DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521

DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521

The Department sent the visa refusal notification to the email address specified by the appellant on 13 February 2017. The appellant's complaint that the email went to his junk mail did not prevent receipt, because junk mail is still received at the same email address and s 494C(5) deemed receipt at the end of the day of transmission. The application for Tribunal review lodged on 23 June 2017 was therefore outside the 28 day period prescribed by s 412(1)(b) and reg 4.31(2), so the Tribunal's jurisdiction was not enlivened. The primary judge made no jurisdictional error in dismissing the judicial review application, and the appeal failed.

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Concerning a Protection Visa Refusal Review Application Lodged Out of Time / Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa Refusal' 'notification by Email' 'deemed Receipt of Documents' 'application for Tribunal Review Out of Time' 'jurisdictional Error' 'business Records' 'original Jurisdiction in Migration Matters']
['migration' 'administrative Law' 'evidence' 'constitutional Law'] ['protection Visa Refusal' 'notification by Email' 'deemed Receipt of Documents' 'application for Tribunal Review Out of Time' 'jurisdictional Error' 'business Records' 'original Jurisdiction in Migration Matters']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Concerning a Protection Visa Refusal Review Application Lodged Out of Time / Appeal

Legal Issues

  1. 1 ["Whether the appellant was notified of the delegate's visa refusal decision on 13 February 2017 by email in accordance with the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)." "Whether receipt of the notification in the appellant's junk mail prevented deemed receipt under s 494C(5) of the Migration Act 1958 (Cth)." "Whether the appellant's application for review to the Tribunal was given within the prescribed 28 day period." 'Whether the Tribunal, the Federal Circuit Court or the Federal Court had jurisdiction to review the matter.' 'Whether the Department screenshot was admissible as a business record under s 69(2) of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The Department sent the visa refusal notification to the email address specified by the appellant on 13 February 2017. The appellant's complaint that the email went to his junk mail did not prevent receipt, because junk mail is still received at the same email address and s 494C(5) deemed receipt at the end of the day of transmission. The application for Tribunal review lodged on 23 June 2017 was therefore outside the 28 day period prescribed by s 412(1)(b) and reg 4.31(2), so the Tribunal's jurisdiction was not enlivened. The primary judge made no jurisdictional error in dismissing the judicial review application, and the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.' 'Reasons to be published.' 'Publication of reasons take place at 9:30am on 12 October 2018.']