Cao v Minister for Immigration and Citizenship

The appellant, Cao, sought judicial review of a decision made by the Migration Review Tribunal (the Tribunal) that it lacked jurisdiction to hear an application for review of a decision by the Minister for Immigration and Citizenship to refuse an application for a Student (Temporary) (Class TU) visa. The Tribunal had determined that the appellant’s application for review was not filed within the requisite time. Cao appealed this decision to the Federal Magistrates Court, which was dismissed. Cao now appeals to the Federal Court.

The legal issues before the court were twofold. The first was whether the Tribunal was correct to find it lacked jurisdiction due to the late filing of the application for review. The second issue, argued for the first time in the Federal Court, was whether the Tribunal had jurisdiction to decide the matter despite the late filing because of an alleged jurisdictional error by the delegate in the notice of decision. The appellant contended that the notice of decision was invalid because it did not comply with the statutory requirement that the Minister notify the applicant of the decision in the prescribed way. Specifically, the appellant argued that the notice did not specify the time within which an application for review could be made, as required by section 66(2)(d) of the Migration Act 1958 (Cth).

The court found that the Tribunal was correct to hold it lacked jurisdiction to hear the application for review because it was filed outside the statutory time limit. The court noted that section 347(1)(b)(i) of the Act and regulation 4.10 of the Migration Regulations 1994 (Cth) clearly set out that an application for review must be given to the Tribunal within 28 days after notification of the decision. The appellant had received the notice of decision on 15 October 2007, calculated as seven working days after the date of the document, and lodged the application for review on 13 November 2007, which was outside the 21-day period allowed. The court also dismissed the second ground of appeal, finding no merit in the argument that the notice of decision was invalid for not specifying the time within which an application for review could be made. The court held that the notice sufficiently informed the appellant of the right to review and the time limit, as required by the statutory provisions.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent, fixed in the sum of $4,700.