CXH16 v Minister for Immigration and Anor

This matter came before Judge Manousaridis of the Federal Circuit Court of Australia. The applicant, CXH16, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core of the dispute concerned whether the applicant had been properly notified of a decision by the Department of Immigration and Border Protection (DIBP), which was subsequently affirmed by the AAT. The applicant contended that she had not received an email containing an invitation letter, and therefore had not been afforded a proper opportunity to have her case investigated.

The primary legal issue before the Court was whether the applicant had been taken to have received the email and its attachment, despite her assertion of non-receipt. This involved an examination of the evidentiary presumptions under section 161 of the *Evidence Act 1995* (Cth) concerning electronic communications and the operation of section 477C(5) of the *Migration Act 1958* (Cth) regarding deemed receipt. The Court also considered whether the applicant's claim of non-receipt raised an arguable case of jurisdictional error by the Tribunal.

The Court reasoned that section 161 of the *Evidence Act* creates a presumption that an electronic communication, such as an email, was sent and received as it appears from a document purporting to record it. The Court held that evidence of non-receipt by the intended recipient is insufficient to rebut this presumption, given the nature of email transmission. Consequently, the Court found that the applicant was taken to have received the email and the attached invitation letter on 17 August 2016, as indicated by the copy email. The Court concluded that the applicant's claim of non-receipt did not raise an arguable case that the Tribunal had made a jurisdictional error.