ELL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1888

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal found that it did not have jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. For the following reasons, the application before the Court succeeds.

1. The applicant is a citizen of China. On 20 October 2017, the applicant applied for a protection visa.
2. On 9 April 2019, the Delegate refused the application. The applicant lodged an application for review of the Delegate's decision with the Tribunal on 12 May 2019.
3. By correspondence sent on 2 September 2019, the applicant was invited to comment upon the validity of his application to the Tribunal.
4. On 18 October 2019, the Tribunal decided that it lacked jurisdiction in the matter.

1. The Tribunal gave the following reasons for finding that it lacked jurisdiction at [2]-[8] of its decision:
   1. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31 (2) of the Migration Regulations 1994.
   2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 9 April 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 2 September 2019, the following was communicated to the applicant:

"It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] - [46].

The primary decision was emailed to your authorised recipient on 9 April 2019 meaning that 9 April 2019 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 6 May 2019. As the application was not received until 12 May 2019, it appears to be out of time. However this is a matter which must be determined by a Member."

1. On 10 September 2019, the Applicant provided a comment on the above, with the following:

"I acknowledge receipt of your letter dated on 2 September 2019 with invitation to comment on validity of application for review lodged on 12 May 2019. As you mentioned that the primary decision was emailed to my authorised recipient on 9 April 2019, it was not emailed to myself. My agent is located in Auburn, unfortunately it has been closed down by Department of Home Affairs out of my expectation. I only learned from the letter of Medicare send to me notifying that my Medicare will be expired in a certain days, at that point when I started to look for other agent to help with my case, and my appeal is lodged to AAT. At that time I checked in the VEVO in migration website that I was still holding a valid visa, I believed that my application for review is still in the prescribed time frame.

It would be appreciated if you could take my situation into your consideration and exercise your discretion on my review application so that I could have a chance to be heard.

1. The Tribunal has considered the Applicant's submissions. However, the Tribunal is unable to extend the period of time for which an application can be lodged: Beni v MIBP [2018] FCAFC 228.
2. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 April 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 May 2019.
3. As the application for review was not received by the Tribunal until 12 May 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

1. Based upon the above, the Tribunal concluded that it lacked jurisdiction in the matter (at [9]).

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 12 November 2019. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. Orders made by Registrar Cummings on 2 August 2024 provided for listing of the matter after delivery by the Full Court of judgment in the matter of NSD386/2024 -Minister for Immigration, Citizenship and Multicultural Affairs v Jee Yea Park and Others.
2. The following grounds of review were stated in the application filed with the Court:

1. I did not receive the notification letter of refusal from Minister

2. My agency office was closed down, I became the victim.

3. AAT was no discretional, had bias and injustice to me

1. As discussed at the hearing, the question before the Court is not whether the applicant received the notification letter regarding the Delegate's decision. Given the deeming provisions regarding receipt under the Migration Act 1958 (Cth) (Act), non-receipt by the applicant of the correspondence (if properly sent) would not have resulted in the notification being legally defective or in the Tribunal having jurisdiction. This is so whether or not the applicant was the "victim" of his agent closing down, although that situation has some relevance to an issue raised by the Minister and considered below.
2. The outcome in this matter turns upon whether the applicant was notified of the Delegate's decision in accordance with the requirements of the Act. If so, then the Tribunal had no discretion to conduct a review. Bias is not demonstrated by its refusal to do so.
3. For the reasons that follow, I consider that the Tribunal in this matter erred in a similar manner to that considered in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Sandor) (Markovic J).

1. Section 66 of the Act relevantly provided:

(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...

1. The combined effect of s 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) was that the time in which the application for review had to be made was within 28 days, commencing on the day the applicant was notified of the Delegate's decision. Valid notification required (inter alia) a statement of the time in which the application for review may be made.
2. Section 494C of the Act relevantly provided:

494C When a person is taken to have received a document from the Minister

(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)...

Transmission by fax, email or other electronic means

(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted...

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

(3) Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.

(3A) In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

(5) The Minister need not comply with subsection (1) if:

(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

1. In Sandor, as in the present case, the applicant had appointed an authorised recipient. The notification letter was sent to the authorised recipient by email. Pertinent details regarding the attached notification letter were set out at [45] of the judgment:

(1) is dated 13 February 2018. On the first page it is addressed to the appellant at his address but also includes:

Transmission Method Email sent to Karola@nextvisa.com.au

(2) under the heading "Review rights", on pages 1 to 2, includes:

We 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 21 calendar days after the day on which you are taken to have received this letter.

You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

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

(3) under the heading "Receiving this Letter", on page 3, includes:

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

(4) was emailed to the appellant's authorised recipient on 13 February 2018.

