FEDERAL CIRCUIT COURT OF AUSTRALIA
SHETH v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 3172	

Catchwords: 
MIGRATION – Application for review of decision of Administrative Appeals Tribunal – application to Tribunal made out of time – whether applicant properly notified of delegate’s decision – no legal error – application dismissed.	

Legislation:
Migration Act 1958 (Cth), ss.66, 347, 362B, 476, 494B, 494C, 497C, Part 5
Migration Regulations 1994 (Cth), regs.2.16, 4.10	

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Singh v Minister for Immigration & Citizenship [2011] FCAFC 27
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Chowdhury & Ors v Minister for Immigration & Anor [2015] FCCA 2981	

Applicant:	Atitbhai Kamleshkumar Sheth	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Administrative Appeals Tribunal	

File Number:	SYG 683 of 2014	

Judgment of:	Judge Nicholls	

Hearing date:	7 August 2015	

Date of Last Submission:	7 August 2015	

Delivered at:	Sydney	

Delivered on:	1 December 2015	
REPRESENTATION
Solicitors for the Applicant:	Mr C Guan of Paul Guan & Associates	

Counsel for the Respondents:	Mr T Reilly	

Solicitors for the Respondents:	DLA Piper	

ORDERS
(1)	The application made on 18 March 2014 and ultimately amended on 15 July 2015 is dismissed.
(2)	The applicant pay the first respondent's costs set in the amount of $7500. 
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 683 of 2014
Atitbhai Kamleshkumar Sheth	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

