DCD18 v Minister for Home Affairs [2018] FCA 2090

DCD18 v Minister for Home Affairs [2018] FCA 2090

The Tribunal erred in treating the ymail address as the last email address provided for receiving documents. The applicant's later statement at Villawood that her email address was "Nil" meant the earlier addresses could not remain current for s 494B(5)(d), and in any event the 2016 address supplied by the Tribunal was objectively provided as contact information for purposes including communication and receipt of documents. Because the October 2017 refusal notice was not sent to the relevant last email address for s 494B(5)(d), deemed receipt was not established and the Tribunal wrongly concluded that it lacked jurisdiction.

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Application Concerning Administrative Appeals Tribunal Jurisdiction to Review Refusal of a Protection Visa on Character Grounds / Federal Court Judgment on Review; Remittal to the Administrative Appeals Tribunal
Outcome
Application allowed; the Tribunal's jurisdiction decision was set aside, the review application was remitted to the Tribunal, and the first respondent was ordered to pay the applicant's costs.
Legal Topics
['protection Visa Refusal on Character Grounds' 'notification of Ministerial Decision' 'deemed Receipt by Email' 'administrative Appeals Tribunal Jurisdiction' 'jurisdictional Fact' 'remittal']
['migration' 'administrative Law'] ['protection Visa Refusal on Character Grounds' 'notification of Ministerial Decision' 'deemed Receipt by Email' 'administrative Appeals Tribunal Jurisdiction' 'jurisdictional Fact' 'remittal']

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Procedural Posture

Application Concerning Administrative Appeals Tribunal Jurisdiction to Review Refusal of a Protection Visa on Character Grounds / Federal Court Judgment on Review; Remittal to the Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether the refusal decision was communicated to the applicant in accordance with s 494B(5) of the Migration Act 1958 (Cth).' 'Whether the email addresses used by the Department were the last email addresses provided to the Minister for the purposes of receiving documents.' 'Whether the Administrative Appeals Tribunal erred in deciding it had no jurisdiction because the review application was out of time.']

Ratio Decidendi

The Tribunal erred in treating the ymail address as the last email address provided for receiving documents. The applicant's later statement at Villawood that her email address was "Nil" meant the earlier addresses could not remain current for s 494B(5)(d), and in any event the 2016 address supplied by the Tribunal was objectively provided as contact information for purposes including communication and receipt of documents. Because the October 2017 refusal notice was not sent to the relevant last email address for s 494B(5)(d), deemed receipt was not established and the Tribunal wrongly concluded that it lacked jurisdiction.

Court Disposition

Application allowed; the Tribunal's jurisdiction decision was set aside, the review application was remitted to the Tribunal, and the first respondent was ordered to pay the applicant's costs.

Orders

  • ["The decision of the Administrative Appeals Tribunal of 11 May 2018 to the effect that it did not have jurisdiction to review the decision of the delegate of the Minister for Immigration and Border Protection made on 11 October 2017 to refuse the applicant's application for a Protection (Class XA) Visa be set...