LML6006 Migration Law: Analysis of a Federal Circuit Court Decision

This report analyzes a case concerning a judicial review application to the Federal Circuit Court of Australia regarding a decision by the Tribunal to not review the cancellation of a temporary business entry visa. The application was filed after the stipulated time limit. The Tribunal, supported by the Federal Court, determined that the email notification was deemed received. The appellant raised two key issues: whether the email's non-receipt affected the interpretation of 'transmitting' under regulation 2.55 and whether the Tribunal could extend the application time limit under the Administrative Appeals Tribunal Act. The report examines the legal arguments, including jurisdictional errors related to the interpretation of 'transmitting' and the Tribunal's power to extend deadlines. It also covers the significance of written notification and electronic communication regulations within the context of the Migration Act. The analysis references relevant legislation, including the Migration Act and Regulations, and case law to provide a comprehensive understanding of the legal issues involved and the court's decisions.

Migration Law
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Question 1
The appellant has made an application to the federal circuit court of Australia for judicial
review of a decision by the Tribunal. The tribunal has earlier decided that it is not in its
jurisdiction to review a decision regarding cancellation of temporary business entry visa by a
delegate of the ministry1. The application was presented after the expiry of the time limit as
mentioned in the migration act. The time limit was of seven days after the applicant was
notified of the decision. The tribunal was of view that when the email was transmitted it is
deemed to have been received by the applicant under section 494C (5) of the act. The federal
court was agreed with the approach of the tribunal. Two issues were raised by amended
notice of appeal. The first was whether the email if not received will be treated under “by
transmitting the document by email” under regulation 2.55 (3)(d)(ii) . The second was
whether the tribunal has power to increase the time limit within which application may be
brought to seek review under section 29(7) and 29(8) of the administrative appeals tribunal
act.
The appellant was legally represented in the federal circuit court. The appellant gave a
detailed account of the tribunal’s decision2 in the federal circuit court. The primary judge
upheld the decision of the tribunal that such an application is time barred and asked the
applicant to proof the validity of the application for review. The appellant filed written
submission. She also attached screenshots of her email inbox. In consequence to that the
tribunal sought clarification from the minister’s department. The department in return
provided the tribunal with the screenshots of outbound emails. No delivery failure
notification was received by the minister’s department. The tribunal after considering all the
facts decided that the appellant’s application was time barred. The tribunal did not give any
1 Callie Harvey, Foundations Of Australian Law (Tilde Univ Pr, 5th ed, 2017).
2 John J Kirton and Jelena Madunic, Global Law (Ashgate, 6th ed, 2009).
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clarification regarding what is meant by receipt of the email. The tribunal decided the matter
based on deeming provisions. The tribunal held that the word transmitting means sending.
The primary judge further held that transmitting means both “send and received”. The
primary judge has taken reference from the case of “Sainju and Singh” in deciding this
particular case3.
The amended grounds are clear and concise. The tribunal has made jurisdictional error by
stating transmission only sending under section 2.55(8) of the regulation and section 494C (5)
of the act. Transmission means both “send and received”. The tribunal has made
jurisdictional error by failing to recognize its power to extent the time for the appellant to
apply for review under section 29(7) and 29(8) if the act. Section 127 and regulation 2.45 of
the act states that the minister must notify a visa holder in writing4. But in this above
mentioned case the delegate of the minister has mailed it to the appellant and no written
notification was send to him. Regulation 2.55 states that the document regarding cancellation
of visa can be given to the visa holder or any person known to him. The document is to be
delivered in the last know residential or business address of the visa holder. The document is
to be delivered by pre paid post or any other pre paid means. The document can also be
transmitted by fax, email or by other electronic means to the last fax number, email address
or any other electronic address last known to the minister.
If the minister purports to send the document to the visa holder but due to some error on
minister’s part the document or any copy of the document is not received by the visa holder.
Then the document is deemed to have been received by the visa holder on the specified date
3 Tally Kritzman-Amir, "International Migration Law In The Current Legal And Political
Reality: Review Of Research Handbook On International Law And Migration" (2016)
49(01) Israel Law Review.
4 Juliet Pietsch and Marshall Alexander Clark, Migration And Integration In Europe,
Southeast Asia, And Australia (Amsterdam University Press, 3rd ed, 2015).
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as mentioned in the act or in a later date if the visa holder can proof that the document has
reached on that later date. Under the common wealth if a person is required to give
information in writing, the person can give information by electronic communication. If the
person is not a common wealth entity or anyone acting on behalf of common wealth entity
has to give consent in order to receive such information by means of electronic
communication. The term electronic communication means a communication in the form of
text, data or image5.
5 John Vrachnas, Migration And Refugee Law (Cambridge University Press, 4th ed,
2012).
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References
Harvey, Callie, Foundations Of Australian Law (Tilde Univ Pr, 5th ed, 2017)
Kirton, John J and Jelena Madunic, Global Law (Ashgate, 6th ed, 2009)
Kritzman-Amir, Tally, "International Migration Law In The Current Legal And
Political Reality: Review Of Research Handbook On International Law And
Migration" (2016) 49(01) Israel Law Review
Pietsch, Juliet and Marshall Alexander Clark, Migration And Integration In
Europe, Southeast Asia, And Australia (Amsterdam University Press, 3rd ed,
2015)
Vrachnas, John, Migration And Refugee Law (Cambridge University Press, 4th ed,
2012)
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