Administrative Appeals Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2014 and ultimately amended on 15 July 2015 seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 4 March 2014 which found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.
Background
2.	In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), the affidavit of Adele Juliet Carr, solicitor, made on 4 November 2014, read by the Minister with no objection, and the affidavit of Gregory Albert Miiller, Internet Gateway Engineer, made on 6 August 2015 read by the Minister, with no objection.
3.	The applicant is a citizen of India who arrived in Australia as a student. He applied for the visa relevant to the current matter on 25 March 2013 (CB 1 to CB 30).
4.	The Minister’s delegate refused the application for the visa on 6 June 2013 (CB 40 to CB 57). The delegate found that the applicant did not meet the “primary criteria” for any of the relevant subclasses for the grant of the visa. In particular, that he had not been offered a place in a principal course of study that had been specified by a relevant Gazette Notice. Further, that the applicant did not satisfy the secondary criteria for the grant of any subclass of the visa (CB 47).The applicant was notified of the decision by email sent to his nominated email address (see question 21 at CB 2), on 6 June 2013, which attached the notification letter, the decision record and the “M10 Brochure”.
5.	The applicant applied to the Tribunal for review of the delegate’s decision on 9 October 2013, with the assistance of a registered migration agent (CB 59 to CB 81). Included with the application was a letter from the applicant’s representative, dated 9 September 2013, which stated the following (CB 59):
	“…I noted that the letter from the Department was dated on 6 June 2013. However, my client said that he did not receive this notification of the decision until 25 September 2013 after he went to the department enquiring about the status of his application.
	The client advised that he appointed a migration agent but DIAC has communicated with him directly using his e-mail. On this 
e-mail account he had received a letter acknowledging the receipt of the application and request letter from DIAC. He also submitted the requested documents by this email.
	The agent said that he had nominated his PO Box as the correspondence address, but he said that the postal box did not receive the decision on his application. 
	The client said that he did not receive the decision on his email account on 6 June 2013 and thereafter except for the one on 25 September 2013. 
	Therefore I am concerned that the applicant had not been notified of the decision, and the applicant should be considered as having been notified on 25 September 2013…”
6.	The applicant was invited to attend a hearing before the Tribunal on 14 February 2014 (CB 87). Included in the letter of invitation to the hearing was a separate invitation to provide “all documents” that he intended to “rely on to establish” that he met the criteria for the visa (CB 87).
7.	The applicant’s representative provided the Certificate of Enrolment (“COE”) and his “past study records” (CB 95 to CB 104). 
8.	By email dated 18 February 2014 the Minister’s delegate requested the applicant to provide further information about email correspondence that he said he had had with the Minister’s department and had discussed at the hearing on 14 February 2014 (CB 108 to CB 109). He provided copies of the requested correspondence and documents by email on 20 February 2014 (CB 110 to CB 133).
9.	A Tribunal “Case Note” indicates that the applicant was contacted on 4 March 2014 by telephone with the following message from the Tribunal, “the decision is being made on the basis of jurisdiction” (CB 134 to CB 135).
10.	The Tribunal found that it did not have jurisdiction. On 4 March 2014 it found that ([12] – [15] at CB 141):
	“[12] For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
	[13] Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
	[14] The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 June 2013 and dispatched by email. The email was sent to the address notified by the applicant at question 21 of the visa application form and the applicant had consented to the Department communicating with him by email. Although the representative (in writing) and the applicant (at hearing) submitted that the applicant had a migration agent, the application form stated that he did not receive assistance with the form and did not refer to a migration agent. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
	[15] The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 6 June 2013. Therefore the prescribed period within which the review application could be made ended on 27 June 2013. As the application for review was not received by the Tribunal until 9 October 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.”
Grounds of the Application
11.	The grounds of the application, as ultimately amended, are as follows:
	“1. The second respondent has made jurisdictional errors by conducting itself in this matter inconsistently, illogically as well as unreasonably.
	Particulars
	a. The applicant made an application to the second respondent for review, in relation to a decision to grant a Student (Temporary) (Class TU) visa on 9 October 2013.
	b. On 16 January 2014 the second respondent invited the applicant to appear before the Tribunal and also asked the applicant to provide the documents relating to the visa grant criteria.
