Cao v Minister for Immigration and Citizenship [2009] FCA 586

Cao v Minister for Immigration and Citizenship [2009] FCA 586

The notification letter complied with s 66(2)(d)(ii) because it stated the time in which the review application had to be made and was not required to set out the condition that the letter be dispatched within three working days for deemed receipt to operate. Section 66(1) concerns the method of notification, not the contents of the notification. The proposed new ground concerning the wording of receipt was bound to fail because the statement that the appellant was taken to have received the letter seven working days after its date clearly qualified when the 21 day period commenced. The Tribunal therefore lacked jurisdiction because the review application was lodged out of time, and the...

Jurisdiction
Australia
Judgment Date
18 May 2009
Procedural Posture
Migration Appeal / Appeal From a Decision of the Federal Magistrates Court Dismissing an Application for Review of a Migration Review Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['notification of Visa Refusal Decision' 'time Limit for Tribunal Review Application' 'deemed Receipt by Post' 'jurisdiction of Migration Review Tribunal' 'leave to Raise New Appeal Ground']
['migration Law' 'administrative Law'] ['notification of Visa Refusal Decision' 'time Limit for Tribunal Review Application' 'deemed Receipt by Post' 'jurisdiction of Migration Review Tribunal' 'leave to Raise New Appeal Ground']

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Procedural Posture

Migration Appeal / Appeal From a Decision of the Federal Magistrates Court Dismissing an Application for Review of a Migration Review Tribunal Decision

Legal Issues

  1. 1 ['Whether s 66(2)(d)(ii) of the Migration Act 1958 (Cth) required the notification letter to state that deemed notification under s 494C(4)(a) was subject to fulfilment of the dispatch condition in s 494B(4)(a).' 'Whether s 66(1) required the relevant terms of s 494B to be included in the notification letter.' 'Whether leave should be granted to argue that the notification letter misstated the time for review by referring to when the letter was received rather than when it was taken to have been received.']

Ratio Decidendi

The notification letter complied with s 66(2)(d)(ii) because it stated the time in which the review application had to be made and was not required to set out the condition that the letter be dispatched within three working days for deemed receipt to operate. Section 66(1) concerns the method of notification, not the contents of the notification. The proposed new ground concerning the wording of receipt was bound to fail because the statement that the appellant was taken to have received the letter seven working days after its date clearly qualified when the 21 day period commenced. The Tribunal therefore lacked jurisdiction because the review application was lodged out of time, and the...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant pay the first respondent's costs fixed in the sum of $4,700."]