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On 9 May 2023 Justice Markovic handed down a decision in the Federal Court of Australia on the question of when a person is deemed to have received notice of a decision to refuse a visa application by the Department of Home Affairs (Department).

In the decision of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, the Judge found that Mr Sandor had not been properly notified by the Department of the decision to refuse his Student visa application. As there had been no valid notification of the decision, the time to lodge an application for review to the Administrative Appeals Tribunal (AAT) had not yet commenced to run.

Mr Sandor had appointed a registered migration agent as his authorised recipient of correspondence sent by the Department in relation to his Student visa application. On 13 February 2018 a delegate of the Department sent an email to the migration agent, attaching a letter notifying the applicant of the decision to refuse the Student visa application and the reasons for the decision (Notification Letter).

Mr Sandor unfortunately failed to lodge an application for review to the AAT within 21 days of the Department’s decision. He lodged an application to the AAT out of time. As such, the AAT found that it did not have jurisdiction to consider the application for review.

At first instance, the Judge in the Federal Circuit and Family Court of Australia held that the AAT had validly found that it did not have jurisdiction to consider the matter.

However, on appeal to the Federal Court of Australia, Mr Sandor was successful. Justice Markovic found that there had been invalid notification of the delegate’s decision as the notification failed to comply with the elements of section 66(2) of the Migration Act 1958 (Cth) because the Notification Letter did not completely or clearly include all relevant information required for Mr Sandor to calculate the time in which an application for review to the AAT can be made. The Notification Letter failed to provide any detail of when the letter was sent by email to Mr Sandor’s registered migration agent. The failure to include the date on which the Notification Letter was transmitted to the migration agent resulted in an invalid notification of refusal.

This is a significant decision as applicants who have failed to apply for review to the AAT within the relevant timeframe may find that the notification of decision was invalid and they may yet be able to apply for review to the AAT.