Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 193

Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 193

The appeal failed because s 501G(1), read with reg 5.02, did not state that the notice had to be given by a prescribed method for persons in immigration detention. Regulation 5.02 identified the persons to whom notice could be given, including an authorised recipient, but did not require physical handover of a hard copy. The Minister was therefore able, consistently with s 494A(1) and reg 5.02, to give notice by emailing the non-revocation decision to the appellant's authorised solicitor, who in fact received it. The appellant was notified on 29 September 2022, so his 1 November 2022 AAT application was out of time under s 500(6B).

Jurisdiction
Australia
Judgment Date
11 December 2023
Procedural Posture
Migration Appeal From Dismissal of Judicial Review Application / Appeal to the Full Court of the Federal Court of Australia From Kassem V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451
Outcome
Appeal dismissed.
Legal Topics
['visa Cancellation Non Revocation' 'notification of Decision' 'immigration Detention' 'administrative Appeals Tribunal Jurisdiction' 'out of Time Merits Review' 'service by Email' 'authorised Recipient']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['visa Cancellation Non Revocation' 'notification of Decision' 'immigration Detention' 'administrative Appeals Tribunal Jurisdiction' 'out of Time Merits Review' 'service by Email' 'authorised Recipient']

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review Application / Appeal to the Full Court of the Federal Court of Australia From Kassem V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451

Legal Issues

  1. 1 ["Whether notification of the Minister's non-revocation decision by email to the appellant's then solicitor constituted proper notification under s 501G of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth)." 'Whether s 494A(1) of the Migration Act 1958 (Cth) applied where s 501G(3) and reg 5.02 governed notice to a person in immigration detention.' 'Whether reg 5.02 required personal delivery or handing over of a hard copy document to the immigration detainee or authorised representative.']

Ratio Decidendi

The appeal failed because s 501G(1), read with reg 5.02, did not state that the notice had to be given by a prescribed method for persons in immigration detention. Regulation 5.02 identified the persons to whom notice could be given, including an authorised recipient, but did not require physical handover of a hard copy. The Minister was therefore able, consistently with s 494A(1) and reg 5.02, to give notice by emailing the non-revocation decision to the appellant's authorised solicitor, who in fact received it. The appellant was notified on 29 September 2022, so his 1 November 2022 AAT application was out of time under s 500(6B).

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]