Li v Minister for Immigration and Multicultural Affairs

The case of Li v Minister for Immigration and Multicultural Affairs involved Guo Heng Li, a Chinese national, who sought a review of a decision made by the Immigration Review Tribunal (IRT) that his Application for Review of an Immigration Decision was not accepted because it was not lodged within the time prescribed by the Migration Regulations 1994. The core issue in this case was whether Regulation 5.03 was inconsistent with section 347(1)(b)(i) of the Migration Act 1958 and thereby invalid. Specifically, the applicant argued that the regulation, which stipulated that a document is deemed received 7 days after it is sent if within Australia and 21 days if sent overseas, was inconsistent with the 28-day time limit for lodging a review application under section 347(1)(b)(i). The applicant contended that the regulation rendered the 28-day period effectively meaningless.

The court found that the regulation was not inconsistent with the Act and was valid. It dismissed the applicant's argument that the regulation was absurd, as it simply provided a presumption about the date of receipt of a document which could be rebutted by evidence. The court held that the regulation was a reasonable means to determine the date of notification for calculating the prescribed period. However, the court did find that the IRT had erred in law by not considering when the applicant actually received the notification, which could have been before the 28-day period expired. Consequently, the court set aside the IRT's decision and remitted the matter back to the IRT for reconsideration according to law. The court also ordered the respondent to pay the applicant's costs.

This case underscores the importance of accurately determining the date of notification when calculating the time limit for lodging a review application under the Migration Act. The court's decision highlights that while regulations may provide presumptions about the date of receipt, these presumptions can be rebutted by evidence. Additionally, the court emphasised the need for the IRT to consider the actual date of receipt when assessing the timeliness of an application for review.