Federal Court. Was the letter incomplete or 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"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?
Section 66 of the Migration Act 1958 (Cth) read:
(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
The Appellant applied for a visa, appointing a registered migration agent as his “authorised recipient”. The Department refused to grant the visa and sent the authorised recipient an email attaching a visa refusal notification letter which included the following features:
(1) The letter was dated 13 February 2018. On the first page, the letter is addressed to the appellant at his address also includes:
Transmission Method Email sent to [recipient's email address]
(2) under the heading “Review rights”, on pages 1 to 2, the letter 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, the letter says :
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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was the notification letter correct "insofar as it stated that it was sent to the appellant by email"?
Question 2: Was the letter incomplete or 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"?
Question 3: Does the letter comply with s 66(2)(d)(ii) of the Act?
Question 4: Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?
The FCA answered those questions as follows: