Federal Court of Australia

Du v Minister for Immigration and Citizenship [2026] FCA 758

ORDERS

THE COURT ORDERS THAT:

1.    The second further amended originating application filed on 27 April 2026 is dismissed.

2.    The applicant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Weiming Du, seeks judicial review of a decision of the second respondent, the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal), made on 18 July 2025 by which the Tribunal dismissed Mr Du’s application for review. The Tribunal determined that it did not have jurisdiction because of s 500(6B) of the Migration Act 1958 (Cth).

2    The events which led to this proceeding are:

(1)    on 24 April 2023 Mr Du’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act (Cancellation Decision). Mr Du had previously pleaded guilty to drug possession charges and on 3 February 2020 was sentenced to a term of imprisonment of 9 years;

(2)    on 9 April 2024 a delegate of the first respondent, the Minister for Immigration and Citizenship, determined not to revoke the Cancellation Decision (Non-revocation Decision);

(3)    on 11 April 2024 Daljit Singh, a correctional officer employed by the New South Wales Department of Communities and Justice at Geoffrey Pearce Correctional Centre, where Mr Du was serving his term of imprisonment, notified Mr Du of the Non-revocation Decision. I pause to note that there is an issue between the parties as to whether, when Mr Du was notified of the Non-revocation Decision, that decision was accompanied by two copies of the documents referred to in s 501G(2) of the Migration Act;

(4)    on 19 June 2024 Mr Du sent an email to the Minister’s Department (at the time known as the Department of Home Affairs) requesting a copy of the decisions made in respect of his visa;

(5)    on 21 June 2024 the Department provided Mr Du with copies of the Cancellation Decision and the Non-revocation Decision;

(6)    on 24 June 2024 Mr Du applied to the Tribunal for review of the Non-revocation Decision (Application);

(7)    on 3 September 2024 the Tribunal dismissed the Application on the basis that it did not have jurisdiction to hear it because the Application was lodged more than nine days from the date that Mr Du was notified of the relevant decision (First Tribunal Decision);

(8)    on 24 September 2024 Mr Du filed an application for judicial review of the First Tribunal Decision in this Court;

(9)    on 7 February 2025 this Court made orders by consent for the issue of a writ of certiorari quashing the First Tribunal Decision and a writ of mandamus requiring the Tribunal to consider the Application in accordance with law. This was because the Minister accepted that there was a potential apprehension of bias in circumstances where the Tribunal member had ex parte communications with the Minister’s representatives; and

(10)    on 18 July 2025 the Tribunal, differently constituted, dismissed the Application on the basis that it did not have jurisdiction because the Application was lodged out of time (Second Tribunal Decision).

The Second Tribunal Decision

3    Before the Tribunal the Minister contended that the Tribunal should re-hear the argument as to jurisdiction: if the Tribunal found there was no jurisdiction, then the Application would be dismissed under s 97 of the Administrative Review Tribunal Act 2024 (Cth); and, if the Tribunal found that there was jurisdiction, the hearing of the substantive matter could proceed. Mr Du argued that the Tribunal had jurisdiction to hear the matter because it had been ordered to do so by this Court and to allow the Minister to raise the jurisdiction issue again would be contrary to the determination already made by this Court.

4    The Tribunal rejected Mr Du’s argument on the question of its jurisdiction. It found that this Court’s order requiring the Tribunal to determine the Application did not preclude it from considering whether it had jurisdiction, which it then proceeded to do. In considering its jurisdiction, the Tribunal considered evidence given by Mr Du and by Mr Singh. Having done so, the Tribunal concluded that Mr Du was served with the Non-revocation Decision and its attachment on 10 or 11 April 2024.

5    Based on that finding, the Tribunal then found that Mr Du failed to lodge the Application within the nine day period permitted by s 500(6B) of the Migration Act. Accordingly, it had no jurisdiction. On that basis and because there was no power to extend the time within which it could be lodged, the Tribunal dismissed the Application.

The Amended Application

6    Mr Du relies on a second further amended originating application. While the second further amended originating application raises five grounds of review, Mr Du only presses grounds 2A and 2B which are as follows:

2A.    The ART made a jurisdictional error by wrongly determining that applicant had been properly notified in accordance with s 501G of the Migration Act, that determination being a jurisdictional fact.

Particulars:

a.    The particulars to Ground 2 are repeated.

2B.    The letter notifying the applicant of the Delegate’s Decision (at CB 16ff) (Letter) did not comply with s 501G(1)(f)(ii) of the Migration Act such that it was ineffective to commence the period for which s 500(6B) of the Migration Act provided, meaning the AAT Application was brought within time and the AAT had a duty to review it.

