Background
EEN25, an Indian citizen, applied for a Protection (Subclass 866) visa. A ministerial delegate refused the application and emailed notice of that decision on 4 October 2024. The notice stated that any merits-review application had to be filed within 28 calendar days and that the deadline could not be extended.
EEN25 applied for review on 1 November 2024, one day after the 31 October deadline. The Administrative Review Tribunal determined that the application had not been properly made and that it lacked jurisdiction. A registrar of the Federal Circuit and Family Court of Australia summarily dismissed EEN25’s judicial-review application, and a judge upheld that dismissal after a de novo review. EEN25 then sought leave to appeal to the Federal Court.
The Court’s Holding
Justice McDonald dismissed the application for leave to appeal. Under sections 494B and 494C of the Migration Act 1958 (Cth), EEN25 was taken to have received the emailed decision at the end of 4 October 2024. Because the prescribed 28-day period commenced on that day, it expired on 31 October 2024. His application filed on 1 November was therefore out of time.
The statutory deeming rule applied regardless of when EEN25 actually read or became aware of the email. Neither evidence of later awareness nor his acknowledged timing mistake could extend the deadline, and the Tribunal had no discretion to accept a late application. The primary judge therefore correctly concluded that the judicial-review proceeding had no reasonable prospect of success. The Court also ordered EEN25 to pay the Minister’s costs, fixed at $6,500.
Key Takeaways
- A migration decision sent by email under section 494B(5) is deemed received at the end of the transmission day, regardless of actual receipt or awareness.
- The 28-day review period included the deemed notification day, making 31 October 2024 the final filing date.
- The Tribunal and the courts had no discretion to extend the statutory deadline or treat the late review application as properly made.
Why It Matters
The decision underscores the strict, jurisdictional nature of merits-review deadlines in Australian migration law. An applicant’s honest mistake or delayed awareness of an emailed decision cannot displace the statutory receipt rule or confer jurisdiction on the Tribunal.
It also confirms that summary dismissal is appropriate when the objective filing dates establish that the Tribunal lacked jurisdiction and the applicant identifies no arguable defect in the operation of the notification provisions.