Vean v Minister for Immigration and Multicultural and Indigenous Affairs

The matter of Vean v Minister for Immigration and Multicultural and Indigenous Affairs involved the applicant, his wife, and their two children, all of whom sought protection visas under the Migration Act 1958 (Cth). The core issue before the court was whether the applicants' application for review of the delegate's decision to reject their visa applications was lodged within the prescribed 28-day period stipulated by section 412(1)(b) of the Act. The applicants had completed various forms, including a "Form B" and a "Form 956," authorizing Ms. B D, the applicant's sister, to act on his behalf and receive communications from the Department of Immigration and Multicultural Affairs. The critical legal question was whether the communication of the delegate's decision to the applicant, via his authorised representative, was sufficient to start the 28-day period for lodging an application for review.

The court examined whether the delegate's decision, communicated by registered post to the applicant's sister at her address, was a valid communication under the circumstances. It was noted that the Department had mistakenly sent the notification to an old address of the applicant, despite the clear instruction on "Form 956" to contact the sister. The court had to determine if the failure to correctly identify the current address of the applicant rendered the communication ineffective and whether the applicant's response, sent from his new address, was timely.

The court concluded that the communication to the authorised representative, Ms. B D, was a valid communication under the Act. Despite the Department's error in sending the notification to an old address, the communication was delivered to the person authorised to act on the applicant's behalf. The court held that the 28-day period for lodging an application for review began on the date the delegate's decision was communicated to Ms. B D, not on the date the applicant received it. As the application for review was lodged beyond the 28-day period, the court dismissed the application. The applicants were also ordered to pay the respondent's costs of and incidental to the proceeding.