Federal Court of Australia

Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit and Family Court of Australia (Div 2) on 21 April 2022 be set side and in lieu thereof order that:

(a)    The decision of the second respondent made on 3 May 2018 be quashed.

(b)    The applicant’s review application be remitted to the second respondent for it to determine on the basis that it has jurisdiction to do so and according to law.

(c)    The first respondent pay the applicant’s costs of the proceeding as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

4.    The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit and Family Court of Australia (Div 2) on 21 April 2022 dismissing an application for judicial review of a decision of the second respondent (Tribunal): see Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281. The Tribunal had determined that it did not have jurisdiction to hear the application for review of a decision of a delegate of the first respondent (Minister) to grant the appellant a Student (Temporary) (Class TU) (Subsequent Entrant) (Subclass 500) visa (Student Visa).

Background

2    The following background facts are principally taken from Sandor at [1]-[10].

3    The appellant is a citizen of Hungary.

4    He arrived in Australia in October 2005 as the holder of a tourist visa, left Australia in late October 2005 and returned in July 2006 as the dependent holder of an ELICOS Sector (Subclass 570) visa.

5    The appellant subsequently held several student visas and on 2 July 2012 was granted a Temporary Work (Skilled) visa which ceased on 17 December 2017.

6    On 12 December 2017 the appellant applied for the Student Visa. In his application he appointed a registered migration agent as his “authorised recipient” in relation to correspondence sent by the Department of Immigration and Border Protection to him.

7    On 13 February 2018 a delegate of the Minister refused to grant the appellant the Student Visa. The delegate was not satisfied that the appellant met the requirements of cl 500.312 in Sch 2 of the Migration Regulations 1994 (Cth). In particular, the delegate was not satisfied that the appellant intended “genuinely to stay temporarily in Australia” as required by the Regulations.

8    On 13 February 2018 an email attaching the letter setting out the delegate’s decision was sent to the appellant’s authorised recipient (Notification Letter).

9    On 20 March 2018 the appellant applied to the Tribunal for review of the delegate’s decision.

10    On 10 April 2018 the Tribunal invited the appellant to comment on certain information, namely its view that his application was not valid because it was lodged outside the 21 day period prescribed by s 347(1)(b) of the Migration Act 1958 (Cth) and reg 4.10 of the Regulations. The appellant was invited to comment in writing on whether a valid application had been made to it.

11    On 22 April 2018 the appellant responded to the Tribunal’s invitation to comment on the information provided to him.

12    On 3 May 2018 the Tribunal determined that it did not have jurisdiction in the application for review of the delegate’s decision.

The Tribunal’s decision

13    The Tribunal’s decision is brief. It is convenient to set out its reasons in full:

1.    This is an application for review of a decision of a delegate of the Minister for Immigration on 13 February 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 20 March 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2.    Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

3.    The material before the Tribunal indicates that the [appellant] was notified of the decision by letter dated 13 February 2018 and dispatched by email. The Tribunal is satisfied that the [appellant] was notified of the decision in accordance with the statutory requirements.

4.    On 10 April 2018 the [appellant] was invited to comment that the application was not a valid application as it was not lodged within the relevant time limit. On 23 April 2018 the [appellant] responded explaining that he had problems with his internet access and his advisor was overseas so that he could not ask her for advice. He requested that the Tribunal consider his application as compassionate and compelling an exercise its discretion.

5.    The Tribunal has considered the [appellant’s] submission but the Tribunal does not have discretion to waive the statutory requirements.

6.    The Tribunal finds that the [appellant] is taken to have been notified of the decision on 13 February 2018. Therefore the prescribed period to apply for review ended on 6 March 2018.

7.    As the application for review was not received by the Tribunal until 20 March 2018 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.

14    On that basis the Tribunal determined that it did not have jurisdiction in the matter.

Proceeding before the Federal Circuit Court

15    By application filed on 31 May 2018 the appellant applied for judicial review of the Tribunal’s decision. At the time he was not legally represented. The appellant raised the following grounds of review (as written):

1.    Due to our relatively poor English knowledge we missed the 21 days deadline to appeal. We were wrongly in the belief that we had 35 days to lodge an appeal.

2.    It was quiet unfortunate we could not have adequate internet access. TPG mistake (reported).

3.    We did not have enough money to pay another solicitor to give us advice while our agent was absent to overseas till middle of March.

