Adhikari v Minister for Immigration

The applicant, Mr. Adhikari, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which found it lacked jurisdiction to review the Minister for Immigration and Border Protection's decision to cancel his student visa. The visa cancellation was based on the applicant's breach of a condition requiring full-time enrolment in a registered course. The applicant's application to the Tribunal was made out of time, and he also required an extension of time to file his application in the Federal Court.

The court was required to determine whether the applicant had made out a case for an extension of time to file his application in the Federal Court. This involved considering whether there was an adequate explanation for the delay in filing the application and whether there were reasonable prospects of success for any substantive grounds of review. The court also considered the applicant's argument regarding the construction of regulation 2.55(9) of the Migration Regulations 1994 (Cth) and whether there was a conflict between section 347(1)(b)(i) of the Migration Act 1958 (Cth) and regulation 4.10(1)(b) of the Migration Regulations 1994 (Cth).

The court reasoned that the applicant needed an approximately eight-day extension of time to file his application in the Federal Court. It found that the Minister had complied with the relevant regulations regarding notification of the visa cancellation, both by registered post and email, despite minor typographical errors in the postal address. Pursuant to regulation 2.55(7)(a), the applicant was deemed to have received the notification seven working days after dispatch, and by regulation 2.55(8), he was deemed to have received the email at the end of the day it was sent. Evidence showed that Australia Post attempted delivery, left a collection card, and the item was ultimately returned to the sender, indicating no adequate explanation for the delay in the applicant collecting the notification or otherwise becoming aware of it.

The court concluded that there was no adequate explanation for the delay and no reasonable prospects of success for any proposed substantive grounds of review. Accordingly, the application for an extension of time was refused, and the application was dismissed.