	c. On 13 February 2014 the applicant responded to the request, having provided related documents as requested.
	d. On 14 February 2014 the applicant appeared before the second respondent's hearing; however, at the hearing the second respondent had not discussed with him whether he could meet the grant criteria for the visa he sought but sought the information to determine whether the second respondent has jurisdiction in the matter.
	e. This occurred long after the application had been made and after the applicant had been requested to provide the documents for visa grant criteria.
	f. The applicant should be granted a relief of estoppel by conduct- a declaration that the second respondent have jurisdiction in the matter and order that the review application be processed to an end.
	2. The second respondent has made jurisdictional errors by failure to find that the first respondent delegate was legally unreasonably in the making a decision on his visa application.
	Particulars
	a. The reasons for their refusal decision were that the applicant had failed to respond to his/her requests for further information.
	b. The requests were alleged to have been transmitted to the applicant by email on 6 June 2014.
	c. The applicant did not respond to the email request, and the delegate officer proceeded to a decision without making any attempts to contact the applicant by other methods such as his mobile number 0410643565 given in Q19 in and his address for correspondence given in Q20 in the application form.
	3. The second respondent has made jurisdictional errors by failure to find that the applicant had made their review application in accordance with the statutory time limits and it has jurisdiction  to the matter.
	Particulars
	a. The first respondent delegate officer was legally unreasonable in making a decision on his visa application.
	b. The officer had made an error in giving notice and decision to the applicant.
	c. As a result, the applicant got the copy of the decision until 25 September 2013, and the review application with the second respondent was made on 6 June 2013. It was within 21 days after the applicant was notified of the decision.
	d. So, the review application was made within the statutory time limits and the second respondent has jurisdiction to it.”
Consideration
12.	As set out above, the basis of the Tribunal’s decision was that it did not have jurisdiction to review the delegate’s decision. The Tribunal’s reasoning was that, by the operation of the relevant statutory and regulatory requirements, the applicant was taken to have been notified of the delegate’s decision to refuse the grant of the visa on 6 June 2013.
13.	By operation of s.347(1)(b) of the Act, and reg.4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”), an application for review to the Tribunal must be made within 21 days after the applicant was notified of the decision pursuant to the relevant statutory and regulatory scheme. In the current case, that meant that the application for review needed to have been made on, or before, 27 June 2013, such as to engage the Tribunal’s jurisdiction.
14.	The Tribunal found that the application was not made until 9 October 2013. As this was outside the relevant prescribed period, it was not made in accordance with the relevant legislative requirement and the Tribunal therefore lacked jurisdiction to review the delegate’s decision.
15.	The applicant’s amended application puts forward three grounds asserting that the Tribunal fell into error in the making of this decision.
16.	First, that the Tribunal fell into jurisdictional error because its “conduct” was illogical or unreasonable. This does not appear to directly assert error in the Tribunal’s decision as such, but complains about certain parts of the process before the Tribunal.
17.	That is, that the Tribunal invited the applicant to a hearing and invited him to provide documents on which he would seek to rely, to establish that he met the criteria for the grant of the visa. These included a copy of his current certificate of enrolment, other documents concerning his enrolment and documents relating to financial capacity, English language proficiency and health insurance (CB 87 to CB 89).
18.	The complaint is that, in spite of this, at the hearing the Tribunal raised the question of its jurisdiction to review the delegate’s decision. The applicant says that in light of this “conduct” the Court should grant relief to the applicant, on the basis of “estoppel by conduct”, and declare that the Tribunal does have jurisdiction to review the delegate’s decision (see particular [f] to ground one).
19.	Ground two asserts that the Tribunal fell into jurisdictional error because it failed to find that the Minister’s delegate was “legally unreasonable in the making of [the] decision on his visa” .
20.	The applicant directed attention to the reasons for the delegate’s decision. This was said to be that the delegate found that the applicant had failed to respond to requests. This request was “transmitted to the applicant by email on 6 June 2014” (particular (b) to ground two) (I note, with reference to the evidence in the Court Book, the correct date should read 6 June 2013).
21.	I note 6 June 2013 was the date of the delegate’s decision (CB 77 to CB 79). The date of the request for further information was 27 March 2013 (CB 31).
22.	In any event, the complaint appeared to be that the delegate acted unreasonably in proceeding to a decision without first making any attempt to contact the applicant.
23.	The third ground asserts jurisdictional error on the part of the Tribunal because the Tribunal allegedly failed to find that the applicant had made his application for review within the statutory “time limits” and therefore it had jurisdiction to review the delegate’s decision.
24.	The applicant’s grounds, and submissions in explanation of the grounds, overlook a number of relevant and critical elements integral to matters of this type.
25.	First, as the Minister submitted, notwithstanding any “confusing” actions or conduct by the Tribunal, whether or not the Tribunal has jurisdiction to review the delegate’s decision is a “jurisdictional fact” to be decided by the Court on the evidence before it (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172). As the Minister submitted, the actions and conduct of the Tribunal have no bearing on this question.
26.	Second, the applicant’s ground misunderstood that the question of the Tribunal’s jurisdiction to review the delegate’s decision is governed by the relevant statutory and regulatory framework and requirements.
27.	In the current case, there is no dispute between the parties that there is a time limit between notification by the delegate of the decision and when an application for review can be made. The applicant’s dispute arises from his contention that he was not properly, or “legally”, notified of the delegate’s decision until 25 September 2013 and that he made his application to the Tribunal within time on 9 October 2013.
28.	The applicant’s position is that while the Minister contends that the delegate sent him notification of the decision by mail on 6 June 2013, he did not receive it and, therefore, was not properly notified of the decision, such that the time prescribed for the making of the application for review had commenced.
29.	What the applicant’s submissions failed to appreciate is that so long as the Minister (through his delegate) complies with the relevant statutory and regulatory regime applying to the giving of a document to an applicant, the applicant is taken to have received the document (in this case the notification of the delegate’s decision) irrespective of whether he actually received it.
30.	On the evidence before the Court the delegate’s decision was made on 6 June 2013 (CB 47). Section 66(1) of the Act requires that when the Minister refuses to grant a visa he must notify the applicant of the decision in the prescribed way. That prescription is relevantly found in reg.2.16(3) of the Regulations. This provides that the Minister must notify an applicant of the decision to refuse the visa by one of the methods specified in s.494B of the Act.
31.	One of those methods is found in s.494B(5)(b) of the Act. That is, that the Minister may transmit the document notifying the refusal of the grant of the visa by email.
32.	The evidence before the Court reveals that the delegate sent a letter dated 6 June 2013 enclosing the decision record to the following email address: atitsheth@gmail.com (see CB 40 to CB 47 and the evidence of Mr Miiller particularly at [9] – [12] of his affidavit).
33.	The email address had been provided by the applicant in his visa application form with an express agreement that the department communicate with him by the means set out at s.494B(5) of the Act, including by email (see CB 2). There is no evidence before the Court that the applicant withdrew this agreement, or provided another email address, or notified the department of any alternative method of communication.
34.	The applicant now says that he did not receive this email. There was no direct evidence by way of any affidavit from the applicant before the Court to this effect. At best, it can be said that this is what he told the Tribunal at the hearing before it (see the transcript annexed to the affidavit of Ms Carr at page 5 to page 6).
35.	However, even if the applicant had put such evidence before the Court it would not, in the circumstances, have been of assistance to him. This is because s.494C(5) of the Act provides that if the Minister gives a document to an applicant by the methods set out at s.494B(5) of the Act “…the person is taken to have received the document at the end of the day on which it is transmitted”.
36.	I am satisfied on the evidence, particularly that of Mr Miiller, that the notification of the delegate’s decision was successfully transmitted to the applicant’s email address. That is “the final entry of the Log Extract relating to the message…indicates successful transmission to the host gmail-smtp-in.l.google.com” at the Internet Protocol (IP) address (see Mr Miiller’s affidavit at [11.2]).
37.	On this basis, and by the operation of s.494C(5) of the Act, the applicant is taken to have received the notification irrespective of whether he subsequently says he did not receive it. I note, in particular, there was no evidence from the applicant of any difficulties in relation to his internet provider at the relevant time.
38.	On the evidence, therefore, the applicant was notified of the delegate’s decision on 6 June 2013. The consequence of the application of s.347(1)(b)(i) of the Act and reg.4.10 of the Regulations is that, as the applicant was deemed to have received the notification of the delegate’s decision on that day, the period by which he could make his application for review to the Tribunal ended on 27 June 2013.
39.	The Tribunal found, and this is not disputed by the applicant, that he made his application for review on 9 October 2013. As this was outside the prescribed period, the Tribunal had no jurisdiction to review the delegate’s decision.
