Afele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 1414

Afele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1414 (21 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1699

Re:Jeffersonn Afele

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:21 May 2020

Place:Sydney

On the information presently before the Tribunal, the Tribunal is not satisfied that the decision is not reviewable by the Tribunal and it is decided that the matter be set down for a further interlocutory hearing to determine the question of jurisdiction.

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Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

QUESTION OF JURISDICTION – s 501 visa cancellation – Applicant had a substantial criminal record – visa cancelled in 2015 – whether Applicant’s Extension of Time Application should be granted – whether Applicant was validly notified of visa cancellation in accordance with regulations – Insufficient evidence provided to conclude Tribunal has no jurisdiction to review the Application – Application referred to a further hearing

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)
Migration Act 1958 (Cth) – ss 500(4A)(c), 501(3A), 501(7), 501CA(3), 501CA(4)
Migration Regulations 1994 (Cth) – rr 2.52(2)(b), 2.54, 2.55, 2.55(2)(b), 5.02

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

1. The applicant is 27 years old. The applicant is a New Zealand citizen. He is currently in New Zealand having been deported from Australia.

2. On 18 October 2007, he was granted a Special Category (Temporary) (Class TY) (Subclass 444) visa.

3. The applicant was sentenced for driving a motor vehicle whilst disqualified (second offence) and received a sentence of 15 months imprisonment. He served eight months in prison and was transferred to immigration detention at the completion of his sentence.

4. He therefore has a substantial criminal record, as that term is defined in s 501(7) of the Migration Act 1958 (Cth) (‘the Act’).

5. On 20 March 2020, the applicant filed an application to extend time to file an application for review. The application included a notice of visa cancellation under subsection 501(3A) of the Act, dated 2 November 2015 (‘the Notice’).

6. If a person has a substantial criminal record, the Minister is under as duty to cancel a person’s visa: s 501(3A).

7. By letter dated 2 November 2015, the Minister sent the Notice headed “Notice of visa cancellation under s 501(3A) of the Migration Act 1958” to an email address with the extension @dcs.nsw.gov.au.

8. Under s 501CA(3) of the Act:

   As soon as practicable after making the original decision, the Minister must:

   (a) give the person, in the way that the Minister considers appropriate in the circumstances:

   (i) a written notice that sets out the original decision; and

   (ii) particulars of the relevant information; and

   (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

9. The purpose of inviting a person to make representations is to enable the Minister to consider whether to exercise the power contained in s 501CA(4) to revoke the visa cancellation decision. The Minister may do so if, despite being satisfied that the person does not pass the character test, there is another reason why the original decision should be revoked.

10. Section 500 of the Act provides that certain decisions may be reviewed by the Administrative Appeals Tribunal (‘the Tribunal’). Subsection 500(4A)(c) expressly excludes a decision of a delegate of the minister under subsection 501(3A) to cancel a visa. The solicitor representing the Minister therefore argued that by reason of s 500(4A)(c), the Tribunal lacks jurisdiction to review the decision to cancel the applicant’s visa pursuant to s 501(3A).

11. The solicitor asked me to treat this interlocutory hearing as simply a matter of jurisdiction.

12. The solicitor did however provide information relevant to the cancellation decision, including information relating to the criminal offending which led to a determination that the applicant had a substantial criminal record.

13. The applicant’s unsworn statement by telephone at the hearing was to the effect that he did not receive a copy of the Notice. He says he was informed by a case officer about the cancellation decision when he was transferred from prison to the immigration detention facility and that he was given forms to complete.

14. If the applicant did not receive a copy of the Notice then the Minister may have been deprived of the opportunity to consider whether there is another reason why the original decision to cancel the applicant’s visa should be revoked.

