Bhupendra and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 2874

Bhupendra and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2874 (5 September 2022)

Division:GENERAL DIVISION

File Number:          2022/6645

Re:Mr Tamang Bhupendra

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date:5 September 2022

Place:Brisbane

The Application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the absence of jurisdiction renders this application incapable of review by this Tribunal.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Practice and Procedure – application for review of non-revocation decision under section 501CA(4) of the Migration Act 1958 (Cth) – interlocutory hearing – where application filed out of time – whether there is power to extend the time for the making of an application for review – where time period is absolute pursuant to s 500(6B) of the Migration Act 1958 (Cth) – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

5 September 2022

1. Mr Tamang Bhupendra (“the Applicant”) had his Class TU Subclass 573 (Temporary) Higher Education Sector visa mandatorily cancelled by a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”). He seeks review of that mandatory cancellation decision in this Tribunal. The Respondent seeks to challenge this application on jurisdictional grounds. The nature of this challenge is not technical, but, temporal.

2. The Respondent contends that the impact of this temporal difficulty is fatal to the Applicant’s prospects. On this basis, the Respondent’s resulting contention is that this Tribunal should dismiss the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). For the reasons set out below, I agree with this contention.

3. An interlocutory hearing occurred before me on 29 August 2022. The Applicant represented himself. The Respondent was represented by Mr Matthew Hawker, Partner of Sparke Helmore Lawyers. In addition to oral submissions, the interlocutory hearing received written evidence which I now particularise thus:

   ·Exhibit A1: Written submissions (including a formal Extension of Time request) from the Applicant, dated August 2022;

   ·Exhibit R1: Written submissions from the Respondent, dated 22 August 2022. This exhibit relevantly attached the following documents:

   oAttachment A: a copy of the Registered Post Prepaid label; 

   oAttachment B: a copy of certain emails respectively dated 30 and 31 March 2022; and

   oAttachment C: a copy of a duly-signed acknowledgement by the Applicant.

   The Temporal requirement   

4. An Applicant is strictly bound by a nine-day statutory time limit in lodging an application for review of a mandatory cancellation decision. This nine-day period runs from the day after an Applicant’s receipt of an adverse decision. In this case, the adverse decision comprised a decision by the Respondent refusing to revoke the mandatory cancellation decision. This nine-day period is absolute. It cannot be abrogated or extended. Indeed, the Act neutralises any capacity the Tribunal may otherwise have to do so.[1]

   [1]     See Migration Act 1958 (Cth), section 500(6B).

5. As best as I understood the Applicant’s oral and written submissions, he raises no issue with how the Act prescribes the temporal requirements necessary to demonstrate the competence of an application to set aside a mandatory cancellation decision. Rather, he contends that certain prevailing circumstances prevented him from adequately meeting the nine-day temporal requirement.

   How does the temporal requirement apply to these facts?

6. The Applicant readily acknowledges receipt of the adverse decision on 31 March 2022.[2] The Respondent’s position is that the application’s temporal incompetence is explained thus:

   ·The Respondent was compelled to provide the adverse decision to the Applicant in a prescribed manner mandated by s 501CA(3) of the Act and has done so;

   ·This has successfully occurred in circumstances where the Applicant was not in immigration detention at the time of provision of the adverse decision to him by virtue of the Respondent’s compliance with Regulation 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”);

   ·Specifically, by forwarding the adverse decision to the Applicant by pre-paid registered post, the Respondent has met the requirements of regulation 2.55(4)(b) and 2.55(3) of the Regulations;

   ·The Respondent forwarded the adverse decision to the Applicant on 31 March 2022,[3] which is also the date of the covering letter enclosing the adverse decision which itself is dated 29 March 2022. Pursuant to regulation 2.55(7) of the Regulations, the Applicant is taken to have received the document (i.e., the covering letter enclosing the adverse decision) seven working days after the date of the covering letter – that being, for present purposes, 11 April 2022;[4]

   ·The Applicant was required to file the written application in this Tribunal on or before 20 April 2022, pursuant to the abovementioned s 500(6B) of the Act. This Applicant failed to do so. He filed the written application for review with this Tribunal on 17 August 2022; and

   ·The resulting contention from the Respondent is that this temporal failure fatally impacts this Application.

   [2] Exhibit A1, at para [2].

   [3]     Exhibit R1, ‘Attachment A’.

   [4]     That is, 31 March 2022, plus seven working days equals 11 April 2022.

7. I respectfully agree with the Respondent’s abovementioned resulting contention.

   The Applicant’s Contentions

8. First, the Applicant attributes the abovementioned temporal failure to the superimposition of medical ministrations upon the relevant nine-day timeframe mandated by s 500(6B) of the Act such that he was caused to miss the relevant deadline of 20 April 2022. Second, he speaks of, “…talking to a friend who suggested that it was flexible that I could… ask the Tribunal for an extension of time.”[5]

   [5]     See A1, Applicant’s Extension of Time Request, page 3.

9. Both contentions can be safely rejected. First, and harsh though this may sound, the contemporaneity of the claimed medical ministrations with the nine-day temporal requirement does not displace the statutory compulsion on a putative Applicant to meet that requirement. Second, the apprehension that the Tribunal can extend the nine-day timeframe is misconceived and otherwise incapable of lawful implementation due to the operative effect of s 500(6B) which displaces the Tribunal’s capacity to extend time.

   A further matter

10. The parties are ad idem that on 6 April 2022, the Applicant signed a written acknowledgement confirming his receipt of the covering letter, dated 31 March 2022, together with the adverse decision, dated 29 March 2022.[6] Nothing turns on this signed acknowledgement because (1) the combined effect of s 500(6B) and the relevant Regulations required the Applicant to file this application on or before 20 April 2022; and (2) even if one incorrectly adopted 6 April 2022 as the date for commencement of the nine-day period, the actual filing date of 17 August 2022 is still fatally outside any theoretical and alternate nine-day period, predicated by the Applicant’s signing of the abovementioned acknowledgement on 6 April 2022.

    [6] Exhibit A1, at para [2]; and at para [5]. R1, at para [6(e)] and Attachment C.

    What this tribunal must do

11. Section 500(6B) of the Act displaces the Tribunal’s capacity to extend time for the filing of this application. The Tribunal is thus lawfully precluded from further entertaining this application due to a fundamental absence of jurisdiction to do so.

    Decision

12. The Application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the absence of jurisdiction renders this application incapable of review by this Tribunal.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 5 September 2022

Date(s) of hearing:

29 August 2022

Applicant:

By Telephone

Solicitors for the Respondent:

Matthew Hawker

Sparke Helmore Lawyers