Particulars:

a.    Section 501G(1)(f)(ii) of the Migration Act required that the notice must state the time in which the AAT Application may be made.

b.    In order to comply with that provision, the notice must convey the time period in a way that is clear, complete and accurate: BHHR v Minister for Immigration and Citizenship (No 2) [2026] FCA 250 at [61]-[62].

b.    The effect of s 501G(2), in the applicant’s case, was that the notice must be accompanied by 2 copies of every document, or part of a document, that was (a) in the delegate’s possession or under the delegate’s control; (b) was relevant to the making of the decision; and (c) did not contain non-disclosable information (Accompanying Documents).

c.    The Letter, under the heading “Review Rights”, that “An application for merits review of the decision must be given to the AAT within nine (9) calendar days after the day on which you are taken to have received this letter…” and “As this letter was given by hand, you are taken to be notified of the decision when this letter was handed to you” (emphasis in original).

d.    In those circumstances, the Letter reasonably conveyed that the AAT Application was required to be made within nine calendar days of the date which the applicant was taken to receive the letter only, whereas the true position was that the AAT Application was to be made within nine calendar days of the date which the applicant was taken to receive the letter and the Accompanying Documents in accordance with s 501G(2) (subject to operation of s 36(2) of the Acts Interpretation Act 1901 (Cth)).

e.    The Letter was accordingly neither clear, complete nor accurate.

f.    In the alternative, even if it is the case that the inclusion of the words in the Letter from “Enclosed is an information sheet…” on CB 16 to the end of the two dot points on CB 17 were sufficient to “reasonably convey” that the time period did not commence running until the applicant was taken to have received two copies of those documents, the language used in the second dot point on CB 17 does not clearly, completely or accurately reflect what was required to be provided under s 501G(2) of the Migration Act.

    (Underlining omitted; emphasis in original.)

Legislative Framework

7    Section 500(1)(ba) of the Migration Act provides that an application can be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

8    At the relevant time s 501G of the Migration Act was in the following terms:

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person; or

(ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

(f)    if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i)    states that the decision can be reviewed by the Tribunal; and

(ii)    states the time in which the application for review may be made; and

(iii)    states who can apply to have the decision reviewed; and

(iv)    states where the application for review can be made; and

(v)    in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)    sets out such additional information (if any) as is prescribed.

(2)    If the decision referred to in subsection (1):

(a)    was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and

(b)    is reviewable by the Administrative Appeals Tribunal; and

(c)    relates to a person in the migration zone;

the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

(d)    is in the delegate’s possession or under the delegate’s control; and

(e)    was relevant to the making of the decision; and

(f)    does not contain non-disclosable information.

(3)    A notice under subsection (1) must be given in the prescribed way.

(4)    A failure to comply with this section in relation to a decision does not affect the validity of the decision.

9    Section 500(6B) of the Migration Act relevantly provides (and provided at the time that Mr Du was notified of the Non-revocation Decision) that an application to review a decision made under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa in relation to a person in the migration zone must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1) of the Migration Act.

10    Section 494E of the Migration Act came into effect on 1 November 2023. It provides:

(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).

    (Examples omitted.)

The Evidence

11    As set out above, there is a dispute between the parties as to whether Mr Du was provided with two copies of the documents required by s 501G(2) of the Migration Act at the time he was notified of the Non-revocation Decision. Both Mr Du and Mr Singh gave evidence relevant to that issue.

12    Mr Du says that on 11 April 2024 he commenced his shift at the print shop and at about 11 am there was a broadcast calling for him. Upon hearing his name, Mr Du went to the closest office and was taken to what appeared to be a shared office where there was a male officer sitting behind a desk. Mr Du cannot recall the officer’s name.

13    Mr Du says that, upon seeing him, the officer turned a bundle of documents on the desk in front of him around and pushed the bundle in his direction saying words to the following effect:

Here are some documents for you, and we need you to sign.

14    Mr Du says that the officer did not hand him the documents. Rather, he picked up the first few pages and looked at them briefly, the documents were not in an envelope. As Mr Du did so he said words to the following effect:

What are these documents? My solicitor already replied.

15    Mr Du says that the few pages he looked at were printed single sided and, as he did not look at all of the pages, he does not know if they were also printed single sided. At the time of their receipt, Mr Du believed the documents were a copy of the Cancellation Decision and not the Non-revocation Decision. Despite the officer informing him that he needed to sign, Mr Du did not sign any document at the time.

16    Mr Singh has been employed by the NSW Department of Communities and Justice for over 19 years and as at 2024 and continuing, is a senior correctional officer. In that role, Mr Singh supervises four correctional officers in the Sector 2, 6am Start Team, oversees approximately 115 inmates and reports both to functional managers and the governor of the Correctional Centre. Mr Singh’s office is the Sector 2 Duty Office. Mr Du was an inmate under the supervision of Mr Singh’s unit at the Correctional Centre.

17    Mr Singh is responsible for managing the daily activities of inmates within his unit which includes conducting musters, dealing with inmate queries, and facilitating structured workdays and inmate transfers to other sections with the Correctional Centre. He hand delivers documents to inmates within his section of the Correctional Centre many times per day, everyday, which while was not a task that was out of the ordinary in carrying out his duties, was one he took very seriously.

18    Mr Singh gave evidence about the usual process for delivery of documents to inmates. He explained that:

(1)    the main way for inmates to receive confidential documents and correspondence is by post, which is referred to as “privileged post”. Privileged post is sent as a sealed envelope containing confidential correspondence and documents for the inmate with a cover letter attached to the sealed envelope. Correctional officers are not permitted to open the sealed envelope;

(2)    the cover letter includes instructions from the sender for delivery of the privileged post and always requests that the correctional officer obtain the inmate’s signature on the cover letter upon delivery of the sealed envelope to the inmate. The senders are usually law firms or Legal Aid;

(3)    correctional officers are responsible for hand delivering privileged post to inmates. They will check the inmate’s identification, give the sealed envelope to the inmate and obtain the inmate’s signature on the cover letter as a way of acknowledging that the inmate has received the sealed envelope. Signed cover letters are then filed under the inmate’s case file;

(4)    in approximately November 2023 or December 2023, a new process for delivering documents to inmates commenced which was in addition to the privileged post process described above. This involves a sender emailing documents for delivery to an inmate as email attachments to the Correctional Centre’s administrative email address, gpccadmin@dcj.nsw.gov.au (administration email address). Administrative officers at the Correctional Centre then forward the email and the attached documents to the senior correctional officer of the unit responsible for the inmate; and

(5)    documents attached to the sender's email are printed by correctional officers and hand delivered to the inmates according to the instructions in the sender’s email. Sometimes the sender requests that Correctional Centre staff obtain a signature from the inmate to confirm receipt of documents. It is only where a specific request is made that correctional officers obtain the inmate’s signature upon delivery of documents to the inmate.

19    Mr Singh gave the following evidence about the events of 11 April 2024.

20    On 11 April 2024 Mr Singh received an email from the administration email address sent at 9.29 am (Ms Sieders’ email) which included the following message:

Good morning Daljit Singh

Inmate DU is housed in F2. Please refer to the email below and its attachments.

Thank you.

Rita Sieders

21    Ms Sieders is an administrative clerk at the Correctional Centre. Ms Sieders’ email, which had five attachments, forwarded two further emails.

22    The first was an email from Belinda Saravinovska, sentence management operations officer, sentence management operations, Corrective Services NSW, Department of Communities and Justice, sent to the administration email address on 10 April 2024 at 2.54 pm (DCJ email) in which Ms Saravinoska wrote:

Good Afternoon team,

Can you please assist us by providing the above inmate with copies of the attached.

23    The second was an email from the Department’s National Character Consideration Centre sent to various addresses at the Department of Communities and Justice on 10 April 2024 at 2.42 pm (NCCC email) which included:

Name: Weiming DU

Date of Birth: 18 November 1999

MIN:617377

Good afternoon

A delegate of the Minister for Department of Home Affairs cancelled the visa held by Mr Weiming DU pursuant to s.501 of the Migration Act on 24 April 2023.

The Character Delegate has made a decision to not-revoke the visa cancellation and Mr DU's visa remains cancelled.

Please provide a copy of all the attached documentation to Mr DU ;

(Could you also please provide 2 copies of Attachments 2 and Attachment 4 which forms part of the process should Mr DU wish to appeal the decision.)

The Department of Home Affairs will make arrangements in respect of Mr Weiming DU following their release from criminal custody, including immigration detention pending their removal from Australia, if necessary.

Thank you for your assistance.

(Emphasis in original.)

24    In cross-examination Mr Singh said that, as at that date, he could not recall reading Ms Sieders’ email, which is hardly surprising given the passage of time. However, Mr Singh did recall reading the DCJ email. He accepted that, having read Ms Sieders’ email and the DCJ email, he would have had all of the information required to provide Mr Du with copies of the attachments to those emails.

25    In cross-examination Mr Singh said that he could not recall reading the NCCC email. But, Mr Singh also gave evidence that, in accordance with his usual practice, he would have read it. He explained why that was so in the following terms:

Because this is how we work. The email thread comes. Whatever the instructions are, we print the copies. Sometimes it says, “Get the signatures of the inmate. Send it back to us.” Then we send it back straight to NCC and our admin. The job is done. Sometimes, it just says, “Hand over the documents.” But most of the cases, they want us to get the signatures.

26    Relatedly in re-examination Mr Singh had the following exchange with senior counsel for the Minister, Mr Wood SC:

Mr Wood SC:    But you’ve given evidence to the court, as I understand it, about your usual practise would have been to read the whole email chain, correct?

Mr Singh:    Yes.

Mr Wood SC:    In that light, what, in accordance with your usual practise, would you have regarded the job that you were asked to do specifically in this email chain?

Mr Singh:    I would have gone through the email, all of it, because the first email say, go through the email below. I would have printed the documents, given it to the inmate. Normally, when the inmate comes, we check in the computer, match his face with the MIN number, and hand over the documents to the inmate.

27    Mr Singh does not specifically recall printing the documents attached to Ms Sieders’ email but, based on the instructions in the email, he believes that he would have printed all of the attachments using the printer located in his office which is connected the Correctional Centre’s central printing system. Mr Singh believes that he would have printed one copy of the documents titled “Notice of decision not to revoke-DU Weiming CID 95068323977”, “AAT information - attachment to notification” and “The effect of s 500(6A to s 600(6L) to go with Notice not to revoke or refuse”. Mr Singh is confident that he printed two copies of the documents titled “Attachment 2 - DU Weiming” (Attachment 2) and “Attachment 4 - DU Weiming CID 95068323977” (Attachment 4). This is because he believes that he would have strictly followed the instructions in Ms Sieders’ email. If he did not comply with a written instruction of that nature, he would be at risk of disciplinary action from the governor of the Correctional Centre. Mr Singh is careful to avoid putting himself in that position for not following a simple administrative act.

28    In cross-examination Mr Singh accepted that he did not have an actual recollection of printing and providing two copies of each of Attachments 2 and 4. That is hardly surprising given the passage of time and the number of tasks Mr Singh may have had to undertake in a usual workday. However, Mr Singh also said that he would have followed the instructions in Ms Sieders’ email.

29    Although Mr Singh cannot recall any of the particular documents that he printed and he did not count the pages of the printed bundle, he estimates that the printed bundle was about 60-70 pages in total, although it could have been more or less. Any documents Mr Singh printed would have been double sided because the default setting on the printers at the Correctional Centre is for double-sided printing. Mr Singh only alters the setting if he is specifically requested to do so.

30    Based on the timing of Ms Sieders’ email, Mr Singh believes that on 11 April 2024 at approximately 11 am to 11.30 am, Mr Du was called from the print shop, where he was working that morning, to attend his office.

31    Mr Singh recalls that Mr Du came to his office and he handed the bundle of printed documents to Mr Du who took them from him and who left his office with those documents. Mr Singh denies that he asked Mr Du to sign the documents as he would only do so if he was specifically requested to obtain a signature. Mr Singh’s evidence is that the instructions in the NCCC email did not ask him to do so.

32    On 11 April at 12.21 pm Mr Singh sent an email in response to Ms Sieders’ email in which he simply wrote “done”. Mr Singh says that he believes that he would have sent that email to confirm that the request in the NCCC email had been completed.

33    On 15 July 2024 on the application of the Minister, the Tribunal issued a summons to produce documents to the Department of Communities and Justice seeking “[a]ll records relating to Mr Weiming DU … dated 9 April 2024 - 12 April 2024 only, including but not limited to file notes or other records relating to [the NCCC email] indicating”, among other things, “whether each of the 5 attachments to the email were provided to Mr DU, including whether Mr DU was provided with 2 copies of [Attachments 2 and 4]”.

34    On 8 July 2024 at 3.01 pm Justin Howard, OGIP officer, open government information and privacy, Department of Communities and Justice, sent an email to the Tribunal (Mr Howard’s email) informing it that documents had been produced to the Tribunal in response to the summons via its online portal and that:

I wish to advise that further to my submission of documents, the following response was obtained from Geoffrey Pearce Correctional Centre:

“After confirming with Senior Correctional Officer Daljit Singh, 1 copy of all attached documents dated 11.4.2024 were hand delivered to Mr DU on the 11th April as per email trail attached, Admin Officer Rita Sieders then emailed confirmation of receipt to JMCC_IRC & Cc: NCCC .”

Please note this with information with our response.

35    In cross-examination Mr Singh said that he was not aware of the summons and that in July 2024 he did not have a conversation with anyone within the Correctional Centre or, indeed, anybody, about having given documents to Mr Du in April 2024. I accept that evidence.

Consideration

36    The parties agreed that grounds 2A and 2B of the second further amended originating application raised four questions for determination, the first two of which concern ground 2A and the second two of which concern ground 2B. They addressed the Court having regard to those questions. I will adopt the same structure.

Ground 2A

37    The first question that arises is a factual one. Namely, did the Minister give Mr Du two copies of the documents referred to in s 501G(2)(d)-(f) of the Migration Act on 11 April 2024.