4.    We believe that we have provided sufficient proof to Immigration and AAT that our relationship is real, strong and lasting one. The authorities have questioned the sheer validity of our relationship whereas they should rather consider here the common future lives of two individuals. We have submitted all relevant and and requested documents. Our aim is to plan our [text cut off page] while helping each other. It is quiet a threat to know that authorities could separate us. Hereby I ask court respectfully reconsider our case and give our relationship a chance.

16    At [25] of Sandor, based on the material relied on by the appellant, the primary judge identified the appellant’s core concern to be: whether the Tribunal erred in finding that it lacked jurisdiction in circumstances where the appellant was confused and/or poorly represented by his migration agent and where he had experienced computer and internet difficulties which made it difficult for him to comply with the relevant 21 day filing period; and whether the appellant should have been given more time in light of his difficult personal circumstances.

17    On the central issue, namely whether the Tribunal erred in finding that it had no jurisdiction, the primary judge referred to the applicable sections of the Act and the Regulations. After doing so his Honour said at [34]:

Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an [appellant] via email. Here, the Department sent the notification letter by email to the [appellant’s] authorised representative …. The [appellant] consented to the Department sending all correspondence to his authorised recipient when he applied for the visa. In accordance with s 494D of the Act, the Department was required to give the authorised recipient (i.e., the migration agent) all documents: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181. There was no obligation or requirement to provide the notification letter to the [appellant] personally.

18    The primary judge noted that the appellant conceded that the Notification Letter was received by his authorised recipient, found that the Notification Letter was sent to the authorised recipient’s email address on 13 February 2018 and found, by virtue of s 494C(5) of the Act, that the appellant was deemed to have received the Notification Letter on the date it was sent to the authorised recipient, i.e. 13 February 2018. The primary judge thus concluded that the Notification Letter was validly sent to the appellant and received by him: see Sandor at [35]-[38].

19    The primary judge then considered if the Notification Letter complied with s 66(2) of the Act and after considering its terms concluded that it did: see Sandor at [46].

20    At [52] of Sandor the primary judge held:

The Tribunal was correct to find that the application was filed late and that, as such, it did not have jurisdiction. The [appellant] was validly notified of the delegate’s decision and correctly informed of his right of review. However, he was unable to lodge his application in time due to circumstances beyond the control of the Tribunal. In these circumstances, the Tribunal had no alternative but to determine as it did.

The appeal

21    The appellant sought leave to rely on an amended notice of appeal in which the following ground of appeal is raised:

1.    The notification of refusal of the Appellant’s student visa was invalid as it did not comply with the requirements of s 66(2) of the Migration Act 1958 (Cth).

Particulars

1)    The notification of refusal of the Appellant’s student visa dated 13 February 2018 which was sent to the Appellant’s migration agent stated that “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”.

2)    This statement in the notification was incorrect and/or unclear because the letter was sent to the Appellant’s migration agent, not to the appellant.

3)    The statement in the notification was also incorrect and/or unclear because the Appellant was taken to have received the letter at the end of the day it was transmitted to the Appellant’s migration agent, not the Appellant.

4)    The notification letter also failed to provide any detail of when the letter was transmitted by email to the Appellant’s migration agent.

5)    In order for the Appellant to determine the 21 days to appeal from the date the letter was transmitted by email, the Appellant was required to identify the date from the covering email from the Department to the Appellant’s migration agent.

6)    The failure to provide the date on which the letter was transmitted on the notification letter resulted in an invalid notification of refusal.

7)    As the notification was invalid, the 21 day time in which to lodge the appeal has not yet begun to run.

8)    In refusing to entertain the Appellant’s application for review of the delegate’s decision to refuse his visa, the Tribunal therefore committed jurisdictional error. The primary judge was wrong to find to the contrary.

(Underlining and strikeout omitted.)

22    By his ground of appeal the appellant contends that the Notification Letter was invalid as it did not comply with s 66(2) of the Act and, in particular, s 66(2)(d)(ii) of the Act. While the precise issues underlying the alleged non-compliance with s 66(2)(d)(ii) of the Act were not raised before the primary judge, the validity of the Notification Letter was considered by his Honour and was the subject of submissions by the Minister and the grounds included in the application before the Federal Circuit Court were sufficiently broad to encapsulate the proposed ground of appeal which the appellant seeks to agitate: see CAV18 v Minister for Home Affairs [2020] FCA 173 at [13]-[19]. For those reasons the Minister consented to the grant of leave for the ground to be argued for the first time on appeal.

