Liu v MIBP

This matter concerned an application for review of a decision by the Migration Review Tribunal (Tribunal) to refuse a business visa. The applicant, Mr Liu, sought judicial review of the Tribunal's decision.

The central legal issue before the court was whether the applicant's application for review was validly lodged within the prescribed time limit. This required the court to determine whether the application was "given to the Tribunal" within the statutory period, and if so, when that period commenced.

The court considered sections 347(1)(b) of the Migration Act 1958 (Cth) and regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth), which stipulated that an application for review must be "given to the Tribunal" within 21 days of notification of the decision. The applicant's migration agent, appointed as their authorised recipient, received the delegate's decision via email on 3 September 2012. The Tribunal formed a preliminary view that the application, received on 5 November 2012, was out of time, as the 21-day period expired on 24 September 2012. The court also considered section 14A(1)(a) of the Electronic Transactions Act 1999 (Cth), which defines the time of receipt of an electronic communication as when it becomes capable of retrieval by the addressee.

The court found that the applicant's migration agent was the designated addressee for electronic communications. Therefore, the date of receipt of the delegate's decision was 3 September 2012, when it was emailed to the agent and became capable of retrieval. Consequently, the 21-day period for lodging the review application expired on 24 September 2012. As the Tribunal did not receive the application until 5 November 2012, it was lodged out of time.