Koralalage v Minister for Immigration and Citizenship [2025] FedCFamC2G 2134

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for judicial review of an administrative decision made by the then Administrative Appeals Tribunal. The Tribunal found that it was jurisdictionally barred from review of a decision of a delegate of the First Respondent because the review application was filed after the prescribed time.
2. These reasons explain why the Applicant's contention that the notification of the initial decision to refuse the visa was defective, and therefore invalid, succeeds.

1. The Applicant is a citizen of Sri Lanka who arrived in Australia on 29 September 2014 as the holder of a Temporary Work Sport Stream (subclass 401) visa.
2. On 15 April 2016, the Applicant made a combined application for a Partner (Temporary) (Subclass 820) visa and a Partner (Residence) (Subclass 801) visa.
3. On 1 June 2018, a delegate of the First Respondent refused the application (delegate's decision) - notification of which was sent by email to the Applicant's then nominated representative (extracted in full, omitting confidential information only, at Annexure A to these reasons.
4. On 2 July 2018, the Applicant sent an email to a department email address which provided:

To whom it may concern, this is Prabath Priyankara Ranaweera Koralalage . I am writing in relation to the decision of my request for a partner Visa. I have had no contact at all with my previous lawyer Jeremy since May 2018 therefore had no idea of this information that has now been put before me. I am requesting you to please Review the decision of my application. I am married and have a son here in Australia and we are now getting counselling to continue a strong healthy relationship together and s happy life for us and our son . I am happy to provide letters for friends and family to confirm this . Could you please provide me information on how I may stay in this country with my family and what to do from here. please can you forward all information to my email [email address redacted] Thank you Regards Prabath Priyankara

(sic.)

1. Also on 2 July 2018, the department sent an email in response to the Applicant which stated that the department was unable to review the decision to refuse the partner visa application, made on 1 June 2018, the writer had investigated whether the delegate made a jurisdictional error or incorrectly notified the Applicant of the decision but did not consider that this had occurred and therefore the decision could not be revisited. The delegate's decision record and notification letter of 1 June 2018 was again attached to that email.
2. On 24 May 2019, a lawyer sent a notice of (new) representative appointment to the department along with correspondence which asserted that the refusal notification was affected by the decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (Rares, Perram and Farrell JJ) (DFQ17) and, in the event the outcome in a related appeal was successful, requested reissue of the notification of the delegate's decision of 1 June 2018 so that the Applicant could seek merits review within 21 days of proper notification.
3. On 31 May 2019, the department sent an email in response to the Applicant's nominated representative which stated that the department had considered the refusal notification and, in accordance with the department's renotification policy, would not be renotifying the Applicant of the decision in the circumstances.
4. On 9 July 2019, the Applicant lodged an application for merits review of the delegate's decision with the Tribunal.
5. On 5 September 2019, the Tribunal invited the Applicant to comment on the validity of the application for review - specifically, that the application for review of the delegate's decision was not valid because it was not lodged within the relevant timeframe.
6. On 19 September 2019, the Applicant's nominated representative provided a response to the invitation to comment.
7. On 21 October 2019, the Tribunal determined that it did not have jurisdiction in the matter because the application was lodged beyond 21 days after notification of the delegate's decision (Tribunal's decision).

1. At [2] of the Tribunal's decision the decision maker established that, pursuant to s.347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations), an application for review of the delegate's decision had to be made within 21 days after the Applicant was notified of the delegate's decision in accordance with the statutory requirements.
2. At [3] the Tribunal found that the material before them indicated that the Applicant was notified of the decision by a letter dated 1 June 2018, which transmission method was by way of email to the Applicant's authorised agent. The Tribunal was therefore satisfied that the Applicant was notified of the decision in accordance with the statutory requirements.
3. At [5] and [6] the Tribunal considered the Applicant's submissions in response to a request to comment on the validity of the Applicant's application including the Applicant's submission that, while the delegate's decision and notification letter are dated 1 June 2018, the notification letter was affected by the type of error identified in DFQ17 and the review application was made within time.
4. At [7] the Tribunal found that the Applicant was taken to have been notified of the delegate's decision on 1 June 2018. The prescribed period to apply to the Tribunal for review therefore ended on 22 June 2018. The Tribunal further noted that the Applicant lodged the review application more than 12 months after receiving the delegate's decision.
5. At [8] and [9], the Tribunal summarised DFQ17 and sought to distinguish DFQ17 from Ali v Minister for Home Affairs [2019] FCA 1102 (Nicholas J) (Ali).
6. At [10] to [14] the Tribunal examined the notification of the delegate's decision in light of the authorities and applicable legislation, ultimately finding that:

(a) the notification clearly conveyed the mandatory information and contained sufficient information to easily determine the time within which to lodge the review application: at [11];

