Mohamed and Minister for Immigration and Multicultural Affairs (Migration) - [2024] AATA 3606

Mohamed and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3606 (10 September 2024)
Division:GENERAL DIVISION
File Number: 2024/6244
Re:Mohamed Samir Mahmoud Mohamed
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision: 10 September 2024
Date of written reasons: 11 October 2024
Place:Melbourne

The Tribunal decides it does not have jurisdiction to consider Mr Mohamed’s application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – visa cancellation – nine day time limit to apply for merits review – whether notice at s 501G(1) of the Migration Act complied with and given in prescribed manner – whether application for review lodged within time – notice complied with and given in accordance with s 501G – application not lodged within time – no discretion to extend time to lodge review application – no jurisdiction – application dismissed – oral reasons provided – written reasons requested and provided
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Electronic Transactions Act 1999 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 Brown v Minister for Immigration for Home Affairs [2018] FCA 1643 Khan v Minister for Immigration and Border Protection [2018] FCA 627 MZZDJ vMinister for Immigration and Border Protection (2013] 137 ALD 466 Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451 Negri v Secretary, Department of Social Services
(2016) 156 ALD 240
Pathania v Minister for Immigration and Border Protection (2015) 240 FCR 254
Pomare v Minister for Immigration and Citizenship [2008] FCA 458; 167 FCR 494

SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 Virapornsawun v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs
[2020] FCA 1699
Wilson v Minister for Immigration and Citizenship (2012) 135 ALD 60
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 October 2024
INTRODUCTION

Mr Mohamed has applied for an extension of time in which to review a decision by a delegate of the Respondent, made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”), to refuse his application for a Partner Visa.
The hearing was held by telephone on 10 September 2024. Mr Mohamed was self-represented. The Respondent was represented by Ms Sarah Thompson, a solicitor with HWL Ebsworth Lawyers.
At the conclusion of the hearing I gave oral reasons that the Tribunal does not have jurisdiction to consider Mr Mohamed’s application and dismissed it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). Nine days later, on 19 September 2014 at 5.12 pm, Ms Emilia Nazari, who is a lawyer with Victoria Legal Aid (“VLA”), emailed the Tribunal. She advised that VLA represents Mr Mohamed and requested written reasons ‘pursuant to s 28’(sic) of the AAT Act. The reference to s 28 is erroneous because it does not relate to requesting written reasons from the Tribunal but, with certain exceptions at s 28(1AAA) of the AAT Act, from an administrative decision-maker whose decision may enliven a right of review to the Tribunal. It is s 43(2A) of the AAT Act that enables a request for written reasons from the Tribunal. These must be provided ‘within 28 days’ of such a request, which falls on 17 October 2024 in the present matter and has been complied with. These reasons are provided in accordance with the requirements of s 43(2B) of the AAT Act and Federal Court authority,[1] which states:
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
[1] Negri v Secretary, Department of Social Services (2016) 156 ALD 240, 249 [27] (Bromberg J).
BACKGROUND
Mr Mohamed is a 50-year-old citizen of Egypt who first arrived in Australia in 2001 as the holder of a Student Visa. Submissions from Mr Mohamed’s previous lawyer on 21 July 2017 state that his Student Visa ‘was cancelled on 11 December 2003 as [he] failed to meet course requirements’, which caused him to be ‘held in immigration detention from December 2003 until July 2004’.[2] Reference is also made in these submissions to Mr Mohamed applying for a ‘Protection (subclass 866) visa’ in 2004,[3] which was refused by the Respondent on 17 March 2004. This decision was reportedly ‘affirmed by the [former] Refugee Review Tribunal on 12 May 2004,’ and reference is also made to the Applicant’s judicial review application not resulting in a ‘positive outcome’.
[2] Exhibit R1, 164.
[3] Ibid.
The Statement of Reasons dealing with the more recent refusal of Mr Mohamed’s Partner Visa states that this was based on his June 2015 conviction for two counts of Indecent assault against a child, which resulted in an aggregate sentence of nine months’ imprisonment, albeit suspended for two years.[4]
[4] Ibid 15.
A letter dated 18 June 2024, advising of the refusal of Mr Mohamed’s visa, was sent to the email address he nominated for receipt of correspondence. He continues to use this email address to the present day.[5] The letter stated he had nine calendar days to lodge an appeal.
[5] Ibid 9.
Mr Mohamed’s review application was received by the Tribunal on 26 August 2024, about two months after the permissible nine-day appeal period. He claimed to have only received the visa refusal decision on 20 August 2024 after being taken into immigration detention.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act. Relevantly, by s 500(6B) of the Act, an application for review must be lodged within nine days after the day on which the person was notified of the decision in accordance with s 501G(1). That nine-day appeal period displaces the general rule under the AAT Act, where applications for review can be made within 28 days of a person receiving a decision (AAT Act s 29(2)(a)). That is because ss 25(1) and (3) of the AAT Act enable the Tribunal’s review jurisdiction to be varied by the enactment under which a reviewable decision is made.
Under s 501G(3) of the Act, the Minister must give notice of a visa refusal or cancellation decision in ‘the prescribed way’. The word ‘prescribed’ is defined at s 5 of the Act to mean ‘prescribed by the regulations’. Notification of a visa decision must be given in accordance with s 494B of the Act, which refers to methods by which the Minister can give documents to a person. Subsections 494B(1), and (5) are relevantly in the following terms:

