasis) does not limit such provision to written notification. It could be oral or constituted by a course of dealing between the Minister and the applicant where there had been acquiescence to a particular address being used to receive documents.

48. Third, the generality of the phrase "provided to the Minister by the recipient for the purposes of receiving documents" (my emphasis) indicates that an address may be used in respect of more than one type of visa application and communications between the Minister and the applicant relating thereto. Moreover, a more up to date address for receiving documents in relation to one type of application may be treated by the Minister and the applicant as the relevant address for receiving documents for another type of application. Indeed this may be expected in relation to the provision of "the last residential address", where "last" in context is taken to be the "most recent at the time in question" (Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [36] per Jagot J). Further, an address may be provided for two purposes, only one purpose of which is to receive documents. So, in the present case, one of the purposes was to satisfy the bridging visa condition. But such a purpose does not entail that the relevant address was not also provided for the purpose of, more broadly, receiving documents and in relation to subject matter other than the bridging visa.

49. Fourth, the phrase "provided to the Minister by the recipient for the purposes of receiving documents" (my emphasis) requires an objective assessment. It is not solely to be ascertained from the recipient's subjective purpose, although that is not irrelevant to the objective assessment. No doubt the words "by the recipient" before the words "for the purposes..." justifies some emphasis on the recipient's perspective for providing the address, but that is still to be objectively assessed in the light of all the circumstances, including how a reasonable person in the shoes of the Minister would have understood the purpose for which the address was being provided. Indeed, such an assessment is not inconsistent with Jagot J's perspicuous application of an objective lens in Maroun at [29] to [37].

1. It is noted that the words of s 494B(4)(c), the subject of his Honour's consideration, refer to the giving of documents by prepaid post or other prepaid means at the last address for service or the last residential or business address provided to the Minister 'by the recipient' for 'the purposes of receiving documents'.
2. While the facts of the present case concern the giving of a document to the applicant (the recipient) by email, and the provision does not require that the email address be provided 'by the recipient', his Honour's consideration of the terms the 'last' address, 'provided to the Minister' and 'for the purposes of receiving documents' would be equally applicable to the giving of documents by email in accordance with s 494B(5)(d).
3. His Honour emphasised that the 'last address' refers to the most recent address provided at the relevant time, and that it can change over time such as when a person moves. An address can be used for multiple visa applications and related communications, and the most recent address provided for one application may also serve as the address for receiving documents for another type of application. The provision of an address for the 'purposes of' receiving documents requires an objective assessment and is not to be ascertained by the applicant's subjective intention.
4. His Honour stated that while the words in s 494B(4)(c) 'by the recipient' before the words 'for the purposes...' justifies consideration of the recipient's perspective, what matters is an objective assessment, having regard to all the circumstances. Noting that the words 'by the recipient' do not form part of the provision in s 494B(4)(b), this suggests that when determining, objectively, the purpose for which the email address was provided, the applicant's subjective purpose for providing the email address carries even less weight against how the perspective of a reasonable person in the Minister's position would have understood the purpose for which the address was being provided.
5. In the present case, the first Gmail address provided in the bridging visa application was the last email address provided to the Minister for the purposes of communication, including for the purpose of receiving documents, at the time the applicant was to be notified of the delegate's decision to refuse the protection visa. The notification letter (together with the delegate's refusal decision) was emailed to the applicant at the first Gmail address on 27 January 2021.
6. I accept that the Minister was entitled to use the first Gmail address to notify the applicant of the refusal of his protection visa application. This was especially so, as the Minister submitted, in circumstances where the applicant, on his own evidence, had failed to submit a 'Form 929: Change of address and/or passport details' to notify the Department that he no longer lived at the address (in Auburn) that was provided in his protection visa application. In his email on 23 March 2021, which was sent from the second Gmail address, the applicant informed the Department that he had moved to Pendle Hill and 'as [he] had moved from the address, [he] did not receive any communication from the department'. Furthermore, the bridging visa application, lodged on 1 January 2020 (more than two years after the protection visa application had been lodged), had indicated that the applicant had changed his residential address (and his address for correspondence) to the Pendle Hill (NSW 2145) address.
7. As submitted by the Minister, if the addresses (the residential and/or the first Gmail address) provided in the bridging visa application could not be relied upon by the Minister to send correspondence to the applicant regarding his protection visa application, then the applicant's position would have been no different. If, as contended by the applicant, the Minister had sent the notification of the refusal decision to the address nominated in the protection visa application (the Auburn address), then the applicant would still not have received it. The applicant acknowledged this by his evidence.
8. In view of the reasoning in SZVRO, s 494B provided for the Minister to notify the applicant of the delegate's refusal decision by either the first Gmail address or the Pendle Hill (NSW 2145) address indicated in the bridging visa application form. In the circumstances, there was no error on the part of the Minister in sending the notification of the delegate's refusal decision to the applicant at the first Gmail address.
9. Accordingly, the notification letter was given to the applicant by an approved method prescribed by reg 2.16(3) and s 494B, that being transmission by email to the last email address provided to the Minister for the purposes of receiving documents: s 494B(5).
10. Moreover, there was no contention raised by the applicant that the notification letter issued by the Department to the applicant did not comply with s 66(2) of the Act. I am also satisfied that the notification letter clearly set out the prescribed period within which the applicant could have applied for review of the delegate's decision, and that it stated the matters required by s 66(2)(d)(ii).
11. By operation of s 494C(5), the applicant was taken to have received the email on the day it was transmitted, being 27 January 2021. The deemed receipt of such notification is not rebuttable: Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 at [17] per O'Connor and Mansfield JJ.
12. In circumstances where the notification of the delegate's decision complied with the requirements of the Act, the applicant was deemed to have received the decision on 27 January 2021.
13. Pursuant to s 412(1)(b) and reg 4.31(2), the applicant was required to lodge his review application with the Tribunal within 28 days of receipt of the notification letter. As his review application was made on 6 April 2021, the application for review was 39 days outside the prescribed period and the Tribunal was correct to find (at [7]) that the application was invalid, and therefore it did not have jurisdiction in the matter.
14. The ground advanced does not establish jurisdictional error on the part of the Tribunal.

1. As the applicant has failed to demonstrate jurisdictional error on the part of the Tribunal, the application for judicial review must be dismissed. I will hear the parties as to costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.