Cod17 v Minister for Immigration

The applicant, a citizen of Malaysia, arrived in Australia on a student visa and subsequently applied for a protection visa, claiming fear of harm from loan sharks and her former husband. The delegate of the Minister for Immigration and Border Protection refused the protection visa application, and a record of this decision was emailed to the applicant. The applicant sought review of this decision before the Administrative Appeals Tribunal (AAT). The AAT advised the applicant that her application for review appeared to be lodged outside the relevant time limit and invited her to comment. The applicant responded by email, stating she did not receive the delegate's decision until 25 April 2017 due to internet issues and infrequent email checking, and that she expected notification by post. The applicant's grounds of application to the Federal Circuit Court included claims that the AAT unfairly ignored her fear of persecution, failed to consider the risk of harm upon removal, and that both the Department and the AAT failed to offer her an interview.

The Federal Circuit Court was required to determine whether the applicant had an arguable case for the relief claimed, particularly in light of the preliminary view formed by the AAT that the application for review was lodged out of time. This involved considering the applicant's explanation for the delay in lodging her review application and whether her grounds of appeal disclosed a substantial question of law.

Emmett J found that the applicant had provided an email address and consented to communication by email. The delegate's decision was sent to that email address. The applicant's explanation for not receiving the decision, namely internet issues and infrequent email checking, was not considered by the court to be a sufficient basis to overcome the fact that she had consented to email communication and the decision had been sent to the provided address. Furthermore, the court noted that the applicant's grounds of appeal did not disclose an arguable case for relief. The applicant's assertion that she expected notification by post, despite consenting to email, and her claims regarding the AAT's process did not establish a substantial question of law.

The application was dismissed as the court found there was no arguable case for the relief claimed.