15. In relation to the question of notice, the solicitor representing the Minister relied, in written submissions, upon Division 2.10 of the Migration Regulations 1994 (Cth) (‘the regulations’), which headed “Documents relating to cancellation of visas” and provides:

    2.54 Definitions for Division 2.10

    In this Division:

    “carer of the minor” means an individual:

    (a) who is at least 18 years of age; and

    (b) who the Minister reasonably believes:

    (i) has day‑to‑day care and responsibility for the minor; or

    (i) works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

    “document” includes:

    (a)  a letter; and

    (b) an invitation, notice, notification, statement or summons, if it is in writing.

    2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

    (1) This regulation applies to:

    (a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

    (ab) the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and

    (b) the giving of a document under subsection 501G(3) of the Act relating to a decision to:

    (i) cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or

    (ii) not revoke a decision to cancel a visa under section 501CA of the Act; and

    (c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

    (2) However, this regulation does not apply in relation to:

    (a) a notice to which section 137J of the Act relates; or

    (b) a person who is in immigration detention.

    Note: See regulation 5.02.

    (3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

    (a) by handing it to the person personally;

    (b) by handing it to another person who:

    (i) is at the person’s last residential or business address known to the Minister; and

    (ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

    (iii) appears to be at least 16 years of age;

    (c) by dating it, and then dispatching it:

    (i) within 3 working days (in the place of dispatch) of the date of the document; and

    (ii) by prepaid post or by other prepaid means;

    to the person’s last residential address, business address or post box address known to the Minister;

    (d) by transmitting the document by:

    (i) fax; or

    (ii) email; or

    (iii) other electronic means;

    to the last fax number, email address or other electronic address known to the Minister.

    Note: Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.

16. The solicitor for the respondent indicated that the Notice was not delivered by ordinary post but sent by letter to an email address. The email address is written on the top right hand corner of the Notice. It appears to be a generic institutional address. It is not clear whether it is the address of a prison or a detention facility.

17. This raises a question whether it can fairly be said that ‘the last email address known to the Minister’ includes a general institutional address.

18. But in any event, regulation 2.55(2)(b) provides that “this regulation does not apply in relation to…a person who is in immigration detention”. In such cases the relevant regulation is 5.02.

19. Regulation 5.02 is headed Service of document on person in immigration detention. It provides:

    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.

20. There is no evidence before the Tribunal that the applicant did in fact authorise anyone to receive documents on his behalf. Nor is there any evidence that the Minister did in fact give the Notice to such a person.

21. The solicitor representing the Minister submitted that the Minister has a choice as to how to communicate with a person subject to detention, but it appears that the service of documents upon persons in immigration detention is governed by paragraph 5.02, and there is nothing to indicate the paragraph 5.02 is to be read down by reference to Division 2.10.

22. The solicitor representing the Minister submitted that even if the applicant became aware of the cancellation decision for the first time on 15 December 2015 (as stated in the applicant’s application), then the 28 day period for making representations commenced on that date and therefore, the last day for making representations was 12 January 2016. I do not accept this contention. It is quite clear by reference to paragraph 2.52(2)(b) that time does not start to run until the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act. Regulation 2.52 provides

    2.52  Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)

    (1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

    (2)  The representations must be made:

    (a) for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and

    (b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.

23. The evidence before the Tribunal raises a question as to whether there has been compliance with the regulations governing communication of documents.

24. As noted above, the solicitor representing the Minister asked me to treat this interlocutory hearing as simply a matter of jurisdiction. He argued that the Tribunal lacked jurisdiction to review the decision to cancel the applicant’s visa pursuant to s 501(3A) by reason of s 500(4A)(c).

25. I note that under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

26. I am not satisfied on the information presently before the Tribunal that the decision is not reviewable by the Tribunal.

27. I note that the applicant has a child in Australia, that he grew up here and attended both primary and secondary school here, and wishes to have the visa cancellation decision reviewed so that, possibly, he can have his visa restored.

28. I therefore order that application for an extension of time be set down for hearing.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 21 May 2020 

Date(s) of hearing:	12 May 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr L Dennis

Emeritus Professor P A Fairall, Senior Member