38    Mr Du submits that this question should be answered “no” and that I would find that he was not given two copies of the documents required by s 501G(2) of the Migration Act. He submits that the Court would come to that conclusion based on the evidence before it and, in particular, because:

(1)    Mr Singh does not recall giving two copies of Attachments 2 and 4 to him. He does not recall reading the NCCC email which contained the instructions to do so but he does recall reading the DCJ email;

(2)    neither the NCCC email or the DCJ email is particularly memorable but the fact that Mr Singh recalls the DCJ email (which was the email in the middle of the chain) and not the NCCC email (which was the email at the bottom of the chain) suggests that he may not have read the latter;

(3)    Mr Singh’s evidence given in re-examination (see [26] above) also tends to suggest that he may not have read the NCCC email. His evidence that he “would have printed the documents” reflects the instruction in the DCJ email;

(4)    Mr Singh is busy and gave evidence that between the hours of 11 am and midday, when the events in issue occurred, is a particularly busy time;

(5)    Mr Singh estimates that the bundle of documents he printed was approximately 60 to 70 pages, which is very close to 55 but not so close to 106. Mr Du submits that if two copies of Attachments 2 and 4 were printed double sided there would have been 106 sheets of paper while if only one copy of those documents was printed double sided there would have been 55 sheets. On that basis he contends that an estimate of 60 to 70 pages tends to suggest there was only one copy of Attachments 2 and 4; and

(6)    Mr Howard’s email, sent after service of the summons, is the best contemporaneous evidence of what actually took place and is consistent with Mr Du’s submission about the size of the bundle provided to him. The Court should find that this is the better evidence of what occurred. It can do so without impugning Mr Singh’s honesty on the basis that he simply does not remember.

39    It was not in dispute that Mr Du bears the onus of establishing, on the balance of probabilities, that he did not receive two copies of the documents required by s 501G(2) of the Migration Act. Having considered the whole of the evidence and Mr Du’s submissions in relation to that evidence, I am not satisfied that Mr Du has discharged his onus. Thus, I am not satisfied that Mr Du did not receive two copies of the documents referred to in s 501G(2)(d) to (f) at the time of notification of the Non-revocation Decision. In my view the evidence tends to establish that he did. I have reached that conclusion for the following reasons.

40    First, I found Mr Singh to be a careful and truthful witness. He has been working at the Correctional Centre for many years and is in the third most senior group of officers with responsibility for aspects of the daily life of 115 inmates. This includes providing those inmates with material sent to the Correctional Centre by post or email. Mr Singh takes his responsibilities seriously.

41    Secondly, in his evidence in chief Mr Singh identified that Ms Sieder’s email forwarded the NCCC email. That is, he was aware of the NCCC email which was the source of the instruction to print two copies of each of Attachments 2 and 4. Relatedly, Mr Singh’s evidence is that, based on Ms Sieders’ email and the instructions contained in the NCCC email, he did not obtain Mr Du’s signature to confirm he had received the documents. He expressly notes that the NCCC’s email did not request Correctional Centre staff to obtain Mr Du’s signature (see [31] above). This evidence, set out in Mr Singh’s affidavit affirmed on 16 August 2024 (First Singh Affidavit), being only four months after the relevant events, makes it clear that Mr Singh was aware of the NCCC email and the instructions in it.

42    To like effect Mr Singh gives evidence that he sent his email to Ms Sieders on 11 April at 12.21 pm to confirm that he had completed the request in the NCCC email (see [32] above).

43    Thirdly, Mr Singh’s evidence is that he is confident that that he printed two copies of Attachments 2 and 4. He would have “strictly followed the instructions in Ms Sieders’ email”. Of course, Mr Singh knows that Ms Sieders’ email forwarded the NCCC email.

44    Fourthly, it is no surprise that when giving evidence before me, two years after the relevant events, Mr Singh no longer had a specific recollection of the content of emails or having reviewed them. However, Mr Singh gave evidence about his usual practice which was to read the email thread when it comes in and follow the instructions included in it or, as he then put it, he would “have gone through the email, all of it” because the first email refers to the earlier email. That evidence accords with the evidence in the First Singh Affidavit where Mr Singh says he was aware of the NCCC email and the instructions in it.

45    Fifthly, Mr Singh was candid in his evidence about the bulk of the documents he handed to Mr Du. His best estimate is that it was 60 to 70 pages but he accepted that it could have contained more or less pages. There was no other evidence before me about the bulk of the documents provided to Mr Du. That Mr Singh accepted the lack of precision in his estimate does not lead me to conclude that it was more likely that there were fewer pages and thus only one copy of Attachments 2 and 4 were provided. The reality is that there is no conclusive evidence before me about the bulk of the bundle of documents provided to Mr Du.