40.	While the applicant’s explanation of the first ground before the Court was not entirely clear, when understood in light of his written submissions, it appears the charge of inconsistency, illogicality and unreasonableness on the part of the Tribunal was that it did not raise the question of its jurisdiction with the applicant an earlier time.
41.	As set out above, the Tribunal wrote to the applicant on 16 January 2014 inviting him to a hearing. In that letter, the Tribunal also invited him to provide documents relevant to his satisfying the criteria for the grant of the visa. The applicant provided some documents.
42.	At the hearing on 14 February 2014 the Tribunal raised, for the first time, the question of its jurisdiction. The Minister did not dispute this.
43.	There are at least two elements to the applicant’s ground. The first is the time when the Tribunal first raised the question of its jurisdiction with the applicant. This, however, is not relevant in circumstances where the Tribunal does not have jurisdiction to conduct the review. As the Minister submitted, if the Court were to have found that the Tribunal did have jurisdiction, then the Tribunal would be required to exercise it. The time at which the Tribunal raised this issue with the applicant is, therefore, irrelevant.
44.	The second element is that the applicant alleged that given the time that the Tribunal took to raise this issue, and the Tribunal’s request for documents as they related to the visa criteria, the Tribunal was somehow estopped from finding that it had no jurisdiction.
45.	This again misunderstands the relevant statutory elements relating to the Tribunal’s jurisdiction. The Tribunal has no power to waive the statutory requirements. Nor can these be affected by its conduct. The relevant timeframe for the making of an application to the Tribunal, and the circumstances on which the timeframe depends, are mandated by the legislature. As was said in Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]:
	“The second assumption underlying the third argument put on behalf of the appellants is that the officers of the Department (or the Tribunal) might be taken by Mr Young to have power to alter the timeframe for objection laid down by the legislature. That assumption is contrary to the fundamental principle of the separation of powers: that officers of the executive government have no power to alter the state of affairs ordained by the legislature. It is this principle that underlies the proposition that there can be no estoppel against a statute: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55…”
	[Emphasis added.]
46.	The issue in the present case, as the Minister submitted, is whether the Tribunal had, or did not have, jurisdiction. Once it is established that it had no jurisdiction its conduct cannot give rise to any estoppel. Nor, given the terms of the ground, can the Tribunal’s conduct and subsequent determination that it did not have jurisdiction, be now said to be inconsistent, illogical or unreasonable because of any such conduct. In all, ground one is not made out.
47.	As stated above, the second ground asserts that the Tribunal made a jurisdictional error because it failed to find that the Minister, through his delegate, was unreasonable in the making of his decision. The particulars direct attention to a request for information transmitted to the applicant by the delegate by email on 6 June 2014 (with reference to the Court Book, this date should be 27 March 2013). The complaint is that the delegate acted unreasonably in not making any further attempts to contact the applicant.
48.	First, to the extent that the ground invites the Court to review the delegate’s decision, in the circumstances of this case, the Court has no jurisdiction to do so.
49.	The Court’s jurisdiction in matters of this type is governed by s.476 of the Act. This Court has no jurisdiction to review a “primary decision” (s.476(2)(a) of the Act). This is defined, relevantly, in s.476(4)(b) of the Act to include a migration decision that would have been reviewable under Part 5 of the Act “…if an application for such review had been made within a specified period…”.
50.	The delegate’s decision is such a decision and, therefore, the Court has no jurisdiction.
51.	The applicant’s ground appears to seek to overcome this situation by asserting that jurisdictional error arises in the Tribunal’s decision because it failed to make the finding concerning the delegate’s decision that the applicant now alleges. However, given that the Tribunal, as set out above, did not have jurisdiction to review the delegate’s decision, ground two is not made out. However, see further in relation to ground three below.
52.	I should note that the applicant’s submissions in relation to ground two sought to rely on Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (“Kaur”). That case concerned a matter where the Tribunal was found to have acted unreasonably in proceeding to a decision pursuant to s.362B of the Act, in circumstances where an applicant had been invited to a hearing and did not appear.
53.	The circumstances in this case are different. The Tribunal did not proceed pursuant to s.362B of the Act. Nor did it proceed to exercise any discretion that was susceptible to review as to whether it was legally unreasonable as explained in Kaur, or for matter, in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 or Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280.
