Tay v Minister for Immigration & Citizenship [2010] FCAFC 23

Tay v Minister for Immigration & Citizenship [2010] FCAFC 23

Section 494C(5) of the Migration Act 1958 (Cth), as construed in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, creates an irrebuttable presumption as to the deemed date of receipt of notification by electronic means. Evidence of actual receipt is irrelevant and the statutory time limits for review are thus strictly applied, supporting certainty in notification outcomes.

Parties
Applicant: Swee Yen Tay; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Migration Review Tribunal
Jurisdiction
Australia
Judgment Date
10 March 2010
Procedural Posture
Appeal / Application for Leave to Appeal From Summary Dismissal
Outcome
Applications for leave to appeal dismissed with costs
Legal Topics
Statutory Construction, Time of Notification, Deeming Provisions, Right of Appeal, Summary Dismissal
Migration Law Administrative Law Statutory Construction Time of Notification Deeming Provisions Right of Appeal Summary Dismissal

Case Brief

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Parties

Swee Yen Tay

Applicant

Minister for Immigration and Citizenship

First Respondent

Migration Review Tribunal

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal From Summary Dismissal

Legal Issues

  1. 1 Whether s 494C(5) of the Migration Act 1958 (Cth) creates a rebuttable presumption of fact as to notice of a decision
  2. 2 Whether an applicant is entitled to lead evidence to show non-receipt on the day deemed by statute
  3. 3 Whether previous authority (Xie) is wrong or produces irrational consequences

Ratio Decidendi

Section 494C(5) of the Migration Act 1958 (Cth), as construed in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, creates an irrebuttable presumption as to the deemed date of receipt of notification by electronic means. Evidence of actual receipt is irrelevant and the statutory time limits for review are thus strictly applied, supporting certainty in notification outcomes.

Court Disposition

Applications for leave to appeal dismissed with costs

Orders

  • The application for leave to appeal be dismissed with costs