Cheng v Minister for Immigration and Citizenship [2011] FCA 1290

Cheng v Minister for Immigration and Citizenship [2011] FCA 1290

The appeal was dismissed because the delegate's refusal letter was sent by prepaid post within time to the residential address provided by the appellant in his visa application, so ss 494B(4) and 494C(4) deemed receipt on 11 May 2010 and the 21 day review period expired on 1 June 2010. The review application lodged on 21 June 2010 was therefore invalid and the Tribunal had no jurisdiction. There was no denial of natural justice, no established fraud, no error by the Minister for the purposes of s 494C(7), and the proposed new ground concerning notification lacked apparent merit.

Jurisdiction
Australia
Judgment Date
11 November 2011
Procedural Posture
Migration Appeal From the Federal Magistrates Court of Australia / Appeal From Cheng V Minister for Immigration and Citizenship and Anor [2011] FMCA 461
Outcome
Appeal dismissed; leave to raise the fourth ground of appeal refused.
Legal Topics
['student Visa Refusal' 'notification of Decision' 'time Limit for Migration Review Tribunal Review' 'jurisdiction of Migration Review Tribunal' 'procedural Fairness' 'fraud or Mistaken Representation' 'leave to Raise New Ground on Appeal']
['migration' 'practice and Procedure'] ['student Visa Refusal' 'notification of Decision' 'time Limit for Migration Review Tribunal Review' 'jurisdiction of Migration Review Tribunal' 'procedural Fairness' 'fraud or Mistaken Representation' 'leave to Raise New Ground on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Magistrates Court of Australia / Appeal From Cheng V Minister for Immigration and Citizenship and Anor [2011] FMCA 461

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal denied natural justice in determining that it had no jurisdiction because the review application was out of time.' "Whether notification of the delegate's decision was affected by fraud or mistaken representation by an unregistered migration adviser." 'Whether ss 494B(4) and 494C(7) of the Migration Act 1958 (Cth) were misinterpreted or misapplied.' 'Whether leave should be granted to raise a new ground of appeal concerning notification.']

Ratio Decidendi

The appeal was dismissed because the delegate's refusal letter was sent by prepaid post within time to the residential address provided by the appellant in his visa application, so ss 494B(4) and 494C(4) deemed receipt on 11 May 2010 and the 21 day review period expired on 1 June 2010. The review application lodged on 21 June 2010 was therefore invalid and the Tribunal had no jurisdiction. There was no denial of natural justice, no established fraud, no error by the Minister for the purposes of s 494C(7), and the proposed new ground concerning notification lacked apparent merit.

Court Disposition

Appeal dismissed; leave to raise the fourth ground of appeal refused.

Orders

  • ['The appeal is dismissed.' 'The Appellant is to pay the costs of the First Respondent.']