Federal Court of Australia

EEN25 v Minister for Immigration and Citizenship [2026] FCA 1600

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application for leave to appeal, fixed in the amount of $6,500.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant, EEN25, seeks leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). The primary judge dismissed EEN25’s application for review of a decision of a registrar of the FCFCOA, made on 7 November 2025. EEN25 had applied to the FCFCOA for judicial review of a decision of the second respondent, the Administrative Review Tribunal (Tribunal), dismissing his application for review of a decision of a delegate of the Minister for Home Affairs, refusing to grant him a Protection (Subclass 866) visa (protection visa). The decision of the registrar that was upheld by the primary judge was a decision to summarily dismiss EEN25’s application for judicial review.

2    For the reasons that follow, the primary judge was correct to hold that EEN25 had no reasonable prospect of successfully prosecuting the application for judicial review, and to dismiss the application for review of the registrar’s decision. The Tribunal had no jurisdiction to hear the application made to it for review of the decision of the delegate, because the application to the Tribunal was made out of time. EEN25’s proposed appeal to this Court would have insufficient prospects of success to warrant the grant of leave to appeal. Accordingly, the application for leave to appeal should be dismissed with costs.

Background

3    EEN25 is a citizen of India, who arrived in Australia on 14 October 2023 and applied for a protection visa on 30 November 2023. On 4 October 2024, the delegate refused to grant EEN25 a protection visa because the delegate was not satisfied that he met the criteria specified in s 36(2) of the Migration Act 1958 (Cth). EEN25 was notified of the delegate’s decision by way of a letter dated 4 October 2024. The letter states on its face that the “Transmission method” was “Email sent to” the email address provided by EEN25. The letter also included the following statement:

Review rights

The Department 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 the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

4    On 1 November 2024, EEN25 lodged an application with the Tribunal for review of the delegate’s decision. On 11 November 2024, the Tribunal sent EEN25 a letter acknowledging receipt of the review application and advised that an assessment of the application would be made in due course. On 19 November 2024, the Tribunal sent EEN25 a further letter, which stated that it appeared that his application for review was not a valid application as it was not lodged within the relevant time limit, and invited EEN25 to comment on the validity of the application. The letter explained:

The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 4 October 2024 and, on the basis that 4 October 2024 was the date on which you are taken to have been notified, the last day for lodging the application for review was 31 October 2024. As the application was not received until 1 November 2024, it appears to be out of time.

5    In response, in a letter dated 2 December 2024, and sent by email to the Tribunal on 3 December 2024, EEN25 asserted that he thought the application was lodged within the relevant time limit. He accepted that the application had been lodged out of time, but said that this was due to an innocent and honest mistake, and submitted that he “should not be made to suffer due to a timing error”, and that it would be most unfair if his application were determined on the basis of his timing error and not on its merits. He also submitted: “It should be taken that I received the email on 05 October 2024 and not on 04 October 2024.”

6    On 19 March 2025, a registrar of the Tribunal, acting in accordance with an authorisation under r 18(2) of the Administrative Review Tribunal Rules 2024 (Cth), determined that the application for review had not been properly made, and that the Tribunal therefore could not review the delegate’s decision. The registrar of the Tribunal provided written reasons for that determination.

7    On 15 April 2025, EEN25 applied to the FCFCOA for judicial review of the decision of the Tribunal. Each of his two grounds of judicial review asserted that the Tribunal had failed to consider an “integer” of his claim that he was a person to whom Australia owed protection obligations. In fact, the Tribunal had not considered his claims at all, because it had determined that it had no jurisdiction to review the delegate’s decision.

8    The first respondent, the Minister for Immigration and Citizenship (Minister), applied for summary judgment on the basis that EEN25 had no reasonable prospect of successfully prosecuting the judicial review proceeding. On 7 November 2025, a registrar of the FCFCOA summarily dismissed the application for judicial review pursuant to r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (FCFCOA General Rules) and ordered that EEN25 pay the Minister’s costs of the application for judicial review. On 28 November 2025, EEN25 applied for review of the registrar’s decision, in accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Div 3.2 of the FCFCOA General Rules.

9    On 13 February 2026, the primary judge dismissed the application for review of the registrar’s decision: EEN25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 161. The primary judge correctly explained (at [20]-[23]) that, in reviewing the registrar’s decision, the FCFCOA was conducting a de novo hearing of the application for summary dismissal. His Honour found (at [28]) that EEN25 was notified of the delegate’s decision on 4 October 2024 and that the notification was in accordance with the requirements of s 66(2) of the Migration Act.