23    I accepted the Minister’s submissions and made an order granting leave to the appellant to file his amended notice of appeal.

Legislative framework

24    Section 66 of the Act is titled “Notification of decision” and relevantly provides:

(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; and

…

25    Section 347(1)(b)(i) of the Act relevantly provides that an application for review of a Part 5-reviewable decision must:

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

…

26    Regulation 4.10 of the Regulations provides that for the purposes of s 347(1)(b) of the Act the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal, if that decision is mentioned relevantly in s 338(2) of the Act, “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.

27    Section 494C of the Act sets out when a person is taken to have received a document from the Minister and provides in the case of transmission by email, among other things, that:

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.

28    Section 494D of the Act concerns authorised recipients and relevantly provides:

(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.

(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.

(Note omitted.)

Relevant authorities

29    The question of what is required for a notification to comply with s 66(2)(d) of the Act has been the subject of a number of decisions which bear upon the resolution of the appellant’s ground of appeal.

30    In DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 two questions arose, only one of which is presently relevant, namely the meaning of the word “state” in s 66(2)(d)(ii) of the Act. At [18] Perram J (with whom Rares and Farrell JJ agreed) articulated the question in the following way:

… what does the word “state” mean in s 66(2)(d)(ii) and does a letter sent by a delegate of the Minister “state” the time in which an application for review of the delegate’s decision may be lodged with the Administrative Appeals Tribunal (“the Tribunal”) in circumstances where:

•    On the second page of the letter under the heading “Review Regime” it says:

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 the decision, and ends at the end of 28 days.

•    On the third page of the letter under the heading “Financial or case worker assistance” it says this:

As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.

31    In DFQ17 the letter in question notifying the appellant of the refusal decision was sent by prepaid post to an address in Australia such that by operation of s 494C(4) the appellant was taken to have received it seven working days after the date of the letter. At [46] of DFQ17 Perram J identified three steps in the appellant’s argument. Only the first and second needed to be addressed. They were: (1) s 66(2)(d)(ii) requires that a notification of a refusal decision must state the time in which the application for review may be made; and (2) the factual contention that the letter in question was so obscure that it could not be said to state that time.

32    In addressing those steps Perram J observed (at [48]) that it was necessary to start with the meaning to be given to the word “state” in s 66(2) of the Act. His Honour relevantly continued at [48]-[52]:

48    … The legislative context of the word “state” in s 66 was considered by Allsop J in Zhan. In that case Allsop J was concerned with s 66(2)(d)(iv) which required the notification to “state … where the application for review can be made”. The letter in Zhan relevantly said:

…

49    The question in Zhan was whether the letter sufficiently stated where the review application could be made when it did not provide any address for the Tribunal. There was evidence which suggested that it had been intended to include an information pamphlet with the letter but that this had gone astray. At [64]-[66] Allsop J said:

50    He concluded that the letter did not “state” where the review application could be lodged. As his Honour pointed out at [66] the asperity with which the time limits in the Act operate rather suggest that the kind of information to be conveyed in s 66(2) is complete information.

51    It has been said that “the evident purpose of the provisions of s 66(2) … is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly” (Chan at [45] per Gray J). In a sense, that observation mirrors Allsop J’s concern that s 66(2) is to be interpreted so that what is conveyed by the notification is complete information.

52    Neither decision quite answers the question which this case presents. Carefully read by a person skilled in reading Commonwealth regulations, the letter does disclose the information that the review application had to be made by Tuesday 13 March 2017. Both Zhan and Chan were cases, in contrast, where the information was not contained within the letter at all. They do establish, however, that the context in which word “state” appears in s 66(2) suggests that it requires the provision of complete information so as to allow a fair, if strict, chance of engaging the review process.

33    After referring to the dictionary definitions of the word “state” his Honour held at [57]-[58] that:

57    Regardless of which of these three definitions most comfortably fits the language of s 66(2), they all have a flavour of precision, formality or definitiveness. Those meanings are consonant, so it seems to me, with the observations made by Allsop J in Zhan as to how the scheme of the Act operates in relation to time limits. 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.

58    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. This required the letter of 3 February 2017 annexed below clearly to convey to the appellant that the period in which she could seek review ended on 13 March 2017.