46    Finally, I would give little weight to Mr Howard’s email. It does not appear that Mr Howard spoke directly with Mr Singh before sending his email. Rather the information in the email came from an intermediary who spoke with Mr Singh. When asked whether he recalled having a conversation to the effect of that recorded in Mr Howard’s email, Mr Singh was emphatic that he did not have any conversation with Mr Howard or anybody about the matter recorded in Mr Howard’s email. I accept Mr Singh’s evidence on that issue.

47    Accordingly, the answer to the first question is “yes”.

48    The second question identified by the parties concerns whether the nine day period in s 500(6B) of the Migration Act began to run despite the Minister’s alleged non-compliance with s 501G(2) either because: the period begins to run regardless of whether there has been compliance with s 501G(2); or the period begins to run if at least one copy of the documents referred to in s 501G(2)(d)-(f) is given to an applicant with the notice under s 501G(1) of the Migration Act. The parties agreed that question only arises for determination if I answer the first question “no”, which is not the case. Thus, this question does not arise for consideration.

49    It follows that Mr Du has not established ground 2A.

Ground 2B

50    As set out above, the third and fourth questions concern ground 2B.

51    The third question does not arise. That is because the Minister does not contend that the decision in BHRR v Minister for Immigration and Citizenship (No 2) [2026] FCA 250 is plainly wrong. In that case Wheelahan J determined that the notification letter provided to the applicant did not clearly, completely or accurately state the time in which an application for review of the delegate’s decision could be made as required by s 501G(1)(f)(ii) of the Migration Act: at [61]. Accordingly, the notice was ineffective to commence the running of time and it followed that the Tribunal had jurisdiction and a duty to conduct a review of the delegate’s decision. His Honour explained at [63]:

On the date the notification letter bore, being 20 August 2019, it was an objectively ascertainable fact that the ninth day for the purposes of s 500(6B) of the Act fell on Saturday, 7 September 2019. This is because by operation of reg 2.55(7)(a) of the Migration Regulations, the date on which the applicant was notified of the decision was seven working days in the place of the applicant’s address after the date of the document. The nine-day period provided for by s 500(6B) was calculated from that day.

52    His Honour further explained at [67]:

Sub-paragraph 501G(1)(f)(ii) of the Migration Act required notification of the time in which an application for review could be made and not, as the Minister submitted, the time specified by s 500(6B) of the Act. Because s 500(6B) of the Migration Act and s 36(2) of the Acts Interpretation Act do not compete for priority but work together, to state to the applicant that he had nine days after the day on which he was notified of the delegate’s decision to lodge an application for review was at least incomplete and was certainly inaccurate if not plainly incorrect.

53    The letter dated 10 April 2024 notifying Mr Du of the Non-revocation Decision (Notice) relevantly provided:

Review Rights

The Department cannot consider the cancellation of your visa 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 the decision must be given to the AAT within nine (9) calendar days after the day on which you are taken to have received this letter. The AAT has no power to extend this timeframe.

As this letter was given by hand, you are taken to be notified of the decision when this letter was handed to you.

…

Enclosed is also some further information about the effect of s500(6A) to s500(6L) of the Migration Act, which the Department is required by law to provide to you.

    (Emphasis in original.)

54    The Notice was handed to Mr Du on Thursday, 11 April 2024. It was not in dispute that the nine day period for the purposes of s 500(6B) of the Migration Act ended on Saturday, 20 April 2024. Like the notification in BHHR, the Notice did not explain the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) and thus the Notice incorrectly stated the period within which Mr Du could apply to the Tribunal. Accordingly, it was not in dispute that the Notice failed to comply with s 501G(1)(f)(ii) of the Migration Act.

55    However, that is not the end of consideration of ground 2B. While the Minister accepts that there was non-compliance with s 501G(1)(f)(ii) of the Migration Act, he says that it does not follow that the Notice was invalid. Relevantly, the Minister relies on s 494E of the Migration Act, which was enacted after the relevant events in BHHR but before the Notice was given to Mr Du. Thus, the fourth question that arises for consideration is whether the Notice is taken, by virtue of s 494E of the Migration Act, to comply with s 501G(1)(f)(ii) of the Migration Act. That question arises in circumstances where the Notice informed Mr Du that he had to apply for review within nine calendar days after the day on which he received the Notice when he should have been told that he in fact had 11 days after the day on which he received the Notice to apply for review. In other words, there was an understatement of the period in which Mr Du could apply for review.

56    Mr Du submits that there has not been substantial compliance with s 501G(1) of the Migration Act. He says that there are three ways a mistake can be made when describing the period in which an applicant can apply to the Tribunal for review: there can be an overstatement of the period; an understatement of the period; or a statement can be made that is unclear.

