Herath v Minister for Immigration and Border Protection [2018] FCA 1273

Herath v Minister for Immigration and Border Protection [2018] FCA 1273

The appellant nominated his migration agent's email address as the address for receiving Department communications. The delegate's refusal decision was emailed to that address on 18 December 2015, so by operation of ss 494B(5), 494C(5) and 494D of the Migration Act 1958 (Cth) the appellant was taken to have received notification at the end of that day. The 21 day period in reg 4.10 of the Migration Regulations 1994 ran by calendar days and expired on 8 January 2016. Because the appellant lodged his Tribunal review application on 12 January 2016, it was out of time, the Tribunal had no jurisdiction, and neither the Tribunal nor the Federal Circuit Court could extend time. The Federal...

Jurisdiction
Australia
Judgment Date
06 September 2018
Procedural Posture
Appeal From a Federal Circuit Court Judgment Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision / Appeal
Outcome
The appeal was dismissed and the appellant was ordered to pay the first respondent's costs fixed in the sum of $6439.
Legal Topics
['student Visa Refusal' 'part 5 Reviewable Decision' 'time Limit for Tribunal Review Application' 'notification by Email' 'authorised Recipient' 'tribunal Jurisdiction']
['migration Law' 'administrative Law' 'judicial Review'] ['student Visa Refusal' 'part 5 Reviewable Decision' 'time Limit for Tribunal Review Application' 'notification by Email' 'authorised Recipient' 'tribunal Jurisdiction']

Case Brief

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Procedural Posture

Appeal From a Federal Circuit Court Judgment Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision / Appeal

Legal Issues

  1. 1 ["Whether the appellant was notified of the delegate's decision on 18 December 2015 when the refusal letter was emailed to the nominated migration agent's email address." 'Whether the 21 day period for applying to the Tribunal for review included public holidays and the Christmas holiday period.' 'Whether the Tribunal had jurisdiction where the review application was lodged on 12 January 2016.' 'Whether the Federal Circuit Court erred in dismissing the judicial review application.']

Ratio Decidendi

The appellant nominated his migration agent's email address as the address for receiving Department communications. The delegate's refusal decision was emailed to that address on 18 December 2015, so by operation of ss 494B(5), 494C(5) and 494D of the Migration Act 1958 (Cth) the appellant was taken to have received notification at the end of that day. The 21 day period in reg 4.10 of the Migration Regulations 1994 ran by calendar days and expired on 8 January 2016. Because the appellant lodged his Tribunal review application on 12 January 2016, it was out of time, the Tribunal had no jurisdiction, and neither the Tribunal nor the Federal Circuit Court could extend time. The Federal...

Court Disposition

The appeal was dismissed and the appellant was ordered to pay the first respondent's costs fixed in the sum of $6439.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal fixed in the sum of $6439."]