10    Applying the relevant legislative provisions which are discussed in detail below, the primary judge found that, if EEN25 wished to seek review of the delegate’s decision, he was required to apply to the Tribunal on or before 31 October 2024. As he did not lodge his application with the Tribunal until 1 November 2024, the Tribunal had no jurisdiction to review the delegate’s decision. The primary judge thus concluded that EEN25 did not have any reasonable prospect of successfully prosecuting his application for judicial review, and so dismissed the application for review of the registrar’s decision summarily dismissing that application.

The application for leave to appeal to this Court

11    The decision of the FCFCOA, summarily dismissing the application for judicial review, was an interlocutory decision, with the consequence that an appeal to this Court against that decision lies only with the leave of the Court: see Federal Court of Australia Act 1976 (Cth), s 24(1)(d), (1A), (1D)(ca).

12    In the application for leave to appeal, the proposed grounds of appeal are identified as follows:

Ground 1

The primary judge erred in law by determining, under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), that [EEN25’s] judicial review application had no reasonable prospects of success, because the judge failed to consider whether the Tribunal’s conclusion about the date of notification involved jurisdictional error.

Particulars:

1.    The primary judge treated the date of notification under ss 66 and 494C of the Migration Act 1958 (Cth) as conclusively established, without examining whether the Tribunal correctly applied the statutory deeming provisions to the circumstances of [EEN25’s] case.

2.    The primary judge failed to consider whether the Tribunal was required to inquire into, or make findings about, whether the notification email was actually received by [EEN25], or whether circumstances existed that could displace the deeming effect (cf SZVFW v Minister for Immigration and Border Protection (2018) 264 CLR 541).

3.    The primary judge erred by treating the Tribunal’s conclusion as inevitable and therefore failed to consider whether there was a “real question of law” requiring a hearing, contrary to the principles in AIZ22 v Minister for Immigration [2023] FedCFamC2G 44.

4.    The primary judge misapplied the summary dismissal test by failing to undertake the required “critical examination” of whether [EEN25’s] challenge to the Tribunal’s jurisdictional finding was arguable.

Ground 2

The primary judge erred by failing to consider whether the Tribunal misunderstood the nature of its jurisdictional task by treating the deeming provision as irrebuttable and by failing to consider whether [EEN25’s] circumstances required further inquiry.

Particulars:

1.    The Tribunal was required to determine whether the review application was “made within the prescribed period” as a jurisdictional fact.

2.    The Tribunal failed to consider whether the deeming provision could be displaced by evidence of non-receipt or delayed receipt.

3.    The primary judge failed to consider whether this amounted to jurisdictional error.

13    The application for leave to appeal is supported by an affidavit which annexes a draft notice of appeal. The draft notice of appeal also contains two grounds of appeal, but they are expressed differently from the two grounds identified in the application for leave to appeal. The first ground in the draft notice of appeal is substantially the same as the second ground in the application for leave to appeal. The second ground in the draft notice of appeal (which I will refer to as the third proposed ground of appeal) is stated as follows:

The primary judge erred by failing to consider whether the Tribunal’s decision that the review application was out of time was legally unreasonable in circumstances where [EEN25] had provided evidence that he did not become aware of the refusal until 5 October 2024.

Particulars:

1.    The primary judge failed to consider whether the Tribunal’s rigid application of the deeming provision in s 494C(5) was unreasonable in the statutory context, given [EEN25’s] unchallenged evidence of later actual receipt.

2.    The primary judge failed to consider whether the Tribunal’s refusal to consider [EEN25’s] explanation amounted to a constructive failure to exercise jurisdiction.

14    I proceed on the basis that EEN25 seeks leave to appeal on any and all of these three grounds.

The Tribunal had no jurisdiction to determine the application for review of the delegate’s decision

15    EEN25 accepts (as he did before the primary judge) that notification of the decision was sent to him by email on 4 October 2024. The letter notifying EEN25 of the delegate’s decision is in evidence. As noted above, the letter is dated 4 October 2024 and states on its face that it was to be transmitted by email to EEN25’s email address. Further, affidavit evidence filed by the Minister in the FCFCOA established that the email attaching the letter was transmitted to EEN25’s email address on 4 October 2024. There is no basis to challenge the primary judge’s finding that the notification of the delegate’s decision was transmitted on that day.

16    Section 66(1) of the Migration Act provides that, “[w]hen the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”. Regulation 2.16(3) of the Migration Regulations provides that the Minister must notify the applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act.