57    Mr Du submits that an overstatement of the period may cause an applicant to file late but it will not cause an applicant not to file at all. In contrast, he contends that an understatement of the period within which an applicant can make an application for review could lead an applicant never to file a review application at all. That is because if an applicant does not file within the understated period, he or she may think that they are too late and, given that an applicant is told that the Tribunal has no power to extend the timeframe, he or she may think that there is no point in filing when in fact that is not the case. Mr Du submits that a statement that is unclear about the time period within which an application can be made could cause either of those outcomes.

58    Mr Du submits that the distinction between filing late and not filing at all is an important one because if someone files late because of a mistake in the notice, the regime in the Migration Act caters for those circumstances. He says that because of the error in the notice, the nine day period in s 500(6B) will not begin to run and s 494E will not come to the aid of the Minister. He submits that, in contrast, the Migration Act does not cater in the same way to an understatement and an applicant who consequently does not file at all. He submits that if I hold that notices that understate the period in which an application for review can be made substantially comply with s 501G(1)(f)(ii), then those applicants who are given notices which fall into that category and do not apply (on the assumption they are statutorily time-barred) will not be aided by any provision in the Migration Act.

59    Mr Du submits that the question of substantial compliance is to be considered at a level of generality and not by reference to what he did in this case.

60    Section 494E of the Migration Act is set out at [10] above. There was no dispute that s 494E applies in the case of a notice given under s 501G(1) of the Migration Act.

61    The first question that arises concerns s 494E(2) of the Migration Act and whether there was “substantial compliance” with the content requirements, which in this case, is the particular information required by s 501G(1) of the Migration Act to be included in the document.

62    At the end of s 494E there are two examples of the operation of the section which are not reproduced above. Those examples form part of the Migration Act, are not exhaustive and may extend the operation of s 494E: see s 13 and s 15AD of the Acts Interpretation Act.

63    Example 1 concerns an overstatement of the time in which an application for review can be made. It is:

Andrew, George and Daniel each make an application for the grant of a visa. The Minister refuses to grant each applicant the visa and gives notice of the refusal decision to each applicant. The notice states that the applicant may make an application for review of the refusal decision within 30 days after the notice is received by the applicant.

While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misstates the period. The correct period is 28 days after the notice is received by the applicant.

64    As can be seen in example 1, despite the overstatement of the period by two days, the notice is said to substantially comply with the requirements of the Migration Act. The Minister says that the meaning of substantial compliance as used in s 494E of the Migration Act ought to be informed by the examples.

65    There follows as part of example 1 the effect of the misstatement in terms of s 494E(2)(b) on each of Andrew, George and Daniel:

Andrew makes an application for review of the refusal decision 25 days after receiving the notice. As the misstatement in the notice does not cause substantial prejudice to Andrew’s right to seek review, it is intended that subsection (2) would apply in relation to the notice given to Andrew.

George makes an application for review of the refusal decision 29 days after receiving the notice. The misstatement in the notice causes substantial prejudice to George’s right to seek review as the application for review is not made within the required period but is made within the misstated period specified in the notice. It is intended that subsection (2) would not apply in relation to the notice given to George.

Daniel makes an application for review of the refusal decision 40 days after receiving the notice. The misstatement in the notice does not cause substantial prejudice to Daniel’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to Daniel.

66    The Minister relies in particular on example 1 in the way it operates in relation to Daniel, as the most pertinent to the circumstances before me.

67    Example 2 concerns a different situation. It is:

Anne applies for a visa and has an authorised recipient under section 494D. The Minister refuses to grant Anne the visa and gives notice of the refusal decision by sending an email to the authorised recipient. The authorised recipient receives the notice and 2 days later forwards it on to Anne.

The notice states that Anne may make an application for review of the refusal decision within 21 days after the day Anne receives the notice. The notice does not explain that the effect of sections 494C and 494D is that the period of 21 days begins to run on the day after the day the notice is received by the authorised recipient, rather than by Anne.

While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misdescribes when that period begins to run.

Anne makes an application for review of the refusal decision 35 days after receiving the notice. The misdescription in the notice does not cause substantial prejudice to Anne’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to the authorised recipient.

68    In example 2, there was substantial compliance where the notice of the refusal decision did not explain that time began to run from the day after the authorised recipient, as opposed to Anne, received the notice. I accept the Minister’s submission that example 2 is somewhat analogous to the present situation where the failure to explain the effect of s 36(2) of the Acts Interpretation Act meant that the time by which Mr Du could make his application for review was extended by two days. Like the failure to explain when time began to run in example 2, where the applicant has an authorised recipient, it was an omission. Parliament’s intention seems to be that, notwithstanding there is an omission of the nature described in example 2, there is substantial compliance. That being so, I accept that the Notice substantially complies with the requirement in s 501G(f)(ii) of the Migration Act despite the omission in this case of an explanation of the effect of s 36(2) of the Acts Interpretation Act.

