Sheung v Minister for Immigration

This matter concerned an application for review of a Migration Review Tribunal (MRT) decision concerning a Partner (Residence) (Class BS) subclass 801 visa. The applicants, Ms Sheung and Mr Chiu, had made a combined visa application. The primary issue before the court was whether the MRT had erred in finding it lacked jurisdiction to hear Mr Chiu's application for review, due to it being lodged outside the prescribed time limit.

The court was required to determine whether the notification of the visa refusal, sent in a single letter addressed to Ms Sheung, constituted lawful notification to Mr Chiu as a secondary applicant. This involved considering the requirements of section 66(1) of the Migration Act 1958 (Cth) regarding notification of decisions, and the methods by which documents can be given to a person under section 494B of the Act, as well as when such documents are deemed to have been received under section 494C. The court also had to assess whether the MRT correctly applied section 347 of the Act and regulation 4.10 of the Migration Regulations 1994 (Cth) in calculating the time limit for Mr Chiu's review application.

The court found that section 66(1) of the Act requires notification of a decision to be given to "the applicant". While section 494B(4) permits dispatch by prepaid post to the last address provided, and section 494C deems receipt after a certain period, these provisions do not override the fundamental requirement that notification must be given to the intended recipient. The single letter addressed only to Ms Sheung, despite Mr Chiu being a secondary applicant and living at the same address, did not constitute lawful notification to Mr Chiu. Consequently, the date on which Mr Chiu was deemed to have been notified was incorrect, and his subsequent application for review was lodged within the prescribed time.

The court ordered that the MRT's decision be set aside and remitted to the MRT for re-hearing according to law.