Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 181

Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 181

Regulation 2.55(3)(c) requires that notification be sent to an address that is actually that of the applicant; because the address used was never an address of the applicants, Reg 2.55(7) does not apply to deem receipt, and time for applying for review only began when actual notice was received. Thus the review application was lodged within time and the Tribunal erred in finding it ineligible.

Jurisdiction
Australia
Judgment Date
05 February 2004
Procedural Posture
Application for Prerogative Writ (certiorari) / Final Judgment
Outcome
Application granted. Declaration made that application for review to the Tribunal was within the prescribed period. Respondent to pay one-half of applicants' costs.
Legal Topics
['visa Cancellation' 'migration Review Tribunal Review Eligibility' 'statutory Construction' 'notification Requirements']
['administrative Law' 'immigration Law'] ['visa Cancellation' 'migration Review Tribunal Review Eligibility' 'statutory Construction' 'notification Requirements']

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Procedural Posture

Application for Prerogative Writ (certiorari) / Final Judgment

Legal Issues

  1. 1 ['Whether the application for review to the Tribunal was lodged within the time limited by s 347(1)(b) of the Migration Act 1958' "Proper construction of Regulation 2.55(3)(c) regarding 'last residential address'" 'Whether the Tribunal was required to consider whether fraud in the provision of the address invalidated notice of cancellation']

Ratio Decidendi

Regulation 2.55(3)(c) requires that notification be sent to an address that is actually that of the applicant; because the address used was never an address of the applicants, Reg 2.55(7) does not apply to deem receipt, and time for applying for review only began when actual notice was received. Thus the review application was lodged within time and the Tribunal erred in finding it ineligible.

Court Disposition

Application granted. Declaration made that application for review to the Tribunal was within the prescribed period. Respondent to pay one-half of applicants' costs.

Orders

  • ['Declaration that the application for review lodged with the Migration Review Tribunal on 27 August 2002 was within the time limited by s 347(1)(b) of the Migration Act 1958' "Respondent to pay one-half of the applicants' costs of the proceeding"]