69    That conclusion is fortified by s 494E(4) of the Migration Act which, as set out above, provides that there may be substantial compliance even if there is an “error, omission, misstatement or misdescription in the document”.

70    Before leaving this question of substantial compliance, it is necessary to consider VRRQ v Minister for Immigration and Citizenship [2026] FCA 77 which was the only decision identified by the parties which has considered the operation of s 494E of the Migration Act. In that case the notification letter sent to the applicant included:

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.

71    In fact the applicant had not appointed an authorised recipient and it was common ground between the parties that the second sentence was included in the notification letter in error: VRRQ at [9]-[10].

72    Justice Button found that the notification letter was not “clear and complete” because it specified two different means by which the day which triggered the running of the nine day period was to be worked out: the day the letter was transmitted by email to the applicant; and the day the letter was transmitted by email to the applicant’s authorised recipient: VRRQ at [57]. Accordingly, her Honour found that the letter did not comply with s 501G(1)(f)(ii) of the Migration Act: VRRQ at [68].

73    Her Honour then considered whether s 494E(2) of the Migration Act applied so that the notification letter was taken to comply with the content requirements, relevantly s 501G(1)(f)(ii). At [71]-[73] Button J said:

71    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.

72    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)).

73    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.

74    Her Honour concluded at [74] that the notification letter was required to state the time in which the application for review may be made, and determined, in the circumstances before her, that it did not do so. Justice Button did not consider that a notice which was unclear about from when time might run could be said to be a notice that substantially complies with the relevant content requirements.

75    I accept the Minister’s submission that VRRQ can be distinguished on its facts. Here there is no ambiguity or lack of clarity in the Notice. It does not suggest two potential and differing start dates from when the time in which an application for review might start to run. The Notice provides for only one date, being the day after Mr Du was handed the Notice. The non-compliance with s 501G(1)(f)(ii) in the present circumstances is of a different character, namely the failure to explain the operation of s 36(2) of the Acts Interpretation Act. Putting that to one side, it does not appear that Button J was taken to or considered the examples in s 494E in coming to the conclusion at [74] of VRRQ. Had her Honour done so she may have reached a different conclusion, particularly in light of example 2. However, that question does not need to be further explored on this occasion.

76    I turn to consider the second limb of s 494E(2) of the Migration Act, namely if the failure by the Minister to strictly comply with content requirements has caused “substantial prejudice” to Mr Du’s rights, in particular his right to seek review of the Non-revocation Decision.

77    It is clear from the examples in s 494E of the Migration Act that Parliament intended that in assessing substantial prejudice, it is permissible to consider what occurred after notification. As set out above, in example 1, Daniel made his application 40 days after receipt of the relevant notice. In that circumstance the overstatement of two days was not considered to cause substantial prejudice. In example 2, Anne applied 35 days after receiving the notice. The failure to include in the notice that time began to run from the date of receipt by Anne’s authorised recipient did not cause Anne substantial prejudice. In both cases Daniel and Anne lodged their respective application for review a significant period after expiration of the statutory time limit.

78    Mr Du did seek review of the Non-revocation Decision. On 19 June 2024 he sent an email to the Department’s National Character Consideration Centre requesting a copy of his “latest Notice of Visa Cancellation”. On 24 June 2024, after receiving material from the Department, he lodged his application for review. That was approximately two months after the time period in s 500(6B) had expired, even taking into account the effect of s 36(2) of the Acts Interpretation Act. In those circumstances and given the passage of time, the failure of the Notice to strictly comply with the requirements in the Migration Act did not cause substantial prejudice to Mr Du’s rights of review.

79    As set out at [57]-[58] above, Mr Du submits that an understatement of the period in which an applicant can seek review of a decision in relation to a visa is in a different category. That is because it may result in an applicant abandoning their right to review on the mistaken assumption that they were out of time and there would be no scope for s 494E to operate in favour of an applicant. But one can well imagine a situation where an understatement of the relevant period might be seen to cause substantial prejudice, such that s 494E(2) could not be engaged to remediate the technical non-compliance with the content requirements in s 501G(1)(f)(ii) the Migration Act. Without wishing to speculate, an example may be if an applicant gave evidence that because of the understatement he or she believed that they could not make an application for review and for that reason did not apply until some days after the misstated deadline or indeed the actual deadline.

80    It follows that the Notice is taken to comply with s 501G(1)(f)(ii) of the Migration Act and that the answer to question 4 is “yes”. Ground 2B is not made out.

Conclusion

81    Mr Du has not made out either of the grounds on which he relies. Thus the second further amended originating application should be dismissed. As Mr Du has been unsuccessful, he should pay the Minister’s costs, as agreed or taxed.

82    I will make orders accordingly.

Associate:

Dated:    17 June 2026