34    In BMY18 v Minister for Home Affairs (2019) 271 FCR 517 a Full Court of this Court (Reeves, Perram and Charlesworth JJ) considered two appeals. It is the appeal brought by BMY18 as appellant that is relevant to the issue in this appeal. Among other things, the appellant contended that the notification he received of the delegate’s decision did not “state … the time in which the application for review may be made” as was required by s 66(2)(d)(ii) of the Act. The appellant submitted that the notification was in the same terms as that in DFQ17 where the Full Court had held that to be the case. The appeal was allowed on this basis: see BMY18 at [25]-[26].

35    As is the case here, and in contrast to the position in DFQ17, in BMY18 the notification letter was sent by email. After referring to DFQ17, at [32]-[37] the Full Court relevantly said:

32    Was the notification in this case “clear”? As in DFQ17 the time when the notification was taken to have been received was located on p 3 under the heading “Financial or case worker assistance” and not under the section dealing with the right to apply for a review. As in DFQ17 the calendar date of sending or transmission was located on a different page to either the section headed “Review Rights” or the section headed “Financial or case worker assistance”. In DFQ17 the critical date was the date on the letter (since it was sent by post) which was located on p 1. In this case, the critical date was the date of the email (since the notification was transmitted as an attachment to an email). The date of the email was necessarily located outside the letter which it attached and hence even further from the section headed “Review Rights”. In this case, there was no difference between the date of the email and the date of the letter (which would generate it owns problems were it to occur).

33    …

34    In contrast, where a notification is sent by email, the time to apply for a review is a 28 day period commencing on the day the email is sent; that is to say, the review must be lodged before the end of the 27th day after the email was sent. …

35    Consequently, DFQ17 does not directly control this case. Be that as it may, the placing of the information as to when the notification is taken to have been received on p 3 under the incorrect heading “Financial or case worker assistance” and away from the pertinent section on p 2 headed “Review Rights” means that the letter was confusing and misleading. Consequently, it does not state clearly the matter required by s 66(2)(d)(ii).

36    There are some footnotes to this conclusion. The fact that a notification is sent by email is not in itself sufficient to distinguish a case from DFQ17. There may be cases where the notification was sent by email where the statement as to when it is taken to have been received will be sufficient. The decision of Nicholas J in Ali was one such case. In that case, the notification was sent by email but the statement that it was taken to have been received on the day it was transmitted was correctly located under the heading “Lodging an Application for Review” where it was sensibly located. But Ali does not stand for the broader proposition that simply because the notification was sent by email that DFQ17 does not apply. No doubt, sending the notification by email reduces the double counting problem, but the question still remains: is the notification clear? …

37    On the other hand, where the information as to when the notification 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, as Ali holds. 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. But we would emphasise that clarity is not demonstrated just because the reader can put all the pieces together and arrive at the correct answer. Another way of putting this is the standard of clarity is not achieved merely because the letter is formally correct: a document may be correct without being clear, as anyone who reads the output of ultimate appellate courts will attest. …

36    In Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 a Full Court of this Court (Flick, Bromwich and Thawley JJ) considered whether there had been valid notification of the delegate’s decision because of an alleged failure to state the time in which the application for review may be made. Once again notification of the delegate’s decision was sent by email. At [10], after referring to DFQ17 and BMY18, Thawley J (with whom Flick and Bromwich JJ agreed) said:

It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to “state … the time in which the application for review may be made”. Whether or not a notification meets this requirement is a question of fact. Examining 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 – see: Baini v The Queen (2012) 246 CLR 469.

37    At [11] his Honour set out the relevant parts of the notification letter before finding (at [12]) that the passages extracted made clear the time in which an application for review may be made and (at [13]) that “[e]ven if the word ‘state’ in s 66(2)(d)(ii) is to be read as ‘state clearly’ as this Court held in DFQ17 and BMY18, the standard of clarity was met in this case”.

38    At [17] Thawley J considered a submission that confusion was caused by the fact that the date the notification was received had to be determined by reference to the email which was “external” to the notification. His Honour noted that the notification letter was dated 6 September 2016 and that the email attaching it was transmitted on the same day and found that no confusion could reasonably have been caused by the fact that the notification was communicated by email on the same date.