494B   Methods by which Minister gives documents to a person
Coverage of section
(1)       For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a)       …; or
  (b)       email; or
  (c)       …;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
…
Section 494C of the Act complements s 494B by clarifying when a person is taken to have received a document from the Minister. Sub-sections 494C(1) and (5) are relevantly in the following terms:
494C When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, email or other electronic means
(5)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.
(Emphasis added).
Section 494D of the Act relates to authorised recipients:
Authorised recipient
(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.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(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.
Section 501G of the Act requires that for decisions made under s 501 of the Act:
(1) …
…
the Minister must give the person a written notice that:
(c)       sets out the decision; and
(d)       specifies the provision under which the decision was made and sets out the   effect of that provision; and
(e)       sets out the reasons (other than non-disclosable information) for the    decision; and
(f)        if the decision was made by a delegate of the Minister under…section                   501CA and the person has the right to have the decision reviewed by the              Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
Under s 501G(4) of the Act, even if the notice is not sent to a recipient in conformance with s 501G(1), that does not affect the validity of the decision. The effect of such a failure, however, may impact the time within which the recipient is required to lodge their review application. The precise date of notification is relevant because it determines the commencement of the time limit for making a review application to the Tribunal. If Mr Mohamed was not notified of the decision in accordance with s 501G(1), time does not begin to run until the notification is properly effected, and he is therefore not limited to the nine day requirement under s 500(6B) of the Act. As Lindgren J held in Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 (“Pomare”) at [31]:
In Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308, Gray J, after referring to Zhan 128 FCR 469, held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no “notification” with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with s 501G(1)(c) to (f).
In Wilson v Minister for Immigration and Citizenship (2012) 135 ALD 60, Edmonds J, referred to Pomare in holding at [22]:
‘Finally, where any of the requirements of a written notice under s 501G(1)(c)-(f) are not complied with, there will be no “notification” with the result that time will not begin to run in respect of an application to the tribunal under s 500(6B)...’
Section 14A of the Electronic Transactions Act 1999 (Cth) provides:
Time of receipt
(1)       For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)       the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)       the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)        the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)       the addressee has become aware that the electronic communication has been sent to that address.
(2)       For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
(3)       Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
DOCUMENTS
The following documents were lodged by the parties prior to the commencement of this hearing:
(a)Notice of visa refusal dated 18 June 2024;
(b)Decision record by a Delegate of the Minister dated 4 June 2024, covering a 124-page bundle of attachments;
(c)National Police Certificate dated 1 July 2016;
(d)Mr Mohamed’s application to the Tribunal dated 26 August 2024;
(e)122-page bundle of documents lodged by the Applicant comprising: letters dated 21 July 2017, 23 October 2020, and 14 May 2021 from his former lawyer (Clothier Anderson Immigration Lawyers); a Statutory Declaration of the Applicant dated 30 October 2020; certified court extracts; a report from the Department of Health and Human Services dated 11 March 2020; Minutes of Proposed Family Division Orders dated 27 November 2019, 14 April 2020 and 9 July 2020; emails between the Applicant and Respondent from 19 -21 May 2021; and copy of Direction 99;
