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

[2021] AATA 756

BBQF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 756 (25 March 2021)

Division:GENERAL DIVISION

File Number:          2021/1580

Re:BBQF

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of decision:  25 March 2021

Date of written reasons:         26 March 2021

Place:Melbourne

The Tribunal decides it does not have jurisdiction to consider the application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

[sgd]........................................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – visa cancellation decision February 2021 – Applicant did not make representations seeking revocation of cancellation decision – no discretion to extend time for representations – no reviewable decision – no jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176

Stewart vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

26 March 2021

INTRODUCTION

1. On 16 March 2021, the Applicant asked the Tribunal to review the mandatory cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

2. A Telephone Hearing was conducted on 25 March 2021 to consider the Tribunal’s jurisdiction. The Applicant was self-represented and assisted by an interpreter in the Vietnamese language. The Respondent was represented by Mr Cunynghame of Sparke Helmore Lawyers.

3. At the conclusion of the hearing I was satisfied the decision is not reviewable by the Tribunal, gave ex tempore reasons, and dismissed the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Applicant requested written reasons, which are provided consistent with the requirements of s 43(2B) of the AAT Act.

4. The Applicant will be referred to by the anonym BBQF, consistent with the requirements of s 501K of the Act.

   BACKGROUND

5. The Applicant is a citizen of Vietnam who has held several student visas since arriving in Australia in 2013. He was granted a Bridging Visa on 30 August 2016 pending consideration of his application for a Protection Visa, which has since been refused.

6. On 18 February 2021, the Applicant’s Bridging Visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister. The delegate was satisfied that the Applicant had a ‘substantial criminal record’, having satisfied the requirement of being sentenced to a term of imprisonment of 12 months or more.[1] This followed the Applicant’s conviction for cultivating a commercial quantity of a narcotic plant, for which he was sentenced to one year and eight months imprisonment. The Applicant continues to serve that sentence on a fulltime basis in a custodial institution.

   [1] Migration Act 1958 (Cth), s 501(6)(a) read with s 501(7)(c).

7. The cancellation decision was conveyed to the Applicant in a five‑page letter dated 18 February 2021, which was delivered by hand to the correctional centre at which he was detained. 

8. On 19 February 2021, the Applicant signed a document acknowledging receipt of the cancellation decision, which was witnessed by a Records Officer at the correctional centre. Enclosures accompanying the cancellation decision included:

   (a)an ‘Important Information sheet’;

   (b)a ‘Revocation Request Form’;

   (c)a ‘Personal Circumstances Form’;

   (d)forms for Advice by a migration agent/exempt person of providing immigration assistance;

   (e)‘Appointment or withdrawal of an authorised recipient’;

   (f)information about legal aid assistance in Australia;

   (g)Direction 79;

   (h)provisions of the Act and Migration Regulations 1994; and

   (i)information relating to the Applicant’s 2021 conviction.

9. The Applicant was invited to make representations to have the cancellation decision revoked in accordance with reg 2.52 of the Migration Regulations 1994 (the Regulations), which were attached. It was stated that representations ‘must be made in accordance with the instructions outlined below’, which included a section entitled ‘Timeframe to make representations about revocation’. That section stated that the Applicant’s representations:

   MUST be received by the Department within 28 days after you are taken to have received this notice.

   As this notice was given to you by hand, you are taken to have received it when it was handed to you.

   LODGED MATERIALS

10. Prior to the hearing the Respondent lodged a copy of the cancellation decision and a copy of the Applicant’s signed and witnessed acknowledgment of receipt dated 19 February 2021.

    ISSUE

11. The issue is whether the Tribunal has jurisdiction to hear an application relating to a cancellation decision under s 501(3A) of the Act.

    SUBMISSIONS AND CONTENTIONS

    Applicant’s submissions

12. The Applicant said he received the cancellation decision and accompanying enclosures on 19 February 2021 but had not yet responded. He claimed to have instructed someone to lodge another visa application on his behalf, but no additional detail or evidence was provided. When asked why he had not yet responded to the cancellation decision, the Applicant said he ‘missed the opportunity’ because of his limited English and ‘because I didn’t know what to do and how to do it.’  

    Respondent’s submissions

13. The Respondent submitted:

    (a)Under s 500(4A)(c) of the Act, the Tribunal has no jurisdiction to review the mandatory cancellation of a visa under s 501(3A);

    (b)In circumstances where there is no decision under subsection 501CA(4) of the Act not to revoke a cancellation decision, the Tribunal does not have jurisdiction to consider the application; and

    (c)The matter should be dismissed for want of jurisdiction, pursuant to s 42A(4) of the AAT Act.

    LEGISLATIVE FRAMEWORK

14. Section 25(1)(a) of the AAT Act and s 500 of the Act are the sources of the Tribunal’s jurisdiction to review certain decisions under the Act. The former limits the Tribunal’s power of review to enactments that specifically confer jurisdiction, while the latter details the scope of reviewable decisions under the Act.

15. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.

16. The ‘character test’ is defined in s 501(6) of the Act. It refers to a range of character matters that the Minister may have regard to in deciding whether to refuse or cancel a visa. Section 501(6)(a) of the Act provides:

    (6)      For the purposes of this section, a person does not pass the          character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or …

17. Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

18. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Regulations, which relevantly states:

    (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)       … ; 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.

    (Emphasis added.)

19. Section 500(4A)(c) specifically excludes from the Tribunal’s jurisdiction any decision under s 501(3A) to cancel a visa.

    IS THE APPLICATION REVIEWABLE BY THE TRIBUNAL?

20. The Tribunal is satisfied that:

    (a)the Applicant received the cancellation decision on 19 February 2021;

    (b)the 28-day period stipulated for him to make representations about revoking the cancellation decision ended on 19 March 2021;

    (c)the Applicant did not make any representations by 19 March 2021 and the power to consider revocation is now spent. As their Honours held in Stewart at [42]:

    That analysis of the statutory scheme demonstrates the importance of the person’s ability under s 501CA(4) to have the cancellation reconsidered by the Minister. Absent such reconsideration there is no opportunity in the statutory scheme for “another reason” to revoke the cancellation to be considered.[2]

    (d)there is no power available to the Tribunal to waive or extend the mandatory 28-day time period in reg 2.52(2)(b); and

    (e)the Tribunal has no power to vary s 500(4A)(c) of the Act, which specifically precludes it from reviewing decisions made under s 501(3A) of the Act.

    [2] Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196, [42] (Stewart), [11]; BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (Stewart J).

21. Had the Applicant made representations within the stipulated 28-day period and received a decision from the Respondent declining to revoke the cancellation decision under s 501CA(4) of the Act, this would constitute a reviewable decision by the Tribunal under s 500(1)(ba) of the Act.

    DISMISSAL FOR NO JURISDICTION

22. Subsection 42A(4) of the AAT Act provides that ‘[t]he 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’.

23. The application is outside the scope of review provided for by s 500 of the Act. As such, the Tribunal is satisfied there is no reviewable decision before the Tribunal.

    DECISION

24. The Tribunal does not have jurisdiction to consider this application and dismisses it under s 42A(4) of the AAT Act.

I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision of Senior Member A. Nikolic AM CSC

................................[sgd]....................................

Associate

Dated: 26 March 2021

Date of hearing:	25 March 2021
Applicant:	In person
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers