Afele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to cancel the applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth). The applicant had a substantial criminal record, leading to the cancellation of his visa in 2015. The Minister's delegate sent the notice of cancellation to an email address with the extension @dcs.nsw.gov.au. The applicant contended that he did not receive this notice. The Minister's representative argued that the Administrative Appeals Tribunal lacked jurisdiction to review the cancellation decision, citing section 500(4A)(c) of the Act, which excludes review of decisions made under section 501(3A).

The primary legal issue before the Tribunal was whether it had jurisdiction to review the visa cancellation decision, given the applicant's assertion that he did not receive the notice of cancellation. This raised a secondary issue regarding whether the Minister had complied with the procedural requirements for notifying the applicant of the cancellation decision and inviting representations, as mandated by section 501CA(3) of the Act. The proper method of giving notice under the *Migration Regulations 1994* (Cth) was also a key consideration.

The Tribunal considered the purpose of section 501CA(3), which is to allow the Minister to consider whether to revoke a cancellation decision. The applicant's unsworn statement indicated he was not aware of the notice, which, if true, could have deprived the Minister of the opportunity to consider revocation. The Minister's representative relied on regulation 2.55(3)(d) of the *Migration Regulations 1994*, which permits documents to be transmitted by email to the last known email address. However, the Tribunal noted that the applicant's assertion of non-receipt raised a factual question about whether the Minister had provided the notice in a way that was appropriate in the circumstances and whether the applicant had been validly notified. Given the insufficient evidence to conclude the Tribunal had no jurisdiction, the matter was referred for a further hearing.