Haque v Minister for Immigration & Citizenship [2010] FCA 346

Haque v Minister for Immigration & Citizenship [2010] FCA 346

The Tribunal and the court below erred in finding the notification requirements under s 66(2)(d)(iv) were satisfied without proof that the applicant was notified of where the application for review could be made; the respondent did not discharge the burden of establishing compliance with the statutory notification. As a result, the Tribunal retains jurisdiction, as time for filing was not triggered by proper notification, and the decision should be quashed.

Parties
Appellant: Ahm Ahsanul Haque; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Migration Review Tribunal
Jurisdiction
Australia
Judgment Date
13 April 2010
Procedural Posture
Appeal / Judgment on Appeal From the Federal Magistrates Court
Outcome
Appeal allowed
Legal Topics
Judicial Review, Migration Decision Notification Requirements, Jurisdiction of Tribunal
Administrative Law Immigration Law Judicial Review Migration Decision Notification Requirements Jurisdiction of Tribunal

Case Brief

Summary, issues, holding and outcome

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Parties

Ahm Ahsanul Haque

Appellant

Minister for Immigration and Citizenship

First Respondent

Migration Review Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From the Federal Magistrates Court

Legal Issues

  1. 1 Whether the Tribunal had jurisdiction to review the visa refusal decision under the Migration Act 1958 (Cth) due to satisfaction of statutory notification requirements.
  2. 2 Whether the prescribed notification under s 66(2)(d)(iv) was given—specifically, if the applicant was notified of 'where the application for review can be made'.
  3. 3 Whether the address used for notification satisfied the requirements of s 494B for the purpose of receiving documents.

Ratio Decidendi

The Tribunal and the court below erred in finding the notification requirements under s 66(2)(d)(iv) were satisfied without proof that the applicant was notified of where the application for review could be made; the respondent did not discharge the burden of establishing compliance with the statutory notification. As a result, the Tribunal retains jurisdiction, as time for filing was not triggered by proper notification, and the decision should be quashed.

Court Disposition

Appeal allowed

Orders

  • The decision of the Migration Review Tribunal dated 1 September 2008 be quashed.
  • Declaration that the Tribunal has jurisdiction to review the decision.