54.	The outcome of the question of the Tribunal’s jurisdiction before the Tribunal was mandated by statute once the Tribunal found that the applicant had been properly notified of the delegate’s decision on 6 June 2013.
55.	Ground three asserts that the Tribunal made a jurisdictional error by failing to find that the applicant had made his application for review within the prescribed time limit and therefore did have jurisdiction. 
56.	As set out above, the question of the Tribunal’s jurisdiction is one for the Court. The relevant findings set out above, stand in answer to the applicant’s ground. 
57.	However, I should note that the applicant’s particulars assert that the delegate acted unreasonably and had made an error in the giving of the notice of the decision to the applicant. 
58.	In his written submissions, the applicant sought to explain this with reference to s.497C(7) of the Act. I subsequently understood the applicant to be seeking to rely on s.494C(7) of the Act. This is in the following terms:
	“(7)  If:
	(a)  the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b)  the person nonetheless receives the document or a copy of it;
	then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
59.	A similar ground and argument was raised in Chowdhury & Ors v Minister for Immigration & Anor [2015] FCCA 2981 (“Chowdhury”) by the solicitor representing the applicant in the current case. In Chowdury I relevantly said ([61] - [62]):
	“[61] Although not entirely clear, the argument before the Court appeared to be that s.494C(7) of the Act refers to an ‘error’ in the giving of a document by the Minister to a person, and in this case, the delegate made an error.
	[62] The applicants have misconceived the operation of s.494C(7) of the Act. Plainly, that section seeks to cure the situation where an ‘error’ has occurred in the giving of a document by the Minister, but the person in any event receives the letter. In essence, the subsection operates, in favour of the Minister, to preserve the situation of a successful giving of the document by the Minister to a person, even though there has been some ‘error’ in the giving (see Cheng and Rana v Minister for Immigration and Border Protection [2014] FCA 1233).”
60.	It is important to note that while the particulars in the ground assert that the delegate made an error in the giving of the notice to the applicant, no explanation of this is proffered in the particulars.
61.	The applicant’s written submissions do not assist in explaining the ground, as for the most part, they reproduce extracts from Kaur 
(at [89] – [101]) without explaining the relevance of these extracts to the matter before the Court.
62.	Nor, it must be said, did the oral submissions to the Court take the opportunity to clearly explain the ground.
63.	At best, I understood the oral submissions in ground three to seek to draw on submissions in relation to ground one and two. That is, that the Tribunal acted unreasonably in the circumstances. It was estopped in finding that it had no jurisdiction, and it failed to find that the delegate had acted unreasonably in the giving of the notice of the decision. These submissions do not assist in relation to ground three for the relevant reasons set out above, both in relation to grounds one and two, and the consideration of whether the Tribunal had, or did not have, jurisdiction to review the delegate’s decision.
64.	Although it was not entirely clear in his submissions, it may also be that the applicant sought to also identify the delegate’s alleged error as being that the delegate acted unreasonably because, having sent the email notifying his decision, he should also have taken other steps to notify the applicant (the applicant’s reference to Kaur can be seen to support the view that this is what the applicant was attempting to argue before the Court).
65.	As I have set out above, Kaur was decided in a factual and statutory context that is different to the current case. If the delegate’s error, which the applicant says the Tribunal should have found, was that the delegate should have also sent the notification of the decision by post and the error is his failure to do so, then this does not assist the applicant in the current circumstances.
66.	The difficulty for the applicant is that he has not shown why it was not open to the delegate to send the notification by email, and how Kaur applied to require the delegate to have also attempted some alternative method of communication or even not to have used email but to have sent the notification by post.
67.	In the current case, the applicant was asked at the time of the making of his application as to whether he agreed to the department communicating with him by electronic means (CB 2). He confirmed his agreement to this (CB 32.7). The delegate proceeded to communicate with him by email (CB 31 to CB 36).
68.	There is nothing to show from the conduct of the delegate (on the evidence before the Court) that the applicant could reasonably have been led to expect communication of the notification of the decision other than by email.
69.	I agree with the Minister that in the circumstances, the delegate was entitled to proceed on the basis that the applicant would check communication at the email address he had given to the department and to which he agreed communications would be sent to him. In all, ground three is not made out.
Conclusion
70.	None of the applicant’s grounds reveal legal error in the Tribunal’s determination that it did not have jurisdiction in this matter. I will make an order dismissing the application. 
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:  

Date:  1 December 2015