Kamkar, Hassan v Minister for Immigration & Multicultural Affairs

In the case of Kamkar v Minister for Immigration & Multicultural Affairs, the Federal Court of Australia considered whether an application for review of a decision by the Refugee Review Tribunal was lodged within the time limit set by the Migration Act 1958. The applicant, Mr Hassan Kamkar, had filed an application for review on 5 September 1996, 28 days after he had been notified of the Tribunal's decision to refuse his application for a protection visa. The respondent, the Minister for Immigration & Multicultural Affairs, argued that the application was out of time as it should have been filed within 28 days of the applicant being notified of the decision, as stipulated by s 478(1)(b) of the Act. The central legal issue was the interpretation of the term "notified" in s 478(1)(b) and whether it required actual notification of the decision or if deemed notification under regulation 4.40 of the Migration Regulations sufficed.

The Court held that the term "notified" in s 478(1)(b) required actual notification of the decision to the applicant. The Court reasoned that regulation 4.40, which dealt with the service of documents, was not intended to define the commencement of the time period for lodging an application for review. Instead, the Court found that the statutory language and the broader scheme of the Act indicated that actual notification was necessary. This interpretation was supported by the legislative context, which typically provided for actual notification unless otherwise specified, and the unfairness of denying an applicant the right to review without actual knowledge of the decision. The Court also noted that the respondent's argument for administrative convenience did not outweigh the applicant's right to fair notification. Consequently, since Mr Kamkar was actually notified of the decision on 9 August 1996, his application lodged on 5 September 1996 was within the 28-day period, and the motion to dismiss the application was dismissed with costs.