39    The final decision in the series to which I was taken is Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 which concerned a notice given under s 501CA(3) of the Act. Relevantly, where the Minister makes a decision to cancel a person’s visa under s 501(3A) of the Act, the Minister must, as soon as practicable after making the decision, give the person a notice under s 501CA(3) of the Act. Among other things the notice must “invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision”. The letter in question and its method of delivery to the respondent are described at [5]-[7] of EFX17.

40    Among other things the letter stated that the representations which the respondent was invited to make “must be made in accordance with the instructions outlined below” which included a section entitled “Time-frame to make representations about revocation”. In that part the letter explained that representations had to be made within the prescribed timeframe which was “within 28 days after you are taken to have received this notice”. The letter also stated that “[a]s this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted”. The letter and its enclosures were emailed to the Brisbane Correctional Centre on 3 January 2017 but were only handed to the respondent on 4 January 2017.

41    The respondent relied on a notice of contention by which he sought to uphold the decision of a Full Court of this Court on the ground that s 501CA(3) of the Act required the Minister to invite him to make representations “within the period and in the manner ascertained in accordance with the regulations” and that the letter did not do so.

42    At [41] the High Court (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) accepted the Minister’s submission that s 501CA(3)(b) did not require the Minister to specify the date by which representations must be made and that the date by which they must be made may be left to the respondent to determine. However, their Honours continued relevantly stating (at [41]):

… But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations “within the period and in the manner ascertained in accordance with the regulations” also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister’s power to revoke the cancellation decision that representations be made within the prescribed time limit. …

43    At [42] the Court concluded that the notice of contention should be upheld saying:

For these reasons, an invitation to make representations “within the period … ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”. The invitation in the letter from the delegate of the Minister did not do so. …

Consideration

44    The appellant contended that the Notification Letter did not meet the requirements of s 66(2)(d)(ii) of the Act. He submitted that was so because the Notification Letter:

(1)    wrongly stated that it was sent to the appellant by email when it was sent by email to the appellant’s authorised recipient, i.e. his migration agent;

(2)    did not identify the date on which the appellant was taken to have received the letter by reason of the operation of s 494D of the Act; and

(3)    relatedly, wrongly stated that time started to run from the end of the day it was transmitted to the appellant, as opposed to when it was transmitted to his migration agent.

45    The Notification Letter:

(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.

46    The appellant’s complaint about the Notification Letter focuses attention on the statement under “Receiving this Letter” set out above. He contends that: the statement is incorrect insofar as it says that the appellant was sent the letter, when the appellant’s authorised recipient was sent the letter; unclear for the same reason; and incomplete and unclear insofar as it fails to explain to the appellant that he is taken to have received the letter at the end of the day it was transmitted to his authorised recipient.

47    The question before me is whether the Notification Letter meets the requirements of s 66(2)(d)(ii) of the Act. Put another way, does the Notification Letter set out in a complete and clear way the time in which the application for review can be made: see DFQ17 at [57]-[58]. The resolution of the question hinges upon a “simple factual inquiry into whether or not the [Notification Letter] states the time within which the application for review may be made”: see Singh at [23].

48    The first matter raised by the appellant is that the Notification Letter was incorrect insofar as it stated that it was sent to the appellant by email. I do not agree. The legislative scheme required the Notification Letter to be addressed to the appellant: see Minister for Immigration and Citizenship v SZKPO (2008) 166 FCR 84 at [25]. Secondly, the Notification Letter was sent by email to the appellant at the email address of his authorised recipient, an address to which he authorised the Minister to send correspondence. The effect of giving the Minister notice of the name and address of an authorised recipient, as the appellant did, is that the Minister must give the authorised recipient any documents in connection with specified matters arising under the Act, instead of giving them to, in this case, the appellant.

49    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.

50    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.

51    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.

52    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.

53    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) 284 FCR 62 at [58], [75]-[76], [78] and [103].

Conclusion

54    It follows that: the appeal should be allowed with costs; the orders of the primary judge should be set aside and in lieu thereof orders should be made that the decision of the Tribunal be quashed; the review application should be remitted to the Tribunal for it to determine on the basis that it has jurisdiction to do so and according to law and the Minister should pay the appellant’s costs of the proceeding in the Federal Circuit Court, if any, as agreed or taxed.

55    In addition, as requested by the Minister, an order should be made changing the name of the first respondent to Minister for Immigration, Citizenship and Multicultural Affairs.

56    I will make orders accordingly.

Associate:

Dated:    9 May 2023