Patel v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 565

MIGRATION – Review of Migration Review Tribunal’s determination it did not have jurisdiction to entertain a review of a refusal of a student visa – application before Tribunal found to be out of time – finding that notification of refusal properly served – strict time limits apply – re-notification does not extend time or recommence from time re-notification is served – application dismissed.

Migration Act 1958, ss.66(1), 66(2), 338(2), 347(1)(b), 494B(4)(c)(i), 494C(4)
Migration Regulations 1994, Reg.2.16(3), Reg.4.10(1)(a)

Minister for Immigration and Citizenship v Manaf [2009] FCA 963
H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153
Singh v Minister for Immigration and Citizenship [2011] FCAFC27
Patel v Minister for Immigration and Citizenship [2011] FMCA 223

Applicant: VIJAYKUMAR J. PATEL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1340 of 2011

Judgment of: O’Dwyer FM

Hearing date: 7 March 2012

Date of Last Submission: 7 March 2012

Delivered at: Melbourne

Delivered on: 29 June 2012

REPRESENTATION

The Applicant: In person

Counsel for the First  Respondent: Mr Horan

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the application filed on 14 September 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1340 of 2011

VIJAYKUMAR J. PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By his application, the Applicant seeks to review a determination of the Migration Review Tribunal (the Tribunal) dated 13 August 2011, which determination held that the Tribunal did not have jurisdiction to entertain an application for review in respect of an earlier decision by the First Respondent’s Delegate to refuse to grant the Applicant a student visa.

2. The issues are:

   ·

   when should the Applicant be taken to have received notice of the Delegate’s decision which was sent by registered mail on

   
   

   22 July 2010;

   ·the time available to the Applicant in which to issue a review application; and

   ·whether a re-notification later sent and received would allow time to run from the time of receipt of the re-notification. 

Background

1. On 31 January 2008, the Applicant lodged an application for a Class TU student visa.  In answer to question 19 on the application form the Applicant provided an “address for correspondence” at 21/34 Maroo Street, Hughesdale. In answer to question 20 on that form, the Applicant agreed to the Department communicating with him by fax, email or other electronic means and provided an email address.  It is to be noted, however, that the form expressly provided that:  “If this visa application is refused, you will be notified by mail”.

2. On 9 July 2008, a Delegate for the First Respondent refused to grant the visa.  However, on review to the Tribunal (differently constituted from the Tribunal whose decision is under review in this proceeding), the Tribunal, on 27 April 2010, remitted the application to the Department for…