1800958 (Migration)

[2018] AATA 513

1800958 (Migration) [2018] AATA 513 (8 February 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800958

MEMBER:Brendan Darcy

DATE OF DECISION:  8 February 2018

DATE CORRIGENDUM

SIGNED:1 March 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Delete: Paragraphs 28 and 29.

Insert:

28.      The Tribunal finds that the applicant is taken to have been notified of the decision on [a date in] December 2017. Therefore the last day of the prescribed period fell on [a later date in] December 2017.

Amend Numbering: Amend numbering of existing paragraphs 30 to 32 to 29 to 31 respectively.

Brendan Darcy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800958

MEMBER:Brendan Darcy

DATE:8 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 08 February 2018 at 3:36pm

CATCHWORDS

Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Review application out of time – Formally and compliantly notified of cancellation decision – Applicant refused to sign receipt acknowledgement – Whether in immigration detention – Service of documents in immigration detention

LEGISLATION

Acts Interpretation Act 1901, s 36

Migration Act 1958, ss 116, 127, 192, 338, 347, 494C

Migration Regulations 1994, rr 2.05, 2.43, 2.45, 4.10, 5.02

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs [in] December 2017 to cancel the applicant’s Bridging E (Class WE) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 12 January 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The evidence considered in this case includes the following:

   ·     The Notice of Intention to Consider Cancellation issued by the Department of Home Affairs (the Department) dated and timestamped on [a date in] December 2017 at 12:17 AEDT. The NOICC indicates that the applicant refused to provide his signature to acknowledge receipt of the notification;

   · The decision record and notice issued by the Department dated and timestamped on [that date in] December 2017 at 12:34 AEDT. The notice indicates that the applicant was cancelled under s.116(1)(g) and r.2.43(p)(ii) as the applicant was charged with an offence against a laws of the Commonwealth, a Stat, a Territory or another country. It also indicates that the applicant refused to sign the notice in part C.9 of the notification;

   ·     A review application to have the cancellation decision reviewed by the Tribunal dated and timestamped 12 January 2018 at 13:38 AEDT, indicating that the applicant appointed a representative from [an agency] to represent him and that his address was a remand centre in [location] in the State of [state];

   ·     An invitation to comment on the validity of the review application issued by the Tribunal on 16 January 2018. The letter indicated that the application for review was lodged on 12 January 2018 and that the last day for validly lodging the application was [a date in] January 2018;  

   ·     A request for a fee reduction for the review application dated 17 January 2018;

   ·     A legal submission submitted by the applicant’s representative dated 30 January 2018; and

   ·     An email dated [in] January 2018 from the relevant Border Force officer who handed the applicant the notice to cancel his visa on [a date in] December 2018

3. The applicant’s representative has argued that the applicant was not formally and compliantly notified under the Act until [a later date in] January 2018 while the applicant was in immigration detention from the time his visa was cancelled [in] December 2017. As the applicant lodged his review application on 12 January 2018, then the review application was lodged within the prescribed period - [number] days after the applicant’s authorised representative received the cancellation decision as required by s.127 and s.494C(5).    

4. The applicant’s representative also raised the prospect that the applicant was not properly notified at all as the cancellation notification was defective. 

   Was the review applicant in immigration detention?

5. The Act defines detain to mean to (a) take into immigration detention or (b) to keep, or cause to be kept, in immigration detention.

6. In the applicant’s legal submission submitted on his behalf, the representative has argued that, at best, it is ambiguous whether the applicant was issued the notification of the decision while in or outside immigration detention. The applicant’s representative further claims that notification of the decision was not compliant with s.127(2)(c)(iii) of the Act and r.2.45 requiring the applicant to be notified of the decision in writing. The representative submitted there was a defection in the notification: it was claimed that the time in which the application for review may be made was not clearly specified.

7. According to the email provided by Border Force and the decision record mentioned above, the applicant was detained by authorities in [a specified] Police Station and that the applicant was ‘in an agitated state during the interview. According to the representative, the applicant was not certain he was at a police station on [that date in] December 2018 and claimed that he was handcuffed.  Based on an email dated [in] January 2018 and the applicant’s review application, the applicant was remanded in the same police station awaiting a court appearance and was subsequently placed in a State government remand centre.

8. In the applicant’s case, subsection 192(1) was enlivened as if an officer of the Department who knew or reasonably suspected that a non-citizen holding a visa that may be cancelled under a power in Subdivsion D, namely s.116, can be detained by the officer (pursuant to s192(1)) and that the officer reasonably suspects the non-citizen will otherwise not co-operate with the officer in the their inquiries about the non-citizen’s visa and matters relating to the visa, pursuant s.192(2).

9. As the officer from Border Force reasonably suspected the bridging visa was to be cancelled and the applicant did not co-operate in their enquiries, as indicated by the applicant’s agitated state, the Tribunal finds accordingly that the applicant was in immigration detention on [the date in] December 2017.

10. It follows from this that the cancellation of the visa which means that the decision would be reviewable under s.338(4) and that the applicant had two working days to apply for review as required by s.347(1)(b)(i) and r.4.10(2)(a).

    Did the applicant have a representative at the time of cancellation?

11. The Tribunal is satisfied that the applicant did not use an authorised representative to submit his protection visa application at the time of this substantive visa was lodged or when this associated bridging visa was granted or at any time right up to [the cancellation date in] December 2017.

12. It is noted that as the applicant did not have an appointed representative, the Department was at all relevant times required to send notices to the applicant, and that at the time he was given the NOICC he was in immigration detention.

13. Accordingly the Tribunal finds that regulation 5.02 is relevant.

    Was the cancellation notice handed to the application?

14. Regulation 5.02 states:

    MIGRATION REGULATIONS 1994 - REG 5.02

    Service of document on person in immigration detention

    For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

15. The applicant’s representative has claimed that the statutory requirement under r.5.02 was not met in the event the Tribunal found the applicant to have been in immigration detention at the time he was ‘given’ a copy of the cancellation decision.

16. The representative elaborated on the claimed circumstances: The applicant, who was handcuffed at the time, was unable to recall the questions officers asked the application. It is further claimed the applicant had not been given his medication in three days; that the applicant was in need of medication or a psychologist; and that he was unable to engage in a discussion due to his mental health situation. The representative also claimed on behalf of his client that the applicant did not handle any of the paperwork before him, including signing it, and that he requested to speak to a lawyer. The applicant’s representative said no paperwork was provided to him; that the grounds for cancellations were not explained, whether the decision was reviewable and which timeframe was applicable for lodging a review or where a review could be lodged.  

17. It was the relevant officer’s view that the applicant was correctly notified, that the applicant sat in front of him when handed the decision, that the applicant was cognisant that he no longer held a bridging visa and the reasons for it. The officer also stated that the ramifications of the decision had been explained and that at no time did the applicant indicate he had appointed a migration agent or lawyer.

18. It is not necessary for the Tribunal to make findings about those aspects of the officer and the applicant’s recollections of the cancellation process where they differ. The Tribunal is satisfied that the applicant and the officer were in the same room together when the proposed notice of cancellation and the notice of the cancellation decision was presented to the applicant. The Tribunal is satisfied that the applicant did not sign the documents to acknowledge receipt as the applicant refused to do so.

19. Based on these accepted findings, the Tribunal finds that the documents to be served on the applicant, namely a notice of cancellation, were given to the person himself.  Whether the applicant did formally receipted the document or whether he was not fully cognisant or whether the documents or the applicant’s review rights was inadequately explained or otherwise, does not mean the document was not ‘given’ in the ordinary sense that the possession of the document was transferred from the relevant official to the applicant and in no way was it or the information about the reasons for the cancellation withheld as that information was contained within the notice of cancellation itself.

20. Furthermore more neither did r.5.02 required the officials from Border Force to undertake any other actions other than to have the documents given to the person himself.

21. Accordingly, the Tribunal finds that r.5.02 had been satisfied with regards to the document had been given on [the date in] December 2017.

    Was the applicant notified of the cancellation decision in the prescribed way?

22. The applicant’s representative claimed that the notification was provided to the applicant did not satisfy s.127 and r.2.45 as the way of notifying the visa holder of a decision in writing was not handed to the applicant. The Tribunal does not accept the decision in writing was not handed to the applicant as the Border Protection officers had satisfactorily ‘handed’ the cancellation decision, in the ordinary sense of the word, that the written document was transferred from the Departmental officers to the applicant.

23. The applicant’s representative further claimed that the cancellation decision (Form 1099) was not compliant as it did not satisfy s.127(2)(c) and r.2.45 was not satisfied.

24. However, on examination of the notification of the decision, Part 6 clearly indicates that the decision is reviewable; that the applicant has eligible review rights; that those review rights apply for a bridging visa; and where an application can be made. The Tribunal acknowledges that the representative specifically challenged that the notification does not specify whether the review timeframe is two or seven days. Under s.127(2)(c)(ii), it states that the prescribed way for a cancellation must state “the time in which the applicant for review may be made”. It is clear that the notification in Part 6 does state the applicant may apply within two or seven days in which to make a valid application for review, depending on whether they are in immigration detention or not. The Tribunal accordingly finds that s.127(2)(c)(ii) was satisfied in this case.

25. Therefore the Tribunal is satisfied that the applicant was notified of the cancellation decision dated [in] December 2017 in the prescribed way as set out under s.127 and r.2.45.

    Conclusion

26. Based on the findings above, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements and it does not accept the submission made on behalf of the applicant that he was notified at a later date.

27. Pursuant to s.347(1)(b) of the Act and r.4.10(2)(a) of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within two (2) working days after the applicant was notified of the decision in accordance with the statutory requirements.

28. The Tribunal finds that the applicant is taken to have been notified of the decision on [the date in] December 2017: r.2.05 of the Regulations. As the last day of the prescribed period fell on a Saturday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her [application]: s.36(2) of the Acts Interpretation Act 1901.

29. Therefore the last day of the prescribed period fell on [a later date in] January 2017.

30. In any event, as the applicant applied outside of the prescribed period of either two or seven days, there is no practical injustice arising from whether or not the applicant was specifically told whether he had two or seven days to make a valid application for review.

31. As the application for review was not received by the Tribunal until 12 January 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

32. The Tribunal does not have jurisdiction in this matter.

    Brendan Darcy
    Member