17    Section 494B(5) of the Migration Act provides that a method by which the Minister may give a document to a person includes transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents. Section 494C of the Migration Act relevantly provides:

494C When a person is taken to have received a document from the Minister

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

…

Transmission by fax, email or other electronic means

(5)    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

…

18    Since the notification of the delegate’s decision was sent to EEN25 on 4 October 2024, the effect of this provision was that he was taken to have received the document at the end of the day on 4 October 2024.

19    The decision of the delegate was a “Part 7-reviewable decision”, as defined in s 411(1)(c) of the Migration Act (as in force on 4 October 2024). At that time, it was the Administrative Appeals Tribunal (AAT) that was empowered to review such decisions. Section 412(1) of the Migration Act (as then in force) prescribed the requirements for an application for review of a Part 7-reviewable decision, as follows:

412 Application for review of Part 7-reviewable decisions

(1)    An application for review of a Part 7-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the [AAT] within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

(c)    be accompanied by the prescribed fee (if any).

20    Regulation 4.31 of the Migration Regulations 1994 (Cth) (as then in force) prescribed the period within which an application for review of a Part 7-reviewable decision was to be given to the AAT. It stated:

4.31 Time for lodgement of application with Tribunal

(1)    For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the [AAT] by or for the applicant is 7 working days, commencing on:

(a)    the day the applicant is notified of the decision; or

(b)    if that day is not a working day—the first working day after that day.

(2)    For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the [AAT] by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

Note:     If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

21    EEN25 was not in immigration detention, so it was reg 4.31(2) that applied to him. Any application for review of the delegate’s decision was therefore required to be given to the AAT within the period of 28 days, commencing on the day EEN25 was notified of the decision.

22    Section 36 of the Acts Interpretation Act 1901 (Cth) sets out how the time fixed by reg 4.31 is to be calculated. Section 36(1) provides:

36 Calculating time

(1)    A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

(Examples omitted.)

23    Although expressed to apply to “a period of time referred to in an Act”, s 36(1) of the Acts Interpretation Act also applies to periods of time referred to in regulations, as if the regulations were an Act: see Legislation Act 2003 (Cth), s 13(1).

24    The item in the table in s 36(1) of the Acts Interpretation Act which describes the manner in which reg 4.31(2) of the Migration Regulations is expressed is item 2. It follows that, in calculating the period of 28 days fixed by reg 4.31(2), the relevant period must be taken to include 4 October 2024 itself as the first of those days. That may seem somewhat counterintuitive, given that the effect of s 494C(5) of the Migration Act is that EEN25 was taken to have been notified of the decision “at the end of the day” on 4 October 2024, but it seems to be the clear effect of s 36(1) of the Acts Interpretation Act, when read together with reg 4.31(2) of the Migration Regulations.

25    This conclusion accords with the decisions of Judge Riley in DJD17 v Minister for Immigration and Border Protection [2019] FCCA 2747 at [27]-[30] and EYX17 v Minister for Immigration and Border Protection [2019] FCCA 2748 at [50]-[53]. It is also consistent with the view expressed by Perram J (with whom Rares and Farrell JJ agreed on this issue) in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 at 503 [25].

26    On 14 October 2024, before the end of the period in which EEN25 was required to make any application for review of the delegate’s decision, the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) commenced operation. Item 20 of Schedule 16 to that Act relevantly provided:

20 Applications to AAT

(1)    This item applies if, immediately before the transition time, a person was entitled to make an application to the AAT.

(2)    The person may make the application to the ART:

(a)    as if the old law continued to apply in relation to the time for making the application; but

(b)    otherwise—in accordance with the new law.

…

27    EEN25’s entitlement to apply for review of the delegate’s decision was preserved, albeit that the application for review was now to be made to the Tribunal rather than to the AAT. The period of 28 days in which he was required to make any such application was also preserved by item 20(2)(a).

Consideration of the proposed grounds of appeal

28    By his first proposed ground of appeal, EEN25 contends that the primary judge failed to apply the relevant statutory provisions governing notification, failed to inquire into whether the notification email was actually received by EEN25, and failed critically to examine EEN25’s judicial review application.

29    EEN25 advanced no evidence before the registrar or the primary judge which would suggest that the transmission of the email attaching the notification of the delegate’s decision failed or was delayed. On the contrary, he accepted before the primary judge that there “was ‘no mistake or error from their end’ and that it was his mistake that he was late”. He had previously accepted, in his submission to the Tribunal, that the late lodgement of the application for review was due to his own “timing error”.