(f)62-page bundle of documents lodged by the Applicant comprising: family details from a personal particulars document dated 29 July 2016; information about the visas he previously held in Australia; Form 1221 titled: ‘Additional personal particulars information’; birth certificate for one of the Applicant’s children; written submissions dated 17 August 2016, 11 October 2016, and 1 June 2017 from his former lawyer (Clothier Anderson Immigration Lawyers); Statutory Declarations of the Applicant dated 29 July 2016, 11 October 2016, 1 June 2017; Notice dated 4 May 2017 regarding the Respondent’s intention to consider refusal of the Applicant’s visa application; Letters from the Respondent dated 11 September 2019 and 21 February 2020 requesting further information regarding possible visa refusal; letter dated 31 May 2017 from the grandmother of the Applicant’s children; Letter from the Applicant’s partner dated 31 May 2017; Undated personal reference; Report from a consultant psychiatrist dated 1 September 2010 regarding the Applicant’s partner; school photographs of one of the Applicant’s children; and
(g)Applicant’s 10-page submissions comprising a Search Warrant dated 19 August 2024; Form 1423 titled: ‘Very Important Notice: Information about your detention,’ which was acknowledged / signed by the Applicant on 20 August 2024; Property Receipt; and Release of Property Authorisation form.
ISSUE TO BE RESOLVED
The Tribunal’s jurisdiction to consider Mr Mohamed’s application turns on when he was notified of the delegate’s decision in accordance with the Act. If he was properly notified on 18 June 2024, then the nine-day time limit imposed by s 500(6B) of the Act applied from that date, Mr Mohamed failed to lodge his review application in time, and the Tribunal has no jurisdiction. But if Mr Mohamed was not notified of the non-revocation decision in accordance with the Act on 18 June 2024, then the nine-day time limit did not begin to run and the Tribunal must consider when he was properly notified, and what time he then had to lodge his review application.
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s submissions
In his application to the Tribunal, Mr Mohamed states that his preferred method for receiving correspondence is email. The Tribunal notes this is the same email address detailed on documents between Mr Mohamed and the Respondent for many years. This includes documents such as a Personal Particulars Form dated 29 July 2016, and letters from the Respondent dated 11 September 2019, 21 February 2020, which all refer to the same email address. It is noteworthy that Mr Mohamed’s former lawyer ceased acting for him over three years ago, following which there is communication between Mr Mohamed and the Respondent on the same email address. In his oral testimony Mr Mohamed confirmed that prior to being taken into immigration detention he used this same email address and continues to use it to the present day.
Mr Mohamed initially claimed he did not receive the delegate’s visa refusal decision dated 18 June 2024 until being taken into immigration detention on 20 August 2024. He said Border Force officials gave him with a ‘hard copy’ but he ‘didn’t see it in [his] email’. During cross-examination, he was asked by Ms Thompson about an email that he sent to the Respondent on 26 August 2024 at 1:35 PM, in which he attached a copy of the delegate’s visa refusal email dated 18 June 2024. Mr Mohamed conceded that this email was received in his ‘junk mail’ folder, but he overlooked it, which is why he claimed to be unaware of the visa refusal decision until being taken into immigration detention on 20 August 2024. He said that after being given a paper copy of the decision by detention staff he searched for and located the 18 June email in his junk folder. Mr Mohamed contended, however, that nothing less than providing notice of the visa refusal decision by registered post, for which a signature of acknowledgement is required, would have sufficed.
Respondent’s submissions
Ms Thompson submitted that regardless of whether Mr Mohamed saw or opened the visa refusal decision sent to his email address on 18 June 2024, this was his designated email address for receiving correspondence from the Respondent. Ms Thompson said the requisite notification of the visa decision was therefore provided on 18 June 2024 and the nine-day appeal period began to run from that day. She said this was so regardless of Mr Mohamed’s awareness about the email contents. Mr Mohamed’s failure to lodge his review application within nine days is therefore fatal to his application, and the Tribunal has no discretion under the Act to extend the time for him to make a review application.
CONSIDERATION
It is well established that the Tribunal has no power to extend time beyond the allowable period for appeals under the Migration Act. That is because s 500(6B) of the Act expressly excludes AAT Act provisions that enable extensions of time to be granted.
On 18 June 2024, Mr Mohamed was not in custody and the delegate was obliged to notify him of the visa refusal decision in accordance with s 501G(3) and reg 2.55. Mr Mohamed’s preferred method for client communication was the same email address he has consistently used in the past and continues to use for this proceeding. The delegate notified Mr Mohamed of the visa refusal decision in accordance with reg 2.55(3)(d) by transmitting the document to that email address.

