SHAHIDUL Islam & Anor v Minister for Immigration and Citizenship

[2012] HCASL 92

SHAHIDUL ISLAM & ANOR

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 92
S68/2012

1. The first applicant is a citizen of Bangladesh.  The second applicant is his partner.  On 16 April 2010 they applied to the Minister for Immigration and Citizenship ("the Minister") for the grant of student visas.  Their applications were refused by the Minister's delegate on 15 July 2010.  A notice bearing that date, informing the applicants of the delegate's decision, was dispatched the following day by prepaid post to the last postal address, which was also the residential address, provided by the applicants to the Minister. 

2. The applicants applied to the Migration Review Tribunal ("the Tribunal") for a review of the delegate's decision.  The jurisdiction of the Tribunal to review a decision of this description is subject to a 21 day time limit[1].  Time runs from the date on which the applicants are deemed to have received notification of the decision[2].

   [1]Migration Act 1958 (Cth), s 347(1)(b)(i); Migration Regulations 1994 (Cth), reg 4.10(1)(a).

   [2]Migration Act 1958 (Cth), s 494B(4).

3. The Tribunal was satisfied that the notice advising the applicants of the delegate's decision complied with the requirements of the Migration Act 1958 (Cth) [3].  It follows that the applicants were deemed to have received notice of the delegate's decision on 26 July 2010, being seven working days after the date of the notice[4].  The prescribed period expired on 16 August 2010.  The applicants' application for review was not received by the Tribunal until 20 August 2010.  There is no provision for the Tribunal to extend the time in which to lodge an application for review of a decision not to grant a student visa.  The Tribunal held that it did not have jurisdiction to entertain the applicants' application for a review of the delegate's decision. 

   [3]Migration Act 1958 (Cth), s 66(2).

   [4]Migration Act 1958 (Cth), s 494C(4)(a).

4. An application for judicial review of the Tribunal's determination was dismissed by the Federal Magistrates Court (Barnes FM). 

5. An appeal to the Federal Court of Australia (North J) was dismissed.

6. The applicants apply for special leave to appeal.  They seek to advance the same contentions as were rejected in the Federal Court.  They do not identify any error in the reasons why each contention was rejected.  Nothing filed in support of the application calls into question the correctness of the decision below.  If special leave to appeal were granted the appeal would have no prospects of success. 

7. The applications are dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the applications. 

J.D. Heydon
20 June 2012 V.M. Bell