Australian Immigration Daily News

Ain’t the Internet wonderful?

Without the glories of the World Wide Web, which of course was “invented” by former US Vice-President Al Gore (or so he was said to have claimed (we all know that it was actually invented by Donald Trump – if he says so it must be true!)) we wouldn’t have wonderful philosophical questions to ponder, such as: “When is an email received?”. 

Or even better, what does the phrase “at the end of the day”, as used in section 494C(5) of the Migration Act actually mean?

And isn’t it a whole lot better to debate questions like this than ones that have perplexed our ancestors? Like for example, “How many angels can dance on the head of a pin?” Or “How many American lawyers who write for Migration Alliance does it take to install a light bulb?” (No comments on that one please!).

In all seriousness (!) the  answer question about the meaning of the phrase “at the end of the day” actually has real world significance, as does the answer to the question of “when is an email received” .  In fact, the significance is “yuge” for migration advice professionals. It can make the difference between filing a timely merits review application with the AAT, and losing the opportunity for merits review altogether!

These issues were all central to a case that was decided by Judge Charlesworth of the Federal Court in a decision that was handed down on 11 November 2016, Calimoso v Minister for Immigration and Border Protection (2016) FCA 1335.

Here’s how these issues came up:  On 23 October 2015, the Department refused an application for a Partner visa. On the same day, the Department transmitted notice of the refusal of the application to the applicant’s email address. 

The applicant did not lodge an application for merits review with the AAT until 16 November 2015.

Four days later, the Tribunal wrote to the applicant asserting that the application for review was not valid because it had not been lodged within the 21 day period after notice that is prescribed by regulation 4.10 of the Migration Regulations.

As it turned out, if it had been the case that legally the applicant was taken to have received notice of the refusal on the day after the email was sent to him by the Department,  24 October 2015, then the application would have been timely.

So, what was the proper interpretation?

Does section 494C(5), which provides that when the Minister gives a document to a person by transmitting it by email, “the person is taken to have received the document at the end of the day on which the document is transmitted” mean that, for the purposes of calculating the period within which an appeal to the AAT must be lodged, the person is taken to have received the email on the same calendar day on which it was sent, or on the next day?                   

Well, in Calimoso, the applicant argued that the phrase “at the end of the day” as used in 494C(5) actually means that when notice of a decision is sent by the Department to an applicant by email, the email is  taken to have been received “at the beginning of the day following the day” on which the email was sent.

The justification for this interpretation was articulated by the applicant’s legal representative in what I might call colourful legal terms.  It was submitted that this interpretation was necessary to give the words “at the end of the day”  “meaningful operation”, to avoid the words “at the end of the day” from being interpreted in a way that would make them “superfluous, void, or insignificant” , and to avoid “an absurdity”.

And exactly how far did the applicant get with these submissions in the Federal Court?

Try “exactly nowhere”!!!

The Court had regard to the Explanatory Memorandum that had been prepared in conjunction with the enactment of section 494C(5). That Memorandum states that the purposes of the section are to provide a means for the date of receipt of an electronic transmission of notification of a decision under the Migration Act to be “easily determinable for the purposes of establishing the date from which the time for making a review application begins to run”. 

In answer to the applicant made on behalf of the applicant that the words “at the end of the day” should be interpreted to mean “at the beginning of the day following the day upon which the document is transmitted”, the Federal Court stated, simply, that the words used in the legislation are in fact: the end of the day on which the document was transmitted, and not the beginning of the next day.

So, in case there was any lingering doubt about the meaning of section 494C(5), and about how to calculate the period of time within which an application for merits review must be lodged with the AAT, the Colimoso decision should put those doubts to rest, once and for all.  If it wasn’t already clear, it is now very clear, that when the Department gives notice by email of a decision, the date on which that decision is taken to have been notified is the same calendar day on which the email is sent, and not the day after the email was sent.

So now that the deep and imponderable question of what the phrase “the end of the day” means has been settled, can we all sleep better at night? 

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