Federal Court. Can it be said that the non-revocation 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"?
Section 501G of the Migration Act 1958 (Cth) provided:
(1) If a decision is made under ... section ... 501CA ... to:
...
(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:
...
(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:
...
(ii) states the time in which the application for review may be made; and
...
...
Section 500(6B) of the Act provided:
If a decision ... under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the ART for a review of the decision must be lodged with the ART within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)...
Section 494E of the Act provided (examples omitted):
(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).
Section 36(2) of the Acts Interpretation Act 1901 (Cth) (AIA) provided:
(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
On Thursday, 11 April 2024, a delegate notified the applicant of a non-revocation decision made under s 501CA(4) of the Act. Nine days after that fell on Saturday, 20 April 2024. However, the effect of s 36(2) of the AIA was that the deadline fell on the subsequent Monday, being 22 April 2024, effectively giving the applicant 11 days to seek merits review: BHHR [2026] FCA 250 at [67].
As a result, the Federal Court (FCA) said at [55] that "there was an understatement of the period in which [the applicant] could apply for review" to the Tribunal.
69 days later being notified of the non-revocation decision, and well after the 11-day deadline, the applicant applied to the Tribunal for review of that decision.
Some of the questions to the FCA were as follows:
Question 1: Can it be said that the non-revocation 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"?
Question 2: Can VRRQ [2026] FCA 77 be distinguished on the facts in that, contrary to the notice in that case, the notice here "does not suggest two potential and differing start dates from when the time in which an application for review might start to run"?
Question 3: In assessing under s 494E(2)(b) whether there was 'substantial prejudice', is permissible to consider what occurred after notification?
Question 4: Can it be said that there was no substantial prejudice, as the Tribunal application was lodged after the 11-day period, even taking into account the effect of s 36(2) of the Acts Interpretation Act?
Question 5: If "an applicant gave evidence that because of the understatement [in the notice] 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", could this be seen as "a situation where an understatement of the relevant period might be seen to cause substantial prejudice"?
The FCA answered those questions as follows: