Khan v Minister for Immigration and Border Protection [2018] FCA 627

Khan v Minister for Immigration and Border Protection [2018] FCA 627

The appeal was dismissed because the primary judge correctly held that s 494D was the leading provision and made the nominated migration agent, Md. Haque, the relevant recipient for the purposes of s 494B. The Department emailed the refusal decisions to the agent's nominated email address on 16 June 2016, and the emails arrived in his inbox. Under s 494C(5), the appellants were taken to have received the documents at the end of that day. The 21 day period for AAT review therefore expired on 7 July 2016, and the application lodged on 13 July 2016 was not properly made. No appealable error was established.

Jurisdiction
Australia
Judgment Date
11 May 2018
Procedural Posture
Migration Appeal From a Judgment of the Federal Circuit Court of Australia / Appeal to the Federal Court From Dismissal of a Judicial Review Challenge to an Administrative Appeals Tribunal Decision That It Lacked Jurisdiction
Outcome
Appeal dismissed; no order as to costs.
Legal Topics
['refusal of Subclass 602 Medical Treatment Visas' 'notification of Visa Refusal Decisions' 'authorised Recipient' 'email Transmission and Deemed Receipt' 'time Limit for Administrative Appeals Tribunal Review' 'jurisdiction of the Administrative Appeals Tribunal' 'notification to Minors and Carers']
['migration Law' 'administrative Law'] ['refusal of Subclass 602 Medical Treatment Visas' 'notification of Visa Refusal Decisions' 'authorised Recipient' 'email Transmission and Deemed Receipt' 'time Limit for Administrative Appeals Tribunal Review' 'jurisdiction of the Administrative Appeals Tribunal' 'notification to Minors and Carers']

Case Brief

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Procedural Posture

Migration Appeal From a Judgment of the Federal Circuit Court of Australia / Appeal to the Federal Court From Dismissal of a Judicial Review Challenge to an Administrative Appeals Tribunal Decision That It Lacked Jurisdiction

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in upholding the AAT's conclusion that the appellants were notified of the delegate's decisions on 16 June 2016 and that their review applications were out of time." 'Whether s 494B(5)(e) of the Migration Act 1958 (Cth) applied to the minor appellants so that notification had to be sent to a carer rather than to the nominated migration agent.' 'Whether s 494D of the Migration Act 1958 (Cth) made the nominated migration agent the relevant recipient for notification purposes.' "Whether the deeming provision in s 494C(5) applied where the emails reached the migration agent's inbox but were later deleted due to a technical problem."]

Ratio Decidendi

The appeal was dismissed because the primary judge correctly held that s 494D was the leading provision and made the nominated migration agent, Md. Haque, the relevant recipient for the purposes of s 494B. The Department emailed the refusal decisions to the agent's nominated email address on 16 June 2016, and the emails arrived in his inbox. Under s 494C(5), the appellants were taken to have received the documents at the end of that day. The 21 day period for AAT review therefore expired on 7 July 2016, and the application lodged on 13 July 2016 was not properly made. No appealable error was established.

Court Disposition

Appeal dismissed; no order as to costs.

Orders

  • ['Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the first appellant be appointed as the litigation representative of the third and fourth appellants.' 'The appeal be dismissed.' 'There be no order as to costs.']