Butt v Minister for Immigration and Border Protection [2014] FCA 1354

Butt v Minister for Immigration and Border Protection [2014] FCA 1354

The applicable notification regime for the cancellation decision was s 127 of the Migration Act 1958 (Cth) read with reg 2.55 of the Migration Regulations 1994 (Cth). On the evidence, the delegate notified the appellant by email on 20 September 2013; the postal dispatch was confirmation of what had occurred by email, not a second operative notification. The appellant was therefore taken to have received the cancellation decision at the end of 20 September 2013, and his 3 October 2013 application to the Migration Review Tribunal was outside the prescribed non-extendable time limit. The Tribunal had no jurisdiction, and the Federal Circuit Court was correct to dismiss the judicial review...

Jurisdiction
Australia
Judgment Date
12 December 2014
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision / Federal Court Appeal; Judgment Dismissing Appeal
Outcome
Appeal dismissed.
Legal Topics
['visa Cancellation' 'notification of Cancellation Decision' 'time Limit for Migration Review Tribunal Review' 'tribunal Jurisdiction' 'judicial Review' 'deemed Receipt']
['migration Law' 'administrative Law'] ['visa Cancellation' 'notification of Cancellation Decision' 'time Limit for Migration Review Tribunal Review' 'tribunal Jurisdiction' 'judicial Review' 'deemed Receipt']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether ss 494A-494C of the Migration Act 1958 (Cth) or s 127 read with reg 2.55 of the Migration Regulations 1994 (Cth) applied to notification of the visa cancellation decision.' 'Where a delegate used email and prepaid post in relation to a cancellation decision, which notification method determined the time for applying to the Migration Review Tribunal.' "Whether the appellant's application to the Migration Review Tribunal was lodged within the mandatory time limit under s 347(1)(b)(i) of the Migration Act 1958 (Cth) read with reg 4.10 of the Migration Regulations 1994 (Cth)." 'Whether the Tribunal lacked jurisdiction to conduct the review because the review application was out of time.']

Ratio Decidendi

The applicable notification regime for the cancellation decision was s 127 of the Migration Act 1958 (Cth) read with reg 2.55 of the Migration Regulations 1994 (Cth). On the evidence, the delegate notified the appellant by email on 20 September 2013; the postal dispatch was confirmation of what had occurred by email, not a second operative notification. The appellant was therefore taken to have received the cancellation decision at the end of 20 September 2013, and his 3 October 2013 application to the Migration Review Tribunal was outside the prescribed non-extendable time limit. The Tribunal had no jurisdiction, and the Federal Circuit Court was correct to dismiss the judicial review...

Court Disposition

Appeal dismissed.

Orders

  • ['The first respondent has leave to rely on the affidavit of Mr Lorenzo De Vera, affirmed 10 September 2014.' 'The appeal is dismissed.' 'The first respondent is to pay directly to counsel for the appellant costs in relation to the preparation and filing of written submissions after the conclusion of the appeal,...