Immigration notification letter unclear – 21 day time limit for AAT review NOT expired

By Lorenzo Boccabella, Barrister-at-law and specialist in migration law

Every single notice that has ever been sent by Immigration where the notice is sent to the email address of the authorised representative is defective and does not start the 21 day time limit running!  This is the effect of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.

The bane of migration law practice is meeting the plethora of unextendible time limits scattered throughout the Migration Act and regulations. It is so complex that years ago Immigration ceased giving applicants the exact date of the deadline for review, because Immigration got it wrong so often.

Instead, Immigration throws the task of working out the deadline to the visa applicants. As a result the courts look very carefully at these letters and will generally favour the visa applicant if the notification letter is unclear as to the deadline to apply for merit review.

The most recent case is the Federal Court decision of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.

Here the visa applicants missed the 21 day time limit to apply to the AAT for review.

They successfully argued the notification letter was unclear. The notification letter was addressed to the visa applicants but the email address was that of the representative.

Section 66 of the Migration Act states:

(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

Here the only way for the applicant to know what the deadline is, is to look up  ss494C and 494D which read, as relevant:

494C.If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

Section 494D provides:

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

Of course the text of ss494C and 494D were not included in the letter.

The court referred to the High Court decision of Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 where the plurality stated:

41…  But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations “within the period and in the manner ascertained in accordance with the regulations” also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister’s power to revoke the cancellation decision that representations be made within the prescribed time limit.  …

42…For these reasons, an invitation to make representations “within the period … ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”. The invitation in the letter from the delegate of the Minister did not do so.  …

In Sandor the court concluded:

51.The use of the words “you are taken to have received” may incorporate the deeming effect of s 494D(2) of the Act but that is the only way in which the effect of that section on the time within which the appellant may apply for review is manifest in the Notification Letter.  Acceptance of the Minister’s submissions as to the way in which the Notification Letter is to be read requires the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made.  That is, based on the Minister’s reading of the Notification Letter, the appellant must understand that the reference to “the day the letter was transmitted” requires him to: identify to whom the letter may have been transmitted by reference to other aspects of the letter; and then put together pieces of information to enable him to calculate the time in which the application for review can be made.

52.It follows that in my opinion the Notification Letter does not comply with s 66(2)(d)(ii) of the Act.  It does not state the information required by that subsection in a way which is complete or clear nor does it, adopting the formulation in EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.

53.It was not in dispute between the parties that a failure to comply with any element of s 66(2) of the Act means that there has been no notification of the decision and time had not yet commenced to run.

What this all means is that every single notice that has ever been sent by Immigration where the notice is sent to the email address of the authorised representative is defective and does not start the 21 day time limit running.

Of course when a superior court of record makes a decision it sets out the law for all time past, present and future and even notices sent out years ago would be invalid.  Even past failure to meet the nominal 21 day time limit can be revisted and AAT rights can be restored by judicial review.

Immigration could fix the problem in future by including copies of  ss494C and 494D  in the notification letter. Let’s see what fix Immigration comes up with.