Cheng v Minister for Immigration and Citizenship

In Cheng v Minister for Immigration and Citizenship, the applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) which dismissed the applicant's application for review of a decision to cancel his visa. The primary issue before the Federal Court was whether the Tribunal's decision declining jurisdiction due to the applicant's late lodgement of an application for review was legally sound. The applicant contended that the Tribunal erred in concluding that he had been effectively notified of the decision to cancel his visa, as the notice was sent to an incorrect address. The applicant argued that this error constituted a breach of procedural fairness.

The Federal Court examined the statutory framework governing visa cancellation and the notification requirements set out in sections 494B and 494C of the Migration Act 1958 (Cth). The Court noted that section 494C operates as a conclusive deeming provision, which takes effect seven working days after the date of the document, irrespective of whether the document was actually received. The Court further clarified that section 494C does not create a rebuttable presumption, and there was no evidence of fraud or failure on the part of the Tribunal to exercise its jurisdiction. The applicant's argument that the incorrect address constituted a denial of natural justice was rejected, as the statutory provisions clearly established the deeming effect of the notice being sent to the last known address.

The Court concluded that the Tribunal's decision to decline jurisdiction was correct, as the applicant was taken to have received the decision notice seven working days after it was posted. The Court dismissed the appeal and ordered the applicant to pay the costs of the proceeding. The Court's decision underscores the importance of strict compliance with statutory notification requirements in migration proceedings and the conclusive effect of the deeming provisions in section 494C.