1. Justice Markovic found that the notification was insufficiently complete or clear as to have complied with s 66(2)(d)(ii) of the Act. At [49]-[53], her Honour considered:
   1. The second matter is whether the Notification Letter was incomplete and unclear in that it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient. That is, the Notification Letter did not explain the effect of s 494D(2) of the Act.
   2. The Minister submitted that the Notification Letter was not incomplete or lacking in clarity. The Minister first referred to the fact that the Notification Letter states that "you [the appellant] are taken to have received it" and contended that this reflects the deeming effect of s 494D(2) of the Act. The Minister then referred to the fact that the Notification Letter stated that the appellant is taken to have received it "at the end of the day it was transmitted" and submitted that if one then had regard to the first page of the letter it was evident that it had, by reason of the specified "Transmission Method", been transmitted by "Email sent to Karola@nextvisa.com.au". The Minister contended that the Notification Letter was not unclear because it made it clear that the appellant was taken to have received it at the end of the day it was transmitted to the appellant's migration agent at the email address specified on the first page of the letter.
   3. The use of the words "you are taken to have received" may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter. Acceptance of the Minister's submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made. That is, based on the Minister's reading of the Notification Letter, the appellant must understand that the reference to "the day the letter was transmitted" requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.
   4. It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act. It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
   5. It was not in dispute between the parties that a failure to comply with any element of s 66(2) of the Act means that there has been no notification of the decision and time had not yet commenced to run. In other words the notice given by the Notification Letter is invalid: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62 at [58], [75]-[76], [78] and [103].
2. In Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136; (2024) 305 FCR 317 (Park), the Minister contended that Sandor was wrongly decided as a question of law. The Full Court (Perram, Perry and Feutrill JJ) determined that this premise was founded upon a misconception, as the question at issue was a question of fact (at [19]-[32]). On the question of law, the Full Court considered:
   1. It is common ground that, on the proper construction of s 66(2)(d), the word 'state' means that the notification of the decision must set out the information in each of the subsections in a manner that is complete and clear: DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492 at [58] (Perram J, Rares and Farrell JJ agreeing); BMY18 v Minister for Home Affairs and Anor [2019] FCAFC 189; 271 FCR 517 at [30]- [37] (Reeves, Perram and Charlesworth JJ). Nonetheless, the relevant question remains whether notification of the decision meets the requirements of s 66(2)(d) to 'state' the matters referred to in that subsection. Therefore, considering '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': Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] (Thawley J). The explanation of the meaning of the word 'state' in does not, of course, replace or supplant the statutory text. However, as the parties here evidently accept, it declares the meaning of the text of the provision, on its proper construction, as a matter of law and statutory interpretation...
3. At [31], it was found that there was no legal error in the reasoning of Markovic J in Sandor. The Court then proceeded to consider whether, as a question of fact, the notification in Park stated the time in which the application for review was able to be made within the meaning of s 66(2)(d)(ii) of the Act. The Court found that it did not, reasoning at [39]:
   1. In this case, although the notification conveyed the information necessary to convey to a careful reader with knowledge of the date the email was transmitted to the authorised representative the time in which an application for review had to be made, the information was not conveyed in a sufficiently clear manner to 'state ... the time in which the application for review may be made' for the purposes of s 66(2)(d)(ii) of the Act. Leaving to one side the question of whether the references to 'you' in the letter created confusion in circumstances where the letter was sent to the authorised representative and dealt with multiple visa applicants, there was no obvious or logical connection between the reference to the commencement of the 21-day period (the day on which the visa applicant is taken to have received the letter) under the heading 'Review rights' and the reference to the day on which the visa applicant was taken to have received the letter under the heading 'Registries of the Administrative Appeals Tribunal'. The lack of clarity was compounded by the length of the letter, the remoteness of the references to the time of receipt of the letter from the references to the commencement of the 21-day period and by multiple references to the 21-day period for multiple visa applicants. While it might be thought that there was good reason for a single reference to the day on which the letter was taken to have been received for the commencement of the 21-day period for all visa applicants, unlike the letter in Singh, the purpose of that reference to the day on which the letter was taken to have been received was not expressed under a separate heading that made it obvious that the reference to the time of receipt of the letter was linked to earlier references in the letter to the 21-day periods.

1. The notification letter in the present case is similar in notable respects to the letter considered in Sandor. It is also similar to a notification that I considered recently in Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54 (Kaur).
2. In the present case, the notification letter:

(a) is dated 9 April 2019. On the first page it is addressed to the applicant at his address but also includes:

Transmission Method Email sent to [the applicant's authorised recipient]

(b) under the heading "Review Rights", on page 1 (carrying over to the top of page 2), includes:

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 refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

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

(c) under the heading "Receiving this letter" on the second half of page 3, states:

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

(d) was emailed to the applicant's authorised recipient.