30    The primary judge was not required to consider whether the Tribunal should have inquired into, or made findings about, whether the notification was received by EEN25, for at least two reasons. First, EEN25 did not dispute that he had received the notification and stated that his failure to apply for review within the relevant time was due to his own innocent mistake regarding the time when it was required to be filed. Secondly, the question of whether the application for review was made within the relevant period concerned an objective jurisdictional fact, to be considered by the primary judge on the evidence before him. Neither of the cases to which EEN25 refers – Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 and AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 – has any apparent relevance to the issues that arise on the present application for leave to appeal.

31    By his second proposed ground of appeal, EEN25 contends that the primary judge erred by failing to consider whether the Tribunal misunderstood the nature of its jurisdictional task by treating the deeming provision as irrebuttable, and by failing to consider whether EEN25’s circumstances required further inquiry.

32    The primary judge correctly held (at [29]) that, “[a]s the letter was transmitted by email pursuant to s 494B(5) of the [Migration Act], [EEN25] was deemed to have received it at the end of the day it was transmitted”. Section 494C(5) has the effect of deeming a document to have been received at the specified time, regardless of whether, or when, the person actually received the document: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at 30-1 [30]; Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 at 164-5 [5], 167 [19]; Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13]-[14]. In any event, there was no arguable basis to consider whether EEN25’s circumstances “required further inquiry”. As has already been noted, EEN25 conceded that the application for review of the delegate’s decision was made late due to his own innocent mistake.

33    By his third proposed ground of appeal, EEN25 contends that the primary judge erred in failing to consider whether the Tribunal’s decision that the application for review was out of time was legally unreasonable and whether his circumstances required further inquiry. It was not necessary, or appropriate, for the primary judge to consider whether the Tribunal’s decision was legally unreasonable. The operation of the relevant time limit did not depend on when EEN25 actually received or became aware of the email attaching the notification of the delegate’s decision. The proposed ground of appeal proceeds on the incorrect premise that the Tribunal had some discretion either to decline to apply the relevant time limit or to ignore the operation of s 494C(5) of the Migration Act. However, it is clear that the Tribunal had no such discretion: see, eg, Calimoso v Minister for Immigration and Border Protection (2016) 162 ALD 361; [2016] FCA 1335 at 367 [29].

34    EEN25 submits that the issue before the primary judge was not whether the Tribunal had jurisdiction but whether EEN25 had no reasonable prospect of successfully prosecuting his application for judicial review. He submits that “where there is evidence concerning the date on which the decision was actually received or became known to [EEN25], and where the legal effect of that evidence is in dispute, it was arguable that the matter required proper consideration before the judicial review proceeding was summarily dismissed”. EEN25 asserts that his position was that he did not become aware of the delegate’s decision until 5 October 2024. But even if that were accepted, it could not change the effect of reg 4.31 of the Migration Regulations and s 494C(5) of the Migration Act. The date on which EEN25 actually became aware of the delegate’s decision is not relevant to ascertaining the period within which the law required him to lodge his application for review with the Tribunal.

35    The evidence adduced by the Minister in the FCFCOA demonstrated that the application to the Tribunal was made outside the relevant period. EEN25 did not identify an arguable case that the conditions for the operation of s 494C(5) of the Migration Act were not met, or a “real question of law” that arose on his application for judicial review. The matter was one that was appropriate for summary dismissal.

Conclusion

36    The effect of s 412 of the Migration Act (preserved and applied in relation to the Tribunal, as explained above) was that the Tribunal could only conduct a review of a delegate’s decision if an application for review was “properly made” and, in particular, if it was made within the time limit fixed by reg 4.31 of the Migration Regulations. EEN25’s application was not made within the relevant period of 28 days from the day on which he was taken to have received notification of the delegate’s decision. Neither the Tribunal itself nor the FCFCOA has any discretion to extend the time within which an application for review may be made, to treat an application for review that is made out of time as an application that has been “properly made”, or to permit a person to make a further application to the Tribunal for review of the delegate’s decision. This Court, on an application for leave to appeal against a decision of the FCFCOA, also has no power to do any of those things.

37    The primary judge was correct to hold that EEN25 had no reasonable prospect of successfully prosecuting his application for judicial review. The decision of the primary judge is not attended by sufficient doubt to warrant the grant of leave to appeal. It follows that the application for leave to appeal should be dismissed. There is no reason why EEN25 should not pay the Minister’s costs. The Minister seeks an order that his costs be fixed in the amount of $6,500. Rule 40.43(3) and item 15.2 of Sch 3 to the Federal Court Rules 2011 (Cth) provide that, in the circumstances of this case, the Minister is entitled to costs exceeding that amount. The Minister has confirmed that the amount sought does not exceed his actual costs, and EEN25 does not oppose the fixing of costs in that amount. I am satisfied that it is appropriate to make the costs order sought by the Minister.

Associate:

Dated:    27 October 2026