It’s unsurprising that decisions made by the Minister (or his delegate) have to notified to a visa applicant. Particularly in the case of refusals,notification in accordance with the law is important for two reasons:
- firstly, the notification has to give reasons for the decision and has to inform the applicant about the available review rights and the time frames (section 66 Migration Act) involved. The applicant should know by reading the notification, when the timeframe begins, and shouldn’t have to piece it together from different parts of the notice; and
- secondly, there is a strict 28 day time limit on lodging an application for merits review in the AAT which runs from the the time of notification.
There are many cases which have challenged the formalities of notification, the most recent example being the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189.
In that case, notification was given by letter sent by registered post (which is one of the ways prescribed by section 494B) and provided the letter is sent within 3 days of the decision it is taken to be received 7 working days after the date of the decision (section 494C(4)). Although the applicant tried to argue (by reference to postal records) that notification hadn’t occurred, the court found that: “Each of these propositions is individually tenuous. That they might all be correct seems most unlikely.”
The second argument was that his review rights hadn’t been adequately set out pursuant to section 66. That argument (also unsuccessful) relied on Perram J’s decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. In that case, the information about review rights was in the wrong section of the letter. It was placed under the heading ‘Financial or case worker assistance’ instead of the heading ‘review rights’. In DFQ17, Perram J held that if a notification is not ‘piecemeal, entirely obscure or essentially incomprehensible’ then s66 is complied with.
The take home message is that any refusal letter needs to be carefully considered for its form as well as its content.
Creative commons acknowledgment for the photograph.