(b) the submissions concerning the meaning of the word "transmission" and "end of the day" were unpersuasive considering that the application was lodged more than 12 months after receiving notification of the delegate's decision: at [12];

(c) a document transmitted pursuant to s.494B(5) of the Act or regs.2.55(3)(d), 2.55(3A)(d) or 2.55(3A)(f), is taken to have been received by a person at the end of the day on which it is sent: at [13], citing Sainju v Minister for Immigration and Citizenship [2010] FCA 461; (2010) 185 FCR 86 (Jacobson J) at [56]-[57]; and

(d) the "end" of a day in this context should be given its natural meaning as intending to deem receipt on that that day but at its end: at [14], citing SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49 (Smith FM) at [19].

1. At [17], the Tribunal concluded that it lacked jurisdiction in the matter.

1. On 21 November 2019, the Applicant lodged the originating application for judicial review of the Tribunal's decision with a supporting affidavit of the Applicant's solicitor deposed on 20 November 2019 which were accepted for filing on 22 November 2019.
2. On 7 January 2020, a response was filed on behalf of the First Respondent by which they contended that there was no error of jurisdiction.
3. On 24 March 2020, the First Respondent filed a court book.
4. On 21 October 2024, the Applicant filed an amended application, followed by an outline of written submissions accepted for filing on 24 October 2024. The amended application identified 1 ground of review with particulars, in the following terms:
   1. The Tribunal erroneously found that it lacked jurisdiction to consider the Applicant's application for review.

Particulars

1. On 9 July 2019, the Applicant lodged an application for review of the decision of a delegate of the Minister to refuse to grant him a Partner (Temporary) (Class UK) visa: Tribunal's reasons, para [1].
2. The Tribunal found at paragraph [7] and [16] of its reasons that:

The Tribunal finds that the applicant is taken to have been notified of the decision on 1 June 2018. Therefore the prescribed period to apply for review ended on 22 June 2018.

...

As the application for review was not received by the Tribunal until 9 July 2019 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

1. Section 66(2)(ii)(d) of the Act required a notification of a decision to refuse an application for a visa to state 'the time in which the application for review may be made'.

   1. The notification of the decision of the delegate (the notification) stated at page 1 that:

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.

1. The notification stated at page 3, a number of paragraphs below the text referred to in particular (d), and under the heading "Registries of the Administrative Appeals Tribunal" that '[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'.
2. The legal standard as to the clarity of the information to be provided under s 66(2)(ii)(d) is set in law: BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517; DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492. This manner in which this information was provided did not meet the legal standard, and therefore the notification was invalid.
3. Consequentially, the Applicant was not out of time when he applied to the Tribunal.

1. On 30 October 2024, the Applicant filed a list of authorities.
2. On 13 February 2025, the First Respondent filed an outline of written submissions, followed by a list of authorities which was filed on 18 February 2025.
3. On 20 February 2025, a final hearing was convened before the Court as presently constituted. The Applicant and the First Respondent were both represented by Counsel.

1. The starting point is s.66 of the Act which, at the relevant times, provided for notification of a decision to refuse a visa to specify certain matters, as follows:

(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; and

(e) in the case of a fast track reviewable decision - state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f) in the case of a fast track decision that is not a fast track reviewable decision - state that the decision is not subject to review under Part 5, 7 or 7AA.

(3) This subsection applies to an application for a visa if:

(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

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

(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

1. Sub-sections 494B(1) and (5) of the Act relevantly provided that one of the permissible methods to notify of a refusal decision was transmission of the document by email to the last known email address provided to the First Respondent for the purpose of receiving documents.
2. Section 494C relevantly provided that, if the First Respondent gives a document to a person by the method in s.494B(5) (including by email), then the person is taken to have received the document at the end of the day on which the document was transmitted. Further, at s.494C(7):

Document not given effectively

(7) If:

(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

1. Section 494D(1) provides that if an applicant gives the Minister written notice of the name and address of another person (authorised recipient) who is authorised by the applicant to receive documents in connection with specified matters arising under the Act or the Regulations, the Minister must give the authorised recipient, instead of the applicant, any documents in connection with those matters that the First Respondent would otherwise have given to the applicant. Section 494D(2) further provides that if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant.
2. The Tribunal's jurisdiction to review the delegate's decision is contingent upon an application being properly made under s.347 of the Act: s.348. One requirement of a proper application was that the application for review was required to be made within 21 days: ss.338(2) and 347(1)(b) of the Act and reg.4.10(1)(a).