In Khan v Minister for Immigration and Border Protection [2018] FCA 627 at [30], Griffiths J elaborated upon the rationale for the strict framework applying to the service of documents and limited timeframe to appeal:
Given the high volume of decisions made by the Minister and his Department, it is understandable that there is a need for certainty with regard to such matters as to when and how decisions on visa applications are to be notified. It is equally understandable that there is a need to specify time periods within which review applications must be made, by reference to the date when notification of adverse decisions has been made. These kinds of considerations explain why there are quite detailed provisions in both the Act and Regulations dealing with these matters. The legislative scheme includes provisions which deem matters to have occurred if particular actions are taken. The Note to s 494B(1A), s 494B(7), the Note to s 494D(1) and s 494D(5) are examples of such provisions.
Did the contents of the notice comply with s 501G(1) of the Act?
No complaint was advanced by Mr Mohamed regarding the contents of the notice dated 18 June 2024. Out of an abundance of caution, however, the Tribunal notes it is addressed to Mr Mohamed and at the top left corner of the first page it states: ‘Method of delivery: Email Client [email address redacted].
Under the heading ‘Review Rights’ on page 2, the notice states:
Review rights
The Department cannot consider the refusal of your visa any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision to refuse to grant you a Partner (Temporary) (Class UK) visa. An application for merits review of the decision must be given to the AAT within nine (9) calendar days after the day on which you are taken to have received this letter. The AAT has no power to extend this timeframe.
Included in this notice are the following documents titled:
·     "How to apply for merits review by the Administrative Appeals Tribunal", which explains, among other things, where an application for review at the AAT can be made; and
·     “The effect of subsections 500(6A) to (6L)” of the Act.
As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted.
As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted. You have appointed an authorised recipient and are taken to have received this letter at the end of the day it was transmitted to your authorised recipient.
See the attached information sheet about ‘How to Apply for Merits Review by the Administrative Appeals Tribunal’, together with two copies of:
·     the decision record and Statement of Reasons that sets out the reasons for the decision (other than non-disclosable information, if any); and
·     each source document (“Attachment”) before the decision maker (other than documents containing non-disclosable information, if any);
Enclosed is also some further information about the effect of s500(6A) to s500(6L) of the Migration Act, which the Department is required by law to provide to you.
NOTE: If you believe that you may not have received a complete set of the above documents, contact the Department as soon as possible.
Translating and interpreting service
If you do not speak English or need an interpreter you can contact the Translating and Interpreting Service (TIS) online through or by phone on 131 450.
Other
Your personal information may be disclosed to Australian law enforcement agencies and relevant foreign governments or agencies as part of the process of your removal from Australia.
Yours sincerely
…
(Emphasis and errors in original)
The notice is signed above a signature block containing the Case Officer’s first name and position number within the National Character Consideration Centre of the Department of Home Affairs. The enclosures listed on page 2 are:
(a)Two copies of the Decision Record and Statement of Reasons;
(b)Two copies of the Table of Evidence and Material;
(c)“How to apply for merits review by the Administrative Appeals Tribunal”; and
(d)Further information regarding the effect of s500(6A) to 500(6L) of the Migration Act.
The Tribunal is satisfied that the notice given to Mr Mohamed complied with the requirements of s 501G(1) of the Act, because it: set out the decision; specified that it was made under s 501(1) of the Act; set out the reasons for decision; stated that it could be reviewed by the Tribunal; advised the time in which the application could be made (nine calendar days), who could make the application, where it could be made, and the effect of subsections 500(6A) to (6L).
Did the notice given to Mr Mohamed comply with s 501G(3) of the Act?
Section 501G(3) of the Act requires that the notice ‘must be given in the prescribed way.’ In Pathania v Minister for Immigration and Border Protection (2015) 240 FCR 254, Gilmour J held at [18]:
…The Minister was required under s 494B to discharge that obligation by one of several methods. The choice as to which method was a matter for the Minister...Once a choice was made as to which method of notification was to be used, the Minister was required to comply strictly with the statutory provisions relating to that method.
The method selected by the Minister’s delegate to convey the notice was to the email address Mr Mohamed nominated for correspondence with the Respondent. It is of no assistance to Mr Mohamed that the email was received in his junk email folder and he overlooked it. That is because it was capable of being retrieved on 18 June 2024 and it was his responsibility to do so. There is no legal obligation on the Respondent to concurrently send visa decisions via registered post or to physically hand them to recipients.[6]
[6] Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 451, 12-3 [23] (b)-(c), 14 [24]-[27] (Bromwich J).
CONCLUSION
The information in the notice to Mr Mohamed about his review rights is sufficiently clear and compliant with the Act. The Tribunal does not accept Mr Mohamed’s claim that he received the visa decision for the first time on 20 August 2024 after being taken into immigration detention. It was sent to and reached the electronic address he designated on 18 June 2024. He was therefore taken to have received it by the end of that day. The nine-day time limit for an appeal then began to run and Mr Mohamed had until 27 June 2024 to lodge his review application but did not do so until 26 August 2024, approximately two months later. His application is therefore well out of time. Consistent with s 500(6B) of the Act, the Tribunal has no discretion to extend the time for making an application.[7]
[7] Virapornsawun v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2020] FCA 1699 [12], Jagot J, citing: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [79]–[80]; Brown v Minister for Immigration for Home Affairs [2018] FCA 1643, [60]–[63].
DECISION
The Tribunal does not have jurisdiction to consider Mr Mohamed’s application and dismisses it under s 42A(4) of the AAT Act.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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Associate

Dated: 11 October 2024

Date of hearing: 10 September 2024

Advocate for the Applicant: Applicant by telephone

Solicitors for the Respondent: Ms Sarah Thompson, HWL Ebsworth

Date of hearing:	10 September 2024
Advocate for the Applicant:	Applicant by telephone
Solicitors for the Respondent:	Ms Sarah Thompson, HWL Ebsworth