Sharma v Minister for Immigration and Citizenship [2026] FCA 284

1. Twelve-and-a-half years ago, the appellant, Mr Sharma, made an application under the Migration Act 1958 (Cth) (the "Act") for temporary and permanent partner visas (the "Visa Application"). More than four years later, a delegate of the first respondent (the "Minister") refused the Visa Application, apparently on the ground (or on grounds that included) that, contrary to his assertions, Mr Sharma was not in a genuine and continuing relationship with his nominated visa sponsor. Written reasons for that decision (the "Refusal Decision") were prepared and, on 23 November 2017, were sent by email to a "Gmail" address that Mr Sharma had previously nominated.
2. Citing "some issue" with accessing email via his Gmail account, Mr Sharma contacted the Minister's department on 24 November 2017 - coincidentally, the day after notice of the Refusal Decision was sent - and requested that future correspondence with him occur via an alternate email address. On 28 November 2017, following attendance to some low-level administrative matters, further notice of the Refusal Decision and the reasons that animated it were sent to Mr Sharma at that alternative email address.
3. Precisely 21 days later, on 19 December 2017, Mr Sharma made an application to the second respondent (or what was then its predecessor, the Administrative Appeals Tribunal - hereafter, the "Tribunal") to have the Refusal Decision reviewed on its merits (the "Review Application"). On 31 January 2018, the Tribunal found that it had no jurisdiction to determine the Review Application on the ground that it had not been made within the 21-day timeframe that was prescribed for that purpose by s 347(1)(b) of the Act and r 4.10 of the Migration Regulations 1994 (Cth) (the "Regulations"). Central to that decision (the "Tribunal's Decision") was the Tribunal's observation that notice of the Refusal Decision had been given on 23 November 2017, 21 days after which was 14 December 2017, which was five days before the Review Application was filed.
4. The Tribunal's Decision then became the subject of an application for judicial review (the "Judicial Review Application"), which Mr Sharma filed on 21 February 2018 in what was then known as the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)). That application was subsequently dismissed with costs: Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 378 (Judge Blake; hereafter, the "Primary Judgment").
5. By a notice of appeal dated 11 May 2023, Mr Sharma appeals from the whole of the Primary Judgment. He maintains that the Tribunal's Decision was a product of jurisdictional error, which the learned primary judge wrongly failed to recognise.
6. He is wrong on both accounts and the appeal will be dismissed with costs.
7. The Refusal Decision was, by operation of s 338(2) of the Act, a "Part 5-reviewable decision". Any application to have the Tribunal review it on its merits was, by operation of s 347(1)(b) of the Act, to be made within "the prescribed period", being a period ending a maximum of 28 days from the date that notice of it was first received. That 28-day maximum is subject to regulations, which may prescribe a shorter period: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, [5] (Spender, Kiefel and Dowsett JJ).
8. Regulation 4.10(1) of the Regulations relevantly provides that, for the purposes of s 347(1)(b) of the Act, the period in which any application to the Tribunal for review of a Part 5-reviewable decision of a kind with which the court is presently seized must be made within the period that starts on the day that an applicant "receives notice" of the decision and ends "...21 days after the day on which the notice is received".
9. There is no facility under the Act to extend that prescribed period. Thus, the Tribunal's jurisdiction to hear Mr Sharma's Review Application turned solely upon identification of the point in time at which notice of the Refusal Decision was "received".
10. As he does on appeal, Mr Sharma contended before the primary judge that he first received notice of the Refusal Decision on 28 November 2017, when it was sent to the alternate email address to which he requested that it be sent. The Tribunal concluded that it was in fact received on 23 November 2017, when it was sent to the Gmail address that, to that point, he had nominated as his point of email contact. The primary judge discerned no error in that conclusion. Mr Sharma's appeal proceeds upon a single ground, which posits that he received notice of the Refusal Decision on 28 November 2017, not 23 November 2017. It invites the court now to find that, insofar as they concluded otherwise, both the Tribunal and the primary judge did so in error.
11. Notice of the Refusal Decision was provided to Mr Sharma in a manner that the Act authorised (namely, by email): the Act, ss 66(1) and 494B(5); the Regulations, r 2.16(3). Section 494C of the Act relevantly provides (and provided) as follows:

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. In Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163, 169 [24]-[25] (Dowsett, Stone and Bennett JJ), the full court observed:
   1. ...Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery...
   2. That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his Second Reading Speech concerning the Bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said:

These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations.

They clarify when notification of a decision occurs and on what date.

This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

1. Before the primary judge, Mr Sharma appeared to suggest that he had attempted in 2016 to nominate, for departmental communication purposes, a different email address; that is to say, an email address not associated with his Gmail account. No evidence was led before the primary judge to substantiate that factual proposition and, that being so, his Honour did not accept it. To the extent that the question remains live on appeal (and with respect), it is plain that his Honour was correct not to do so. The email address to which notice of the Refusal Decision was sent was the same email address that Mr Sharma nominated on his Visa Application for the purposes of "...the department communicating with [him] by fax, e-mail or other electronic means".
2. The consequence is beyond doubt. At least for the purposes of s 347(1)(b) of the Act, the Tribunal was obliged to recognise that Mr Sharma had received notice of the Refusal Decision more than 21 days prior to the date on which he made his Review Application. That was a reality that mandated the conclusion at which the Tribunal arrived: namely, that that application was not one that it enjoyed any jurisdiction to entertain. It was correct so to conclude; and the learned primary judge did not err in so finding.
3. At the hearing of the appeal, Mr Sharma advanced an alternative submission about the form that the notice of the Refusal Decision had assumed. He complained that it was unclear from that notice when the deadline by which he was obliged to file any application to have the Refusal Decision reviewed would expire. That complaint extended, perhaps, somewhat beyond the observable boundaries of Mr Sharma's sole ground of appeal; but I should address it nonetheless.
4. The Refusal Decision (or the reasons that underpinned it) was sent under cover of correspondence dated 23 November 2017 (the day of the email correspondence by which it was conveyed to Mr Sharma's nominated "Gmail" account). That correspondence contained information not only about the decision itself but also Mr Sharma's rights to have it reviewed. That information appears to have been offered in purported compliance with the requirements of s 66(2)(d) of the Act, which, amongst other things, requires that, "[n]otification of a decision to refuse an application for a visa must...if the applicant has a right to have the decision reviewed...state...the time in which the application for review may be made..."
5. The correspondence of 23 November 2017 identified Mr Sharma's right to have the Refusal Decision reviewed on its merits. Relevantly, under the heading "Review rights", it noted:

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.

1. Later, the correspondence listed the addresses of the Tribunal's (or the AAT's) registry addresses, after which the following was noted:

Further information about the merits review process is available from the AAT on the Tribunal website at 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.

1. Mr Sharma submits that the correspondence of 23 November 2017 did not comply with the legislative requirement that the notice state "...the time in which the application for review may be made". Instead, he complained that the notice was unclear - inferentially in a manner apt to reflect jurisdictional error on the part of the Tribunal, which the primary judge wrongly failed to recognise.
2. In support of that contention, reference was made to the decision of the full court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492 ("DFQ17"; Rares, Perram and Farrell JJ). There, the full court determined that a notice of a decision to refuse a visa application did not satisfy the requirements of s 66(2)(d) of the Act, partly because the reference that it made to when it was taken to have been received (in that case, by postal transmission to a PO Box) was located under the heading, "Financial or case worker assistance".
3. DFQ17 does not assist Mr Sharma. It was decided upon its own, peculiar facts (which the present matter does not faithfully replicate). As much was noted in BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517, 525-6 [32]-[36] (Reeves, Perram and Charlesworth JJ). There, the court was astute not to fix any rule as to when a notice of a refusal decision should or should not be understood to "state" what s 66(2)(d) of the Act requires. Nonetheless, their Honours noted (at [37]):

...when the notification [as to when a notice is taken to have been received] is correctly located under a sensible heading having a connection with the exercise of review rights it is likely that the notification will be clear in the requisite sense... Although what the regulation requires by way of time limits is very poorly drafted, we would not hold that an accurate statement of what the regulations require is unclear just because the regulation itself is. Nor would we hold that the obligation can only be discharged by nominating an actual date although this would certainly be a far better outcome for all concerned...

1. Even assuming that the contention is properly agitated on appeal, I do not accept that the correspondence that was sent to Mr Sharma on 23 November 2017 offended against the requirements of s 66(2)(d) of the Act. It stated what it was required to state. That it might have been stated differently - or even more clearly than it was - is of no moment.
2. The appeal must be dismissed and there is no reason why Mr Sharma should not pay the Minister's costs. The Minister seeks that they be fixed in the sum of $5,000.00. Save for having urged a different outcome, Mr Sharma did not offer any submission to resist that course. I have no hesitation in making an order to that end.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.