Minister for Immigration & Border Protection v Kim [2014] FCA 390

Minister for Immigration & Border Protection v Kim [2014] FCA 390

The Minister retained a discretion under s 494B of the Migration Act 1958 (Cth) to send the visa refusal by pre-paid post to the last nominated residential address, and this was valid notification. Notification by email was not mandatory. The orders of the FCCA were set aside.

Parties
Appellant: Minister for Immigration and Border Protection; First Respondent: Jung Eun Kim; Second Respondent: Migration Review Tribunal
Jurisdiction
Australia
Judgment Date
22 April 2014
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Student Visas, Notification Requirements in Migration, Discretion in Communication Methods, Jurisdiction of Migration Review Tribunal
Migration Law Administrative Law Student Visas Notification Requirements in Migration Discretion in Communication Methods Jurisdiction of Migration Review Tribunal

Case Brief

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Parties

Minister for Immigration and Border Protection

Appellant

Jung Eun Kim

First Respondent

Migration Review Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the Minister retained a discretion to choose any method of communication prescribed by s 494B of the Migration Act 1958 (Cth) to communicate a visa refusal
  2. 2 Whether communication of the refusal by pre-paid post was effective given prior email communications
  3. 3 Whether the application to the Migration Review Tribunal was lodged within the prescribed period

Ratio Decidendi

The Minister retained a discretion under s 494B of the Migration Act 1958 (Cth) to send the visa refusal by pre-paid post to the last nominated residential address, and this was valid notification. Notification by email was not mandatory. The orders of the FCCA were set aside.

Court Disposition

appeal allowed

Orders

  • The appeal be upheld.
  • The orders of the Federal Circuit Court of Australia made on 24 September 2013 be set aside and in lieu thereof: the application to the Federal Circuit Court of Australia be dismissed; the applicant in those proceedings pay the respondent's costs in the Federal Circuit Court of Australia.