Agostinho and Minister for Immigration and Citizenship

[2010] AATA 1076

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3711

GENERAL ADMINISTRATIVE DIVISION		)
Re		Nelson Agostinho

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member J L Redfern

Date30 November 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing on 30 November 2010, the Tribunal refuses the application by the Applicant dated 2 September 2010 requesting an extension of time for lodging application for review of decision pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975.

...................[SGD]...........................

Senior Member
  J L Redfern

CATCHWORDS

PRACTICE AND PROCEDURE – Extension of time – question of jurisdiction - failure to appear by or on behalf of Applicant – extension of time refused

REASONS FOR DECISION

30 November 2010

Ms J L Redfern, Senior Member

1.      At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally.  The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

2. The application before the Tribunal is an application for an extension of time, under section 29(7) of the Administrative Appeals Tribunal Act 1975, to apply for the review of an opinion of a medical officer of the Commonwealth, dated 12 May 2010.  The application was received by the Tribunal on 6 September 2010.  The Respondent opposes the application on the basis the Tribunal does not have jurisdiction to review the opinion.  This application was initially listed for hearing on 17 November.  The Applicant, Mr Nelson Agostinho, did not appear on that occasion.  I directed the Respondent to file and serve an outline of its submissions and adjourned the application for hearing to today.  The Respondent has filed and served submissions and Mr Agostinho was notified of the hearing date by the Tribunal.  There is no appearance by Mr Agostinho but I propose to proceed to deal with the application in his absence.

3.      The opinion, which is the subject of the present application, was obtained in respect of an application made by Mr Agostinho on 19 January 2010 for a skilled independent visa under the Migration Act 1958.  The opinion deals with a question of whether Mr Agostinho satisfies the public interest criterion contained in regulation 4005 of the Migration Regulations 1994.  On 10 September 2010, the Respondent received a further opinion from a medical officer of the Commonwealth concluding that the Applicant did not meet the public interest criterion.  The further opinion stated that the previous opinion of 12 May 2010 should be disregarded for the purposes of the visa decision as the further opinion was based on the most up to date information available.  On 12 November 2010, Mr Agostinho’s application for a skilled visa was refused by a delegate of the respondent. 

4.      The Tribunal does not have a general power to review decisions made under Commonwealth legislation and only has jurisdiction to review a decision if an Act, Regulation, or legislative instrument provides the decision is subject to review by the Tribunal (section 25 of the Administrative Appeals Tribunal Act 1975 (Cth)) 

5.      The Minister contends that the Migration Act 1958 does not confer jurisdiction on the Tribunal to review the opinion of the medical officer. I accept this contention. First, the opinion of the medical officer is not a decision of the Minister, nor is it a decision within the meaning of section 3(3) of the Administrative Appeals Tribunal Act 1975.  Secondly, the Migration Act 1958  confers jurisdiction on the Tribunal to review certain decisions of the Minister.  Those decisions comprise decisions to cancel certain visas, decisions to refer a registered agent to the Migration Agents Registration Authority, and decisions to deport a non-citizen.  The Migration Act 1958  does not confer jurisdiction on the Tribunal to review the opinion of a medical officer.  There is no application before the Tribunal to review the decision of the delegate of 12 November 2010 but, in any event, the Minister says that such decision is not reviewable by the Tribunal under the Migration Act 1958.  I also accept this contention.

6. Section 29(7) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may extend the time for making an application if the Tribunal is satisfied that is reasonable in the circumstances to do so. I am not so satisfied in this case. The Tribunal has no jurisdiction to review the opinion and it would, therefore, be futile to allow the extension of time. The Tribunal orders that the application for extension of time for lodging the application for review under section 29(7) of the Administrative Appeals Tribunal Act1975  is refused.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.

Signed: .............[SGD]........................................................................
           Associate

Date of Hearing  30 November 2010
Date of Decision  30 November 2010        
Applicant on own behalf            
Solicitor for the Respondent      Mr G Johnson, DLA Phillips Fox