ELM18 v Minister for Home Affairs & Anor

The applicant, ELM18, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which found it lacked jurisdiction to review a delegate's decision to refuse the applicant a protection visa. The Tribunal's decision was based on the applicant's failure to lodge the review application within the prescribed 28-day time limit. The applicant contended that the Tribunal had erred in its determination of jurisdiction.

The primary legal issue before the Federal Circuit Court was whether the applicant had been validly notified of the delegate's decision, which would commence the time limit for lodging an application for review with the Tribunal. This involved determining if the content and clarity of the notification letter, sent via email, satisfied the requirements of section 66 of the Migration Act 1958 (Cth), particularly concerning the statement of the time within which an application for review could be made.

The Court reasoned that the notification letter, while containing information about review rights and the deemed receipt of an email on the day of transmission in separate sections, was sufficiently clear to meet the statutory requirements. Unlike the circumstances in *DFQ17 v Minister for Immigration & Border Protection*, the notification in this case was sent by email, avoiding the complexities associated with postal delivery and the calculation of "working days" versus "days." The Court found that the applicant was taken to have been notified of the decision on the day the email was transmitted, and the subsequent 28-day period for lodging the review application was therefore correctly calculated by the Tribunal. The Court concluded that the Tribunal had not committed jurisdictional error.

Consequently, the Court dismissed the applicant's application for judicial review.