1. This is not a case where the giving of the notice of the delegate's refusal of visa decision is in issue. Rather, the Applicant seeks to persuade the Court that this is a case where the content of the notice of the delegate's original refusal was unclear and confusing such that it was, in effect, invalid and therefore the time for filing with the Tribunal had (and has not) yet started to run.
2. In the authority on which the Applicant placed some emphasis before the Tribunal, DFQ17, Perram J considered the requirements of a valid notice given in compliance with s.66(2) of the Act. It was there held that the requirement that the notification "state" information must be read in context of the notification letter having triggered a review process - where an incomplete or obscure statement of required information might prevent an individual from effectively engaging in that review process: at [52]. And, at [57]-[58], it was reasoned that:

... The 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.

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 ... but clear as well.

1. On careful inspection of the notice of the delegate's decision in the present case, dated 1 June 2018, it is tainted with the same lack of clarity as that in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Markovic J) (Sandor). Like the circumstance considered in Sandor, the notice in the present case:

(a) Bore the date of issue at the top of page 1, but did not specify the exact date by which the application for review had to be given to the Tribunal;

(b) On page 1, under the heading "Review rights", stated that an application for merits review must be given to the Tribunal within 21 calendar days after the day on which "you" are taken to have received this letter; and

(c) On page 3 (even further apart in this case, on page 2 in Sandor), under the heading "Registries of the Administrative Appeals Tribunal", stated that as the letter was sent to "you" by email, "you" are taken to have received it at the end of the day it was transmitted.

1. Adopting the approach in Sandor, the difficulty is that the notification subject of this proceeding was transmitted by email to the Applicant's migration agent. Of itself, transmission to the authorised migration agent was permissible and contemplated by the statute as an appropriate means of notification. However, that same factor nonetheless renders the notification itself unclear because it was transmitted to the agent but addressed to the Applicant such that references to "you" are vague at best and otherwise unclear. A further lack of clarity is attended by the location of the information necessary to calculate the date of review which appears on the last page of the letter under a heading that does not indicate, or tend to indicate, that purpose. In short, the content of the notification was not sufficiently clear as to enable the Applicant to calculate the time for review.
2. For completeness, the present case is distinguishable from that of Ali because, in Ali, the notification letter was sent directly to the Applicant by email.
3. The present case is also distinguishable from Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (Thawley, Flick and Bromwich JJ) (Singh) where the second heading under which information about when the notice was taken to be received (essential to understanding when a review application was to be given) was "Receiving this Letter" and does not appear in the present case. Rather, the notice subject of these proceedings was infinitely less clear and more confusing ("Registries of the Administrative Appeals Tribunal").
4. The First Respondent further sought to rely on Singh for the authority that an unobjectionable tool in determining the validity of a notification, is whether it is capable of being understood by a person exercising reasonable care in the circumstances. As discussed by Her Honour Judge Laing in ELL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1888 at [28], such a test is not inconsistent with Sandor:

... 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.

1. I find that, as in Sandor, the notification in this case did not comply with s.66(2)(d)(ii) of the Act.

1. For the above reasons, the application before the Court succeeds. I will make an order that the First Respondent pay the Applicant's costs, fixed in the scale amount of $9,097.93 which is appropriate in the circumstances absent evidentiary justification for the slightly higher amount of $9,600.00 as sought.

I certify that the preceding fourty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Notification of refusal of application for a Partner (Temporary) (class UK) (subclass

820) / Partner (Residence) (class BS) (subclass 801) visa

I wish to advise you that the application for this visa has been refused on 01 June 2018 for

The applicant did not satisfy the provisions of the Migration Regulations 1994.

The attached decision record provides detailed information about this decision as it applies to this applicant.

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

When your visa application was lodged, a bridging visa was granted to you for the duration

of the visa processing period. If you make a valid application for merits review of this

refusal decision then that bridging visa will remain in effect during the merits review

proceedings. Otherwise your bridging visa will cease 28 calendar days after this notice is

taken to have been received. More information on bridging visas is available on our website

You must depart Australia by the date your bridging visa ceases. If you stay in Australia

after the date your bridging visa ceases (and you do not hold another visa) you will be here

unlawfully. This has serious consequences including possible detention and removal from

If there are reasons why you cannot depart Australia by the time your visa ceases, you

should contact us for advice and assistance as soon as possible. You can call 131 881

between 8.30 am and 4.30 pm Monday to Friday or you can visit any one of our offices.

Details of our office locations and opening hours are available at www.border.gov.au

While you are in Australia, you can only lodge another application in very limited

circumstances for a visa to allow you to remain in Australia. Refer to Form 1026i Limitations

on Applications in Australia available at www.border.gov.au/Forms/Documents/1026i.pdf

If you lodge a new 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.

Applications for review can be lodged online, in person, faxed or posted to any registry of the

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 8600 5801 or 07 3361 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.

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.

We cannot consider your visa application any further.

The original of this letter including any attachments was sent to: