VRRQ v Minister for Immigration and Citizenship [2026] FCA 77

1. Both grounds concern the first and second sentences of the key paragraph of the Letter, being the paragraph set out at paragraph 9 above. In the course of oral submissions, it emerged that Ground 1 is premised on there not being any inconsistency between the two sentences, such that the Letter is "clear but nonetheless incorrect", whereas Ground 2 is advanced in the alternative, on the basis that the two sentences are inconsistent and the Letter is, as a result, unclear.

1. The Applicant's primary case is that a proper reading of the impugned passages of the Department's Letter indicates that the Department transmitted the Letter by email to the Applicant's authorised recipient and, in light of ss 494B(5), 494C(5) and 494D of the Act (outlined above at paragraphs 13-15), the Applicant is taken to have received the Letter at the end of the day it was transmitted by email to that authorised recipient.
2. The Applicant submits that this reading is consistent with the language of the Act because, it is said:

(1) If a document is sent by email to a person, it is deemed to be received at the end of the day that the email is transmitted, by the operation of s 494C(5), which states:

(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.

This provision, the Applicant submits, is what is reflected in the first sentence of the impugned paragraph of the Letter: "As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted."

(2) Where a person has appointed an authorised recipient under s 494D(1) of the Act, s 494D(2) makes clear that it is the transmission of the document to the authorised recipient that is relevant for the purposes of determining when time starts to run. The Applicant's submission during oral argument was that it did not matter that the Letter had been addressed to the Applicant (instead of their authorised recipient), because s 494D(2) states that, if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to that person, but that does not prevent the Minister giving the person a copy. The Applicant submits that this is the provision that is invoked in the second sentence, which stated: "You have appointed an authorised recipient and are taken to have received the letter at the end of the day it was transmitted to your authorised recipient."

1. On this analysis, the relevant passage of the Letter is said to have a clear meaning, and the "you" referred to in the first sentence is a reference to the Applicant as a person with an authorised recipient. Accordingly, time would start to run at the end of the day when the Letter was transmitted by email to the Applicant's authorised recipient.
2. However, given that the Applicant had never appointed an authorised recipient and the Letter was never sent to such a person, the Letter was ineffective to start the running of time. That contention appears to have been advanced on two bases: first, on the basis that the Act simply did not operate to trigger the running of time; and secondly, on the basis that the Letter contained incorrect objective facts concerning the time period for lodgement of the Review Application, and so was ineffective to commence the running of time.
3. That being so, the Applicant submits that the Tribunal was in error in ruling that the Review Application had been brought out of time, and that it had no jurisdiction to determine it.

1. In the alternative to Ground 1, the Applicant submits that the Letter was unclear and confusing in light of the principles set out in Park.
2. On this alternative case, the Applicant proceeds from the assumption that the reference to "you" in the phrase "you are taken to have received [this Letter] at the end of the day it was transmitted" refers to the Applicant himself, and was inconsistent with the following sentence, which referred to the Letter being transmitted to an "authorised recipient".
3. On this reading, the Applicant contends that the Letter does not satisfy the test set out by the Full Court in Park, according to which the relevant information must be set out in a manner that is "complete and clear", and a notification may fail to meet the statutory requirements if it fails to "crystallise that information with sufficient clarity" (Park at [22] and [28]). The Applicant argues that by presenting inconsistent information, the Letter cannot be said to have crystallised the necessary information with sufficient clarity to meet this test.
4. It was said in Park that consideration of "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", although they should not be allowed to replace the statutory text (Park at [22], citing Singh at [10]).
5. On the Applicant's case, a person reading the Letter, exercising reasonable care in the circumstances, may be confused as to whether the Department had sent the Letter to someone whom the Department considered to be their "authorised recipient", and would not feel able to trust the veracity of the statement, "[a]s this letter was sent by email, you are taken to have received it at the end of the day it was transmitted". The Applicant further submits that a reasonable person in his circumstances might be especially confused by the Letter in light of:

(a) the absence of any reference to an "authorised recipient" in his correspondence with the Department prior to 10 October 2024;

(b) the Department's previous correspondence with Ms Dickinson of the ASRC (outlined above at paragraphs 19-20); and

(c) the Applicant's correspondence of 27 August 2024 indicating confusion about the identity of the person within the Department that he was communicating with.

1. The Applicant also claims that the Tribunal erred in distinguishing the facts of the Applicant's case from those in Sandor and Park, and submits that his case is in fact more problematic than were those cases, because a communication that contains two inconsistent sentences one after the other is "plainly less clear than a communication that contains no inconsistency but provides necessary information disparately".
2. In the course of oral submissions, the Applicant conceded that the test that the Tribunal said (at T [72]) that it was applying, was not substantively different from the correct construction of what is required by s 501G(1)(f)(ii). The Applicant contended, however, that the Tribunal's distinguishing of Park and Sandor revealed that it had in fact applied an overly narrow view of the circumstances in which a notification will be sufficiently unclear as to be rendered ineffective.

1. The Minister's principal response to both Ground 1 and Ground 2 can be summarised as follows.
2. In circumstances where:

(a) the Letter was addressed to the Applicant as "the sole visa applicant" (T [73]);

(b) both the Letter and the covering email were "plainly addressed personally to him, and only to him, via his personal email address" (T [73]); and

(c) the Applicant had not appointed any authorised recipient,

the Minister submits that the Letter had only one possible date from which the time for lodging a review application could be discerned, being the date on which the Letter was emailed to the Applicant: 29 October 2024.

1. In the Minister's submission, there could be no confusion as to any other possible applicable date by which the Review Application had to be lodged by reason of the incorrect advertence to an "authorised recipient", because there was no authorised recipient appointed at the time the Letter was sent. The Minister contends that it is permissible to have regard to the evidence before the Tribunal establishing that the Applicant had not appointed any authorised recipient (which was not in dispute), but also that it was permissible to proceed on the basis of an inference that the Applicant in fact knew that he had not appointed any authorised recipient, and would read the Letter in light of that knowledge.
2. The Minister also submits that the Letter did not contain any "inconsistent statement" of information in circumstances where, objectively, the Applicant knew (or could be taken to have known) the circumstances of whether an authorised recipient had or had not been appointed (because he either did or did not make such an appointment). That being the case, the Minister says that the Tribunal was correct to find that the erroneous reference to an "authorised recipient" did not invalidate the notice for the purposes of s 501G(1) of the Act.
3. In addition to this principal argument, and "to the extent it is necessary to do so", the Minister refers to and relies upon s 494E of the Act. As this provision was not referred to or relied upon before the Tribunal, I have set out the parties' arguments on this point separately, below.

POTENTIAL APPLICATION OF SECTION 494E

1. Section 494E of the Act provides as follows:

(1) This section applies in relation to a document if:

(a) a provision of this Act or the regulations requires or permits the Minister to give the document to a person; and

(b) a provision of this Act or the regulations requires (the content requirements) the document to include particular information.

(2) For the purposes of this Act or the regulations, the document is taken to comply with the content requirements if:

(a) there is substantial compliance with those requirements; and

(b) the failure to strictly comply with those requirements does not, or is not likely to, cause substantial prejudice to the person's rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).

(3) Subsection (2) applies despite any other provision of this Act or the regulations.

(4) Without limiting paragraph (2)(a), there may be substantial compliance with the content requirements even if there is an error, omission, misstatement or misdescription in the document.

(5) Without limiting paragraph (2)(b), a failure by the person to:

(a) exercise any rights (including, but not limited to, rights to seek review) in connection with the matter to which the document relates; or

(b) take any other action (including, but not limited to, the making of representations) in connection with the matter to which the document relates;

is not on its own to be taken to imply that the failure to strictly comply with the content requirements has caused substantial prejudice to the person's rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).

1. The Minister submits that, for the purposes of ss 494E(2)(a) and 494E(4), the content of the Letter was substantially compliant with the requirements of s 501G(1)(f)(ii). This is said to be because the statement referring to an "authorised recipient" was "a misstatement or misdescription of the factum of the Applicant not having an authorised [recipient]" and, there being "no other aspect of the notice which is incorrect or infirm", substantial compliance is "obvious on the face of the notice".
2. The Minister also submits that the content of the Letter did not (or likely did not) cause any substantial prejudice to the Applicant's rights, for the purposes of ss 494E(2)(b) and 494E(5). In this regard, the Minister refers to a letter from the Applicant dated 24 February 2025, which accompanied the Review Application lodged with the Tribunal. That letter was reproduced in the Tribunal's reasons (at T [29]) as follows:

Dear Registrar,

I am requesting a review of the cancellation of my Protection (Class XA) subclass 866 visa. The purported notice of cancellation was sent by email on the 29 October 2024. However, I believe that the notice did not comply with the requirements of the Act. This is in line with recent authority in the Federal Court's judgments in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 and Minister for Immigration, Citizenship and Multicultural Affairs v Park 2024] FCAFC 136. The Notification letter includes the following statement:

As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted. You have appointed an authorised recipient and are taken to have received this letter at the end of the day it was transmitted to your authorised recipient.

It is unclear if my authorised recipient received the notification, how the authorised recipient was notified (letter or email) and when (the date of notification) the authorised recipient was notified of the cancellation. I find the notification to be unclear and confusing. In my circumstance, I did not have access to my emails at the time of notification and I was not notified of the cancellation through my authorised recipient.

1. The Minister takes this letter to comprise the Applicant's "only explanation" as to why he filed the Review Application when he did which, it is said, "is insufficient to establish any substantial prejudice". Noting that the Applicant's letter does not address whether the Applicant had access to his emails or made enquiries of the ASRC (to which the Minister assumes the Applicant is referring when he says "authorised recipient") at any other point in time during the nine-day lodgement window, the Minister submits that:

(a) on the one hand, if the Applicant had access to his emails at some point during that period and was confused by the Letter as to whether there had been an erroneous communication to the ASRC in purported compliance with s 494D(1) of the Act, the Applicant could have made enquiries and clarified this with the ASRC; and

(b) on the other hand, if the Applicant did not have access to the Letter at any point during that period, then the terms of the Letter could not have impacted upon his ability to properly comprehend the timeframe in which he could lodge a review application.

1. Therefore, the Minister submits, there has been no substantial prejudice to the Applicant's rights, and any error in the Letter is deemed to be cured by reason of s 494E of the Act.

1. In the Applicant's submission, s 494E would be of relevance to the Letter if it contained "minor or technical errors ... such as misspelled names, typographical errors, or information under wrong headings", but not in circumstances such as this where, it is said, "there is a statutory requirement for the notice to contain certain information, and the notice includes such information that is false or incorrect". The Applicant submits that the Letter was not in substantial compliance with the content requirements of s 501G(1) of the Act because:

(a) if the Applicant's case on Ground 1 is accepted, the Letter provided no information about when time started running for the purpose of calculating when an application for review could be made, and therefore the content requirement of s 501G(1)(f)(ii) was not satisfied at all; or

(b) alternatively, if the Applicant's case on Ground 2 is accepted, the Letter contained two contradictory statements about the time in which an application for review had to be made and, in those circumstances, could not be said to be in substantial compliance with the content requirement of s 501G(1)(f)(ii) because it was not "complete and clear".

1. The Applicant submits that the deficiencies of the Letter therefore "go far beyond the minor or technical, and reveal a fundamental failure to comply with the content requirements of the Act" such that s 494E is not engaged in this case.

1. For the reasons that follow, the application will be allowed, based on Ground 2. The Applicant only needed to succeed on one of the two grounds. Accordingly, it is not necessary to address Ground 1.
2. In order for the Letter to constitute an effective notice for the purposes of s 501G(1), it must have given the Applicant "written notice that", relevantly, under s 501G(1)(f)(ii), "states the time in which the application for review may be made".
3. While the decided cases have identified "tools" of analysis, the question is whether the Letter met the statutory requirements. In other words, did the Letter constitute a written notice to the Applicant that, relevantly, "states the time in which the application for review may be made"?
4. In addressing that question, I am bound by the approach set out by the Full Court in Park, which endorsed what was said by a differently constituted Full Court in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 (DFQ17) as declaring the "meaning of the text of the provision" (Park at [22]). Although the provision in question in Park and DFQ17 was s 66(2)(d)(ii), and not s 501G(1)(f)(ii), the provisions are in relevantly the same terms as they both require that the notice "state" or "states" the time in which an application for review may be made, albeit that the time in which an application for review may be made that arose in Park and DFQ17 is 28 days after notification of the decision, as compared with the nine-day period in this case.
5. In DFQ17, Perram J (with whom Rares and Farrell JJ relevantly agreed), construed the verb "state" in s 66(2)(d)(ii). As Perram J observed (at [57]-[58]):

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 (as Zhan holds) but clear as well. ...

1. These observations as to the strictness of the review system have all the more force in relation to the regime at issue in the present case, as the period in which an application for review must be commenced is only nine days (as compared with the 28-day period in DFQ17 and Park). Once the nine-day period has elapsed, a person in the Applicant's position cannot commence an application for review of the Minister's Decision to refuse to grant him a protection visa, and the Tribunal cannot extend that time.
2. The key point arising from Park is that, in order for the Letter to "state" the "time in which the application for review may be made", and so constitute an effective notice for the purposes of triggering the nine-day period specified in s 500(6B), it was required to be clear and it was required to be complete.
3. The Letter was not, in my view, clear and complete. The Letter was not clear because it specified two different means by which the day triggering the running of the nine-day period was to be worked out: first, the day the Letter was transmitted by email to the Applicant; and second, the day the Letter was transmitted by email to the Applicant's authorised recipient. Consequently, and confining oneself to the face of the Letter, the recipient of the Letter would not be able to discern with clarity and certainty when the nine-day period started running. To state the obvious, clarity and certainty as to the commencement of the running of a nine-day period is vital when only a nine-day period is allowed and the consequences of missing that deadline cannot be remedied by the Tribunal extending time.
4. Can regard be had to matters outside the face of the Letter? In Park, the Full Court endorsed (at [22]) what was said by Thawley J (with whom Flick and Bromwich JJ agreed) in Singh at [10]. In Singh, Thawley J identified a number of "tools" for determining whether the statutory requirement for notification has been met, but cautioned that those tools "should not be allowed to replace the statutory text". The tools in question were considering whether the notification is "clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances".
5. It was common ground that the Applicant had not in fact appointed an authorised recipient. The Minister further contended that the Applicant should be assumed to know that he had not appointed an authorised recipient at the time of receiving the Letter, enabling him to identify that the second sentence was simply erroneous, and could be disregarded. The Minister submitted that this was a matter capable of bearing upon "the correctness and the clarity" of the Letter.
6. It is the last of the "tools" identified in Singh that is particularly relevant, but Singh does not shed any light on what is encompassed within the reference to a person "exercising reasonable care in the circumstances". Nor were the parties able to direct the Court to any authority concerning the extent to which regard may be had to the Applicant's knowledge, although the Minister pointed to DFQ17 as a case which establishes, by analogy, that regard may be had to matters outside the terms of the notice itself.
7. DFQ17 is not of assistance on this point. In DFQ17, the Minister had sent a notice to a post office box. The question was whether the Act permitted this. The relevant provision was s 494B(4)(c)(i), which required the Minister to dispatch the document to "the last address for service provided to the Minister by the recipient for the purposes of receiving documents". There was then an analysis of the form filled out by the applicant, and what the answers to various questions signified in terms of her "last address for service" provided to the Minister.
8. The Court's enquiry into the form filled out by the applicant in DFQ17 arose in order to answer whether the address to which the Minister had sent the communication was the last address for service provided to the Minister by the applicant for the purposes of receiving documents. That is a question whose analysis sheds no light on the extent to which regard may be had to facts extraneous to the Letter itself in determining whether it "state[d]" the time in which an application for review may be made.
9. For the purposes of analysis, I will assume that an inference would be available that the Applicant knew that he had not appointed an authorised recipient (although the availability of such an inference is not straightforward given the other material to which the parties referred, showing some degree of involvement by the ASRC and at least some temporary confusion about the role of the ASRC solicitor involved).
10. I do not consider that, at least in this case, regard can be had to the Applicant's (inferred) knowledge that he did not have an authorised recipient, so as to recognise that the errant sentence had been included in error and that time had started running from the day the Letter was transmitted to him by email, such that the Letter was not unclear or confusing. In Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9 (EFX17), the High Court was concerned with s 501CA(3) of the Act, which requires that, as soon as practicable after making the original decision to cancel a person's visa under s 501(3A), the Minister must "give" the person a written notice of the original decision and other stipulated information, and "invite" the person to make representations to the Minister about revocation of the original decision. The High Court emphasised (at [23]) that the verbs "give" and "invite" "connote only the performance of an act rather than the consequences of that performance such as the recipient's capacity to comprehend the content of the English notice given or the English invitation made". The High Court concluded (at [31]) that the majority of the Full Court had "erred in reasoning that the capacity of a person to understand the written notice, particulars, or invitation described in s 501CA(3) was relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made".
11. In the present case, s 501G(1) requires that the Minister must "give" the person a written notice and, relevantly, requires that the written notice "states" the time in which the application for review may be made (s 501G(1)(f)(ii)). As was the case for s 501CA(3), considered by the High Court in EFX17, s 501G(1) is relevantly concerned with the content of the notice. To similar effect, in Singh, Thawley J (with whom Flick and Bromwich JJ agreed) observed that the question of whether a notification "state[s]" the time in which the application for review may be made is a "simple factual inquiry" to be resolved "by examining the particular terms of the relevant notification letter" (at [23]).
12. Having regard to the language used by s 501G(1) and construing that language in its context - which includes the fact that the notice provision has a critical role in starting time running in a scheme that allows only a very short, nine-day, period in which to lodge an application for review - in my view, the question of whether or not the notice states what it is required to state is to be assessed objectively by reference to the content of the notice. In other words, I do not consider that Parliament intended that the question of whether a notice "states" what it is required to state is to be answered by reference to the subjective knowledge of the person receiving it.
13. Nor am I satisfied that a notice that is otherwise deficient - as I have found the Letter to be - can be rendered clear, and thereby "saved", by reason of the objective fact that the Applicant did not have an authorised recipient. On the facts of this case, it is not necessary to go further than observing that the fact that there was no authorised recipient goes nowhere in terms of the Letter being clear to the recipient, unless that fact is coupled with knowledge on the part of the Applicant that he did not have an authorised recipient. Absent such knowledge, the bare fact of the Applicant not having an authorised recipient goes nowhere because that fact alone would not dispel any confusion that the second sentence might otherwise engender.
14. For the foregoing reasons, the Letter was not clear and complete (DFQ17 at [58]; Park at [22]) in stating the time in which the application for review may be made by the Applicant. Accordingly, the Letter did not "[state] the time in which the application for review may be made" for the purposes of s 501G(1)(f)(ii). It follows that the Applicant was not "notified of the decision in accordance with subsection 501G(1)" for the purposes of s 500(6B). Consequently, the Applicant's Review Application was not filed outside the time permitted by s 500(6B).
15. The parties made submissions about the Tribunal's course of reasoning, but I understood both parties to proceed on the basis that, as the efficacy of the notification was an objective jurisdictional fact, if I were of the view that the Letter was not an effective notice for the purposes of s 501G(1), it would follow that it was not open to the Tribunal to have concluded to the contrary (even though the question of whether the Letter states that which it is required to state is here a question of fact, according to Park at [32]).
16. It remains to address the Minister's contention that s 494E(2) applies so that the Letter is "taken to comply" with the content requirements (relevantly here s 501G(1)(f)(ii)) on the basis that there is "substantial compliance" with those requirements, and the failure to strictly comply "does not, or is not likely to, cause substantial prejudice to the person's rights". This argument was not raised before the Tribunal, but the Applicant did not suggest that it could not be considered in the application made to this Court.
17. Section 494E does not specify when there will be "substantial compliance", beyond s 494E(4) stating that there "may" be substantial compliance even if there is "an error, omission, misstatement or misdescription in the document". The parties directed my attention to the Explanatory Memorandum and Second Reading Speech in respect of the Migration Amendment (Giving Documents and Other Measures) Bill 2023 (Cth). I did not find that material of much assistance.
18. The Second Reading Speech relevantly goes no further than including a statement that the Bill "does not purport to fix errors of substance in notifications, or errors that substantially prejudice a person's legal rights" (Commonwealth, Parliamentary Debates, House of Representatives, 24 May 2023, 3500 (Andrew Giles, Minister for Immigration, Citizenship and Multicultural Affairs)).
19. The general outline to the Explanatory Memorandum refers to a "common sense" approach being adopted, and to the intention being to reduce the administrative burden on the Tribunal and the courts arising from litigation founded on "technical or inconsequential disputes over the giving of a document" (Explanatory Memorandum, Migration Amendment (Giving Documents and Other Measures) Bill 2023 (Cth) at 3). The Explanatory Memorandum goes on to refer to various examples of errors relating to content - which is described as an error contained in the document itself - such as the misspelling of a name, a typographical error, or information being placed under the wrong heading (at [62]). It also refers (at [66]) to the potential for there to be "either a significant breach or a collection of breaches in a document, that make it so unclear that there would be significant misinterpretation of the facts and legal consequences to the person (that is, substantial prejudice to the person's legal rights, per paragraph 494E(2)(b))". In those instances, the Explanatory Memorandum states that "the document would not be considered validly given" (at [66]). The Explanatory Memorandum does not explain why or how a document that is "so unclear" as to have those consequences might nevertheless be one that substantially complies with the content requirements, so as to fail only on the basis of the substantial prejudice limb of the test.
20. In the present case, the Letter was required to "[state] the time in which the application for review may be made". I have determined that it does not do so because it is unclear, due to the relevant paragraph containing two alternate bases on which the starting date might be calculated. I do not consider that a notice that is unclear in this respect can be said to be a notice that substantially complies with the relevant content requirements. While mindful that s 494E was not before the Full Court in Park, I note that the Full Court there took essentially the same view in rejecting an argument that a notice that was incomplete or unclear could be described as involving only "trivial non-compliance" (at [41]).
21. In view of that conclusion, it is not necessary to address the substantial prejudice criterion in s 494E(2)(b).
22. It is also not necessary to address Ground 1, or other submissions made in support of Ground 2, concerning whether the Tribunal erred in distinguishing Park and Sandor.

1. The parties should submit an agreed minute of proposed final orders to chambers within seven days of the publication of these reasons.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.