Patel v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 223

MIGRATION – Application for judicial review of Migration Review Tribunal decision – Tribunal held application out of time – whether there was a second notification – whether there can be two notifications – consideration of allegedly conflicting Full Federal Court decisions – alleged estoppel against Minister – whether estoppel can apply.

Migration Act 1958, s.347

H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153
Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Minister for Immigration and Citizenship v Manaf [2009] FCA 963

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Singh v Minister for Immigration and Citizenship [2010] FMCA 305
Singh v Minister for Immigration and Citizenship [2011] FCAFC 27
Informax International Pty Ltd v Clarius Group Ltd [2011] FCA 183

Applicant: BHAVINKUMAR ARVINDBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1408 of 2010

Judgment of: Burchardt FM

Hearing date: 23 February 2011

Date of Last Submission: 4 March 2011

Delivered at: Melbourne

Delivered on: 7 April 2011

REPRESENTATION

Counsel for the Applicant: Ms S. Burchell

Solicitors for the Applicant: Da Gama Pereira & Associates Pty Ltd

Counsel for the First Respondent: Ms E. Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1408 of 2010

BHAVINKUMAR ARVINDBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 16 September 2010.  As the first respondent’s contentions of fact and law correctly state:

   “The Tribunal found it did not have jurisdiction to determine an application for merits review because the application was not made within the time prescribed by s.347 of the Migration Act 1958.”

2. The applicant raises by his amended application essentially two grounds of review.  The first ground is that the Tribunal failed to decide, as it is submitted it should have decided, whether a purported notification by the Department to the applicant on 10 June 2010 operated so as to extend the time for application.  The second ground is that the first respondent is estopped from denying the efficacy of the 10 June 2010 notice. 

3. For the reasons that follow, I do not think that either ground is made out and the application must be dismissed. 

The facts

1. The facts in this matter are not controversial and what follows is an amalgam of the matters in the court book (including the Tribunal’s decision) and the written submissions filed by the parties. 

2. The applicant was born on 12 June 1987 and is a male citizen of India.  He arrived in Australia on 30 April 2007 on a student visa.  He held a number of…