1. The Minister submitted that the notification letter in this case stated the requirements in s 66(2)(d)(ii) of the Act with sufficient completeness and clarity. The Minister relied upon Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh) at [14]-[16] (Thawley J, Flick and Bromwich JJ agreeing), in which information under headings such as "Review rights" and "Receiving this Letter" were found to have been sufficiently clear.
2. The Minister submitted that, in the present case:

(a) the letter correctly set out relevant information necessary for the reader to understand the time in which an application for review had to be made;

(b) the letter was sent to the email address nominated by the applicant for communications (through his authorised recipient) (CB 8, 24-27); and

(c) the information was set out under two obviously relevant headings which were relatively close together, being "Review Rights" and "Receiving this letter" (CB 54-55).

1. The Minister submitted that a reasonable person who has appointed an authorised recipient is on notice that all notifications will be sent to their authorised recipient and would understand that the information - "[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted" - meant the end of the day it was transmitted to the authorised recipient. This was said to be particularly so when the applicant had only given the email address of the authorised recipient for communications to them from the Department.
2. The Minister contended that insofar as Sandor may be taken to have held that an applicant must not be required to "piece together the facts which would allow him to know the time in which an application for review may be made", that is inconsistent with the decision in Singh, which held that the requirement in s 66(2)(d) to "state" is a question of fact and may be determined by an examination of whether the notification is capable of being understood by a person exercising reasonable care: [10] to [12] (Thawley J, Flick and Bromwich JJ agreeing). This construction of Sandor was also submitted to be inconsistent with BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 (BMY18) at [18]-[19] (Reeves, Perram and Charlesworth JJ).
3. Similar arguments were made by the Minster in Kaur. As I stated in Kaur, I perceive no inconsistency between Sandor and Singh. For similar reasons, I do not perceive any inconsistency between Sandor and BMY18. The notifications in both Singh and BMY18 were different in important respects from the notification in Sandor. I do not understand Markovic J at [51] of Sandor to have held that any combination of facts required to understand a notification would render the notification invalid. Rather, her Honour found that the requirement upon the reader to "piece together" the particular combination of facts in that case rendered the notification insufficiently complete or clear and, therefore, invalid. Specifically, her Honour observed that the letter in that case required the recipient to understand the reference to "the day the letter was transmitted", and to whom, which would require him to "identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made" (Sandor at [51]). This was in circumstances where the effect of s 494D(2) of the Act had not been clearly explained.
4. For similar reasons to those given in Sandor (and Kaur), I find that the notification in this case did not comply with s 66(2)(d)(ii) of the Act. As in Sandor, it required the reader to piece together information about the identity of the person to whom the letter was transmitted by reference to other aspects of the letter, and then put together pieces of information to enable calculation of the time in which the application for review needed to be made. This was in circumstances where the letter was addressed to the applicant, sent to the authorised recipient, conveyed the deadline by reference to when the letter had been sent to a person described as "you" and the effect of s 494D(2) of the Act was not clearly explained. Taking these matters together, I find that the information was not conveyed in a sufficiently clear manner to "state ... the time in which the application for review may be made" for the purposes of s 66(2)(d)(ii) of the Act.
5. I am not persuaded by the Minister's submission that it was clear that the information in the letter - "[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted" - meant the end of the day it was transmitted to the authorised recipient. This was not explained in the letter and the "you" to whom the letter was addressed included the applicant's personal details. There was at least some potential for confusion in this referencing, given the potential for the letter to be subsequently forwarded to the applicant by email.
6. At hearing, the Minister observed that the application form that the applicant had completed had explained the role of an authorised recipient (CB 8). However, that form was completed in 2017. I am not persuaded that the requisite clarity for the purposes of s 66(2)(d)(ii) of the Act was achieved through a separate document that had been utilised by the applicant some years previously.

1. The Minister referred to Sharma v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 410 (Sharma) (Judge Papadopoulos). In that case, the notification under s 66(2)(d)(ii) of the Act was found to be invalid for reasons including reasons similar to those expressed in Sandor. It was further found (amongst other things) that an appointment of an authorised recipient under s 494D of the Act had ceased upon the migration agent in question losing their status as a migration agent.
2. In relation to the latter issue, the Minister observed that the applicant in the present case had referred to his authorised recipient's "agency" having closed down. However, the Minister submitted that even if the applicant had believed that his authorised recipient was a registered migration agent, this would not assist him for two reasons. The first was that the appointment in this case was not expressed to be for "a migration agent" but simply for an "authorised recipient". Sharma was therefore submitted to be distinguishable. Second, the Minister submitted that Sharma was "plainly wrongly decided in relation to its obiter dicta consideration of the effect of the deregistration of a migration agent".
3. Given my findings above, it is unnecessary to determine this issue. However, I note that the present case is different from that considered in Sharma. Important to the reasoning in Sharma was the fact that the applicant had expressly authorised his authorised recipient by reference to their role as "a migration agent" (having been permitted to do so through the relevant form) (at [84]-[93]). That did not occur in the present case. I therefore accept the Minister's submission that the present matter is distinguishable.

1. For the above reasons, the application before the Court succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.